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Remedial Law Reviewer: Fundamental Concepts

2 Votes I. FUNDAMENTAL CONCEPTS

REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion [Bustos vs. Lucero, 81 Phil. 640]. It is also known as Adjective Law. SUBSTANTIVE LAW is one which creates, defines, and regulates rights. PROCEDURE is the method of conducting a judicial proceeding. It includes whatever is embraced in the technical terms, pleadings, practice, and evidence. It is the means by which the power or authority of a court to hear and decide a class of cases is put to action [Manila Railroad vs. Atty. General, 20 Phil. 523]. JURISDICTION is the power to hear and decide cases [Herrera vs. Baretto & Joaquin, 25 Phil. 245]. It is the power with which courts are invested with the power of administering justice, that is, for hearing and deciding cases. In order for the court to have authority to dispose of a case on the merits, it must acquire jurisdiction over the subject matter and the parties [Republic Planters Bank vs. Molina, 166 SCRA 39]. JURISDICTION The authority to hear and determine a case VENUE The place where the case is to be heard or tried A matter of substantive law A matter of procedural law Establishes a relation between the court and Establishes a relation between plaintiff and the subject matter defendant, or petitioner and respondent Fixed by law and cannot be conferred by the May be conferred by the act or agreement of parties the parties PRINCIPLE OF THE EXERCISE OF EQUITY JURISDICTION is a situation where the court is called upon to decide a particular situation and release the parties from their correlative obligations but if it would result in adverse consequences to the parties and the public, the court would go beyond its power to avoid negative consequences in the release of the parties [Agne vs. Director of Lands, 181 SCRA 793; Naga Telephone Co. vs. CA, 48 SCAD 539].

ELEMENTS OF JURISDICTION: (1) Jurisdiction over the (2) Jurisdiction over the (3) Jurisdiction over the res subject matter or nature of the parties case It is conferred by law (BP Jurisdiction over the person of It is acquired by the seizure of 129), and does not depend on the plaintiff is acquired by the the thing under legal process the objection or the acts or filing of the initiatory whereby it is brought into omissions of the parties or pleading, like a complaint. actual custody of law, or it anyone of them [Republic vs. may result from the institution Sangalang, 159 SCRA 515]. of a legal proceeding wherein the power of the court over the Jurisdiction over the person of thing is recognized and made the defendant is acquired by effective [Banco-Espaol Filipino vs. Palanca, 37 Phil. It is not waivable, except in the proper service of cases of estoppel to question summons, or by his voluntary 291]. or raise jurisdiction [Tijam vs. appearance in court and his Sibonghanoy, 23 SCRA 29]. submission to the authority of the court [Paramount Industries vs. Luna, 148 It is determined upon the SCRA 564]. allegations made in the complaint, irrespective of whether the plaintiff is entitled or not, to recover upon the claim asserted therein, a matter resolved only after and as a result of the trial. ELEMENTS OF CRIMINAL JURISDICTION: (1) Territorial jurisdiction (2) Jurisdiction over the (3) Jurisdiction over the person subject matter of the accused It is determined by the It is determined by the It is acquired by the voluntary geographical area over which allegations of the complaint or appearance or surrender of the a court presides, and the fact information in accordance accused or by his arrest [Choc that the crime was committed, with the law in force at the vs. Vera, 64 Phil. 1066]. or any of its essential time of the institution of the ingredients took place within action, not at the time of its said area [US vs. Jueves, 23 commission [US vs. Mallari, Phil. 100]. 24 Phil. 366]. INSTANCES WHEN A COURT MAY LOSE JURISDICTION EVEN IF IT HAS BEEN ATTACHED TO IT:

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When a subsequent law provides a prohibition for the continued exercise of jurisdiction [Rilloraza vs. Arciaga, 21 SCRA 717]. Where the law penalizing an act which is punishable is repealed by a subsequent law. The reason is that, the State loses the power to prosecute when the law is repealed, hence, the court has no more power to decide [People vs. Pastor, 77 Phil. 1000]. When accused is deprived of his constitutional right such as where the court fails to provide counsel for the accused who is unable to obtain one and does not intelligently waive his constitutional right [Chavez vs. CA, 24 SCRA 663]. When the proceeding s in the court acquiring jurisdiction is terminated, abandoned or declared void [Seven vs. Pichay, 108 Phil. 419]. When the statute expressly provides, or is construed to the effect that it intended to operate as to actions pending before its enactment [Bengzon vs. Inciong, 91 SCRA 284]. Once appeal has been perfected [Alma vs. Abbas, 18 SCRA 836]. When the law is curative [Garcia vs. Martinez, 90 SCRA 331].

DOCTRINE OF JUDICIAL STABILITY: Should one branch be permitted to equally assert, assume, or retain jurisdiction over a case in controversy over which another coordinate or co-equal branch has already assumed jurisdiction, then that would be sanctioning undue interference by one branch over another. With that, judicial stability would be meaningless precept in a well-ordered administration of justice [Parcon vs. CA, 111 SCRA 262]. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS: 1. Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and 2. Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of the kind, nature, value or amount therof; provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. [Sec. 2, RA 7691]. JURISDICTION OF REGIONAL TRIAL COURTS (RTC): 1. In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; 2. In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds P20,000, or for civil actions in Metro Manila where such value exceeds P50,000 except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the MeTC, MTC, and MCTC;

3. In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds P200,00, or in Metro Manila where such demand or claim exceeds P400,00; 4. In all matters of probate, both testate and intestate, where the gross value of the estate exceeds P200,00 or probate mattes in Metro Manila where such value exceeds P400,000; 5. In all actions involving the contract of marriage and marital relations; 6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising juridicial or quasi-judicial functions; 7. In all civil actions and civil proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and 8. In all other cases in which the demand, exclusive of interest and damages of whatever kind, attorneys fees, litigation expenses, and cost or the value of the property in controversy exceeds P200,000, or in such other cases in Metro Manila where the demand, exclusive of the above-mentioned items exceeds P400,000. JURISDICTION OF COURT OF APPEALS (CA): 1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; 2. Exclusive original jurisdiction over actions for annulment of judgments of RTCs; 3. Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of RTCs and quasi-judicial agencies, instrumentalities, boards, or omissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of the Judiciary Act of 1948; 4. The CA shall have the power to receive evidence and perform any and all acts necessary to resolve factual issues raised in (a) cases falling within its original jurisdiction, such as actions for annulment of judgments of RTCs, (b) cases falling within its appellate jurisdiction where a motion for new trial based only on newly discovered evidence is granted by it. JURISDICTION OF THE SUPREME COURT (SC): 1. Cases affecting ambassadors, other public ministers and consuls, and other petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 2. All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the SC en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of the majority of the Members who actually took part in the deliberation on the issues in the case and voted thereon;

3. Cases on matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. 4. The Supreme Court has the power to: (a) exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus; (b) review, revise, reverse, modify, of affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (1) all cases in which the constitutionality or validity of any treaty, international or executive agreement, law presidential decree, proclamation, order, instruction, ordinance, or regulations is in question; (2) all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; (3) all cases in which the jurisdiction of any lower court is in issue; (4) all criminal cases in which the penalty imposed in reclusive perpetua or higher; (5) all cases in which only an error or question of law is involved. CLASSES OF JURISDICTION: General power to adjudicate all controversies except those expressly withheld from the plenary powers of the court. Special or Limited restricts the courts jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law. Original power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law. Appellate authority of a court higher in rank to re-examine the final order or judgment of a lower court which tried the case now elevated for judicial review. Exclusive power to adjudicate a case or proceeding to the exclusion of all other courts at that stage. Concurrence/Confluent/Coordinate power conferred upon different courts, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories. Leave a Comment

Posted in Remedial Law, Reviewers | Tags: Concepts in Remedial Law, Remedial Law
Posted by: Elmer Brabante | September 30, 2009

Commonwealth Act No. 146 Public Service Act

6 Votes COMMONWEALTH ACT No. 146 PUBLIC SERVICE ACT, as amended

CHAPTER I Organization SECTION 1. This Act shall be known as the Public Service Act. SECTION 2. There is created under the Department of Justice a commission which shall be designated and known as the Public Service Commission, composed of one Public Service Commissioner and five Associate Commissioners, and which shall be vested with the powers and duties hereafter specified. Whenever the word Commission is used in this Act, it shall be held to mean the Public Service Commission, and whenever the word Commissioner is used in this Act it shall be held to mean the Public Service Commissioner or anyone of the Associate Commissioners. The Public Service Commissioner and the Associate Public Service Commissioners shall be natural born citizens and residents of the Philippines, not under thirty years of age; members of the Bar of the Philippines, with at least five years of law practice or five years of employment in the government service requiring a lawyers diploma; and shall be appointed by the President of the Philippines, with the consent of the Commission on Appointments of the Congress of the Philippines: Provided, however, That the present Commissioner and the personnel of the Commission shall continue in office without the necessity of re-appointment. The Commissioners shall have the rank and privilege of retirement of Judges of the Courts of First Instance. (As amended by R.A. No. 178, June 21, 1947 and R.A. No. 2677, June 18, 1960 )

SECTION 3. The Commissioner and Associate Commissioners shall hold office until they reach the age of seventy years, or until removed in accordance with the procedures prescribed in section one hundred and seventy-three of Act Numbered Twenty-seven hundred and eleven, known as the Revised Administrative Code: Provided, however, That upon retirement, any Commissioner of Associate Commissioner shall be entitled to all retirement benefits and privileges for Judges of the Courts of First Instance or under the retirement law to which he may be entitled on the date of his retirement. In case of the absence, for any reason, of the Public Service Commissioner, the Associate Commissioner with seniority of appointment shall act as Commissioner. If on account of absence, illness, or incapacity of any of three Commissioners, or whenever by reason of temporary disability of any Commissioner or of a vacancy occurring therein, the requisite number of Commissioners necessary to render a decision or issue an order in any case is not present, or in the event of a tie vote among the Commissioners, the Secretary of Justice may designate such number of Judges of the Courts of First Instance, or such number of attorneys of the legal division of the Commission, as may be necessary to sit temporarily as Commissioners in the Public Service Commission. The Public Service Commission shall sit individually or as a body en banc or in two divisions of three Commissioners each. The Public Service Commissioner shall preside when the Commission sits en banc and in one division. In the other division, the Associate Commissioner with seniority of appointment in that division shall preside. Five Commissioners shall constitute a quorum for sessions en banc and two Commissioners shall constitute a quorum for the sessions of a division. In the absence of a quorum, the session shall be adjourned until the requisite number is present. All the powers herein vested upon the Commission shall be considered vested upon any of the Commissioners, acting either individually or jointly as hereinafter provided. The Commissioners shall equitably divide among themselves all pending cases and those that may hereafter be submitted to the Commissioner, in such manner and form as they may determine, and shall proceed to hear and determine the case assigned to each or to their respective divisions, or to the Commission en banc as follows: uncontested cases, except those pertaining to the fixing of rates, shall be decided by one Commissioner; contested cases and all cases involving the fixing of rates shall be decided by the Commission in division and the concurrence of at least two Commissioners in the division shall be necessary for the promulgation of a decision or non-interlocutory order in these cases: Provided, however, That any motion for reconsideration of a decision or non-interlocutory order of any Commissioner or division shall be heard directly by the Commission en banc and the concurrence of at least four Commissioners shall be necessary for the promulgation of a final decision or order resolving such motion for reconsideration. (As amended by R.A No. 723, June 6, 1952 and R.A. No. 2677, June 18, 1960 ) SECTION 4. The Public Service Commissioner shall receive an annual compensation of thirteen thousand pesos; and each of the Associate Commissioners an annual compensation of twelve thousand pesos. The Commissioners shall be assisted by one chief attorney, one finance and rate regulation officer, one chief utilities regulation engineer, one chief accountant, one transportation regulation chief, one secretary of the Public Service Commission, and three public utilities advisers who shall receive an annual compensation of not less than ten thousand eight hundred pesos each; five assistant chiefs of division who

shall receive an annual compensation of not less than nine thousand six hundred pesos each; twelve attorneys who shall receive an annual compensation of not less than nine thousand pesos each; and a technical and confidential staff to be composed of two certified public accounts, two electrical engineers, two mechanical or communication engineers, and two special assistants who shall receive an annual compensation of not less than seven thousand two hundred pesos each. (As amended by R.A. No. 178, June 21, 1947, R.A. No. 723, June 6, 1952, R.A. No. 2677, June 18, 1960 and R.A. No. 3792, June 22, 1963) SECTION 5. The Public Service Commissioner, the Associate Public Service Commissioners, and all other officers and employees of the Public Service Commission shall enjoy the same privileges and rights as the officer and employees of the classified civil service of the Government of the Philippines. They shall also be entitled to receive from the Government of the Philippines their necessary travelling expenses while travelling on the business of the Commission, which shall be paid on proper voucher therefor, approved by the Secretary of Justice, out of funds appropriated for the contingent expenses of the Commission. When the exigency of the service so requires and with the approval of the Secretary of Justice, and subject to the provisions of Commonwealth Act Numbered Two hundred fortysix, as amended, funds may be set aside from the appropriations provided for the Commission and/or from the fees collected under Section forty of this Act to defray the expenses to be incurred by the Public Service Commissioner or any of the Associate Commissioners, officers or employees of the Commission to be designated by the Commissioner, with the approval of the Secretary of Justice, in the study of modern trends in supervision and regulation of public services. (As amended by R.A No. 3792, June 22, 1963) SECTION 6. The Secretary of Justice, upon recommendation of the Public Service Commissioner, shall appoint all subordinate officers and employees of the Commission as may be provided in the Appropriation Act. The Public Service Commissioner shall have general executive control, direction, and supervision over the work of the Commission and of its members, body and personnel, and over all administrative business. (As amended by R.A. No. 178, June 21, 1947 and R.A. No. 3792, June 22, 1963) SECTION 7. The Secretary of the Commission, under the direction of the Commissioner, shall have charge of the administrative business of the Commission and shall perform such other duties as may be required of him. He shall be the recorder and official reporter of the proceedings of the Commission and shall have authority to administer oaths in all matters coming under the jurisdiction of the Commission. He shall be the custodian of the records, maps, profiles, tariffs, itineraries, reports, and any other documents and papers filed with the Commission or entrusted to his care and shall be responsible therefor to the Commission. He shall have authority to designate from time to time any of his delegates to perform the duties of Deputy Secretary with any of the Commissioners. SECTION 8. The Commission shall furnish the Secretary such of its findings and decisions as in its judgment may be of general public interest; the Secretary shall compile the same for the purpose of publication in a series of volumes to be designated Reports of

the Public Service Commission of the Philippines, which shall be published in such form and manner as may be best adapted for public information and use, and such authorized publications shall be competent evidence of the reports and decisions of the Commission therein contained without any further proof or authentication thereof. SECTION 9. No member or employee of the Commission shall have any official or professional relation with any public service as herein defined, or hold any office of profit or trust with the Government of the Philippines. SECTION 10. The Commission shall have its office in the City of Manila or at such other place as may be designated, and may hold hearings on any proceedings at such times and places, within the Philippines, as it may provide by order in writing: Provided, That during the months of April and May of each year, at least three Commissioners shall be on vacation in such manner that once every two years at least three of them shall be on duty during April and May: Provided, however, That in the interest of public service, the Secretary of Justice may require any or all the Commissioners not on duty to render services and perform their duties during the vacation months. (As amended by R.A. No. 178, June 21, 1947, R.A. No. 2677, June 18, 1960 and R.A. No. 3792, June 22, 1963) SECTION 11. The Commission shall have the power to make needful rules for its Government and other proceedings not inconsistent with this Act and shall adopt a common seal, and judicial notice shall be taken for such seal. True copies of said rules and other amendments shall be promptly furnished to the Bureau of Printing and shall be forthwith published in the Official Gazette. SECTION 12. The Commission shall report annually, as soon as practicable after the first day of January of each year, to the Secretary of Justice, making such recommendations as it may deem proper. CHAPTER II Jurisdiction, Powers and Duties of the Commission SECTION 13. (a) The Commission shall have jurisdiction, supervision, and control over all public services and their franchises, equipment, and other properties, and in the exercise of its authority, it shall have the necessary powers and the aid of the public force: Provided, That public services owned or operated by government entities or government-owned or controlled corporations shall be regulated by the Commission in the same way as privatelyowned public services, but certificates of public convenience or certificates of public convenience and necessity shall not be required of such entities or corporations: And provided, further, That it shall have no authority to require steamboats, motor ships and steamship lines, whether privately-owned, or owned or operated by any Government controlled corporation or instrumentality to obtain certificate of public convenience or to prescribe their definite routes or lines of service.

(b) The term public service includes every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional or accidental, and done for general business purposes, any common carrier, railroad, street railway, traction railway, sub-way motor vehicle, either for freight or passenger, or both with or without fixed route and whether may be its classification, freight or carrier service of any class, express service, steamboat or steamship line, pontines, ferries, and water craft, engaged in the transportation of passengers or freight or both, shipyard, marine railways, marine repair shop, [warehouse] wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and power water supply and power, petroleum, sewerage system, wire or wireless communications system, wire or wireless broadcasting stations and other similar public services: Provided, however, That a person engaged in agriculture, not otherwise a public service, who owns a motor vehicle and uses it personally and/or enters into a special contract whereby said motor vehicle is offered for hire or compensation to a third party or third parties engaged in agriculture, not itself or themselves a public service, for operation by the latter for a limited time and for a specific purpose directly connected with the cultivation of his or their farm, the transportation, processing, and marketing of agricultural products of such third party or third parties shall not be considered as operating a public service for the purposes of this Act. (c) The word person includes every individual, co-partnership, joint-stock company or corporation, whether domestic or foreign, their lessees, trustees, or receivers, as well as any municipality, province, city, government-owned or controlled corporation, or agency of the Government of the Philippines, and whatever other persons or entities that may own or possess or operate public services. (As amended by Commonwealth Act No. 454, June 8, 1939, R.A. No. 1270, June 14, 1955 and R.A. No. 2677, June 18, 1960) SECTION 14. The following are exempted from the provisions of the preceding section: (a) Warehouses; (b) Vehicles drawn by animals and bancas moved by oar or sail, and tugboats and lighters; (c) Airships within the Philippines except as regards the fixing of their maximum rates on freight and passengers; (d) Radio companies except with respect to the fixing of rates; (e) Public services owned or operated by any instrumentality of the National Government or by any government-owned or controlled corporation, except with respect to the fixing of rates. (As amended by Commonwealth Act No. 454, June 8, 1939 and R.A. No. 2677, June 18, 1960) SECTION 15. With the exception of those enumerated in the preceding section, no public service shall operate in the Philippines without possessing a valid and subsisting certificate from the Public Service Commission known as certificate of public convenience, or

certificate of public convenience and necessity, as the case may be, to the effect that the operation of said service and the authorization to do business will promote the public interests in a proper and suitable manner. The Commission may prescribe as a condition for the issuance of the certificate provided in the preceding paragraph that the service can be acquired by the Republic of the Philippines or any instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable depreciation; and likewise, that the certificate shall be valid only for a definite period of time; and that the violation of any of these conditions shall produce the immediate cancellation of the certificate without the necessity of any express action on the part of the Commission. In estimating the depreciation, the effect of the use of the equipment, its actual condition, the age of the model, or other circumstances affecting its value in the market shall be taken into consideration. The foregoing is likewise applicable to any extension or amendment of certificates actually in force and to those which may hereafter be issued, to permit to modify itineraries and time schedules of public services, and to authorizations to renew and increase equipment and properties. (As amended by Commonwealth Act No. 454, June 8, 1939) SECTION 16. Proceedings of the Commission, upon notice and hearing. The Commission shall have power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary: (a) To issue certificates which shall be known as certificates of public convenience, authorizing the operation of public service within the Philippines whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interest in a proper and suitable manner. Provided, That thereafter, certificates of public convenience and certificates of public convenience and necessity will be granted only to citizens of the Philippines or of the United States or to corporations, co-partnerships, associations or joint-stock companies constituted and organized under the laws of the Philippines; Provided, That sixty per centum of the stock or paid-up capital of any such corporations, co-partnership, association or joint-stock company must belong entirely to citizens of the Philippines or of the United States: Provided, further, That no such certificates shall be issued for a period of more than fifty years. (b) To approve, subject to constitutional limitations any franchise or privilege granted under the provisions of Act No. Six Hundred and Sixty-seven, as amended by Act No. One Thousand and twenty-two, by any political subdivision of the Philippines when, in the judgment of the Commission, such franchise or privilege will properly conserve the public interest, and the Commission shall in so approving impose such conditions as to construction, equipment, maintenance, service, or operation as the public interest and convenience may reasonably require, and to issue certificates of public convenience and necessity when such is required or provided by any law or franchise.

(c) To fix and determine individual or joint rates, tolls, charges, classifications, or schedules thereof, as well as commutation, mileage, kilometrage, and other special rates which shall be imposed observed and followed thereafter by any public service: Provided, That the Commission may, in its discretion, approve rates proposed by public services provisionally and without necessity of any hearing; but it shall call a hearing thereon within thirty days, thereafter, upon publication and notice to the concerns operating in the territory affected: Provided, further, That in case the public service equipment of an operator is used principally or secondarily for the promotion of a private business, the net profits of said private business shall be considered in relation with the public service of such operator for the purpose of fixing the rates. (d) To fix just and reasonable standards, classifications, regulations, practices, measurement, or service to be furnished, imposed, observed, and followed thereafter by any public service. (e) To ascertain and fix adequate and serviceable standards for the measurement of quantity, quality, pressure, initial voltage, or other condition pertaining to the supply of the product or service rendered by any public service, and to prescribe reasonable regulations for the examination and test of such product or service and for the measurement thereof. (f) To establish reasonable rules, regulations, instructions, specifications, and standards, to secure the accuracy of all meters and appliances for measurements. (g) To compel any public service to furnish safe, adequate, and proper service as regards the manner of furnishing the same as well as the maintenance of the necessary material and equipment. (h) To require any public service to establish, construct, maintain, and operate any reasonable extension of its existing facilities, where in the judgment of said Commission, such extension is reasonable and practicable and will furnish sufficient business to justify the construction and maintenance of the same and when the financial condition of the said public service reasonably warrants the original expenditure required in making and operating such extension. (i) To direct any railroad, street railway or traction company to establish and maintain at any junction or point of connection or intersection with any other line of said road or track, or with any other line of any other railroad, street railway or traction to promote, such just and reasonable connection as shall be necessary to promote the convenience of shippers of property, or of passengers, and in like manner direct any railroad, street railway, or traction company engaged in carrying merchandise, to construct, maintain and operate, upon reasonable terms, a switch connection with any private sidetrack which may be constructed by any shipper to connect with the railroad, street railway or traction company line where, in the judgment of the Commission, such connection is reasonable and practicable and can be out in with safety and will furnish sufficient business to justify the construction and maintenance of the same.

(j) To authorize, in its discretion, any railroad, street railway or traction company to lay its tracks across the tracks of any other railroad, street railway or traction company or across any public highway. (k) To direct any railroad or street railway company to install such safety devices or about such other reasonable measures as may in the judgment of the Commission be necessary for the protection of the public ar passing grade crossings of (1) public highways and railroads, (2) public highways and streets railway, or (3) railways and street railways. (l) To fix and determine proper and adequate rates of depreciation of the property of any public service which will be observed in a proper and adequate depreciation account to be carried for the protection of stockholders, bondholders or creditors in accordance with such rules, regulations, and form of account as the Commission may prescribe. Said rates shall be sufficient to provide the amounts required over and above the expense of maintenance to keep such property in a state of efficiency corresponding to the progress of the industry. Each public service shall conform its depreciation accounts to the rates so determined and fixed, and shall set aside the moneys so provided for out of its earnings and carry the same in a depreciation fund. The income from investments of money in such fund shall likewise be carried in such fund. This fund shall not be expended otherwise than for depreciation, improvements, new construction, extensions or conditions to the properly of such public service. (m) To amend, modify or revoke at any time certificate issued under the provisions of this Act, whenever the facts and circumstances on the strength of which said certificate was issued have been misrepresented or materially changed. (n) To suspend or revoke any certificate issued under the provisions of this Act whenever the holder thereof has violated or wilfully and contumaciously refused to comply with any order, rule or regulation of the Commission or any provision of this Act: Provided, That the Commission, for good cause, may prior to the hearing suspend for a period not to exceed thirty days any certificate or the exercise of any right or authority issued or granted under this Act by order of the Commission, whenever such step shall in the judgment of the Commission be necessary to avoid serious and irreparable damage or inconvenience to the public or to private interests. (o) To fix, determine, and regulate, as the convenience of the state may require, a special type for auto-busses, trucks, and motor trucks to be hereafter constructed, purchased, and operated by operators after the approval of this Act; to fix and determine a special registration fee for auto-buses, trucks, and motor trucks so constructed, purchased and operated: Provided, That said fees shall be smaller than more those charged for autobusses, trucks, and motor trucks of types not made regulation under the subsection. SECTION 17. Proceedings of Commission without previous hearing. The Commission shall have power without previous hearing, subject to established limitations and exception and saving provisions to the contrary:

(a) To investigate, upon its own initiative, or upon complaint in writing, any matter concerning any public service as regards matters under its jurisdiction; to require any public service to furnish safe, adequate, and proper service as the public interest may require and warrant; to enforce compliance with any standard, rule, regulation, order or other requirement of this Act or of the Commission, and to prohibit or prevent any public service as herein defined from operating without having first secured a certificate of public convenience or public necessity and convenience, as the case may be and require existing public services to pay the fees provided for in this Act for the issuance of the proper certificate of public convenience or certificate of public necessity and convenience, as the case may be, under the penalty, in the discretion by the Commission, of the revocation and cancellation of any acquired rights. (b) To require any public service to pay the actual expenses incurred by the Commission in any investigation if it shall be found in the same that any rate, tool, charge, schedule, regulation, practice, act or service thereof is in violation of any provision of this Act or any certificate, order, rule, regulation or requirement issued or established by the Commission. The Commission may also assess against any public service costs not to exceed twenty-five pesos with reference to such investigation. Irnmrn (c) From time to time appraise and value the property of any public service, whenever in the judgment of the Commission it shall be necessary so to do, for the purpose of carrying out any of the provisions of this Act, and in making such valuation the Commission may have access to and use any books, documents, or records in the possession of any department, bureau, office, or board of the government of the Philippines or any political subdivision thereof. (d) To provide, on motion by or at the request of any consumer or user of a public service, for the examination and test of any appliance used for the measuring of any product or service of a public service, and for that purpose, by its agents, experts, or examiners to enter upon any premises where said appliances may be, and other premises of the public service, for the purpose of setting up and using on said premises any apparatus necessary therefor. and to fix the fees to be paid by any consumer or user who may apply to the Commission for such examination or test to be made, and if the appliance be found defective or incorrect to the disadvantage of the consumer or user to require the fees paid to be refunded to the consumer or user by the public service concerned. (e) To permit any street railway or traction company to change its existing gauge to standard steam railroad gauge, upon such terms and conditions as the Commission shall prescribe. (f) To grant to any public service special permits to make extra or special trips within the territory covered by its certificates of public convenience, and to make special excursion trips outside of its own territory if the public interest or special circumstances required it: Provided, however, that in case a public service cannot render such extra service on its own line or in its own territory, a special permit for such extra service may be granted to any other public service.

(g) To require any public service to keep its books, records, and accounts so as to afford an intelligent understanding of the conduct of its business and to that end to require every such public service of the same class to adopt a uniform system of accounting. Such system conform to any system approved and confirmed by the Auditor General. (h) To require any public service to furnish annual reports of finances and operations. Such reports shall set forth in detail the capital stock issued, the amounts of said capital stock paid up and the form of payment thereof; the dividends paid, the surplus, if any and the number of stockholders, the consolidated and pending obligations and the interest paid thereon; the cost and value of the property of the operator; concessions or franchises and equipment; the number of employees and salaries paid to each class; the accidents to passengers, employees, and other person, and the causes thereof; the annual expenditures on improvements; the manner of their investment and nature of such improvements; the receipts and profits in each of the branches of the business and of whatever source; the operating and other expenses; the balance of profits and losses; and a complete statement of the annual financial operations of the operator, including an annual balance sheet. Such reports shall also contain any information which the Commission may require concerning freight and passenger rates, or agreements, compromises or contracts affecting the same. Said reports shall cover a period of twelve months, ending on December thirty-first of each year, and shall be sworn to by the officer or functionary of the public service authorized therefor. The Commission shall also have power to require from time to time special reports containing such information as above provided for or on other matters as the Commission may deem necessary or advisable. (i) To require every public service to file with the Commission a statement in writing, verified by the oaths of the owner or the president and the secretary thereof, if a corporation, setting forth the name, title of office or portion, and post-office address, and the authority, power and duties of every officer, member of the board of directors, trustees executive committee, superintendent, chief or head of construction and operation thereof, in such form as to disclose the source and origin of each administrative act, rule, decision, order or other action of the operator of such public service; and, within ten days after any change is made in the title of, or authority, powers or duties appertaining to any such office or position, or the person holding the same, filed with the Commission a like statement, verified in like manner, setting forth such change. (j) To require any public service to comply with the laws of the Philippines and with any provincial resolution or municipal ordinance relating thereto and to conform to the duties imposed upon it thereby or by the provisions of its own charter, whether obtained under any general or special law of the Philippines. (k) To investigate any or all accidents that may occur on the property of any public service or directly or indirectly arising from or connected with its maintenance or operation in the Philippines; to require any public service to give the Commission immediate and effective notice of all any such accidents, and to make such order or recommendation with respect thereto as the public interest may warrant to require.

(l) To require every public service is herein defined to file within complete schedules of every classification employed and of every individual or joint rate, toll fare or charge made, charged or exacted by it for any product supplied or service rendered within the Philippines and, in the case of public carriers, to file with it a statement showing the itineraries or routes served as specified in such requirement. CHAPTER III Operators of Public Services Regulations and Prohibitions SECTION 18. It shall be unlawful for any individual, co-partnership, association, corporation or joint-stock company, their lessees, trustees or receivers appointed by any court whatsoever, or any municipality, province, or other department of the Government of the Philippines, to engage in any public service business without having first secured from the Commission a certificate of public convenience or certificate of public convenience and necessity as provided for in this Act, except grantees of legislative franchises expressly exempting such grantees from the requirement of securing a certificate from this Commission as well as concerns at present existing expressly exempted from the jurisdiction of the Commission, either totally or in part, by the provisions of section thirteen of this Act. SECTION 19. Unlawful Acts. It shall be unlawful for any public service: (a) To provide or maintain any service that is unsafe, improper, or inadequate or withhold or refuse any service which can reasonably be demanded and furnished, as found and determined by the Commission in a final order which shall be conclusive and shall take effect in accordance with this Act, upon appeal of otherwise. (b) To make or give, directly or indirectly, by itself or through its agents, attorneys or brokers, or any of them, discounts or rebates on authorized rates, or grant credit for the payment of freight charges, or any undue or unreasonable preference or advantage to any person of corporation or to any locality or to any particular description of traffic or service, or subject any particular person or corporation or locality or any particular description of traffic to any prejudice or disadvantage in any respect whatsoever; to adopt, maintain, or enforce any regulation, practice or measurement which shall be found or determined by the Commission to be unjust, unreasonable, unduly preferential or unjustly discriminatory in a final order which shall be conclusive and shall take effect in accordance with the provisions of this Act, upon repeal or otherwise. (c) To refuse or neglect, when requested by the Director of Posts or his authorized representative, to carry public mail on the regular trips of any public land transportation service maintained or operated by any such public service; upon such terms and conditions and for a consideration in such amount as may be agreed upon between the Director of Posts and the public service carrier of fixed by the Commission in the absence of an agreement between the Director of Posts and the carrier. In case the Director of Posts and public service carrier are unable to agree on the amount of the compensation to be paid for

the carriage of the mail, the Director of Posts shall forthwith request the Commission to fix a just and reasonable compensation for such carriage and the same shall be promptly fixed by the Commission in accordance with Section sixteen of this Act. SECTION 20. Acts requiring the approval of the Commission. Subject to established limitations and exceptions and saving provisions to the contrary, it shall be unlawful for any public service or for the owner, lessee or operator thereof, without the approval and authorization of the Commission previously had (a) To adopt, establish, fix, impose, maintain, collect or carry into effect any individual or joint rates, commutation, mileage or other special rate, toll, fare, charge, classification or itinerary. The Commission shall approve only those that are just and reasonable and not any that are unjustly discriminatory or unduly preferential, only upon reasonable notice to the public services and other parties concerned, giving them a reasonable opportunity to be heard and the burden of the proof to show that the proposed rates or regulations are just and reasonable shall be upon the public service proposing the same. (b) To establish, construct, maintain, or operate new units or extend existing facilities or make any other addition to or general extension of the service. (c) To abandon any railroad station or stop the sale of passenger tickets, or cease to maintain an agent to receive and discharge freight at any station now or hereafter established at which passenger tickets are now or may hereafter be regularly sold, or at which such agent is now or may hereafter be maintained, or make any permanent change in its time tables or itineraries on any railroad or in its service. (d) To lay any railroad or street railway track across any highway, so as to make a new crossing at grade, or cross the tracks of any other railroad or street railway, provided, that this subsection shall not apply to replacements of lawfully existing tracks. mdwris (e) Hereafter to issue any stock or stock certificates representing an increase of capital; or issue any share of stock without par value; or issue any bonds or other evidence of indebtedness payable in more than one year from the issuance thereof, provided that it shall be the duty of the Commission, after hearing, to approve any such issue maturing in more than one year from the date thereof, when satisfied that the same is to be made in accordance with law, and the purpose of such issue be approved by the Commission. (f) To capitalize any franchise in excess of the amount, inclusive of any tax or annual charge, actually paid to the Government of the Philippines or any political subdivision thereof as the consideration of said franchise; capitalize any contract for consolidation, merger or lease, or issue any bonds or other evidence of indebtedness against or as a lien upon any contract for consolidation, merger, or lease: Provided, however, that the provisions of this section shall not prevent the issuance of stock, bonds, or other evidence of indebtedness subject to the approval of the Commission by any lawfully merged or consolidated public services not in contravention of the provisions of this section.

(g) To sell, alienate, mortgage, encumber or lease its property, franchises, certificates, privileges, or rights or any part thereof; or merge or consolidate its property, franchises privileges or rights, or any part thereof, with those of any other public service. The approval herein required shall be given, after notice to the public and hearing the persons interested at a public hearing, if it be shown that there are just and reasonable grounds for making the mortgaged or encumbrance, for liabilities of more than one year maturity, or the sale, alienation, lease, merger, or consolidation to be approved, and that the same are not detrimental to the public interest, and in case of a sale, the date on which the same is to be consummated shall be fixed in the order of approval: Provided, however, that nothing herein contained shall be construed to prevent the transaction from being negotiated or completed before its approval or to prevent the sale, alienation, or lease by any public service of any of its property in the ordinary course of its business. (h) To sell or register in its books the transfer or sale of shares of its capital stock, if the result of that sale in itself or in connection with another previous sale, shall be to vest in the transferee more than forty per centum of the subscribed capital of said public service. Any transfer made in violation of this provision shall be void and of no effect and shall not be registered in the books of the public service corporation. Nothing herein contained shall be construed to prevent the holding of shares lawfully acquired. (As amended by Commonwealth Act No. 454, June 8, 1939) (i) To sell, alienate or in any manner transfer shares of its capital stock to any alien if the result of that sale, alienation, or transfer in itself or in connection with another previous sale shall be the reduction to less than sixty per centum of the capital stock belonging to Philippine citizens. Such sale, alienation or transfer shall be void and of no effect and shall be sufficient cause for ordering the cancellation of the certificate. (j) To issue, give or tender, directly or indirectly, any free ticket free pass or free or reduced rate of transportation for passengers, except to the following persons: (1) officers, agents, employees, attorneys, physicians and surgeons of said public service, and members of their families; (2) inmates of hospitals or charity institutions, and persons engaged in charitable work; (3) indigent, destitute, and homeless persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; (4) the necessary caretakers, going and returning, of livestock, poultry, fruit, and other freight under uniform and non-discriminatory regulation; (5) employees of sleeping car corporations, express corporations and telegraph and telephone corporations, railway and marine mail service employees, when traveling in the course of their official duly; (6) post-office inspectors, customs officers and inspectors, and immigration inspectors when engaged in inspection; (7) witnesses attending any legal investigation in which the public service is an interested party; (8) persons injured in accidents or wrecks, and physicians and nurses attending such persons; (9) peace officers and men of regularly constituted fire departments. (As amended by Commonwealth Act No. 454, June 8, 1939) (k) Adopt, maintain, or apply practices or measures, rules or regulations to which the public shall be subject in its relations with the public service.

CHAPTER IV Penalties for Violations SECTION 21. Every public service violating or failing to comply with the terms and conditions of any certificate or any orders, decisions or regulations of the Commission shall be subject to a fine of not exceeding two hundred pesos per day for every day during which such default or violation continues; and the Commission is hereby authorized and empowered to impose such fine, after due notice and hearing. The fines so imposed shall be paid to the Government of the Philippines through the Commission, and failure to pay the fine in any case within the same specified in the order or decision of the Commission shall be deemed good and sufficient reason for the suspension of the certificate of said public service until payment shall be made. Payment may also be enforced by appropriate action brought in a court of competent jurisdiction. The remedy provided in this section shall not be a bar to, or affect any other remedy provided in this Act but shall be cumulative and additional to such remedy or remedies. SECTION 22. Observance of the orders, decisions, and regulations of the Commission and of the terms and conditions of any certificate may also be enforced by mandamus or injunction in appropriate cases, or by action to compel the specific performance of the orders, decisions, and regulations so made, or of the duties imposed by law upon such public service: Provided, that the Commission may compromise any case that arise under this Act in such manner and for such amount as it may deem just and reasonable. SECTION 23. Any public service corporation that shall perform, commit, or do any act or thing forbidden or prohibited or shall neglect, fail or omit to do or perform any act or thing herein to be done or performed, shall be punished by a fine not exceeding twenty-five thousand pesos, or by imprisonment not exceeding five years, or both, in the discretion of the court. SECTION 24. Any person who shall knowingly and wilfully perform, commit, or do, or participate in performing, committing, or doing, or who shall knowingly and wilfully cause, participate, or join with others in causing any public service corporation or company to do, perform or commit, or who shall advice, solicit, persuade, or knowingly and wilfully instruct, direct, or order any officer, agent, or employee of any public service corporation or company to perform, commit, or do any act or thing forbidden or prohibited by this Act, shall be punished by a fine not exceeding two thousand pesos, or imprisonment not exceeding two years, or both, in the discretion of the court: Provided, however, that for operating a private passenger automobile as a public service without having a certificate of public convenience for the same the offender shall be subject to the penalties provided for in section sixty-seven (j) of Act numbered thirty-nine hundred an ninety-two. SECTION 25. Any person who shall knowingly and wilfully neglect, fail, or omit to do or perform, or who shall knowingly and wilfully cause or join or participate with others in causing any public service corporation or company to neglect, fail or omit to do or perform,

or who shall advise, solicit, or persuade, or knowingly and wilfully instruct, direct, or order any officer, agent, or employee of any public service corporation or company to neglect, fail, or omit to do any act or thing required to be done by this Act, shall be published by a fine not exceeding two thousand pesos or by imprisonment not exceeding two years, or both, in the discretion of the court. SECTION 26. Any person who shall destroy, injure, or interfere with any apparatus or appliance owned or operated by to in charge of the Commission or its agents, shall be deemed guilty of a misdemeanor and upon conviction shall be published by a fine not exceeding one thousand pesos or imprisonment not exceeding six months, or both in the discretion of the court. Any public service permitting the destruction, injury to, or interference with, any such apparatus or appliances shall forfeit a sum not exceeding four thousand pesos for each offense. SECTION 27. This Act shall not have the effect to release or waive any right of action by the Commission or by any person for any right, penalty, or forfeiture which may have arisen or which may arise, under any of the laws of the Philippines, and any penalty or forfeiture enforceable under this Act shall not be a bar to or affect a recovery for a right, or affect or bar any criminal proceedings against any public service or person or persons operating such public services, its officers, directors, agents, or employees. SECTION 28. Violations of the orders, decisions, and regulations of the Commission and of the terms and conditions of any certificate issued by the Commission shall prescribe after sixty days, and violations of the provisions of this Act shall prescribe after one hundred and eighty days. CHAPTER V Procedure and Review SECTION 29. All hearings and investigations before the Commission shall be governed by rules adopted by the Commission, and in the conduct thereof the Commission shall not be bound by the technical rules of legal evidence: Provided, That the Public Service Commissioner or associate commissioners may summarily punish for contempt by a fine not exceeding two hundred pesos or by imprisonment not exceeding ten days, or both, any person guilty of misconduct in the presence of the Commissioner or associate commissioners or so near the same as to interrupt the hearing or session or any proceeding before them, including cases in which a person present at a hearing, session, or investigation held by either of the commissioners refuses to be sworn as a witness or to answer as such when lawfully required to do so. To enforce the provisions of this section, the Commission may, if necessary, request the assistance of the municipal police for the execution of any order made for said purpose.

(1) While the Commission is authorized to make rules for the conduct of their business, it could not set at naught the fundamental rule of all proceedings that only parties having a real interest will be heard. (2) A party not affected or prejudiced cannot file an opposition. (3) One public service corporation cannot assume the name and be substituted in the place of another public service corporation. (4) A legal representative of the estate of a deceased applicant may be substituted for the latter. If the right consists in the prosecution of unfinished proceedings upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. (5) One who has been granted a legislative franchise to operate an ice plant, although not yet an operator of such public utility, has sufficient interest or personality either to oppose an established operators application for an increase in the capacity of his existing plant, or to ask for a joint hearing of said application and the grantees own application for the issuance of a certificate of public convenience in order to operate under such franchise. (6) The fact that a party is the lessee of a line does not bar him from applying for a certificate of its own in the same line. Even in cases where the owner of a certificate has sold it subject to the condition that he would not apply for a similar service on the same line sold by him, it has been held that such an argument does not bar the seller from applying and that the Public Service Commission, if it finds that there is public need for the new service applied for, may properly grant the certificate requested. In other words the primary consideration is a finding by the Commission that public interest and convenience require a given service and that parties may not by agreement deprive the Commission of its power. (7) A case involving the grant of a Certificate of Public Convenience to the respondent becomes moot and academic where the respondent ceases to be a bus operator, and it should be dismissed. SECTION 30. (a) The Commission may issue subpoenas and subpoenas duces tecum, for witnesses in any matter or inquiry pending before the Commission and require the production of all books, papers, tariffs, contracts, agreements, and all other documents, which the Commission may deem necessary in any proceeding. such process shall be issued under the seal of the Commission, signed by one of the Commissioners or by the secretary, and may be served by any person of full age, or by registered mail. In case of disobedience to such subpoena, the Commission may invoke the said of the Supreme Court or of any Court of First Instance of the Philippines in requiring the attendance and testimony of witness and the production of books, papers, and documents under the provisions of this chapter, and the Supreme Court, or any Court of First Instance of the Philippines within the jurisdiction of which such inquiry is carried on, may in case of contumacy of refusal to obey a subpoena, issue to any public service subject to the

provisions of this Act, or to any person, an order requiring such public service or other person to appear before the Commission and produce and papers if so ordered and give evidence touching the matter; and any failure to obey such order of the court may be punished by such court as a contempt thereof. (b) Any person who shall neglect or refuse to answer any lawful inquiry or produce the Commission books, paper, tariffs, contracts, agreements, and documents or other things called for by said Commission, if in his power to do so, in obedience to the subpoena or lawful inquiry of the Commission, upon conviction thereof by a court of competent jurisdiction, shall be punished by a fine not exceeding five thousand pesos or by imprisonment not exceeding one year, or both, in the discretion of the court. (c) The Commissioner and associate commissioners, the chiefs of divisions, the attorneys of the Commission, and the deputy secretaries shall have the power to administer oaths in all matters under the jurisdiction of the Commission. (d) Any person who shall testify falsely or make any false affidavit or oath before the Commission or before any of its members shall be guilty of perjury, and upon conviction thereof in a court of competent jurisdiction, shall be punished as provided by law. (e) Witnesses appearing before the Commission in obedience to subpoena or subpoena duces tecum, shall be entitled to receive the same fees and mileage allowance as witnesses attending Courts of First Instance in civil cases. (f) Any person who shall obstruct the Commission or either of the Commissioners while engaged in the discharge of Official duties, or who shall conduct himself in a rude, disrespectful or disorderly manner before the Commission or either of the Commissioners, while engaged in the discharge of official duties, or shall orally or in writing be disrespectful to, offend or insult either of the Commissioners on occasion or by reason of the performance of official duties, upon conviction thereof by a court of competent jurisdiction, shall be punished for each offense by a fine not exceeding one thousand pesos, or by imprisonment not exceeding six months, or both, in the discretion of the court. SECTION 31. No person shall be excused from testifying or from producing any book, document, or paper in any investigation or inquiry by or upon the hearing before the Commission, when ordered so to do by said Commission, except when the testimony or evidence required of him may tend to incriminate him. Without the consent of the interested party no member or employee of the Commission shall be compelled or permitted to give testimony in any civil suit to which the Commission is not a party, with regard to secrets obtained by him in the discharge of his official duty. SECTION 32. The Commission may, in any investigation or hearing, by its order in writing cause the deposition of witnesses residing within or without the Philippines to be taken in the manner prescribed by the Rules of Court. Where witnesses reside in places distant from Manila and it would be inconvenient and expensive for them to appear personally before the Commission, the Commission may, by proper order, commission any

clerk of the Court of First Instance, municipal judge or justice of the peace of the Philippines to take the deposition of witnesses in any case pending before the Commission. It shall be the duty of the official so commissioned, to designated promptly a date or dates for the taking of such deposition, giving timely notice to the parties, and on said date to proceed to take the deposition, reducing it to writing. After the depositions have been taken, the official so commissioned shall certify to the depositions taken and forward them as soon as possible to the Commission. It shall be the duty of the respective parties to furnish stenographers for taking and transcribing the testimony taken in case there are no stenographers available, the testimony shall be taken in long hand by such person as the clerk of court, the municipal judge or justice of the peace may designate. The Commission may also commission a notary public to take the depositions in the same manner herein provided. The Commission may also, by proper order, authorize any of the attorneys of the legal division or division chiefs of the Commission, if they be lawyers, to hear and investigate any case filed, with the Commission and in connection therewith to receive such evidence as may be material thereto. At the conclusion of the hearing or investigation, the attorney or division chief so authorized shall submit the evidence received by him to the Commission to enable the latter to render its decision. (As amended by R.A. No. 723, June 6, 1952.) SECTION 33. Every order made by the Commission shall be served upon the person or public service affected thereby, within ten days from the time said order is filed by personal delivery or by ordinary mail, upon the attorney of record, or in case there be no attorney of record, upon the party interested; and in case such certified copy is sent by registered mail, the registry mail receipt shall be prima facie evidence of the receipt of such order by the public service in due course of mail. All orders of the Commission to continue an existing service or prescribing rates to be charged shall be immediately operative; all other orders shall become effective upon the dates specified thereon: Provided, however, that orders, resolutions or decisions in converted matters and not referring to the continuance of an existing service or prescribing rates to be charged shall not be effective unless otherwise provided by the Commission, and shall take effect thirty days after notice to the parties. SECTION 34. Any interested party may request the reconsideration of any order, ruling, or decision of the Commission by means of a petition filed not later than fifteen days after the date of the notice of the order, ruling, or decision in question. The grounds on which the request for reconsideration is based shall be clearly and specifically stated in the petition. Copies of said petition shall be served on all parties interested in the matter. It shall be the duty of the Commission to call a hearing to decide the same promptly, either denying the petition or revoking or modifying the order, ruling or decision under consideration. SECTION 35. The Supreme Court is hereby given jurisdiction to review any order, ruling, or decision of the Commission and to modify or set aside such order, ruling, or decision when it clearly appears that there was no evidence before the Commission to support reasonably such order, ruling, or decision, or that the same is contrary to law, or that it was without the jurisdiction of the Commission. The evidence presented to the Commission,

together with the record of the proceedings before the Commission, shall be certified by the secretary of the Commission to the Supreme Court. Any order, ruling, or decision of the Commission may likewise be reviewed by the Supreme Court upon a writ of certiorari in proper cases. The procedure for review, except as herein provided, shall be prescribed by rules of the Supreme Court. SECTION 36. Any other, ruling, or decision of the may be reviewed on the application of any person or public service affected thereby, by certiorari in appropriate cases, or by petition, to be known as petition for review, which shall be filed within thirty days from the notification of such order, ruling or decision, or in case of a petition is filed in accordance with the preceding section for the reconsideration of such order, ruling or decision and the same is denied it shall be filed within fifteen days after notice of the order denying reconsideration. Said petition shall be placed on file in the office of the Clerk of the Supreme Court who shall furnish copies thereof to the Secretary of the Commission and other parties interested. SECTION 37. The institution of a writ of certiorari or other special remedies in the Supreme Court shall in no case supersede or stay any order, ruling or decision of the Commission, unless the Supreme Court shall so direct, and the appellant may be required by the Supreme Court to give bond in such form and of such amount as may be deemed proper. SECTION 38. The chief of the legal division or any other attorneys of the Commission shall represent the same in all judicial proceedings. It shall be the duty of the Solicitor General to represent the Commission in any judicial proceedings if, for special reason, the Commissioner shall request his intervention. There is hereby created under the administrative supervision of the Secretary of Justice an office to be known as the Office of the Peoples Counsel in the Public Service Commission. The peoples Counsel shall have two assistants and such number of employees as may be necessary to perform the functions hereinafter specified. The Peoples Counsel and his assistants shall be appointed by the President of the Philippines with the consent of the commission on appointments of the Congress of the Philippines. The employees of the office of the Peoples Counsel shall be appointed by the Secretary of Justice upon recommendation of the Peoples Counsel. The Peoples Counsel and his assistants shall possess the qualifications of a provincial fiscal. The Peoples Counsel shall receive compensation at the rate of seven thousand two hundred pesos per annum, and the first and second assistants Peoples Counsel, at the rate of six thousand pesos per annum each. The Peoples Counsel, his assistants, and the employees of the Office of the Peoples Counsel shall not, during their continuance in office, intervene directly or indirectly in the management or control of, or be financially interested directly or indirectly in any public service as defined in this Act. It shall be the duty of the Peoples Counsel (1) to institute proceedings before the Commission, in behalf of the public, for the purpose of fixing just and reasonable rates or charges to be followed and observed by public services as herein defined, whenever he has

reason to believe that the existing rates or charges of such public services are unjust and unreasonable or unjustly discriminatory; (2) to represent and appear for the public before the Commission or any court of the Philippines in every case involving the interest of users of the products of, or service furnished by any public service under the jurisdiction of the Commission; (3) to represent and appear for petitioners appearing before the Commission for the purpose of complaining in matters of the rates and services; (4) to investigate the service given by the rates charged by, and the valuation of the properties of the public services under the jurisdiction of the Commission, and such other matters relating to said public services as affect the interests of users of the products or service thereof, and to take all the steps necessary for the protection of the interests of the person or persons or of the public affected thereby. In connection with such investigation he is hereby empowered to issue subpoena or subpoena duces tecum. The Peoples Counsel is authorized to call upon and obtain such assistance as he may deem necessary in the performance of his duties from any officer or employee of any department, bureau, office, agency, or instrumentality of the government including corporations owned, controlled or operated by the government. (As amended by R.A No. 178, June 21, 1947.) SECTION 39. Any preceding in any court of the Philippines directly affecting an order of the Commission or to which the Commission is a party, shall have preference over all other civil proceedings pending in such court, except election cases. CHAPTER VI Fees SECTION 40. The Commission is authorized and ordered to charge and collect from any public service or applicant, as the case may be, the following fees as reimbursement of its expenses in the authorization, supervision and/or regulation of public services: dnarto (a) The charge of fifty pesos for the registration of: (1) Applications under the provisions of Section sixteen (a), (b), (c), and (d), and twenty (a), (b) (c), (e), (f), and (h): Provided however, That in case of transportation services an additional filing fee of five pesos shall be charged for each additional unit or vehicle in excess of five units or vehicles applied for: And provided, finally, That no filing fee shall be collected for the reduction of rates if the same does not alter or modify in any way the basic rates of the schedule. (2) Applications for the approval or modification of maximum rates under Section fourteen. (b) Thirty pesos shall be collected from any operator of land transportation for the registration of: (1) Applications under Section seventeen (f).

(2) Applications for the extension of time covering a period of thirty days for the registration of motor vehicles previously authorized by the Commission. (c) The charge of thirty pesos for the filing of other applications by any public service operator not specifically provided for in the preceding paragraphs of this section other than motions of a temporary or incidental character: Provided, however, That fifteen pesos only shall be collected for each certificate of public convenience or certificate of public convenience and necessity in diploma form issued to a public service operator. (d) For annual reimbursement of the expenses incurred by the Commission for the supervision and regulation of the operations of motor vehicle services: (1) For each automobile, ten pesos. (2) For each motor vehicle, truck, or tailer of less than two tons gross transportation capacity, ten pesos. (3) For each motor vehicle, truck, or trailer of two tons or more, but less than three tons gross transportation capacity, twenty pesos. (4) For each motor vehicle, truck, or trailer of three tons or more but less than four tons gross transportation capacity, thirty pesos. (5) Motor vehicles, trucks, trailers or buses of four tons or more gross capacity shall pay at the rate of ten pesos per ton gross. The fees provided in paragraphs (d) and (e) hereof shall be paid on or before September thirtieth of each year with a penalty of fifty per centum in case of delinquency: Provided, further, That if the fees or any balance thereof are not paid within sixty days from the said date, the penalty shall be increased by one per centum for every month thereafter of delinquency: Provided, however, That motor vehicles registered in the Motor Vehicles Office after September thirtieth shall be exempt from payment for said year. (e) For annual reimbursement of the expenses incurred by the Commission in the supervision of other public services and/or in the regulation or fixing of their rates, twenty centavos for each one hundred pesos or fraction thereof, of the capital stock subscribed or paid, or if no shares have been issued, of the capital invested, or of the property and equipment, whichever is higher. (f) For the issue or increase of capital stock, twenty centavos for each one hundred pesos or fraction thereof, of the increased capital. (g) For each permit authorizing the increase of equipment, the installation of new units or authorizing the increase of capacity. or the extension of means or general extension in the services, twenty centavos for each one hundred pesos or fraction of the additional capital necessary to carry out the permit.

(h) For the inspection or certification made in the meter laboratory of the Commission or each apparatus or meter used by any public service, four pesos, and for examination made outside the meter laboratory of the Commission, the additional expenses as may be incurred in making the examination shall also be paid. (i) For certification of copies of official documents in the files of the Commission, fifty centavos plus fifty centavos for each page or folio so certified. This section shall not be applicable to the Republic of the Philippines, nor to its instrumentalities. Aside from the appropriations for the Commission under the annual General Appropriation Act, any unexpended balance of the fees collected by the Commission under this section shall be constituted receipts automatically appropriated each year, and together with any surplus in the standardizing meter laboratory revolving fund under Commonwealth Act Numbered Three hundred forty-nine, shall be disbursed by the Public Service Commissioner in accordance with special budgets to be approved by the Department of Justice, the Budget Commission and the Office of the President of the Philippines for additional needed personal services, maintenance and operating expenses, acquisition of urgently needed vehicles, furniture and equipment, maintenance of an adequate reference library, acquisition of a lot and building for the Commission, and other expenses necessary for efficient administration and effective supervision and regulation of public services. (As amended by Commonwealth Act No. 454, June 8, 1939 and R.A. No. 3792, June 22, 1963.) CHAPTER VII General and Transitory Provisions SECTION 41. A substantial compliance with the requirements of this Act shall be sufficient to give effect to all the rules, orders, acts and regulations of the Commission and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto. SECTION 42. Copies of all official documents and orders filled or deposited in the office of the Commission, certified by either of the commissioners, or by the secretary to be true copy of the original, under the seal of the Commission shall be evidence in like manner as the originals in all courts of the Philippines. SECTION 43. The Commission created under this Act shall succeed the Commission created under Act numbered thirty-one hundred and eight in the dispatch, hearing, and determination of all pending matters before the latter; and shall take charge of its archives, books, furniture, equipment, and other properties of whatsoever nature. SECTION 44. In addition to the sum appropriated for the former commission under Act numbered forty-one hundred and thirty-two, the General Appropriation Act for nineteen hundred and thirty-six, the sum of six thousand seven hundred and sixty-eight pesos and thirty-four centavos is hereby appropriated out of any funds in the Philippines Treasury not

otherwise; and in addition to the sum appropriated under Act numbered thirty-eight, the General Appropriation Act for nineteen hundred and thirty-seven, the sum of twenty-three thousand six hundred and ten pesos, or so much thereof as may be necessary, is hereby appropriated, out of any funds in the Philippines Treasury not otherwise appropriated, for carrying out the purposes of this Act SECTION 45. If, any reason, any section, subsection, sentence, clauses or terms of this Act is held to the unconstitutional such decision shall not affect the validity of the other provisions of this Act SECTION 46. Act numbered thirty-two hundred and forty-seven and Act numbered thirtyfive hundred and eighteen shall continue in force and effect; but all provisions of Act numbered thirty-one hundred and eight and amendments thereof, and all other acts or parts or acts inconsistent with the provisions of this Act are hereby repealed. SECTION 47. This Act shall take effect upon its approval. Approved: November 7, 1936 Leave a Comment Posted in Laws and Issuances, Mercantile Law, Transportation Laws | Tags: Commonwealth Act No. 146, Public Service Act, Transportation Laws
Posted by: Elmer Brabante | September 30, 2009

Commercial Contracts for Transportation (Code of Commerce of the Philippines)

6 Votes CODE OF COMMERCE OF THE PHILIPPINES COMMERCIAL CONTRACTS FOR TRANSPORTATION ARTICLE 349. A contract of transportation by land or water ways of any kind shall be considered commercial: 1. When it has for its object merchandise or any article of commerce.

2. When, whatever its object may be, the carrier is a merchant or is habitually engaged in transportation for the public. ARTICLE 350. The shipper as well as the carrier of merchandise or goods may mutually demand that a bill of lading be made, stating: 1. The name, surname and residence of the shipper. 2. The name, surname and residence of the carrier. 3. The name, surname and residence of the person to whom or to whose order the goods are to be sent or whether they are to be delivered to the bearer of said bill. 4. The description of the goods, with a statement of their kind, of their weight, and of the external marks or signs of the packages in which they are contained. 5. The cost 6. The date on which shipment is made. 7. The place of delivery to the carrier. 8. The place and the time at which delivery to the consignee shall be made. 9. The indemnity to be paid by the carrier in case of delay, if there should be any agreement on this matter. ARTICLE 351. In transportation made by railroads or other enterprises subject to regulation rate and time schedules, it shall be sufficient for the bills of lading or the declaration of shipment furnished by the shipper to refer, with respect to the cost, time and special conditions of the carriage, to the schedules and regulations the application of which he requests; and if the shipper does not determine the schedule, the carrier must apply the rate of those which appear to be the lowest, with the conditions inherent thereto, always including a statement or reference to in the bill of lading which he delivers to the shipper. ARTICLE 352. The bills of lading, or tickets in cases of transportation of passengers, may be diverse, some for persons and others for baggage; but all of them shall bear the name of the carrier, the date of shipment, the points of departure and arrival, the cost, and, with respect to the baggage, the number and weight of the packages, with such other manifestations which may be considered necessary for their easy identification. ARTICLE 353. The legal evidence of the contract between the shipper and the carrier shall be the bills of lading, by the contents of which the disputes which may arise regarding their execution and performance shall be decided, no exceptions being admissible other than those of falsity and material error in the drafting. After the contract has been complied with, the bill of lading which the carrier has issued shall be returned to him, and by virtue of the exchange of this title with the thing of transportation.

transported, the respective obligations and actions shall be considered cancelled, unless in the same act the claim which the parties may wish to reserve be reduced to writing, with the exception of that provided for in Article 366. In case the consignee, upon receiving the goods, cannot return the bill of lading subscribed by the carrier, because of its loss or of any other cause, he must give the latter a receipt for the goods delivered, this receipt producing the same effects as the return of the bill of lading. ARTICLE 354. In the absence of a bill of lading, disputes shall be determined by the legal proofs which the parties may present in support of their respective claims, according to the general provisions established in this Code for commercial contracts. ARTICLE 355. The responsibility of the carrier shall commence from the moment he receives the merchandise, personally or through a person charged for the purpose, at the place indicated for receiving them. ARTICLE 356. Carriers may refuse packages which appear unfit for transportation; and if the carriage is to be made by railway, and the shipment is insisted upon, the company shall transport them, being exempt from all responsibility if its objections, is made to appear in the bill of lading. ARTICLE 357. If by reason of well-founded suspicion of falsity in the declaration as to the contents of a package the carrier should decide to examine it, he shall proceed with his investigation in the presence of witnesses, with the shipper or consignee in attendance. If the shipper or consignee who has to be cited does not attend, the examination shall be made before a notary, who shall prepare a memorandum of the result of the investigation, for such purposes as may be proper. If the declaration of the shipper should be true, the expense occasioned by the examination and that of carefully repacking the packages shall be for the account of the carrier and in a contrary case for the account of the shipper. ARTICLE 358. If there is no period fixed for the delivery of the goods the carrier shall be bound to forward them in the first shipment of the same or similar goods which he may make point where he must deliver them; and should he not do so, the damages caused by the delay should be for his account. ARTICLE 359. If there is an agreement between the shipper and the carrier as to the road over which the conveyance is to be made, the carrier may not change the route, unless it be by reason of force majeure; and should he do so without this cause, he shall be liable for all the losses which the goods he transports may suffer from any other cause, beside paying the sum which may have been stipulated for such case. When on account of said cause of force majeure, the carrier had to take another route which produced an increase in transportation charges, he shall be reimbursed for such increase upon formal proof thereof.

ARTICLE 360. The shipper, without changing the place where the delivery is to be made, may change the consignment of the goods which he delivered to the carrier, provided that at the time of ordering the change of consignee the bill of lading signed by the carrier, if one has been issued, be returned to him, in exchange for another wherein the novation of the contract appears. The expenses which this change of consignment occasions shall be for the account of the shipper. ARTICLE 361. [The merchandise shall be transported at the risk and venture of the shipper, if the contrary has not been expressly stipulated. As a consequence, all the losses and deteriorations which the goods may suffer during the transportation by reason of fortuitous event, force majeure, or the inherent nature and defect of the goods, shall be for the account and risk of the shipper. cdta Proof of these accidents is incumbent upon the carrier.] ARTICLE 362. Nevertheless, the carrier shall be liable for the losses and damages resulting from the causes mentioned in the preceding article if it is proved, as against him, that they arose through his negligence or by reason of his having failed to take the precautions which usage has established among careful persons, unless the shipper has committed fraud in the bill of lading, representing the goods to be of a kind or quality different from what they really were. If, notwithstanding the precautions referred to in this article, the goods transported run the risk of being lost, on account of their nature or by reason of unavoidable accident, there being no time for their owners to dispose of them, the carrier may proceed to sell them, placing them for this purpose at the disposal of the judicial authority or of the officials designated by special provisions. ARTICLE 363. Outside of the cases mentioned in the second paragraph of Article 361, the carrier shall be obliged to deliver the goods shipped in the same condition in which, according to the bill of lading, they were found at the time they were received, without any damage or impairment, and failing to do so, to pay the value which those not delivered may have at the point and at the time at which their delivery should have been made. If those not delivered form part of the goods transported, the consignee may refuse to receive the latter, when he proves that he cannot make use of them independently of the others. ARTICLE 364. If the effect of the damage referred to in Article 361 is merely a diminution in the value of the goods, the obligation of the carrier shall be reduced to the payment of the amount which, in the judgment of experts, constitutes such difference in value. ARTICLE 365. If, in consequence of the damage, the goods are rendered useless for sale and consumption for the purposes for which they are properly destined, the consignee shall not be bound to receive them, and he may have them in the hands of the carrier, demanding of the latter their value at the current price on that day. If among the damaged goods there should be some pieces in good condition and without

any defect, the foregoing provision shall be applicable with respect to those damaged and the consignee shall receive those which are sound, this segregation to be made by distinct and separate pieces and without dividing a single object, unless the consignee proves the impossibility of conveniently making use of them in this form. The same rule shall be applied to merchandise in bales or packages, separating those parcels which appear sound. ARTICLE 366. Within the twenty-four hours following the receipt of the merchandise, the claim against the carrier for damage or average be found therein upon opening the packages, may be made, provided that the indications of the damage or average which gives rise to the claim cannot be ascertained from the outside part of such packages, in which case the claim shall be admitted only at the time of receipt. After the periods mentioned have elapsed, or the transportation charges have been paid, no claim shall be admitted against the carrier with regard to the condition in which the goods transported were delivered. ARTICLE 367. If doubts and disputes should arise between the consignee and the carrier with respect to the condition of the goods transported at the time their delivery to the former is made, the goods shall be examined by experts appointed by the parties, and, in case of disagreement, by a third one appointed by the judicial authority, the results to be reduced to writing; and if the interested parties should not agree with the expert opinion and they do not settle their differences, the merchandise shall be deposited in a safe warehouse by order of the judicial authority, and they shall exercise their rights in the manner that may be proper. ARTICLE 368. The carrier must deliver to the consignee, without any delay or obstruction, the goods which he may have received, by the mere fact of being named in the bill of lading to receive them; and if he does not do so, he shall be liable for the damages which may be caused thereby. ARTICLE 369. If the consignee cannot be found at the residence indicated in the bill of lading, or if he refuses to pay the transportation charges and expenses, or if he refuses to receive the goods, the municipal judge, where there is none of the first instance, shall provide for their deposit at the disposal of the shipper, this deposit producing all the effects of delivery without prejudice to third parties with a better right. ARTICLE 370. If a period has been fixed for the delivery of the goods, it must be made within such time, and, for failure to do so, the carrier shall pay the indemnity stipulated in the bill of lading, neither the shipper nor the consignee being entitled to anything else. If no indemnity has been stipulated and the delay exceeds the time fixed in the bill of lading, the carrier shall be liable for the damages which the delay may have caused. ARTICLE 371. In case of delay through the fault of the carrier, referred to in the preceding articles, the consignee may leave the goods transported in the hands of the former, advising him thereof in writing before their arrival at the point of destination. When this abandonment takes place, the carrier shall pay the full value of the goods as if

they had been lost or mislaid. If the abandonment is not made, the indemnification for losses and damages by reason of the delay cannot exceed the current price which the goods transported would have had on the day and at the place in which they should have been delivered; this same rule is to be observed in all other cases in which this indemnity may be due. ARTICLE 372. The value of the goods which the carrier must pay in cases if loss or misplacement shall be determined in accordance with that declared in the bill of lading, the shipper not being allowed to present proof that among the goods declared therein there were articles of greater value and money. Horses, vehicles, vessels, equipment and all other principal and accessory means of transportation shall be especially bound in favor of the shipper, although with respect to railroads said liability shall be subordinated to the provisions of the laws of concession with respect to the property, and to what this Code established as to the manner and form of effecting seizures and attachments against said companies. ARTICLE 373. The carrier who makes the delivery of the merchandise to the consignee by virtue of combined agreements or services with other carriers shall assume the obligations of those who preceded him in the conveyance, reserving his right to proceed against the latter if he was not the party directly responsible for the fault which gave rise to the claim of the shipper or consignee. The carrier who makes the delivery shall likewise acquire all the actions and rights of those who preceded him in the conveyance. The shipper and the consignee shall have an immediate right of action against the carrier who executed the transportation contract, or against the other carriers who may have received the goods transported without reservation. However, the reservation made by the latter shall not relieve them from the responsibilities which they may have incurred by their own acts. ARTICLE 374. The consignees to whom the shipment was made may not defer the payment of the expenses and transportation charges of the goods they receive after the lapse of twenty-four hours following their delivery; and in case of delay in this payment, the carrier may demand the judicial sale of the goods transported in an amount necessary to cover the cost of transportation and the expenses incurred. ARTICLE 375. The goods transported shall be especially bound to answer for the cost of transportation and for the expenses and fees incurred for them during their conveyance and until the moment of their delivery. This special right shall prescribe eight days after the delivery has been made, and once prescribed, the carrier shall have no other action than that corresponding to him as an ordinary creditor. ARTICLE 376. The preference of the carrier to the payment of what is owed him for the transportation and expenses of the goods delivered to the consignee shall not be cut off by the bankruptcy of the latter, provided it is claimed within the eight days mentioned in the preceding article.

ARTICLE 377. The carrier shall be liable for all the consequences which may arise from his failure to comply with the formalities prescribed by the laws and regulations of the public administration, during the whole course of the trip and upon arrival at the point of destination, except when his failure arises from having been led into error by falsehood on the part of the shipper in the declaration of the merchandise. If the carrier has acted by virtue of a formal order of the shipper or consignee of the merchandise, both shall become responsible. ARTICLE 378. Agents for transportation shall be obliged to keep a special registry, with the formalities required by Article 36, in which all the goods the transportation of which is undertaken shall be entered in consecutive order of number and dates, with a statement of the circumstances required in Article 350 and others following for the respective bills of lading. ARTICLE 379. The provisions contained in Articles 349 and following shall be understood as equally applicable to those who, although they do not personally effect the transportation of the merchandise, contract to do so through others, either as contractors for a particular and definite operation, or as agents for transportations and conveyances. In either case they shall be subrogated in the place of the carriers themselves, with respect to the obligations and responsibility of the latter, as well as with regard to their rights. 1 Comment Posted in Laws and Issuances, Mercantile Law | Tags: Transportation Contracts, Transportation Laws
Posted by: Elmer Brabante | September 30, 2009

Common Carriers (Civil Code of the Philippines)

13 Votes CIVIL CODE OF THE PHILIPPINES COMMON CARRIERS

ARTICLE 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for compensation, offering their services to the public. Vigilance Over Goods ARTICLE 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Paitdo Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756. ARTICLE 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same is due to any of the following causes only: (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil; (3) Act or omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; meriee (5) Order or act of competent public authority. ARTICLE 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article, if the goods are lost, destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required in article 1733. ARTICLE 1736. The extraordinary responsibility of the common carrier lasts from the time the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has a right to receive them, without prejudice to the provisions of article 1738. ARTICLE 1737. The common carriers duty to observe extraordinary diligence in the vigilance over the goods remains in full force and effect even when they are temporarily unloaded or stored in transit, unless the shipper or owner has made use of the right of stoppage in transitu. ARTICLE 1738. The extraordinary liability of the common carrier continues to be operative even during the time the goods are stored in a warehouse of the carrier at the

place of destination, until the consignee has been advised of the arrival of the goods and has had reasonable opportunity thereafter to remove them or otherwise dispose of them. ARTICLE 1739. In order that the common carrier may be exempted from responsibility, the natural disaster must have been the proximate and only cause of the loss. However, the common carrier must exercise due diligence to prevent or minimize loss before, during and after the occurrence of flood, storm or other natural disaster in order that the common carrier may be exempted from liability for the loss, destruction, or deterioration of the goods. The same duty is incumbent upon the common carrier in case of an act of the public enemy referred to in article 1734, No. 2. ARTICLE 1740. If the common carrier negligently incurs in delay in transporting the goods, a natural disaster shall not free such carrier from responsibility. ARTICLE 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the proximate cause thereof being the negligence of the common carrier, the latter shall be liable in damages, which however, shall be equitably reduced. ARTICLE 1742. Even if the loss, destruction, or deterioration of the goods should be caused by the character of the goods, or the faulty nature of the packing or of the containers, the common carrier must exercise due diligence to forestall or lessen the loss. ARTICLE 1743. If through the order of public authority the goods are seized or destroyed, the common carrier is not responsible, provided said public authority had power to issue the order. ARTICLE 1744. A stipulation between the common carrier and the shipper or owner limiting the liability of the former for the loss, destruction, or deterioration of the goods to a degree less than extraordinary diligence shall be valid, provided it be: mimows (1) In writing, signed by the shipper or owner; (2) Supported by a valuable consideration other than the service rendered by the common carrier; and (3) Reasonable, just and not contrary to public policy. ARTICLE 1745. Any of the following or similar stipulations shall be considered unreasonable, unjust and contrary to public policy: (1) That the goods are transported at the risk of the owner or shipper; (2) That the common carrier will not be liable for any loss, destruction, or deterioration of the goods; (3) That the common carrier need not observe any diligence in the custody of the goods;

(4) That the common carrier shall exercise a degree of diligence less than that of a good father of a family, or of a man of ordinary prudence in the vigilance over the movables transported; (5) That the common carrier shall not be responsible for the acts or omission of his or its employees; (6) That the common carriers liability for acts committed by thieves, or of robbers who do not act with grave or irresistible threat, violence or force, is dispensed with or diminished; (7) That the common carrier is not responsible for the loss, destruction, or deterioration of goods on account of the defective condition of the car, vehicle, ship, airplane or other equipment used in the contract of carriage. ARTICLE 1746. An agreement limiting the common carriers liability may be annulled by the shipper or owner if the common carrier refused to carry the goods unless the former agreed to such stipulation. ARTICLE 1747. If the common carrier, without just cause, delays the transportation of the goods or changes the stipulated or usual route, the contract limiting the common carriers liability cannot be availed of in case of the loss, destruction, or deterioration of the goods. ARTICLE 1748. An agreement limiting the common carriers liability for delay on account of strikes or riots is valid. ARTICLE 1749. A stipulation that the common carriers liability is limited to the value of the goods appearing in the bill of lading, unless the shipper or owner declares a greater value, is binding. ARTICLE 1750. A contract fixing the sum that may be recovered by the owner or shipper for the loss, destruction, or deterioration of the goods is valid, if it is reasonable and just under the circumstances, and has been fairly and freely agreed upon. ARTICLE 1751. The fact that the common carrier has no competitor along the line or route, or a part thereof, to which the contract refers shall be taken into consideration on the question of whether or not a stipulation limiting the common carriers liability is reasonable, just and in consonance with public policy. ARTICLE 1752. Even when there is an agreement limiting the liability of the common carrier in the vigilance over the goods, the common carrier is disputably presumed to have been negligent in case of their loss, destruction or deterioration. ARTICLE 1753. The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration.

ARTICLE 1754. The provisions of articles 1733 to 1753 shall apply to the passengers baggage which is not in his personal custody or in that of his employee. As to other baggage, the rules in articles 1998 and 2000 to 2003 concerning the responsibility of hotelkeepers shall be applicable. Safety of Passengers

ARTICLE 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. ARTICLE 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755. ARTICLE 1757. The responsibility of a common carrier for the safety of passengers as required in articles 1733 and 1755 cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on tickets, or otherwise. ARTICLE 1758. When a passenger is carried gratuitously, a stipulation limiting the common carriers liability for negligence is valid, but not for wilful acts or gross negligence. The reduction of fare does not justify any limitation of the common carriers liability. ARTICLE 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or wilful acts of the formers employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. orIsit This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. ARTICLE 1760. The common carriers responsibility prescribed in the preceding article cannot be eliminated or limited by stipulation, by the posting of notices, by statements on the tickets or otherwise. ARTICLE 1761. The passenger must observe the diligence of a good father of a family to avoid injury to himself. ARTICLE 1762. The contributory negligence of the passenger does not bar recovery of damages for his death or injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitably reduced. ARTICLE 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of strangers, if the common

carriers employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. Common Provisions

ARTICLE 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a common carrier. ARTICLE 1765. The Public Service Commission may, on its own motion or on petition of any interested party, after due hearing, cancel the certificate of public convenience granted to any common carrier that repeatedly fails to comply with his or its duty to observe extraordinary diligence as prescribed in this Section. ARTICLE 1766. In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws. 4 Comments Posted in Civil Law, Laws and Issuances, Transportation Laws | Tags: Common Carriers, Transportation Laws
Posted by: Elmer Brabante | September 30, 2009

Executive Order No. 277

2 Votes EXECUTIVE ORDER NO. 277 APPROVING AND ADOPTING THE NATIONAL CIVIL AVIATION SECURITY PROGRAMME, CREATING THE OFFICE FOR TRANSPORTATION SECURITY IN THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, AND RECONSTITUTING THE NATIONAL COUNCIL FOR CIVIL AVIATION SECURITY AS THE NATIONAL CIVIL AVIATION SECURITY COMMITTEE WHEREAS, there is an urgent need to safeguard civil aviation against acts of unlawful interference while taking into account the safety, regularity and efficiency of flights

WHEREAS, pursuant to Executive Order No. 336 dated January 5, 2001, the National Council for Civil Aviation Security is responsible for formulating plans to direct, control, supervise and integrate all measures aimed at preventing and suppressing all terrorist threats to civil aviation; WHEREAS, under Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987, the President has continuing authority to reorganize the administrative, structure of the Office of the President. NOW, THERE, I GLORIA MACAPAGAL ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: SECTION 1. The National Civil Aviation Security Programme (NCASP), hereto attached as Annex A, is hereby approved and adopted. SECTION 2. An Office for Transportation Security under the Department of Transportation and Communication is hereby created to be headed by an Undersecretary, who shall be primarily responsible for the implementation of Annex 17 of the International Civil Aviation Organization (ICAO) Convention on aviation security. SECTION 3. The National Council for Aviation Security is hereby reconstituted as the National Civil Aviation Security Committee (NCASC), to be composed of the following: Secretary, Department of Transportation and Communications Secretary, Department of Interior and Local Government Undersecretary, DOTC Office for Transportation Security Assistant Secretary, Air Transportation Office General Manager, Manila International Airport Authority General Manager, Mactan-Cebu International Airport Authority General Manager, Clark International Airport Corporation General Manager, Subic Bay International Airport Authority Manager, Davao International Airport Manager, General Santos International Airport Manager, Laoag International Airport Manager, Zamboanga International Airport Director, Philippine National Police Aviation Security Group Commissioner, Bureau of Customs Commissioner, Bureau of Immigration Administrator, Philippine Overseas Employment Administration Administrator, Overseas Worker Welfare Administration Executive Director, Department of Tourism Protocol Officer, Department of Foreign Affairs Director, National Bureau of Investigation Group Commander, Intelligence Service of the Armed Forces of the Philippines Director General, National Intelligence Coordinating Agency Chairman Co-Chairman Vice-Chairman Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member

Group Commander, Presidential Security Group Director, DA Bureau of Plant Industry Director, DA Bureau of Animal Industry Chief Superintendent, Bureau of Fire Protection Director, DOH Bureau of Quarantine and International Health Surveillance

Member Member Member Member Member

SECTION 4. In addition to its current functions, the NCASC shall be responsible for the implementation and maintenance of the NCASP and shall: 1. 1. Define and allocate task and coordinate activities among the agencies of the government, airport authorities, aircraft operators and other entities concerned with, or responsible for, the implementation of various aspects of the NCASP; 2. Coordinate security activities among the agencies of the government, airport authorities, aircraft operators and other entities concerned with, or responsible for, the implementation of various aspects of the NCASP; 3. Define and allocate tasks for the implementation of the NCASP among the agencies of the government, airport authorities, aircraft operators and other concerned entities; 4. Ensure that each airport serving international civil aviation shall establish and implement a written airport security programme appropriate to meet the requirements of the NCASP; 5. Arrange for an authority at each airport serving international civil aviation to be responsible for coordinating the implementation of security controls; 6. Arrange for the establishment of an airport security committee at each airport serving international civil aviation to assist the authority mentioned in paragraph (e) above, in the coordination of the implementation of security controls and procedures; 7. Coordinate and collaborate with the Task Force for Security of Critical Infrastructure under the Cabinet Oversight Committee on International Security; and 8. Perform such other Transportation Security shall serve as the Secretariat of the NCASC. SECTION 5. Repeal. All orders, rules, regulations and issuances, or parts thereof, which are inconsistent with this Executive Order are hereby repealed or modified accordingly. SECTION 6. Effectivity. This Executive Order shall take effect immediately. City of Manila, January 30, 2004 (Sgd.) GLORIA MACAPAGAL ARROYO By the President:

(Sgd.)ALBERTO G. ROMULO Executive Secretary Leave a Comment Posted in Laws and Issuances, Transportation Laws | Tags: Transportation Laws, Transportation Security
Posted by: Elmer Brabante | September 30, 2009

Executive Order No. 311

3 Votes EXECUTIVE ORDER NO. 311 DESIGNATING THE OFFICE FOR TRANSPORTATION SECURITY AS THE SINGLE AUTHORITY RESPONSIBLE FOR THE SECURITY OF THE TRANSPORTATION SYSTEMS OF THE COUNTRY, EXPANDING ITS POWERS AND FUNCTIONS AND FOR OTHER PURPOSES WHEREAS; the State is committed to the maintenance of safe and dependable transportation systems as effective instruments for national recovery and economic progress; WHEREAS, recent international and domestic events are stark reminders that the nation must constantly be vigilant to prevent weapons, explosives, other dangerous elements or devices, hazardous materials and cargoes, which may be used to commit an act of terrorism and the carriage or bearing of which is not authorized, from being introduced into and carried on board a public transport system; WHEREAS, it is necessary to formulate, implement and coordinate transportation security measures, programs, plans and activities which will enhance the security and safety of the transportation systems of the country; WHEREAS, to address the range of transnational crimes affecting our country, Executive Order No. 62 issued on 15 January 1999 creating the Philippine Center on Transnational Crime to formulate and implement a concerted program of action of all law enforcement intelligence and other agencies for the prevention and control of transnational crime;

WHEREAS, to ensure the effective and efficient implementation and coordination of transportation security measures, programs, plans and activities which will enhance the security and safety of the transportation systems of the country; WHEREAS, to ensure the effective and efficient implementation and coordination of transportation security measures, there is a need for a single authority which shall be responsible therefore; WHEREAS, under Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987, the President has the continuing authority to recognize the administrative structure of the Office of the President. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order: Section 1. Single Authority The Office for Transportation Security (OTS) is hereby designated as the single authority responsible for the security of the transportation systems of the country, including, but not limited to: 1. 1. Civil Aviation, by ensuring that Annex 17 to the Convention on International Civil Aviation, as amended, commonly referred to as the Standards and Recommended Practices on Security and as enumerated in the Security Manuel for Safeguarding International Civil Aviation Against Acts of Unlawful Interference, as well as the National Civil Aviation Security Programme (NCASP) are implemented; 2. Sea Transport and Maritime Infrastructure, by ensuring that the International Maritime Organization International Ship and Port Facility Security Code (ISPS) is implemented, and that a National Security Programme for Sea Transport and Maritime Infrastructure is formulated, developed and implemented; and 3. Land Transportation, Rail System and Infrastructure, by ensuring that a National Security Programme for Land Transportation, Rail System and Infrastructure is formulated, developed and implemented. SECTION. 2. Powers and Functions The OTS shall exercise the following powers and functions: 1. 1. Assume the functions of the National Civil Aviation Security Committee (NCASC) enumerated in Section 4 of Executive Order No. 277 dated January 30, 2004 as well as all other powers and functions of the NCASC subject, however, to Section 3 of this Executive Order; 2. Exercise operational control and supervision over all units of law enforcement agencies and agency personnel providing security services in the transportation systems, except for motor vehicles in land transportation,

jointly with the heads of the bureaus or agencies to which the units or personnel organically belong or are assigned; 3. Exercise responsibility for transportation security operations including, but not limited to, security screening of passengers, baggage and cargoes, and hiring, retention, training and testing of security screening personnel; 4. In coordination with the appropriate agencies and /or instrumentalities of the government, formulate, develop, promulgate and implement comprehensive security plans, policies, measures, strategies and programs to ably and decisively deal with any threat to the security of transportation systems, and continually review, assess and upgrade such security plans, policies, measures, strategies and programs, to improve and enhance transportation security and ensure the adequacy of these security measures; 5. Examine and audit the performance of transportation security personnel, equipment and facilities, and thereafter, establish, on a continuing basis, performance, standards for such personnel, equipment and facilities, including for the training of personnel; 6. Prepare a security manual/master plan or programme which shall prescribe the rules and regulations for the efficient and safe operation of all transportation systems, including standards for security screening procedures, prior screening or profiling of individuals for the issuance of security access passes, and determination of levels of security clearances for personnel of the OTS, the DOTC and its attached agencies, and other agencies of the government; 7. Prescribe security and safety standards for all transportation systems in accordance with existing laws, rules, regulations and international conventions; 8. Subject to the approval of the Secretary of the DOTC, issue Transportation Security Regulations/Rules and amend, rescind or revise such regulations or rules as may be necessary for the security of the transportation systems of the country; 9. Enlist the assistance of any department, bureau, office, instrumentality, or government-owned or controlled corporation, to carry out its functions and mandate including, but not limited to, the use of their respective personnel, facilities and resources; 10. Actively coordinate with law enforcement agencies in the investigation and prosecution of any illegal act or unlawful interference committed at or directed to any public transportation system; 11. Perform such other functions necessary to effectively carry out the provisions of this Executive Order or as may be directed by the Secretary of the DOTC. SECTION. 3. National Civil Aviation Security Committee Secretariat The NCASC shall henceforth act as an advisory body to and consultative forum for the Secretary of the DOTC in matters relative civil aviation security. For this purpose, the NCASC is hereby transferred from the Department of the Interior and Local Government (DILG) to the DOTC, and is hereby reconstituted and shall be composed of the following:

Secretary, DOTC Secretary, DILG Undersecretary, Office for Transportation Security Assistant Secretary, Air Transportation Office General Manager, Manila International Airport Authority General Manager, Mactan-Cebu International Airport Authority General Manager, Clark International Airport Corporation General Manager, Subic Bay International Airport Authority Manager, Davao International Airport Manager, General Santos International Airport Manager, Laoag International Airport Manager, Zamboanga International Airport Director, Philippine National Police Aviation Security Group Commissioner, Bureau of Customs Commissioner, Bureau of Immigration Administrator, Philippine Overseas Employment Administration Administrator, Overseas Workers Welfare Administration Executive Director, Department of Tourism Protocol Officer, Department of Foreign Affairs Director, National Bureau of Investigation Group Commander, Intelligence Service of the Armed Forces of the Philippines Director General, National Intelligence Coordinating Agency Group Commander, Presidential Security Group Director, Bureau of Plant Industry Director, Bureau of Animal Industry Chief Superintendent, Bureau of Fire Protection Director, Bureau of Quarantine and International Health Surveillance

Chairman Vice- Chairman Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member Member

The OTS shall continue to serve as the Secretariat of the NCASC and qualified DILG personnel performing secretariat functions for the NCASC shall have the option to transfer the DOTC and be absorbed by the OTS.

SECTION. 4. Security Committees The Secretary of the DOTC shall have the power to create other security committees, composed of concerned agencies of the government and stakeholders, which shall provide assistance in the formulation, development and implementation of national security programmes for sea transport and maritime infrastructure and for land transportation, rail system and infrastructure. SECTION. 5. Funding The amount necessary for the initial operation and administration for the OTS shall be chargeable against funds for the purpose and other sources recommended by the Department of Budget and Management. Thereafter, appropriations for the OTS shall be included in the budget proposals under the DOTC. SECTION. 6 Implementing Rules and Regulations. Within ninety (90) days from the effectivity of this Executive Order and subject to the approval of the Secretary of the DOTC, the OTS shall promulgate rules and regulations necessary for the implementation of this Executive Order. SECTION. 7. Repeal Executive Order No. 277 dated January 30, 2004 is hereby modified accordingly. All other orders, rules, regulations and issuances, or parts thereof, which are inconsistent with this Executive Order are hereby repealed or modified accordingly. SECTION 8. Effectively. This Executive Order shall take effect immediately. City of Manila, 26th day of April, 2004 (Sgd.) GLORIA MACAPAGAL-ARROYO By the President: (Sgd.) ALBERTO G. ROMULO Executive Secretary Leave a Comment Posted in Laws and Issuances, Transportation Laws | Tags: Executive Order 311, Laws on Transportation, Terrorism, Transportation Security
Posted by: Elmer Brabante | September 29, 2009

Reviewer on Public Officers by Atty. Edwin Sandoval

5 Votes

THE LAW OF PUBLIC OFFICERS


Define Appointment. Discuss its nature. Held: An appointment to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has held: The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x. Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug]) May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the ground that somebody else is better qualified? Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the functions of the office. Appointment is an essentially discretionary power and must be performed by the officer vested with such power according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Indeed, this is a prerogative of the appointing authority which he alone can decide. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of the office concerned, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function. As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect the appointment even if it be proved that there are others with superior credentials. The law limits the Commissions authority only to whether or not the

appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.]) Does the next-in-rank rule import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy? Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank, as the concept does not import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the position next in rank thereto shall be considered for promotion. In Taduran v. Civil Service Commission, the Court construed that phrase to mean that the person next-in-rank would be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil Service Commission, the Court elaborated the import of the rule in the following manner: One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position x x x (Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano]) Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity? Illustrative case. Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV is embraced in the Career Executive Service. X x x In the case at bar, there is no question that private respondent does not have the required CES eligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the Career Executive Service. In the case of Achacoso v. Macaraig, et al., the Court held:

It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he s being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments notice, conformably to established jurisprudence. The Court, having considered these submissions and the additional arguments of the parties in the petitioners Reply and of the Solicitor-Generals Rejoinder, must find for the respondents. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure in its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. Evidently, private respondents appointment did not attain permanency. Not having taken the necessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time of his appointment and up to the present, possess the needed eligibility for a position in the Career Executive Service. Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in the assignment of personnels under the Career Executive Service do not apply to him because he s not a Career Executive Service Officer. Obviously, the contention is without merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy. Then too, the cases on unconsented transfer invoked by private respondent find no application in the present case. To reiterate, private respondents appointment is merely temporary; hence, he could be transferred or reassigned to other positions without violating his right to security of tenure. (De Leon v. Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago]) In the career executive service, is a career executive service (CES) eligibility all that an employee needs to acquire security of tenure? Is appointment to a CES rank necessary for the acquisition of such security of tenure?

Held: In the career executive service, the acquisition of security of tenure which presupposes a permanent appointment is governed by the rules and regulations promulgated by the CES Board x x x. As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: CES eligibility; and Appointment to the appropriate CES rank. In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies. In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not possess the appropriate CES rank, which is CES rank level V, for the position of Regional Director of the LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES, respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly reassigned to other positions in the career executive service. x x x Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan, CES personnel may be reassigned or transferred from one position to another x x x. One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES eligible. The absence, however, of such CES eligibility is of no moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated Reorganization Plan x x x the President may, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualified in such examination. Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said eligibility, in the same manner that the appointment of respondent who does not possess the required CES rank (CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporary capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-Santiago])

How are positions in the Civil Service classified? Discuss the characteristics of each. Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-Career Positions. Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292). The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).

What is a primarily confidential position? What is the test to determine whether a position is primarily confidential or not? Held: A primarily confidential position is one which denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950]) Under the proximity rule, the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was the latters belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is more remote from that of the appointing authority, the element of trust between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

Does the Civil Service Law contemplate a review of decisions exonerating officers or employees from administrative charges? Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal

from office and not included are cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary (Paredes v. Civil Service Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges, there is no occasion for appeal. (Mendez v. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule prior decisions holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges enunciated in Paredes v. Civil Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What is preventive suspension? Discuss its nature. Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero])

Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service employee placed under preventive suspension be entitled to compensation? Held: There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil Service Law, EO No. 292). Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be

reinstated. However, no compensation was due for the period of preventive suspension pending investigation. The Civil Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during suspension was deleted. But although it is held that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza])

Discuss the power of Ombudsman to conduct administrative investigations, and to impose preventive suspension. Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. x x x R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative investigations. x x x Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority x x x. Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770. However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission is different from the question of whether or not petitioner, after investigation, may be held administratively liable. This distinction ought here to be kept in mind even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer. Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law. x x x

We have previously interpreted the phrase under his authority to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed, excepting of course those removable by impeachment, members of Congress and the Judiciary. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited. There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p. 7, 306 SCRA 287) or to tamper with records that might be vital to the prosecution of the case against him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months? Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed six months. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law. The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman. The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by law. But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. X x x Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])

Distinguish preventive suspension under the Local Government Code from preventive suspension under the Ombudsman Act. Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or Presidents office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. In Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said: Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is much too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, the two provisions govern differently. However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence. Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] of the Ombudsman Law x x x. Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer. Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard. Moreover, respondents state that petitioner was given 10 days to submit his counteraffidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the Rules of Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing]) Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress and, therefore, the Sandiganbayan erred in decreeing the preventive suspension order against Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act No. 3019 not encroach on the power of Congress to discipline its own ranks under the Constitution? Held: The petition assails the authority of the Sandiganbayan to decree a ninetyday preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order. The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. X x x In the relatively recent case of Segovia v. Sandiganbayan, the Court reiterated: The validity of Section 13, R.A. 3019, as amended treating of the suspension pendente lite of an accused public officer may no longer be put at issue, having been repeatedly upheld by this Court. The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service. (At pp. 336-337)

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be no ifs and buts about it. Explaining the nature of the preventive suspension, the Court in the case of Bayot v. Sandiganbayan: x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayans authority to decree the suspension of public officials and employees indicted before it. Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word office would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.) En passant, while the imposition of suspension is not automatic or self-operative as the validity of the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x. Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court. However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to

quash on the ground provided in Paragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code. (Luciano v. Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988]) The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure. The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension. The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides that each x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987 Constitution) The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by the Senate or the House of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al., the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of Congress. The Court ruled: x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of two-thirds of all its Members subject to the qualification that the penalty of suspension, when imposed, should not exceed sixty days in unavailing, as it appears to be quite distinct from the suspension

spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch. Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of actual controversies involving rights which are legally demandable and enforceable, but also in the determination of whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view that unless an infringement of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself. Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order. Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

May an elective public official be validly appointed or designated to any public office or position during his tenure?

Ans.: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Sec. 7, 1st par., Art. IX-B, 1987 Constitution)

May an appointive public official hold any other office or employment?


Ans.: Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporation. (Sec. 7, 2nd par., Art. IX-B, 1987 Constitution) May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold any other office or employment? Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. (Sec. 13, Art. VII, 1987 Constitution) Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B? Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries. We rule in the negative. The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. X x x

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x Particularly odious and revolting to the peoples sense of propriety and morality in government service were the data contained therein that Roberto v. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. X x x But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, [N]o Senator or Member of the House of Representatives may hold any other office or employment in the Government x x x. Under section 5(4), Article XVI, [N]o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. Even Section 7(2), Article IX-B, relied upon by respondents provides [U]nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government.

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that [T]he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. In the latter provision, the disqualification is absolute, not being qualified by the phrase in the Government. The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase unless otherwise provided in this Constitution in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To construe said qualifying phrase as respondents would have us to do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for appointment or designation in any capacity to any public office or position during his tenure. Surely, to say that the phrase unless otherwise provided in this Constitution found in Section 13, Article VII has reference to Section 7, par. (1) of Article IX-B would render meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article IX-B be construed vis--vis Section 13, Article VII. Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices and employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation (Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase unless otherwise provided in this Constitution must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitutions manifest intent and the peoples understanding thereof. In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that

Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of any other office within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department heads ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions and responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby orders respondents x x x to immediately relinquish their other offices or employment, as herein defined, in the government, including governmentowned or controlled corporations and their subsidiaries. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ]) Does the prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution apply to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials office? Held: The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required (As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the Constitution, which is

permissive. Required suggests an imposition, and therefore, obligatory in nature) by the primary functions of said officials office. The reason is that these posts do not comprise any other office within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115. Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned officials office. The term ex-officio means from office; by virtue of office. It refers to an authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position. Ex officio likewise denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office. An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority (Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210). The Court had occasion to explain the meaning of an ex-officio position in Rafael v. Embroidery and Apparel Control and Inspection Board, thus: An examination of Section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. I order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments. The term primary used to describe functions refers to the order of importance and thus means chief or principal function. The term is not restricted to the

singular but may refer to the plural (33A Words and Phrases, p. 210). The additional duties must not only be closely related to, but must be required by the officials primary functions. Examples of designations to positions by virtue of ones primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority and the Civil Aeronautics Board. If the functions to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of any other office prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in governmentowned or controlled corporations and their subsidiaries. Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed. Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be deprived of the means for control and supervision, thereby resulting in an unwieldy and confused bureaucracy. It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is

not entitled to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ]) Should members of the Cabinet appointed to other positions in the government pursuant to Executive Order No. 284 which later was declared unconstitutional by the SC for being violative of Section 13, Article VII of the Constitution be made to reimburse the government for whatever pay and emoluments they received from holding such other positions? Held: During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. It has been held that in cases where there is no de jure officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

May a Senator or Congressman hold any other office or employment?


Ans.: No Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. (Sec. 13, Art. VI, 1987 Constitution).

What are the situations covered by the law on nepotism? Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) b) appointing authority; recommending authority;

c) d)

chief of the bureau or office; and person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What are the exemptions from the operation of the rules on nepotism? Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines. The rules on nepotism shall likewise not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases? Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992]) 2. A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing])

What is the Doctrine of Condonation? Illustrative case. Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, his reelection has rendered the administrative case filed against him moot and academic. This is because his reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term. Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija, citing Conant v. Brogan, that x x x When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Respondents, on the other hand, contend that while the contract in question was signed during the previous term of petitioner, it was to commence or be effective only on September 1998 or during his current term. It is the respondents submission that petitioner went beyond the protective confines of jurisprudence when he agreed to extend his act to his current term of office. Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term. Respondents maintain that, x x x petitioner performed two acts with respect to the contract: he provided for a suspensive period making the supply contract commence or be effective during his succeeding or current term and during his current term of office he acceded to the suspensive period making the contract effective during his current term by causing the implementation of the contract. Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents. Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full knowledge of petitioners character. On this point, petitioner responds that knowledge of an officials previous acts is presumed and the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds. Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved Albay governor Ramon R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine of Aguinaldo applies even

where the effects of the acts complained of are still evident during the subsequent term of the reelected official. The implementation of the contract is a mere incident of its execution. Besides, according to petitioner, the sole act for which he has been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contracts execution or implementation, or any act subsequent to the perfection of the contract. In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection. We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively suspend him for a reasonable period, can that office hold him administratively liable for said acts? In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is resumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. For his part, petitioner contends that the only conclusive determining factor as regards the peoples thinking on the matter is an election. On this point we agree with petitioner. That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the officials reelection, except that it must be prior to said date. As held in Salalima, The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected

official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service x x x. The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig. The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioners second term. However, respondents argue that the contract, although signed on May 7, 1998, during petitioners prior term, is to be made effective only during his present term. We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F.E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to the question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reappointment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Held: Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that

Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. X x x. The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the approval of the COMELEC en banc. Petitioners appointment papers x x x indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. Petitioner is not a Career Executive Service (CES), and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. X x x Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code x x x. Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code, the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or

reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

May the appointment of a person assuming a position in the civil service under a completed appointment be validly recalled or revoked? Held: It has been held that upon the issuance of an appointment and the appointees assumption of the position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing. Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing. Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke the recall. Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations. Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance. Section 20 of Rule VI also provides: Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds: Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan; Failure to pass through the agencys Selection/Promotion Board; Violation of the existing collective agreement between management and employees relative to promotion; or Violation of other existing civil service law, rules and regulations. Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-called midnight appointments, specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

Is a government employee who has been ordered arrested and detained for a nonbailable offense and for which he was suspended for his inability to report for work until the termination of his case, still required to file a formal application for leave of absence to ensure his reinstatement upon his acquittal and thus protect his security of tenure? Concomitantly, will his prolonged absence from office for more than one (1) year automatically justify his being dropped from the rolls without prior notice despite his being allegedly placed under suspension by his employer until the termination of his case, which finally resulted in his acquittal for lack of evidence? Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City Government of Makati City. With her meager income she was the lone provider for her children. But her simple life was disrupted abruptly when she was arrested without warrant and detained for more than three (3) years for a crime she did not commit. Throughout her ordeal she trusted the city government that the suspension imposed on her was only until

the final disposition of her case. As she drew near her vindication she never did expect the worst to come to her. On the third year of her detention the city government lifted her suspension, dropped her from the rolls without prior notice and without her knowledge, much less gave her an opportunity to forthwith correct the omission of an application for leave of absence belatedly laid on her. Upon her acquittal for lack of evidence and her release from detention she was denied reinstatement to her position. She was forced to seek recourse in the Civil Service Commission which ordered her immediate reinstatement with back wages from 19 October 1994, the date when she presented herself for reassumption of duties but was turned back by the city government, up to the time of her actual reinstatement. Plainly, the case of petitioner City Government of Makati City revolves around a rotunda of doubt, a dilemma concerning the legal status and implications of its suspension of private respondent Eusebia R. Galzote and the automatic leave of absence espoused by the Civil Service Commission. Against this concern is the punctilious adherence to technicality, the requirement that private respondent should have filed an application for leave of absence in proper form. The instant case is therefore a dispute between, at its worst, private respondents substantial compliance with the standing rules, and the City Governments insistence that the lowly clerk should have still gone through the formalities of applying for leave despite her detention, of which petitioner had actual notice, and the suspension order couched in simple language that she was being suspended until the final disposition of her criminal case. The meaning of suspension until the final disposition of her case is that should her case be dismissed she should be reinstated to her position with payment of back wages. She did not have to apply for leave of absence since she was already suspended by her employer until her case would be terminated. We have done justice to the workingman in the past; today we will do no less by resolving all doubts in favor of the humble employee in faithful obeisance to the constitutional mandate to afford full protection to labor (Const., Art. XIII, Sec. 3, par. 1; Art. II, Sec. 18) As may be gleaned from the pleadings of the parties, the issues are: (1) whether private respondent Eusebia R. Galzote may be considered absent without leave; (b) whether due process had been observed before she was dropped from the rolls; and, (3) whether she may be deemed to have abandoned her position, hence, not entitled to reinstatement with back salaries for not having filed a formal application for leave. Encapsulated, the issues may be reduced to whether private respondent may be considered absent without leave or whether she abandoned her job as to justify being dropped from the service for not filing a formal application for leave. Petitioner would have private respondent declared on AWOL and faults her for failing to file an application for leave of absence under Secs. 20 (Now Sec. 52 of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63 of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999) of the

CSC Rules and rejects the CSCs ruling of an automatic leave of absence for the period of her detention since the current Civil Service Law and Rules do not contain any specific provision on automatic leave of absence. The Court believes that private respondent cannot be faulted for failing to file prior to her detention an application for leave and obtain approval thereof. The records clearly show that she had been advised three (3) days after her arrest, or on 9 September 1991, that petitioner City government of Makati City had placed her under suspension until the final disposition of her criminal case. This act of petitioner indubitably recognized private respondents predicament and thus allowed her to forego reporting for work during the pendency of her criminal case without the needless exercise of strict formalities. At the very least, this official communication should be taken as an equivalent of a prior approved leave of absence since it was her employer itself which placed her under suspension and thus excused her from further formalities in applying for such leave. Moreover, the arrangement bound the City Government to allow private respondent to return to her work after the termination of her case, i.e., if acquitted of the criminal charge. This pledge sufficiently served as legitimate reason for her to altogether dispense with the formal application for leave; there was no reason to, as in fact it was not required, since she was for all practical purposes incapacitated or disabled to do so. Indeed, private respondent did not have the least intention to go on AWOL from her post as Clerk III of petitioner, for AWOL means the employee leaving or abandoning his post without justifiable reason and without notifying his employer. In the instant case, private respondent had a valid reason for failing to report for work as she was detained without bail. Hence, right after her release from detention, and when finally able to do so, she presented herself to the Municipal Personnel Officer of petitioner City Government to report for work. Certainly, had she been told that it was still necessary for her to file an application for leave despite the 9 September 1991 assurance from petitioner, private respondent would have lost no time in filing such piece of document. But the situation momentarily suspending her from work persisted: petitioner City Government did not alter the modus vivendi with private respondent and lulled her into believing that its commitment that her suspension was only until the termination of her case was true and reliable. Under the circumstances private respondent was in, prudence would have dictated petitioner, more particularly the incumbent city executive, in patria potestas, to advise her that it was still necessary although indeed unnecessary and a useless ceremony to file such application despite the suspension order, before depriving her of her legitimate right to return to her position. Patria potestas in piatate debet, non in atrocitate, consistere. Paternal power should consist or be exercised in affection, not in atrocity. It is clear from the records that private respondent Galzote was arrested and detained without a warrant on 6 September 1991 for which reason she and her co-accused were subjected immediately to inquest proceedings. This fact is evident from the instant petition itself and its attachments x x x. Hence, her ordeal in jail began on 6 September 1991 and ended only after her acquittal, thus leaving her no time to attend to the formality of filing a leave of absence.

But petitioner City Government would unceremoniously set aside its 9 September 1991 suspension order claiming that it was superseded three (3) years later by a memorandum dropping her from the rolls effective 21 January 1993 for absence for more than one (1) year without official leave. Hence, the suspension order was void since there was no pending administrative charge against private respondent so that she was not excused from filing an application for leave. We do not agree. In placing private respondent under suspension until the final disposition of her criminal case, the Municipal Personnel Officer acted with competence, so he presumably knew that his order of suspension was not akin to either suspension as penalty or preventive suspension since there was no administrative case against private respondent. As competence on the part of the MPO is presumed, any error on his part should not prejudice private respondent, and that what he had in mind was to consider her as being on leave of absence without pay and their employer-employee relationship being merely suspended, not severed, in the meantime. This construction of the order of suspension is actually more consistent with logic as well as fairness and kindness to its author, the MPO. Significantly, the idea of a suspended employer-employee relationship is widely accepted in labor law to account for situations wherein laborers would have no work to perform for causes not attributable to them. We find no basis for denying the application of this principle to the instant case which also involves a lowly worker in the public service. Moreover, we certainly cannot nullify the City Governments order of suspension, as we have no reason to do so, much less retroactively apply such nullification to deprive private respondent of a compelling and valid reason for not filing the leave application. For as we have held, a void act though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application. At any rate, statements are, or should be, construed against the one responsible for the confusion; otherwise stated, petitioner must assume full responsibility for the consequences of its own act, hence, he should be made to answer for the mix-up of private respondent as regards the leave application. At the very least, it should be considered estopped from claiming that its order of suspension is void or that it did not excuse private respondent from filing an application for leave on account of her incarceration. It is a fact that she relied upon this order, issued barely three (3) days from the date of her arrest, and assumed that when the criminal case would be settled she could return to work without need of any prior act. x x x The holding of the Civil Service Commission that private respondent was on automatic leave of absence during the period of her detention must be sustained. The CSC is the constitutionally mandated central personnel agency of the Government tasked to establish a career service and adopt measures to promote morale, efficiency, integrity,

responsiveness, progressiveness and courtesy in the civil service (Const., Art. IX-B, Sec. 3) and strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. Besides, the Administrative Code of 1987 further empowers the CSC to prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws, and for matters concerning leaves of absence, the Code specifically vests the CSC to ordain Sec. 60. Leave of absence. Officers and employees in the Civil Service shall be entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service Commission in the interest of the service. Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27 December 1991 entitled Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws which it has several times amended through memorandum circulars. It devotes Rule XVI to leaves of absence. Petitioner City Government relies upon Secs. 20 and 35 to debunk the CSC ruling of an automatic leave of absence. Significantly, these provisions have been amended so that Sec. 20 of the Civil Service Rules is now Sec. 52 of Rule XVI, on Leave of Absence, of Resolution No. 91-1631 dated 27 December 1991 as amended by CSC MC No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999. As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an approved leave of absence to avoid being an AWOL. However, these provisions cannot be interpreted as exclusive and referring only to one mode of securing the approval of a leave of absence which would require an employee to apply for it, formalities and all, before exceeding thirty (30) days of absence in order to avoid from being dropped from the rolls. There are, after all, other means of seeking and granting an approved leave of absence, one of which is the CSC recognized rule of automatic leave of absence under specified circumstances. x x x As properly noted, the CSC was only interpreting its own rules on leave of absence and not a statutory provision (As a matter of fact, Sec. 60 of the Administrative Code does not provide for any rule on leave of absence other than that civil servants are entitled to leave of absence) in coming up with this uniform rule. Undoubtedly, the CSC like any other agency has the power to interpret its own rules and any phrase contained in them with its interpretation significantly becoming part of the rules themselves. x x x Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization) and RA 7160 (The Local Government Code of 1991), civil servants who are found illegally dismissed or retrenched are entitled to full pay for the period of their separation. Our final point. An efficient and honest bureaucracy is never inconsistent with the emphasis on and the recognition of the basic rights and privileges of our civil servants or, for that matter, the constitutional mandates of the Civil Service Commission. In fact

only from an enlightened corps of government workers and an effective CSC grows the professionalization of the bureaucracy. Indeed the government cannot be left in the lurch; but neither could we decree that government personnel be separated from their jobs indiscriminately regardless of fault. The fine line between these concerns may be difficult to clearly draw but if we only exerted extra effort to rebel against the allure of legal oversimplification, justice would have been done where it is truly due. (City Government of Makati City v. Civil Service Commission, 376 SCRA 248, Feb. 6, 2002, En Banc [Bellosillo])

What is abandonment of office? What are its essential elements? Held: Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. In order to constitute abandonment of an office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. Abandonment of duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or external act by which the intention is carried into effect. Generally speaking, a person holding a public office may abandon such office by non-user or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, non-performance of the duties of an office does not constitute abandonment where such non-performance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the effect. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

By accepting another position in the government during the pendency of a case brought precisely to assail the constitutionality of his removal may a person be deemed to have abandoned his claim for reinstatement? Held: Although petitioners do not deny the appointment of Canonizado as Inspector General, they maintain that Canonizados initiation and tenacious pursuance of the present case would belie any intention to abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of

this case. Furthermore, petitioners point out that from the time Canonizado assumed office as Inspector General he never received the salary pertaining to such position x x x. By accepting the position of Inspector General during the pendency of the present case brought precisely to assail the constitutionality of his removal from the NAPOLCOM Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was compelled to do so on the strength of Section 8 of RA 8551 . In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of petitioners constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners x x x lost no time disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect x x x petitioners instituted the current action x x x assailing the constitutionality of certain provisions of said law. The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

Distinguish term of office from tenure of the incumbent. Held: In the law of public officers, there is a settled distinction between term and tenure. [T]he term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

Discuss the operation of the rotational plan insofar as the term of office of the Chairman and Members of the Constitutional Commissions is concerned. Held: In Republic v. Imperial, we said that the operation of the rotational plan requires two conditions, both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date, and (2) that any vacancy due to death, resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date, irrespective of the

variations in the dates of appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. Applying the foregoing conditions x x x, we rule that the appropriate starting point of the terms of office of the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 2, 1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

What is the hold-over doctrine? What is its purpose? Held: 1. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same. Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions. (Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2nd Div. [Bellosillo]) 2. The rule is settled that unless holding over be expressly or impliedly prohibited, the incumbent may continue to hold over until someone else is elected and qualified to assume the office. This rule is demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended. Otherwise stated, the purpose is to prevent a hiatus in the government pending the time

when the successor may be chosen and inducted into office. (Galarosa v. Valencia, 227 SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])

What is resignation? What are the requisites of a valid resignation? Held: 1. It is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last one is required by reason of Article 238 of the Revised Penal Code. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998) 2. Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])

What is abandonment of an office? What are its requisites? How is it distinguished from resignation? Held: Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. Abandonment springs from and is accompanied by deliberation and freedom of choice. Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy. Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be with the officers actual or imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment. Therefore, there are two essential elements of abandonment; first, an intention to abandon and, second, an overt or external act by which the intention is carried into effect. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)

What is the effect of acceptance of an incompatible office to a claim for reinstatement? Held: The next issue is whether Canonizados appointment to and acceptance of the position of Inspector General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a well-settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The incompatibility contemplated is not the mere physical impossibility of one persons performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other. There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion, or assignment of any PNP personnel, whereas the NAPOLCOM has the power of control and supervision over the PNP. However, the rule on incompatibility of duties will not apply to the case at bar because at no point did Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his first office by the enactment of Section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector General x x x he had ceased to discharge his official functions as NAPOLCOM Commissioner. x x x Thus, to reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two positions, of Commissioner and Inspector General, nor discharged their respective functions, concurrently. As in the Tan v. Gimenez and Gonzales v. Hernandez cases, Canonizado was compelled to leave his position as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like the petitioners in the above mentioned cases, held a second office during the period that his appeal was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this subsequent position by a desire to continue serving the country, in whatever capacity. Surely, this selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and ones family, either of which are sufficient to justify Canonizados acceptance of the position of Inspector General. A Contrary ruling would deprive petitioner of his right to live, which contemplates not only a right to earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore, prohibiting Canonizado from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can be attributed to him. However, before Canonizado

can re-assume his post as Commissioner, he should first resign as Inspector General of the IAS-PNP. (Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc [GonzagaReyes])

When may unconsented transfers be considered anathema to security of tenure? Held: As held in Sta. Maria v. Lopez: x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed not merely assigned to a particular station. Such a rule does not pr[o]scribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. x x x The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It only means that an employee cannot be dismissed (or transferred) from the service for causes other than those provided by law and after due process is accorded the employee. What it seeks to prevent is capricious exercise of the power to dismiss. But where it is the law-making authority itself which furnishes the ground for the transfer of a class of employees, no such capriciousness can be raised for so long as the remedy proposed to cure a perceived evil is germane to the purposes of the law. (Agripino A. De Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima])

Discuss Abolition of Office. Held: The creation and abolition of public offices is primarily a legislative function. It is acknowledged that Congress may abolish any office it creates without impairing the officers right to continue in the position held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees. An abolition of office connotes an intention to do away with such office wholly and permanently, as the word abolished denotes. Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul we said: It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the renaming and restructuring of the PGH and its component units cannot give rise to a

valid and bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for the reason that the duties and functions of the two positions are basically the same. This was also our ruling in Guerrero v. Arizabal, wherein we declared that the substantial identity in the functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a reorganization. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes])

What is reorganization? When is it valid? When is it invalid? Held: 1. Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of ones position through removal or abolition of an office. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison: x x x As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition is done, is void ab initio. There is an invalid abolition as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes]) 2. While the Presidents power to reorganize can not be denied, this does not mean however that the reorganization itself is properly made in accordance with law. Well-settled is the rule that reorganization is regarded as valid provided it is pursued in good faith. Thus, in Dario v. Mison, this Court has had the occasion to clarify that:

As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make the bureaucracy more efficient. In that event no dismissal or separation actually occurs because the position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition done is void ab initio. There is an invalid abolition as where there is merely a change of nomenclature of positions or where claims of economy are belied by the existence of ample funds. (Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

What are the circumstances evidencing bad faith in the removal of employees as a result of reorganization and which may give rise to a claim for reinstatement or reappointment)? Held: Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; Where an office is abolished and another performing substantially the same functions is created; Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; Where the removal violates the order of separation provided in Section 3 hereof. (Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997) 10 Comments Posted in Political & Constitutional Law, Reviewers | Tags: Law on Public Officers, Political & Constitutional Law
Posted by: Elmer Brabante | September 29, 2009

Reviewer in Administrative Law by Atty. Edwin Sandoval

14 Votes

ADMINISTRATIVE LAW
Describe the Administrative Code of 1987. Held: The Code is a general law and incorporates in a unified document the major structural, functional and procedural principles of governance (Third Whereas Clause, Administrative Code of 1987) and embodies changes in administrative structures and procedures designed to serve the people. (Fourth Whereas Clause, Administrative Code of 1987) The Code is divided into seven (7) books. These books contain provisions on the organization, powers and general administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration, i.e., internal organization, personnel and recruitment, supervision and discipline, and the effects of the functions performed by administrative officials on private individuals or parties outside government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) What is Administrative Power? Held: Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. To this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) What is an Administrative Order? Held: An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) What is the Government of the Republic of the Philippines? Ans.: The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether

pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions, Executive Order No. 292) What is an Agency of the Government? Ans.: Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. (Sec. 2[4], Introductory Provisions, Executive Order No. 292) What is a Department? Ans.: Department refers to an executive department created by law. For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation. (Sec. 2[7], Introductory Provisions, Executive Order No. 292) What is a Bureau? Ans.: Bureau refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices. (Sec. 2[8], Introductory Provisions, Executive Order No. 292) What is an Office? Ans.: Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. (Sec. 2[9], Introductory Provisions, Executive Order No. 292) What is a Government Instrumentality? What are included in the term Government Instrumentality? Ans.: A government instrumentality refers to any agency of the national government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, enjoying operational autonomy, usually through a charter. The term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. (Sec. 2[10], Introductory Provisions, Executive Order No. 292) What is a Regulatory Agency?

Ans.: A regulatory agency refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interest of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order No. 292) What is a Chartered Institution? Ans.: A chartered institution refers to any agency organized or operating under a special charter, and vested by law with functions relating to specific constitutional policies or objectives. This term includes state universities and colleges and the monetary authority of the State. (Section 2[12], Introductory Provisions, Executive Order No. 292) What is a Government-Owned or Controlled Corporation? Ans.: Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock; x x x (Sec. 2[13], Introductory Provisions, Executive Order No. 292) When is a Government-Owned or Controlled Corporation deemed to be performing proprietary function? When is it deemed to be performing governmental function? Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both, depending on the purpose for which they have been created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is proprietary. If it is in the interest of health, safety and for the advancement of public good and welfare, affecting the public in general, the function is governmental. Powers classified as proprietary are those intended for private advantage and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima]) The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation with an original charter under R.A. No. 95, as amended. Its charter, however, was amended to vest in it the authority to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. With the amendnt of its charter, has it been impliedly converted to a private corporation? Held: The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission. The PNRC was not impliedly converted to a private corporation simply because its charter was amended to vest in it the authority

to secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc. (Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div. [Pardo]) When may the Government not validly invoke the rule that prescription does not run against the State? Illustrative Case. Held: While it is true that prescription does not run against the State, the same may not be invoked by the government in this case since it is no longer interested in the subject matter. While Camp Wallace may have belonged to the government at the time Rafael Galvezs title was ordered cancelled in Land Registration Case No. N-361, the same no longer holds true today. Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of 1992, created the Bases Conversion and Development Authority. X x x With the transfer of Camp Wallace to the BCDA, the government no longer has a right or interest to protect. Consequently, the Republic is not a real party in interest and it may not institute the instant action. Nor may it raise the defense of imprescriptibility, the same being applicable only in cases where the government is a party in interest. x x x. Being the owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development Authority, not the Government, which stands to be benefited if the land covered by TCT No. T-5710 issued in the name of petitioner is cancelled. Nonetheless, it has been posited that the transfer of military reservations and their extensions to the BCDA is basically for the purpose of accelerating the sound and balanced conversion of these military reservations into alternative productive uses and to enhance the benefits to be derived from such property as a measure of promoting the economic and social development, particularly of Central Luzon and, in general, the countrys goal for enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these military reservations to the Conversion Authority does not amount to an abdication on the part of the Republic of its interests, but simply a recognition of the need to create a body corporate which will act as its agent for the realization of its program. It is consequently asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent. We, however, must not lose sight of the fact that the BCDA is an entity invested with a personality separate and distinct from the government. X x x It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent and proprietary or ministrant. While public benefit and public welfare, particularly, the promotion of the economic and social development of Central Luzon, may be attributable to the operation of the BCDA, yet it is certain that the functions performed by the BCDA are basically proprietary in nature. The promotion of economic and social development of Central Luzon, in particular, and the countrys goal for enhancement, in general, do not make the BCDA equivalent to the Government. Other corporations have been created by government to act as its agents for

the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet, the Court has ruled that these entities, although performing functions aimed at promoting public interest and public welfare, are not government-function corporations invested with governmental attributes. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions. Having the capacity to sue or be sued, it should thus be the BCDA which may file an action to cancel petitioners title, not the Republic, the former being the real party in interest. One having no right or interest to protect cannot invoke the jurisdiction of the court as a party plaintiff in an action. A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. x x x However, E.B. Marcha Transport Co., Inc. v. IAC is cited as authority that the Republic is the proper party to sue for the recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but by the Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled: It can be said that in suing for the recovery of the rentals, the Republic of the Philippines, acted as principal of the Philippine Ports Authority, directly exercising the commission it had earlier conferred on the latter as its agent. We may presume that, by doing so, the Republic of the Philippines did not intend to retain the said rentals for its own use, considering that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11, 1974. The Republic of the Philippines had simply sought to assist, not supplant, the Philippine Ports Authority, whose title to the disputed property it continues to recognize. We may expect the that the said rentals, once collected by the Republic of the Philippines, shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P.D. No. 857. E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court considered the Republic a proper party to sue since the claims of the Republic and the Philippine Ports Authority against the petitioner therein were the same. To dismiss the complaint in E.B. Marcha would have brought needless delay in the settlement of the matter since the PPA would have to refile the case on the same claim already litigated upon. Such is not the case here since to allow the government to sue herein enables it to raise the issue of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription does not run against the State does not apply to corporations or artificial bodies created by the State for special purposes, it being said that when the title of the Republic has been divested, its grantees, although artificial bodies of its own creation, are in the same category as ordinary persons. By raising the claim of imprescriptibility, a claim which cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B. Marcha, it even supplants the latter, a course of action proscribed by said case. Moreover, to recognize the Government as a proper party to sue in this case would set a bad precedent as it would allow the Republic to prosecute, on behalf of government-owned or controlled corporations, causes of action which have already prescribed, on the pretext

that the Government is the real party in interest against whom prescription does not run, said corporations having been created merely as agents for the realization of government programs. It should also be noted that petitioner is unquestionably a buyer in good faith and for value, having acquired the property in 1963, or 5 years after the issuance of the original certificate of title, as a third transferee. If only not to do violence and to give some measure of respect to the Torrens System, petitioner must be afforded some measure of protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20, 2001, 3rd Div. [Melo]) Discuss the nature and functions of the National Telecommunications Commission (NTC), and analyze its powers and authority as well as the laws, rules and regulations that govern its existence and operations. Held: The NTC was created pursuant to Executive Order No. 546 x x x. It assumed the functions formerly assigned to the Board of Communications and the Communications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTCs function were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-interest of the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the Department of Transportation and Communications. In the regulatory communications industry, the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communications systems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public services within the Philippines whenever the Commission finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner. (Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago]) Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force and effect? Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3, 1993. These Revised Rules deleted the phrase on its own initiative; accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission. In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules. The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states: Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain of disciplinary action. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7). In a similar case, we held: This does not imply, however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not

published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. X x x The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order. This Court, in Tanada v. Tuvera stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided (E.O. 200, Section 1).

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act, fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada v. Tuvera. Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exception are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties (PHILSA International Placement & Services Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174). Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in a newspaper of general circulation (Section 20 thereof). In the absence of such publication, therefore, it is the 1978 Rules that govern. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago]) May a person be held liable for violation of an administrative regulation which was not published? Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publication. There is merit in the argument. In Tanada v. Tuvera, the Court held, as follows: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and the public, need not be published. Neither is publication required of the so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

Applying this doctrine, we have previously declared as having no force and effect the following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories; b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government; c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong; d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the Peoples Republic of China; and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees. In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987. POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administrative Register. POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Under the said Order, the maximum amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x. It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation. Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffective and may not be enforced. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes]) Does the publication requirement apply as well to administrative regulations addressed only to a specific group and not to the general public? Held: The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the general public. Again, there is no merit in this argument. The fact that the said circular is addressed only to a specified group, namely private employment agencies or authority holders, does not take it away from the ambit of our ruling in Tanada v. Tuvera. In the case of Phil. Association of Service Exporters v. Torres, the administrative circulars questioned therein were addressed to an even smaller

group, namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars may not be enforced or implemented. Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been shown to fall under any of these exceptions. In this regard, the Solicitor Generals reliance on the case of Yaokasin v. Commissioner of Customs is misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons, the customs collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructions from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not obtain in the case at bench. X x x To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. (Philsa International Placement and Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes]) May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? Held: Enshrined in the 1987 Philippine Constitution is the mandate that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year. It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract. Using this as our premise, we cannot accede to PHOTOKINAs contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation that the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder, however, such statement would be inconsequential in a government where the

acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made. This is a dangerous precedent. In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid passed only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract. (Implementing Rules and Regulations [IRR] for Executive Order No. 262, supra.) Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void. Even the draft contract submitted by Commissioner Sadain that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. x x x While the contract price under the draft contract is only P1.2 Billion and, thus, within the certified available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in specified areas. In effect, the implementation of the VRIS Project will be segmented or chopped into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed to sell with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELECs request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus: SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar year.

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. x x x Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification. In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINAs bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [SandovalGutierrez]) What is the remedy available to a party who contracts with the government contrary to the requirements of the law and, therefore, void ab initio? Held: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties. So when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself, and thus, assumes personal liability thereunder. Otherwise stated, the proposed contract is unenforceable as to the Government. While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In Carino v. Commission on Human Rights, the Court x x x has observed that it is only the first of the enumerated powers and functions that bears any resemblance to adjudication of adjudgment, but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained: x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.]) Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary injunction? Held: In Export Processing Zone Authority v. Commission on Human Rights, the Court x x x explained: The constitutional provision directing the CHR to provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, if that were the intention, the Constitution would have expressly said so. Jurisdiction is conferred only by the Constitution or by law. It is never derived by implication. Evidently, the preventive measures and legal aid services mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is

available only in a pending principal action, for the preservation or protection of the rights and interest of a party thereto, and for no other purpose. The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agency of government. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.]) Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review, revise and reverse the actions of the board of canvassers and, therefore, justifies non-observance of procedural due process, or does it involve the exercise of the COMELECs quasijudicial function? Held: Taking cognizance of private respondents petitions for annulment of petitioners proclamation, COMELEC was not merely performing an administrative function. The administrative powers of the COMELEC include the power to determine the number and location of polling places, appoint election officials and inspectors, conduct registration of voters, deputize law enforcement agencies and governmental instrumentalities to ensure free, orderly, honest, peaceful and credible elections, register political parties, organizations or coalition, accredit citizens arms of the Commission, prosecute election offenses, and recommend to the President the removal of or imposition of any other disciplinary action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. In addition, the Commission also has direct control and supervision over all personnel involved in the conduct of election. However, the resolution of the adverse claims of private respondent and petitioner as regards the existence of a manifest error in the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to determine the veracity of their allegations and to decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno]) Discuss the contempt power of the Commission on Human Rights (CHR). When may it be validly exercised. Held: On its contempt powers, the CHR is constitutionally authorized to adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court. Accordingly, the CHR acted within its authority in providing in its revised rules, its power to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. That power to cite for contempt,

however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative work. The order to desist (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug, J.]) Discuss the Doctrine of Primary Jurisdiction (or Prior Resort). Held: Courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact. In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving matters that demand the special competence of administrative agencies even if the question involved is also judicial in character. It applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view. In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA 297, Oct. 9, 1992, 3rd Div. [Panganiban]) Discuss the Doctrine of Exhaustion of Administrative Remedies. What are the exceptions thereto? Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of courts jurisdiction is fatal to ones cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative

redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. This doctrine is disregarded: when there is a violation of due process; when the issue involved is purely a legal question; when the administrative action is patently illegal amounting to lack or excess of jurisdiction; when there is estoppel on the part of the administrative agency concerned; when there is irreparable injury; when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter; when to require exhaustion of administrative remedies would be unreasonable; when it would amount to a nullification of a claim; when the subject matter is a private land in land case proceeding; when the rule does not provide a plain, speedy and adequate remedy, and when there are circumstances indicating the urgency of judicial intervention. (Paat v. CA, 266 SCRA 167 [1997]) 2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269 SCRA 132, March 3, 1997, 3rd Div. [Davide]) 2 Comments Posted in Political & Constitutional Law, Reviewers | Tags: Administrative Law, Political & Constitutional Law
Posted by: Elmer Brabante | September 29, 2009

Moral Courage for the Gatekeepers of Transparency

2 Votes Moral Courage for the Gatekeepers of Transparency by Chief Justice Reynato S. Puno Supreme Court Delivered before the Government Association of Certified Public Accountants (GACPA), Century Park Hotel, Manila, July 22, 2009.

Allow me to thought that any discussion on strengthening fiscal responsibility necessitates a reflection on morals and ethics. Society measures your professional activities, as Certified Public Accountants (CPA), against a high benchmark, laid out by a plethora of codes, rules, and norms. Yet, as government officers, you also hold the special role of gatekeepers of truth and transparency in good governance. Public trust in the government depends on the integrity of information regarding its performance. Many times over, governments forfeited the trust of the governed when the truth about their governance got buried beneath a mosaic of lies. Not a few governments rose or fell on the issue of fiscal responsibility. Those in charge of fiscal responsibility often take an acrobatic walk on top of a thin wall, a wall that determines the morally inept from the ethically sound. More often than not, those who take the difficult walk are the CPAs and financial officers. Yours is a daunting task. For, sad to state, we live and work in ethically bereft cultures. In her book The Seven Signs of Ethical Collapse, business ethics Professor Marianne M. Jennings tells us of the seven factors that have often caused the ethical collapse of an organization, government and non government alike. They include the inordinate desire to maintain favorable public image, fear and silence of its members against wrongdoings, a bigger-than-life Chief Executive Officer (CEO), young and inexperienced executives, a weak board of directors, conflicts of interest and self-dealing, and an unusual and misleading commitment to good deeds. Today, I would like to focus on two of these causes of ethical collapse: the preoccupation and pressure to maintain a favorable public image and the culture of fear and silence to protect irregularities within the organization.

The chronicle of corporate scandals (especially those publicly listed) shows that one of their primary causes is the compelling desire to project to the public their performance. They resort to the bleaching of facts to outright deception and the deception is usually done through the manipulation of numbers. The hocus pocus would have been impossible without the connivance of certain professionals. Enron, WorldCom, Tyco, and HealthSouth are but a few examples of giant companies that collapsed due to the fudging of facts ordered by their executives. But a closer look into this unethical practice reveals something even more disturbing than the CEO with horse blinders: the acquiescence, if not participation, of financial officers and accountants. Instead of representing the true financial state of the organization, they became contortionists, experts in breaking the tables of truth. The public is given the illusion of an organization performing better than they do in reality. Wealth is fabricated out of deceptive numbers and words but the bubbles they create do not last. Always, the end is tragedy: companies collapsed and governments tumble down. The now defunct energy titan Enron is a prime example of unethical manipulation of numbers to project a favorable image of the company and the abuse of accounting practices to deceive the public. All of you are familiar with the Financial Accounting Standards. Investigations showed that the mark-to-market method of accounting gave Enron a lot of wiggle space in bloating its earnings. The Financial Accounting Standard allowed energy traders to include in current earnings profits they expected to earn on energy contracts. Enron posted noncash earnings they expected to realize still in the future. These comprised 80% of the total earnings reported. In other words, Enron recorded revenues for energy contracts that were years away from being earned. Ingrained in Enrons culture was the relentless pressure exerted on employees to meet numbers that would artificially inflate its earnings and, consequently, boost its stock price. This culture of greed fostered an environment in which the immoral goal was projecting exponential growth through abuse of accounting rules. There was, however, no way those doctored numbers could hold Enron on top of the corporate world. It was bound to collapse and it did with shock waves that shook the financial world. Other corporate giants experienced the same fate as Enron. WorldComs representation of an incredible eleven billion dollars stemmed from a clever merger accounting system. WorldCom acquired one company after another, adding to the complexity of an accounting system that would in effect allow them to inflate their earnings. The merger accounting system caused confusion for analysts, who could not figure out why its earnings were growing. Other companies had unexplainable double-digit growth in their earnings. Investigations revealed that executives pushed to the brink of a legal and ethical fall maneuvered numbers in, out, and around their books without any sound basis for doing so. A further study of this ethical shortcut done due to the desire to project a good performance shows that it plagues government as well. For instance, a similar culture of pressure pervaded the National Aeronautics System Administration (NASA), and the result was tragedy. Government reports following the crash of the space shuttle Columbia revealed that budget and schedule constraints pressured NASA employees to make decisions sacrificing safety considerations. Similar to the work environments as Enron and

WorldCom, this pressure forced employees to ditch prudence and diligent calculation in order to look good to the people. The pressure at NASA led to the same tragedy but instead of a decline in stock value, lives were lost. The second frequent cause of ethical collapse is the culture of fear and silence cultivated in an organization. Oftentimes, the personalities of those who lead the organization are intimidating, results-oriented, uncompromising and unforgiving. Any form of dissidence or criticism is outrightly punished. On the other hand, those who work with blind loyalty to achieve the myopic goals of growth are rewarded. Instilling fear and silence among the subordinates can be blatant or subtle. Dismissals, reprimands, warnings, and the filing of cases are among the blatant ways of keeping followers on line. But there also many subtle ways. Former Tyco CEO Dennis Kozlowski used to present awards to the worst warehouse manager in their annual banquets. The public humiliation had a terror effect on employees. Similarly, Enron had its subtle ways of communicating fear to its employees. During a farewell event of one of its executives, former CEO Jeffrey Skilling starred in a humorous skit, in which he called an accountant a spoilsport for objecting to a hypothetical future value accounting that would add ka-zillion dollars to the bottom line. Though in jest, the immoral desire of the highest officer was made known to all. Business experts say that moral transgressions often originate from gray areas where the limits set by law are blurred. This brings us to the relationship of law to ethics. Just like most of the other professionals, accountants have laws, rules and regulations for their guidance. But legal norms do not guarantee ethical conduct. More than in private corporations, it is in the government where ethics should reign supreme. In private corporations, the officers are primarily tasked to earn profits for their stockholders. This is not true in government, where the mission of officials both the elected and the unelected is to serve the general interest of the greatest number of people. Private corporations are concerned with accumulation of wealth for the benefit of a few; government is concerned with the wise use of wealth to promote the economic prosperity of all the people. Good governance can be achieved only when there is fiscal responsibility and it requires transparency. You are the gatekeepers of transparency and there is a moral dimension to your work that cannot be overlooked: you need not become magicians of numbers to make our leaders smell like roses; you need to discharge your duty without fear or favor and your only loyalty is to the people. I had previously bewailed that ours is a country coping with an epidemic of ignorance and this epidemic has to be halted if our people have to participate more meaningfully and intelligently in checking misfeasance and malfeasance in government. Our laws try to curb corporate fraud to protect company shareholders and one mechanism to do this is the strengthening of their right to information. In the same vein, we are all shareholders in the government; our taxes run the government and it is our right to know that these taxes are spent for the peoples welfare. Yours is the duty to safeguard the peoples money. That duty becomes more sacrosanct at times of economic difficulties, when more and more of the people are falling below the poverty line. Fiscal responsibility is responsibility to protect from bad government not only the present generation but the generation yet unborn and it cannot be trumped by unethical practices. You hold the key to the establishment of

the kind of government we erected in our Constitution, a government where a public office is a public trust, a government that is ruled by the people and not a government that misrules the people. Thank you and mabuhay po kayo! Leave a Comment Posted in Speeches | Tags: Moral Philosophy, Moral Revolution
Posted by: Elmer Brabante | September 25, 2009

The First Visiting Forces Agreement (VFA)

2 Votes AGREEMENT
Between the GOVERNMENT OF THE PHILIPPINES and the GOVERNMENT OF THE UNITED STATES OF AMERICA Regarding the Treatment of United States Armed Forces Visiting the Philippines

Preamble

The Government of the United States of America and the Government of the Republic of the Philippines, Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area; Reaffirming their obligations under the Mutual Defense Treaty of August

30,

1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines; Considering that cooperation between the United States and the Republic of the Philippines promotes their common security interests; Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines; Have agreed as follows:

Article I Definitions

As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government. Within this definition:

1. The term "military personnel" refers to military members of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard. 2. The term "civilian personnel" refers to individuals who are neither nationals of nor ordinarily resident in the Philippines and who are employed by the United States armed forces or who are accompanying the United States armed forces, such as employees of the American Red Cross and the United Services Organization.

Article II Respect for Law

It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done.

Article III Entry and Departure

1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this agreement. 2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the Philippines. 3. The following documents only, which shall be presented on demand, shall be required in respect of United States military personnel who enter the Philippines: (a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or grade and service number (if any), branch of service and photograph; and (b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit and identifying the individual or group as United States military personnel. (c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States aircraft, or vessels, or cargoes thereon, shall be conducted by the United States commanding officer in accordance with the international health regulations as promulgated by the World Health Organization, and mutually agreed procedures. 4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid passports upon entry and departure of the Philippines. 5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the United States authorities shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said person outside of the Philippines. Article IV Driving and Vehicle Registration

1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate United States authority to United States personnel for the operation of military or official vehicles. 2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate markings.

Article V Criminal Jurisdiction 1. Subject to the provisions of this article: (a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines. (b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines. 2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States. (b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the Philippines. (c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means: (1) treason; (2) sabotage, espionage or violation of any law relating to national defense. 3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply: (a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases provided for in paragraphs l (b), 2 (b), and 3 (b) of this Article. (b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to: (1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel; and (2) offenses arising out of any act or omission done in performance of official duty.

(c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case. (d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request. (e) When the United States military commander determines that an offense charged by authorities of the Philippines against United States personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this article. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify the Government of the Philippines of the actions taken. (f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other government as soon as possible. (g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction. 4. Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article. 5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United States personnel who are subject to Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly notify United States military authorities of the arrest or detention of any United States personnel. 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States

military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. 7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigations into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense. 8. When United States personnel have been tried in accordance with the provisions of this article and have been acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military authorities from trying United States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by Philippine authorities. 9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled: (a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defense; (c) To be confronted with witnesses against them and to cross examine such witnesses; (d) To present evidence in their defense and to have compulsory process for obtaining witnesses; (e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines; (f) To have the services of a competent interpreter;

(g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine law, excludes persons who have no role in the proceedings. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. 11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious courts.

Article VI Claims

1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance and leases of military equipment, both governments waive any and all claims against each other for damage, loss or destruction to property of each other's armed forces or for death or injury to their military and civilian personnel arising from activities to which this aggreement applies. 2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the United States Government, in accordance with United States law regarding foreign claims, will pay just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel, or otherwise incident to the non-combat activities of the United States forces. Article VII Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property shall remain with the United States, which may remove such property from the Philippines at any time, free from export duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar charges which would otherwise be assessed upon such property after importation into, or acquisition within, the Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that disposition of such

property in the Philippines to persons or entities not entitled to exemption from applicable taxes and duties shall be subject to payment of such taxes, and duties and prior approval of the Philippine Government. 2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel may be imported into and used in the Philippines free of all duties, taxes and other similar charges during the period of their temporary stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges may only be made upon prior approval of the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The exportation of such property and of property acquired in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and other similar charges.

Article VIII Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements. 2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines. The movement of vessels shall be in accordance with international custom and practice governing such vessels, and such agreed implementing arrangements as necessary. 3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the payment of landing or port fees, navigation or overflight charges, or tolls or other use charges, including light and harbor dues, while in the Philippines. Aircraft operated by or for the United States armed forces shall observe local air traffic control regulations while in the Philippines. Vessels owned or operated by the United States solely on United States Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports. Article IX Duration and Termination

This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.

IN WITNESS respective

WHEREOF the undersigned, governments, have at Manila, The

being duly signed Philippines,

authorized by their this agreement. this 10th day of

DONE in duplicate February, 1998.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA

FOR THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES

Thomas C. Hubbard

Domingo L. Siazon, Jr.

Leave a Comment Posted in Laws and Issuances | Tags: Philippines-US Treaty or Agreement, Visiting Forces Agreement
Posted by: Elmer Brabante | September 24, 2009

Law Schools Crackdown

1 Votes Law schools in the Philippines have mushroomed for the past decades that the number now has reached close to a thousand. The Commission on Higher Education (CHED), however keeps its eyes keen to close law schools that have not produced lawyers for the past decade. In the statement released yesterday, CHED announced that seven (7) law schools shall be closed next year for consistently getting zero in the Bar Exams for the past ten years. The seven law schools are Abra Valley College in Abra, Polytechnic College of La Union, Ramon Magsaysay Technological University in Zambalez, East Central College in Pampanga, Southern Bicol College in Masbate, Eastern Samar State University, and Samar College in Western Samar. CHED also said that those schools with passing rate of less than five (5) percent for the past ten years shall be on the watch list. Leave a Comment

Posted in Bar Matters, Law Schools | Tags: Bar Matters, Law Schools
Posted by: Elmer Brabante | September 22, 2009

Bar Exams 2009 Questions in Criminal Law

1 Votes PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) 1. Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist. 2. The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the childs father commits the crime of slavery. 3. The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. 4. A person who, on the occasion of a robbery, kills a bystander by accident is liable for two separate crimes: robbery and reckless imprudence resulting in homicide. 5. A policeman who, without a judicial order, enters a private house over the owners opposition is guilty of trespass to dwelling. II Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation. Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (4%) III

Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latters hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days. 1. Is Rigoberto guilty of Direct Assault? Why or why not? (3%) 2. Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (3%) IV Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlies girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad. The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brads food, did not kill Brad. 1. Did Charlie commit any crime? If so, what and why? If not, why not? (3%) 2. Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%) V Ponciano borrowed Rubens gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: O, pagkabaril mo kay Freddie, isauli mo kaagad, ha. Later, Ponciano killed Freddie, but used a knife because he did not want Freddies neighbors to hear the gunshot. 1. What, if any, is the liability of Ruben? Explain. (3%) 2. Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Rubens gun? Explain. (3%) VI Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but he was so scared to tell the authorities about it. On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed.

Is Baldos contention correct? Explain. (3%) VII Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiffs favor. In consideration therefor, the plaintiff gave Charina P20,000.00. Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law. While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019. Is Charina correct? Explain. (3%) VIII While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed. 1. What crime or crimes, if any, had been committed? Explain. (3%) 2. Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%) 3. Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%) IX Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: Tigil! Kidnap ito! Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the childs nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse.

What crime or crimes, if any, did Virgilio commit? Explain. (5%) X To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented. She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judges signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%)

PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) 1. Life imprisonment is a penalty more favorable to the convict than reclusion perpetua. 2. Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code. 3. In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery. 4. In the crime of libel, truth is an absolute defense. 5. For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes. XII 1. In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment

term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (3%) 2. Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%) XIII Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished. Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22. 1. What is delito continuado? (1%) 2. Is Angelos contention tenable? Explain. (4%) XIV Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite chain of custody of the evidence confiscated and/or seized from him. What is the chain of custody requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (3%) XV Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion. 1. What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%) 2. Suppose Joes motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. (2%)

3. Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain. (2%) XVI Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for a rice production livelihood project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are non-existent individuals, received the money. Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (4%) XVII Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Lorettas room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry. 1. What crime or crimes, if any, did Wenceslao commit? Explain. (4%) 2. Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (3%) 3. Would your answer to [a] be the same if, despite the serious stab wounds she sustained, Loretta survived? Explain. (3%) XVIII At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyns buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her. 1. What crime or crimes, if any, did Leoncio commit? Explain. (3%) 2. Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyns buttocks? Explain. (3%) XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced them. The patient survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier. Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)

-NOTHING FOLLOWSLeave a Comment Posted in Bar Exams 2009, Bar Matters, Criminal Law | Tags: Bar Exams 2009, Criminal Law
Posted by: Elmer Brabante | September 22, 2009

Bar Exams 2009 Questions in Mercantile Law

1 Votes PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) 1. The Denicola Test in intellectual property law states that if design elements of an article reflect a merger of aesthetic and functional considerations, the artistic aspects of the work cannot be conceptually separable from the utilitarian aspects; thus, the article cannot be copyrighted. 2. If the Ombudsman is convinced that there is a violation of law after investigating a complaint alleging illicit bank deposits of a public officer, the Ombudsman may

order the bank concerned to allow in camera inspection of bank records and documents. 3. Even if the seller and the buyer in a sale in bulk violate the Bulk Sales Law, the sale would still be valid. 4. Dividends on shares of stocks can only be declared out of unrestricted retained earnings of the corporation. 5. A bank under receivership can still grant new loans and accept new deposits. II Atlantis Realty Corporation (ARC), a local firm engaged in real estate development, plans to sell one of its prime assets a three-hectare land valued at about P100-million. For this purpose, the board of directors of ARC unanimously passed a resolution approving the sale of the property for P75-million to Shangrila Real Estate Ventures (SREV), a rival realty firm. The resolution also called for a special stockholders meeting at which the proposed sale would be up for ratification. Atty. Edric, a stockholder who owns only one (1) share in ARC, wants to stop the sale. He then commences a derivative suit for and in behalf of the corporation, to enjoin the board of directors and the stockholders from approving the sale. 1. Can Atty. Edric, who owns only one (1) share in the company, initiate a derivative suit? Why or why not? (2%) 2. If such a suit is commenced, would it constitute an intra-corporate dispute? If so, why and where would such a suit be filed? If not, why not? (2%) 3. Will the suit prosper? Why or why not? (3%) III Armando, a resident of Manila, borrowed P3-million from Bernardo, offering as security his 500 shares of stock worth P1.5-million in Xerxes Corporation, and his 2007 BMW sedan, valued at P2-million. The mortgage on the shares of stock was registered in the Office of the Register of Deeds of Makati City where Xerxes Corporation has its principal office. The mortgage on the car was registered in the Office of the Register of Deeds of Manila. Armando executed a single Affidavit of Good Faith, covering both mortgages. Armando defaulted on the payment of his obligation; thus, Bernardo foreclosed on the two chattel mortgages. Armando filed suit to nullify the foreclosure and the mortgages, raising the following issues: 1. The execution of only one Affidavit of Good Faith for both mortgages invalidated the two mortgages; (2%) and 2. The mortgage on the shares of stocks should have been registered in the Office of the Register of Deeds of Manila where he resides, as well as in the stock and transfer book of Xerxes Corporation. (3%)

Rule on the foregoing issues with reasons. 1. Assume that Bernardo extrajudicially foreclosed on the mortgages, and both the car and the shares of stock were sold at public auction. If the proceeds from such public sale should be P1-million short of Armandos total obligation, can Bernardo recover the deficiency? Why or why not? (2%) IV Antarctica Life Assurance Corporation (ALAC) publicly offered a specially designed insurance policy covering persons between the ages of 50 to 75 who may be afflicted with serious and debilitating illnesses. Quirico applied for insurance coverage, stating that he was already 80 years old. Nonetheless, ALAC approved his application. Quirico then requested ALAC for the issuance of a cover note while he was trying to raise funds to pay the insurance premium. ALAC granted the request. Ten days after he received the cover note, Quirico had a heart seizure and had to be hospitalized. He then filed a claim on the policy. 1. Can ALAC validly deny the claim on the ground that the insurance coverage, as publicly offered, was available only to persons 50 to 75 years of age? Why or why not? (2%) 2. Did ALACs issuance of a cover note result in the perfection of an insurance contract between Quirico and ALAC? Explain. (3%) V Cecilio is planning to put up a grocery store in the subdivision where he and his family reside. To promote this proposed business venture, he told his wife and three children to send out promotional text messages to all the residents in the subdivision. Cecilios family members did as instructed, and succeeded in reaching, through text messages, more than 80% of the residents in the subdivision. Is Cecilio habitually engaged in commerce even if the grocery store has yet to be established? Explain your answer. (3%) VI Lorenzo drew a bill of exchange in the amount of P100,000.00 payable to Barbara or order, with his wife, Diana, as drawee. At the time the bill was drawn, Diana was unaware that Barbara is Lorenzos paramour. Barbara then negotiated the bill to her sister, Elena, who paid for it for value, and who did not know who Lorenzo was. On due date, Elena presented the bill to Diana for payment, but the latter promptly dishonored the instrument because, by then, Diana had already learned of her husbands dalliance.

1. Was the bill lawfully dishonored by Diana? Explain. (3%) 2. Does the illicit cause or consideration adversely affect the negotiability of the bill? Explain. (3%) VII Global Transport Services, Inc. (GTSI) operates a fleet of cargo vessels plying interisland routes. One of its vessels, MV Dona Juana, left the port of Manila for Cebu laden with, among other goods, 10,000 television sets consigned to Romualdo, a TV retailer in Cebu. When the vessel was about ten nautical miles away from Manila, the ship captain heard on the radio that a typhoon which, as announced by PAG-ASA, was on its way out of the country, had suddenly veered back into Philippine territory. The captain realized that MV Dona Juana would traverse the storms path, but decided to proceed with the voyage. True enough, the vessel sailed into the storm. The captain ordered the jettison of the 10,000 television sets, along with some other cargo, in order to lighten the vessel and make it easier to steer the vessel out of the path of the typhoon. Eventually, the vessel, with its crew intact, arrived safely in Cebu. 1. Will you characterize the jettison of Romualdos TV sets as an average? If so, what kind of an average, and why? If not, why not? (3%) 2. Against whom does Romualdo have a cause of action for indemnity of his lost TV sets? Explain. (3%) VIII Maharlikang Pilipino Banking Corporation (MPBC) operates several branches of Maharlikang Pilipino Rural Bank in Eastern Visayas. Almost all the branch managers are close relatives of the members of the Board of Directors of the corporation. Many undeserving relatives of the branch managers were granted loans. In time, the branches could not settle their obligations to depositors and creditors. Receiving reports of these irregularities, the Supervising and Examining Department (SED) of the Monetary Board prepared a detailed report (SED Report) specifying the facts and the chronology of events relative to the problems that beset MPBC rural bank branches. The report concluded that the bank branches were unable to pay their liabilities as they fell due, and could not possibly continue in business without incurring substantial losses to its depositors and creditors. 1. May the Monetary Board order the closure of the MPBC rural banks relying only on the SED Report, without need of an examination? Explain. (3%) 2. If MPBC hires you as lawyer because the Monetary Board has forbidden it from carrying on its business due to its imminent insolvency, what action will you institute to question the Monetary Boards order? Explain. (3%) IX

When is there an ultra vires act on the part of [a] the corporation; [b] the board of directors; and [c] the corporate officers. (3%) X What are the so-called exempt securities under the Securities Regulation Code? (2%)

PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) 1. A loan agreement which provides that the debtor shall pay interest at the rate determined by the banks branch manager violates the disclosure requirement of the Truth in Lending Act. 2. Under the Warehouse Receipts Law, a warehouseman loses his lien upon the goods when he surrenders possession thereof. 3. The Howey Test states that there is an investment contract when a person invests money in a common enterprise and is led to expect profits primarily from the efforts of others. 4. A document, dated July 15, 2009, that reads: Pay to X or order the sum of P5,000.00 five days after his pet dog, Sparky, dies. Signed Y. is a negotiable instrument. 5. A bank is bound to know its depositors signature is an inflexible rule in determining the liability of a bank in forgery cases. XII Gaudencio, a store owner, obtained a P1-million loan from Bathala Financing Corporation (BFC). As security, Gaudencio executed a Deed of Assignment of Receivables, assigning 15 checks received from various customers who bought merchandise from his store. The checks were duly indorsed by Gaudencios customers. The Deed of Assignment contains the following stipulation: If, for any reason, the receivables or any part thereof cannot be paid by the obligors, the ASSIGNOR unconditionally and irrevocably agrees to pay the same, assuming the liability to pay, by way of penalty, three percent (3%) of the total amount unpaid, for the period of delay until the same is fully paid. When the checks became due, BFC deposited them for collection, but the drawee banks dishonored all the checks for one of the following reasons: account closed, payment

stopped, account under garnishment, or insufficiency of funds. BFC wrote Gaudencio notifying him of the dishonored checks, and demanding payment of the loan. Because Gaudencio did not pay, BFC filed a collection suit. In his defense, Gaudencio contended that [a] BFC did not give timely notice of dishonor (of the checks); and [b] considering that the checks were duly indorsed, BFC should proceed against the drawers and the indorsers of the checks. Are Gaudencios defenses tenable? Explain. (5%) XIII Ciriaco leased a commercial apartment from Supreme Building Corporation (SBC). One of the provisions of the one-year lease contract states: 18. x x x The LESSEE shall not insure against fire the chattels, merchandise, textiles, goods and effects placed at any stall or store or space in the leased premises without first obtaining the written consent of the LESSOR. If the LESSEE obtains fire insurance coverage without the consent of the LESSOR, the insurance policy is deemed assigned and transferred to the LESSOR for the latters benefit. Notwithstanding the stipulation in the contract, without the consent of SBC, Ciriaco insured the merchandise inside the leased premises against loss by fire in the amount of P500,000.00 with First United Insurance Corporation (FUIC). A day before the lease contract expired, fire broke out inside the leased premises, damaging Ciriacos merchandise. Having learned of the insurance earlier procured by Ciriaco, SBC demanded from FUIC that the proceeds of the insurance policy be paid directly to it, as provided in the lease contract. Who is legally entitled to receive the insurance proceeds? Explain. (4%) XIV XXX Corporation (XXX) and its sister company, YYY Corporation (YYY), are both under judicial receivership. The receiver has the option to sell all or substantially all of the properties of YYY to XXX, or simply merge the two corporations. Under either option, the requirements under the Corporation Code have to be complied with. The receiver seeks your advice on whether the Bulk Sales Law will apply to either, or both, options. What will your advice be? Explain. (4%) XV After disposing of his last opponent in only two rounds in Las Vegas, the renowned Filipino boxer Sonny Bachao arrived at the Ninoy Aquino International Airport met by

thousands of hero-worshipping fans and hundreds of media photographers. The following day, a colored photograph of Sonny wearing a black polo shirt embroidered with the 2-inch Lacoste crocodile logo appeared on the front page of every Philippine newspaper. Lacoste International, the French firm that manufactures Lacoste apparel and owns the Lacoste trademark, decided to cash in on the universal popularity of the boxing icon. It reprinted the photographs, with the permission of the newspaper publishers, and went on a world-wide blitz of print commercials in which Sonny is shown wearing a Lacoste shirt alongside the phrase Sonny Bachao just loves Lacoste. When Sonny sees the Lacoste advertisements, he hires you as lawyer and asks you to sue Lacoste International before a Philippine court: 1. For trademark infringement in the Philippines because Lacoste International used his image without his permission; (2%) 2. For copyright infringement because of the unauthorized use of the published photographs; (2%) and 3. For injunction in order to stop Lacoste International from featuring him in their commercials. (2%) Will these actions prosper? Explain. 1. Can Lacoste International validly invoke the defense that it is not a Philippine company and, therefore, Philippine courts have no jurisdiction? Explain. (2%) XVI On September 15, 2007, XYZ Corporation issued to Paterno 800 preferred shares with the following terms: The Preferred Shares shall have the following rights, preferences, qualifications, and limitations, to wit: 1. 1. The right to receive a quarterly dividend of One Per Centum (1%), cumulative and participating; 2. These shares may be redeemed, by drawing of lots, at any time after two (2) years from date of issue, at the option of the Corporation; x x x. Today, Paterno sues XYZ Corporation for specific performance, for the payment of dividends on, and to compel the redemption of, the preferred shares, under the terms and conditions provided in the stock certificates. Will the suit prosper? Explain. (3%) XVII Philippine Palaces Realty (PPR) had been representing itself as a registered broker of securities, duly authorized by the Securities and Exchange Commission (SEC). On October

6, 1996, PPR sold to spouses Leon and Carina one (1) timeshare of Palacio del Boracay for US$7,500.00. However, its Registration Statement became effective only on February 11, 1998 after the SEC issued a resolution declaring that PPR was authorized to sell securities, including timeshares. On March 30, 1998, Leon and Carina wrote PPR rescinding their purchase agreement and demanding the refund of the amount they paid, because the Palacio del Boracay timeshare was sold to them by PPR without the requisite license or authority from the SEC. PPR contended that the grant of the SEC authority had the effect of ratifying the purchase agreement (with Leon and Carina) of October 6, 1996. Is the contention of PPR correct? Explain. (3%) XVIII Triple A Corporation (Triple A) was incorporated in 1960, with 500 founders shares and 78 common shares as its initial capital stock subscription. However, Triple A registered its stock and transfer book only in 1978, and recorded merely 33 common shares as the corporations issued and outstanding shares. 1. In 1982, Juancho, the sole heir of one of the original incorporators filed a petition with the Securities and Exchange Commission (SEC) for the registration of his property rights over 120 founders shares and 12 common shares. The petition was supported by a copy of the Articles of Incorporation indicating the incorporators initial capital stock subscription. Will the petition be granted? Why or why not? (3%) 2. On May 6, 1992, a special stockholders meeting was held. At this meeting, what would have constituted a quorum? Explain. (3%) 3. What is a stock and transfer book? (1%) XIX One of the passenger buses owned by Continental Transit Corporation (CTC), plying its usual route, figured in a collision with another bus owned by Universal Transport, Inc. (UTI). Among those injured inside the CTC bus were: Romeo, a stow away; Samuel, a pickpocket then in the act of robbing his seatmate when the collision occurred; Teresita, the bus drivers mistress who usually accompanied the driver on his trips for free; and Uriel, holder of a free riding pass he won in a raffle held by CTC. 1. Will a suit for breach of contract of carriage filed by Romeo, Samuel, Teresita, and Uriel against CTC prosper? Explain. (3%) 2. Do Romeo, Samuel, Teresita, and Uriel have a cause of action for damages against UTI? Explain. (3%) 3. What, if any, are the valid defenses that CTC and UTI can raise in the respective actions against them? Explain. (3%)

XX Under the Securities Regulation Code, what is the Margin Trading Rule? (2%) -NOTHING FOLLOWSLeave a Comment Posted in Bar Exams 2009, Bar Matters | Tags: Bar Exams 2009, Commercial Law
Posted by: Elmer Brabante | September 16, 2009

Cario vs. Cario

1 Votes Susan Nicdao Cario vs. Susan Yee Cario GR No. 132529 February 2, 2001

FACTS: SPO4 Santiago CArio married petitioner Susan Nicdao on June 20, 1969, with whom he had two children, Sahlee and Sandee. On November 10, 1982, SPO4 Cario also married respondent Susan Yee. In 1988, SPO4 Cario became bedridden due to diabetes and tuberculosis, and died on November 23, 1992, under the care of Susan Yee who spent for his medical and burial expenses. Both Susans filed claims for monetary benefits and financial assistance from various government agencies pertaining to the deceased. Nicdao was able to collect P146,000 from MBAI, PCCVI, commutation, NAPOLCOM and Pagibig, while Yee received a total of P21,000 from GSIS burial and SSS burial insurance. On December 14, 1993, Yee filed for collection of money against NIcdao, praying that Nicdao be ordered to return to her at least one-half of the P146,000 NIcdao had collected. For failing to file her answer, NIcdao was declared in default.

Yee admitted that her marriage to the deceased took place during the subsistence of and without first obtaining a judicial declaration of nullity of the marriage between Nicdao and Cario. But she claimed good faith, having no knowledge of the previous marriage until at the funeral where she met Nicdao who introduced herself as the wife of the deceased. Yee submitted that Carios marriage to Nicdao was void because it was solemnized without the required marriage license. ISSUES: (1) Whether or not the subsequent marriage is null and void; (2) Whether or not, if yes to above, the wife of the deceased is entitled to collect the death benefits from government agencies despite the nullity of their marriage. HELD: Under Article 40 of the Family Code, the nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. Under the Civil Code which was the law in force when the marriage of petitioner and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, and the absence therof, subject to certain exceptions, renders the marriage void ab initio. It does not follow, however, that since the marriage of Nicdao and the deceased was void ab initio, the death benefits would now be awarded to Yee. To reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage; otherwise, the second marriage would also be void. One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to the applicable property regime. Considering that the two marriages are void ab initio, the applicable property regime would be not absolute community nor conjugal partnership of property, but governed by the provisions of Articles 147 and 148 of the Family Code, on Property Regime of Unions Without Marriage. Leave a Comment

Posted in Cases, Civil Law, Persons & Family Relations | Tags: Civil Law, Marriage, Persons and Family Relations
Posted by: Elmer Brabante | September 16, 2009

Santos vs. Santos

2 Votes Leouel Santos vs. Court of Appeals and Santos GR No. 112019 / 58 SCAD 17 Januray 4, 1995 FACTS: Lt. Leouel Santos married private respondent Julia Bedia on Sept. 20, 1986 in Illoilo MTC and later by church wedding. They lived with the latters parents and eventually gave birth to Leouel Santos, Jr. on July 18, 1987. The relationship turned sour when they began quarelling over frequent interferrence of Julias parents and the issue of liveing independently from the in-laws. On May 18, 1988, Julia left for the United States (US) to work as nurse despite Leouels protestations. Seven months thereafter or on January 1, 1989, she called up from the US with the promise of returning home soon, but she never did. Given the chance, Leouel went to the US for a training program sponsored by the Armed Forces of the Philippines (AFP) from April to August 1990. He desperately tried to locate her there but failed. He then filed with the Regional Trial Court (RTC) for the nullification of their marriage under Article 36 of the Family Code, on the ground of psychological incapacity. Summons was served by publication in a newspaper of general circulation in Negros Oriental. In her answer, Julia claimed that it was Leouel who was irresponsible and incompetent. The RTC in November 1991 dismissed the case for lack of merit. On appeal, the Court of Appeals (CA) affirmed the RTC decision. ISSUE: Whether or not the marriage may be declared a nullity prusuant to Artcile 36 of the Family Code. HELD:

Article 36 cannot be taken and construed independently, but must stand in conjunction with existing precepts of laws on marriage. Thus correlated, psychological incapacity should refer no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate. The well-considered opinions of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable in establishing the parameters of psychological incapacity. Marriage is not just and adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined in the Civil Code, and even now still indelible in Section 1 of the Family Codethe Constitution is no less emphatic. Leave a Comment Posted in Cases, Civil Law, Persons & Family Relations | Tags: Civil Law, Marriage, Persons and Family Relations
Posted by: Elmer Brabante | September 16, 2009

Abadilla vs. Tabiliran

2 Votes Blyth Abadilla vs. J. Jose Tabiliran 249 SCRA 447 October 25, 1995

FACTS: Repondent Judge Tabiliran was married to Teresita Banzuela. Sometime in 1965, Banzuela left and abandoned their family home in Zamboanga del Norte and thereafter her whereabouts could not be known. In 1970, tabiliran began cohabiting with Priscilla Baybayan, with whom he had three children born in 1970, 1971 and 1975, respectively. Tabiliran and Baybayan got married in 1986. In the marriage contract, Tabiliran represented himself as single. Petitioner is a clerk of court assigned in the sala of respondent, charging Tabiliran for gross immorality. ISSUES: (1) Whether or not Tabilirans marriage to Baybayan was valid; (1) Whether or not their children were legitimated by their subsequent marriage.

HELD: (1) The Supreme Court held Tabiliran culpable for gross immorality, having scandalously and openly cohabited with Baybayan during the existence of his marriage to Bazuela. Evidently, respondent and Baybayan had openly lived together even while respondents marriage to his (first) wife was still valid and subsisting. The provisions of Sec. 3 of the Rules of Court and Article 390 of the Civil Code which provide that after an absence of seven years, it being unknown whether or not the absentee still lives, the absent spouse shall be considered dead for all purposes, except for those of succession, cannot be invoked by respondent. From the time Banzuela left the conjugal home in 1966 until the time that respondent started to cohabit with Baybayan in 1970, only four years had elapsed. Respondent had no right to presume therefore that Banzuela was already dead for all purposes. As to respondents act of eventually marrying Baybayan in 1986, the Supreme Court (SC) declared to be not in the position to determine the legality thereof, absent all the facts for proper determination. The SC considered the finding of the Investigating Judge that said marriage is authorized under Article 83 (2) of the Civil Code. (2) As a lawyer and a judge, respondent ought to know that, despite his subsequent marriage to Priscilla, the three children cannot be legitimated nor in any way be considered legitimate since at the time they were born, there was an existing valid marriage between respondent and Banzuela. The applicable provision in this case is Article 269 of the Civil Code, which states that: Only natural children can be legitimated. Children born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by an impediment to marry each other, are natural. Legitimation is limited to natural children and cannot include those born of adulterous relations.

The reasons for this limitation are as follows: (1) rationale of legitimation would be destroyed; (2) it would be unfair to the legitimate children in terms of successional rights; (3) there will be the problem of public scandal, unless social mores change; (4) it is too violent to grant the privilege of legitimation to adulterous children as it will destroy the sanctity of the marriage; and (5) it will be very scandalous, especially if the parents marry many years after the birth of the child.

Leave a Comment Posted in Cases, Civil Law, Legal Ethics, Persons & Family Relations | Tags: Civil Law, Marriage, Persons and Family Relations
Posted by: Elmer Brabante | September 16, 2009

Consolacion Villanueva vs. Intermediate Appellate Court

2 Votes CONSOLACION VILLANUEVA vs. INTERMEDIATE APPELLATE COURT GR No. 74577 192 SCRA 21 Dcember 4, 1990

FACTS: Dorothea and Teodoro Aranas borrowed P18,000 from private respondent Jesus Bernas, mortgaging as collateral their father Modestos property, Lot 13-C. In the loan agreement between them on Oct. 30, 1975, the Aranas described themselves as the absolute co-owners. When Dorothea and Teodoro failed to pay the loan, Bernas caused the extrajudicial foreclosure of the mortgage in 1977 and acquired the land as the highest bidder. After the foreclosure sale, the Aranases executed a deed of extrajudicial partition in

1978, in which they adjudicated the same lot 13-C unto themselves in equal share proindiviso. Bernas then consolidated his ownership over the lot when the mortgagors failed to redeem it withn the reglementary period, and had the title in the name of Modesto cancelled and another TCT issued in his name. On November 24, 1978, herein petitioner Consolacion Villanueva and Raymundo Aranas (witness to the deed of mortgage in 1975) filed a complaint with the RTC of Roxas ity against respondents spouses Jesus and Remedios Bernas, for the cancellation of the TCT under the name of the Bernases, and they (Villanueva and Aranas) be declared co-owners of the land. Petitioner alleged that spouses Modesto and Victoria Aranas in 1987 and 1958 executed two separate wills: first bequeathing to Consolacion and Raymundo and to Dorothea and Teodoro, in equal shares pro diviso, all of said Victorias shares from the conjugal partnership property; and second Modestos interests in his conjugal partnership with Victoria as well as his separate properties bequeathed to Dorothea and Teodoro (his illegitimate children). The trial court dismissed the complaint, declaring herein respondents as the legal owners of the disputed property. Upon appeal, the Intermediate Appellate Court (IAC) affirmed the lower courts decision in toto. ISSUE: Whether or not Villanueva had a right over Lot 13-C and the improvements thereon made by Victoria rendered the lot as conjugal property. HELD: Lot 13-C was not a conjugal partnership property of Victoria and Modesto. It was Modestos exclusive, private property, which he inherited from his parents. Moreover, since Victoria died ahead of Modesto, Victoria did not inherit said lot from him and therefore had nothing of Lot 13-C to bequeath by will of otherwise to Consolacion. Article 158 of the Civil Code says that improvements, whether for utility or adornment made on the separate property of the spouses through advancements from the partnership or through the industry of either spouse belong to the conjugal partnership, and buildings constructed at the expense of the partnership during the marriage on land belonging to one of the spouses also pertain to the partnership, but the value of the land shall be reimbursed to the spouse who owns the same. Proof, therefore, is needful of the time of the making or construction of the improvements and the source of the funds used therefor in order to determine the character of the improvements as belonging to the conjugal partnership or to one spouse separately. No such proof was presented or proffered by Villanueva. What is certain is that the land on which the improvements stand was the exclusive property of Modesto and that where the property is registered in the name of one spouse only and there is no showing of when precisely the property was acquired, the presumption is that is belongs exclusively to said spouse [PNB vs. CA, 153 SCRA 435, 1987]. It is not therefore possible to declare the improvements to be conjugal in character.

Furthermore, Bernas mode of acquisition of ownership over the property appears in all respect to be regular, untainted by any defect whatsoever. Bernas must therefore be deemed to have acquired indefeasible and clear title to Lot 13-C which cannot be defeated or negated by claims subsequently arising and of which he had no knowledge or means of knowing prior to their assertion and ventilation. Leave a Comment Posted in Cases, Civil Law, Persons & Family Relations | Tags: Civil Law, Persons and Family Relations, Property Relations
Posted by: Elmer Brabante | September 14, 2009

Bar Exams 2009 Questions in Civil Law

7 Votes PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) 1. The doctrine of processual presumption allows the court of the forum to presume that the foreign law applicable to the case is the same as the local or domestic law. 2. In reserva troncal, all reservatarios (reservees) inherit as a class and in equal shares regardless of their proximity in degree to the prepositus. 3. An oral partnership is valid. 4. An oral promise of guaranty is valid and binding. 5. A dead child can be legitimated. II Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that gutted their home while they were sleeping in their air-conditioned rooms. Robertos wife, Marilyn, and their two children were spared because they were in the province at the time. Dr. Lopez left an estate worth P20M and a life insurance policy in the amount of P1M with his three children one of whom is Roberto as beneficiaries.

Marilyn is now claiming for herself and her children her husbands share in the estate left by Dr. Lopez, and her husbands share in the proceeds of Dr. Lopezs life insurance policy. Rule on the validity of Marilyns claims with reasons. (4%) III In December 2000, Michael and Anna, after obtaining a valid marriage license, went to the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor was not there, but the Mayors secretary asked Michael and Anna and their witnesses to fill up and sign the required marriage contract forms. The secretary then told them to wait, and went out to look for the Mayor who was attending a wedding in a neighboring municipality. When the secretary caught up with the Mayor at the wedding reception, she showed him the marriage contract forms and told him that the couple and their witnesses were waiting in his office. The Mayor forthwith signed all the copies of the marriage contract, gave them to the secretary who returned to the Mayors office. She then gave copies of the marriage contract to the parties, and told Michael and Anna that they were already married. Thereafter, the couple lived together as husband and wife, and had three sons. 1. Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer. (3%) 2. What is the status of the three children of Michael and Anna? Explain your answer. (2%) 3. What property regime governs the properties acquired by the couple? Explain. (2%) IV Harry married Wilma, a very wealthy woman. Barely five (5) years into the marriage, Wilma fell in love with Joseph. Thus, Wilma went to a small country in Europe, became a naturalized citizen of that country, divorced Harry, and married Joseph. A year thereafter, Wilma and Joseph returned and established permanent residence in the Philippines. 1. Is the divorce obtained by Wilma from Harry recognized in the Philippines? Explain your answer. (3%) 2. If Harry hires you as his lawyer, what legal recourse would you advise him to take? Why? (2%) 3. Harry tells you that he has fallen in love with another woman, Elizabeth, and wants to marry her because, after all, Wilma is already married to Joseph. Can Harry legally marry Elizabeth? Explain. (2%) V Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were born to the spouses Conrado and Clarita de la Costa. The childrens birth certificates were duly signed by Conrado, showing them to be the couples legitimate children.

Later, one Edilberto de la Cruz executed a notarial document acknowledging Alberto and Baldomero as his illegitimate children >with Clarita. Edilberto died leaving substantial properties. In the settlement of his estate, Alberto and Baldomero intervened claiming shares as the deceaseds illegitimate children. The legitimate family of Edilberto opposed the claim. Are Alberto and Baldomero entitled to share in the estate of Edilberto? Explain. (4%) VI On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the United States, passed the New York medical licensure examinations, resided therein, and became a naturalized American citizen. He died in New York in 2007. The laws of New York do not recognize holographic wills or compulsory heirs. 1. Can the holographic will of Dr. Fuentes be admitted to probate in the Philippines? Why or why not? (3%) 2. Assuming that the will is probated in the Philippines, can Jay validly insist that he be given his legitime? Why or why not? (3%) VII Ramon Mayaman died intestate, leaving a net estate of P10,000,000.00. Determine how much each heir will receive from the estate: 1. If Ramon is survived by his wife, three full-blood brothers, two half-brothers, and one nephew (the son of a deceased full-blood brother)? Explain. (3%) 2. If Ramon is survived by his wife, a half-sister, and three nephews (sons of a deceased full-blood brother)? Explain. (3%) VIII Jude owned a building which he had leased to several tenants. Without informing his tenants, Jude sold the building to Ildefonso. Thereafter, the latter notified all the tenants that he is the new owner of the building. Ildefonso ordered the tenants to vacate the premises within thirty (30) days from notice because he had other plans for the building. The tenants refused to vacate, insisting that they will only do so when the term of their lease shall have expired. Is Ildefonso bound to respect the lease contracts between Jude and his tenants? Explain your answer. (3%) IX Before migrating to Canada in 1992, the spouses Teodoro and Anita entrusted all their legal papers and documents to their nephew, Atty. Tan. Taking advantage of the situation, Atty. Tan forged a deed of sale, making it appear that he had bought the couples property

in Quezon City. In 2000, he succeeded in obtaining a TCT over the property in his name. Subsequently, Atty. Tan sold the same property to Luis, who built an auto repair shop on the property. In 2004, Luis registered the deed of conveyance, and title over the property was transferred in his name. In 2006, the spouses Teodoro and Anita came to the Philippines for a visit and discovered what had happened to their property. They immediately hire you as lawyer. What action or actions will you institute in order to vindicate their rights? Explain fully. (4%) X Rommels private car, while being driven by the regular family driver, Amado, hits a pedestrian causing the latters death. Rommel is not in the car when the incident happened. 1. Is Rommel liable for damages to the heirs of the deceased? Explain. (2%) 2. Would your answer be the same if Rommel was in the car at the time of the accident? Explain. (2%)

PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) 1. A clause in an arbitration contract granting one of the parties the power to choose more arbitrators than the other renders the arbitration contract void. 2. If there is no marriage settlement, the salary of a spouse in an adulterous marriage belongs to the conjugal partnership of gains. 3. Acquisitive prescription of a negative easement runs from the time the owner of the dominant estate forbids, in a notarized document, the owner of the servient estate from executing an act which would be lawful without the easement. 4. The renunciation by a co-owner of his undivided share in the co-owned property in lieu of the performance of his obligation to contribute to taxes and expenses for the preservation of the property constitutes dacion en pago. 5. A person can dispose of his corpse through an act intervivos. XII Emmanuel and Margarita, American citizens and employees of the U.S. State Department, got married in the African state of Kenya where sterility is a ground for annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first year of the spouses tour of duty in the Philippines, Margarita filed an annulment case

against Emmanuel before a Philippine court on the ground of her husbands sterility at the time of the celebration of the marriage. 1. Will the suit prosper? Explain your answer. (3%) 2. Assume Emmanuel and Margarita are both Filipinos. After their wedding in Kenya, they come back and take up residence in the Philippines. Can their marriage be annulled on the ground of Emmanuels sterility? Explain. (3%) XIII Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-year old foundling who had a severe heart ailment. During the pendency of the adoption proceedings, Rafael died of natural causes. The Office of the Solicitor General files a motion to dismiss the petition on the ground that the case can no longer proceed because of the petitioners death. 1. Should the case be dismissed? Explain. (2%) 2. Will your answer be the same if it was Dolly who died during the pendency of the adoption proceedings? Explain. (2%) XIV Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital and other medical expenses in delivering the child by caesarean section; moral, claiming that Rodolfo promised to marry her, representing that he was single when, in fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios. 1. If you were the judge, would you award all the claims of Nanette? Explain. (3%) 2. Suppose Rodolfo later on acknowledges Rona and gives her regular support, can he compel her to use his surname? Why or why not? (2%) 3. When Rona reaches seven (7) years old, she tells Rodolfo that she prefers to live with him, because he is better off financially than Nanette. If Rodolfo files an action for the custody of Rona, alleging that he is Ronas choice as custodial parent, will the court grant Rodolfos petition? Why or why not? (2%) XV Sarah had a deposit in a savings account with Filipino Universal Bank in the amount of five million pesos (P5,000,000.00). To buy a new car, she obtained a loan from the same bank in the amount of P1,200,000.00, payable in twelve monthly installments. Sarah issued in favor of the bank post-dated checks, each in the amount of P100,000.00, to cover the twelve monthly installment payments. On the third, fourth and fifth months, the corresponding checks bounced.

The bank then declared the whole obligation due, and proceeded to deduct the amount of one million pesos (P1,000,000.00) from Sarahs deposit after notice to her that this is a form of compensation allowed by law. Is the bank correct? Explain. (4%) XVI Marciano is the owner of a parcel of land through which a river runs out into the sea. The land had been brought under the Torrens System, and is cultivated by Ulpiano and his family as farmworkers therein. Over the years, the river has brought silt and sediment from its sources up in the mountains and forests so that gradually the land owned by Marciano increased in area by three hectares. Ulpiano built three huts on this additional area, where he and his two married children live. On this same area, Ulpiano and his family planted peanuts, monggo beans and vegetables. Ulpiano also regularly paid taxes on the land, as shown by tax declarations, for over thirty years. When Marciano learned of the increase in the size of the land, he ordered Ulpiano to demolish the huts, and demanded that he be paid his share in the proceeds of the harvest. Marciano claims that under the Civil Code, the alluvium belongs to him as a registered riparian owner to whose land the accretion attaches, and that his right is enforceable against the whole world. 1. Is Marciano correct? Explain. (3%) 2. What rights, if any, does Ulpiano have against Marciano? Explain. (3%) XVII Rosario obtained a loan of P100,000.00 from Jennifer, and pledged her diamond ring. The contract signed by the parties stipulated that if Rosario is unable to redeem the ring on due date, she will execute a document in favor of Jennifer providing that the ring shall automatically be considered full payment of the loan. 1. Is the contract valid? Explain. (3%) 2. Will your answer to [a] be the same if the contract stipulates that upon failure of Rosario to redeem the ring on due date, Jennifer may immediately sell the ring and appropriate the entire proceeds thereof for herself as full payment of the loan? Reasons. (3%) XVIII The Ifugao Arms is a condominium project in Baguio City. A strong earthquake occurred which left huge cracks in the outer walls of the building. As a result, a number of condominium units were rendered unfit for use. May Edwin, owner of one of the condominium units affected, legally sue for partition by sale of the whole project? Explain. (4%) XIX

In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese citizen, a parcel of land in Binondo. Chua died in 1990, leaving behind his wife and three children, one of whom, Julian, is a naturalized Filipino citizen. Six years after Chuas death, the heirs executed an extrajudicial settlement of estate, and the parcel of land was allocated to Julian. In 2007, Luciano filed suit to recover the land he sold to Chua, alleging that the sale was void because it contravened the Constitution which prohibits the sale of private lands to aliens. Julian moved to dismiss the suit on grounds of pari delicto, laches and acquisitive prescription. Decide the case with reasons. (4%) XX 1. If Ligaya, a Filipino citizen residing in the United States, files a petition for change of name before the District Court of New York, what law shall apply? Explain. (2%) 2. If Henry, an American citizen residing in the Philippines, files a petition for change of name before a Philippine court, what law shall apply? Explain. (2%)

-NOTHING FOLLOWS1 Comment Posted in Bar Exams 2009, Bar Matters, Civil Law | Tags: Bar Exams 2009, Bar Matters, Civil Law
Posted by: Elmer Brabante | September 14, 2009

Bar Exams 2009 Questions in Taxation Law

2 Votes PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) a. A law that allows taxes to be paid either in cash or in kind is valid.

b. When the financial position of the taxpayer demonstrates a clear inability to pay the tax, the Commissioner of Internal Revenue may validly compromise the tax liability. c. The doctrine of equitable recoupment allows a taxpayer whose claim for refund has prescribed to offset tax liabilities with his claim of overpayment. d. A law imposing a tax on income of religious institutions derived from the sale of religious articles is valid. e. A false return and a fraudulent return are one and the same. II Enumerate the four (4) inherent limitations on taxation. Explain each item briefly. (4%) III Melissa inherited from her father a 300-square-meter lot. At the time of her fathers death on March 14, 1995, the property was valued at P720,000.00. On February 28, 1996, to defray the cost of the medical expenses of her sick son, she sold the lot for P600,000.00, on cash basis. The prevailing market value of the property at the time of the sale was P3,000.00 per square meter. a. Is Melissa liable to pay capital gains tax on the transaction? If so, how much and why? If not, why not? (4%) b. Is Melissa liable to pay Value Added Tax (VAT) on the sale of the property? If so, how much and why? If not, why not? (4%) IV International Technologies, Inc. (ITI) filed a claim for refund for unutilized input VAT with the Court of Tax Appeals (CTA). In the course of the trial, ITI engaged the services of an independent Certified Public Accountant (CPA) who examined the voluminous invoices and receipts of ITI. ITI offered in evidence only the summary prepared by the CPA, without the invoices and the receipts, and then submitted the case for decision. Can the CTA grant ITIs claim for refund based only on the CPAs summary? Explain. (4%) V Jessie brought into the Philippines a foreign-made luxury car, and paid less than the actual taxes and duties due. Due to the discrepancy, the Bureau of Customs instituted seizure proceedings and issued a warrant of seizure and detention. The car, then parked inside a pay parking garage, was seized and brought by government agents to a government impounding facility. The Collector of Customs denied Jessies request for the withdrawal of the warrant.

Aggrieved, Jessie filed against the Collector a criminal complaint for usurpation of judicial functions on the ground that only a judge may issue a warrant of search and seizure. a. Resolve with reasons Jessies criminal complaint. (4%) b. Would your answer be the same if the luxury car was seized while parked inside the garage of Jessies residence? Why or why not? (4%) VI The Sangguniang Bayan of the Municipality of Sampaloc, Quezon, passed an ordinance imposing a storage fee of ten centavos (P0.10) for every 100 kilos of copra deposited in any bodega within the Municipalitys jurisdiction. The Metropolitan Manufacturing Corporation (MMC), with principal office in Makati, is engaged in the manufacture of soap, edible oil, margarine, and other coconut oil-based products. It has a warehouse in Sampaloc, Quezon, used as storage space for the copra purchased in Sampaloc and nearby towns before the same is shipped to Makati. MMC goes to court to challenge the validity of the ordinance, demanding the refund of the storage fees it paid under protest. Is the ordinance valid? Explain your answer. (4%) VII Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do not operate within Philippine territory, or service passengers embarking from Philippine airports. The firm is represented in the Philippines by its general agent, Philippine Airlines (PAL), a Philippine corporation. KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA deficiency income taxes at the rate of 35% on its taxable income, finding that KIAs airline ticket sales constituted income derived from sources within the Philippines. KIA filed a protest on the ground that the P2,968,156.00 should be considered as income derived exclusively from sources outside the Philippines since KIA only serviced passengers outside Philippine territory. Is the position of KIA tenable? Reasons. (4%) VII Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do not operate within Philippine territory, or service passengers embarking from Philippine

airports. The firm is represented in the Philippines by its general agent, Philippine Airlines (PAL), a Philippine corporation. KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in 1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA deficiency income taxes at the rate of 35% on its taxable income, finding that KIAs airline ticket sales constituted income derived from sources within the Philippines. KIA filed a protest on the ground that the P2,968,156.00 should be considered as income derived exclusively from sources outside the Philippines since KIA only serviced passengers outside Philippine territory. Is the position of KIA tenable? Reasons. (4%) VIII The City of Manila enacted Ordinance No. 55-66 which imposes a municipal occupation tax on persons practicing various professions in the city. Among those subjected to the occupation tax were lawyers. Atty. Mariano Batas, who has a law office in Manila, pays the ordinance-imposed occupation tax under protest. He goes to court to assail the validity of the ordinance for being discriminatory. Decide with reasons. (3%) IX Republic Power Corporation (RPC) is a government-owned and controlled corporation engaged in the supply, generation and transmission of electric power. In 2005, in order to provide electricity to Southern Tagalog provinces, RPC entered into an agreement with Jethro Energy Corporation (JEC), for the lease of JECs power barges which shall be berthed at the port of Batangas City. The contract provides that JEC shall own the power barges and the fixtures, fittings, machinery, and equipment therein, all of which JEC shall supply at its own cost, and that JEC shall operate, manage and maintain the power barges for the purpose of converting the fuel of RPC into electricity. The contract also stipulates that all real estate taxes and assessments, rates and other charges, in respect of the power barges, shall be for the account of RPC. In 2007, JEC received an assessment of real property taxes on the power barges from the Assessor of Batangas City. JEC sought reconsideration of the assessment on the ground that the power barges are exempt from real estate taxes under Section 234 [c] of R.A. 7160 as they are actually, directly and exclusively used by RPC, a government-owned and controlled corporation. Furthermore, even assuming that the power barges are subject to real property tax, RPC should be held liable therefor, in accordance with the terms of the lease agreement. Is the contention of JEC correct? Explain your answer. (4%) X

ABCD Corporation (ABCD) is a domestic corporation with individual and corporate shareholders who are residents of the United States. For the 2nd quarter of 1983, these U.S.based individual and corporate stockholders received cash dividends from the corporation. The corresponding withholding tax on dividend income 30% for individual and 35% for corporate non-resident stockholders was deducted at source and remitted to the BIR. On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a formal claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at source as tax on dividends earned was fixed at 25% of said income. Thus, ABCD asserted that it overpaid the withholding tax due on the cash dividends given to its non-resident stockholders in the U.S. The Commissioner denied the claim. On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA) reiterating its demand for refund. a. Does ABCD Corporation have the legal personality to file the refund on behalf of its non-resident stockholders? Why or why not? (3%) b. Is the contention of ABCD Corporation correct? Why or why not? (3%)

PART II XI Raffy and Wena, husband and wife, are both employed by XXX Corporation. After office hours, they jointly manage a coffee shop at the ground floor of their house. The coffee shop is registered in the name of both spouses. Which of the following is the correct way to prepare their income tax return? Write the letter only. DO NOT EXPLAIN YOUR ANSWER. (2%) a. Raffy will declare as his income the salaries of both spouses, while Wena will declare the income from the coffee shop. b. Wena will declare the combined compensation income of the spouses, and Raffy will declare the income from the coffee shop. c. All the income will be declared by Raffy alone, because only one consolidated return is required to be filed by the spouses. d. Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Each spouse shall be taxed separately on their corresponding taxable income to be covered by one consolidated return for the spouses. e. Raffy will declare his own compensation income and Wena will declare hers. The income from the coffee shop shall be equally divided between them. Raffy will file one income tax return to cover all the income of both spouses, and the tax is computed on the aggregate taxable income of the spouses.

XII YYY Corporation engaged the services of the Manananggol Law Firm in 2006 to defend the corporations title over a property used in the business. For the legal services rendered in 2007, the law firm billed the corporation only in 2008. The corporation duly paid. YYY Corporation claimed this expense as a deduction from gross income in its 2008 return, because the exact amount of the expense was determined only in 2008. Is YYYs claim of deduction proper? Reasons. (4%) XIII In 1999, Xavier purchased from his friend, Yuri, a painting for P500,000.00. The fair market value (FMV) of the painting at the time of the purchase was P1-million. Yuri paid all the corresponding taxes on the transaction. In 2001, Xavier died. In his last will and testament, Xavier bequeathed the painting, already worth P1.5-million, to his only son, Zandro. The will also granted Zandro the power to appoint his wife, Wilma, as successor to the painting in the event of Zandros death. Zandro died in 2007, and Wilma succeeded to the property.

a. Should the painting be included in the gross estate of Xavier in 2001 and thus, be subject to estate tax? Explain. (3%) b. Should the painting be included in the gross estate of Zandro in 2007 and thus, be subject to estate tax? Explain. (3%) c. May a vanishing deduction be allowed in either or both of the estates? Explain. (3%) XIV Emiliano Paupahan is engaged in the business of leasing out several residential apartment units he owns. The monthly rental for each unit ranges from P8,000.00 to P10,000.00. His gross rental income for one year is P1,650,000.00. He consults you on whether it is necessary for him to register as a VAT taxpayer. What legal advice will you give him, and why? (4%) XV Miguel, a citizen and resident of Mexico, donated US$1,000.00 worth of stocks in Barack Motors Corporation, a Mexican company, to his legitimate son, Miguelito, who is residing in the Philippines and about to be married to a Filipino girlfriend. Mexico does not impose any transfer tax of whatever nature on all gratuitous transfers of property. a. Is Miguel entitled to claim a dowry exclusion? Why or why not? (3%)

b. Is Miguel entitled to the rule of reciprocity in order to be exempt from the Philippine donors tax? Why or why not? (3%) XVI Ernesto, a Filipino citizen and a practicing lawyer, filed his income tax return for 2007 claiming optional standard deductions. Realizing that he has enough documents to substantiate his profession-connected expenses, he now plans to file an amended income tax return for 2007, in order to claim itemized deductions, since no audit has been commenced by the BIR on the return he previously filed. Will Ernesto be allowed to amend his return? Why or why not? (4%) XVII A final assessment notice was issued by the BIR on June 13, 2000, and received by the taxpayer on June 15, 2000. The taxpayer protested the assessment on July 31, 2000. The protest was initially given due course, but was eventually denied by the Commissioner of Internal Revenue in a decision dated June 15, 2005. The taxpayer then filed a petition for review with the Court of Tax Appeals (CTA), but the CTA dismissed the same. a. Is the CTA correct in dismissing the petition for review? Explain your answer. (4%) b. Assume that the CTAs decision dismissing the petition for review has become final. May the Commissioner legally enforce collection of the delinquent tax? Explain. (4%) XVIII A taxpayer received an assessment notice from the BIR on February 3, 2009. The following day, he filed a protest, in the form of a request for reinvestigation, against the assessment and submitted all relevant documents in support of the protest. On September 11, 2009, the taxpayer, apprehensive because he had not yet received notice of a decision by the Commissioner on his protest, sought your advice. What remedy or remedies are available to the taxpayer? Explain. (4%) XIX Johnny transferred a valuable 10-door commercial apartment to a designated trustee, Miriam, naming in the trust instrument Santino, Johnnys 10-year old son, as the sole beneficiary. The trustee is instructed to distribute the yearly rentals amounting to P720,000.00. The trustee consults you if she has to pay the annual income tax on the rentals received from the commercial apartment. a. What advice will you give the trustee? Explain. (3%)

b. Will your advice be the same if the trustee is directed to accumulate the rental income and distribute the same only when the beneficiary reaches the age of majority? Why or why not? (3%) XX Masarap Food Corporation (MFC) incurred substantial advertising expenses in order to protect its brand franchise for one of its line products. In its income tax return, MFC included the advertising expense as deduction from gross income, claiming it as an ordinary business expense. Is MFC correct? Explain. (3%) -NOTHING FOLLOWSLeave a Comment Posted in Bar Exams 2009, Bar Matters, Taxation | Tags: Bar Exams 2009, Bar Matters, Taxation
Posted by: Elmer Brabante | September 10, 2009

Bar Topnotchers from Philippine Law School

11 Votes

BAR TOPNOTCHERS FROM PHILIPPINE LAW SCHOOL 1919 1923 Gregorio Anonas Conrado Sanchez 1st 3rd 87.00 87.90

1923 1926 1926 1928 1934 1946 1947 1948 1949 1949 2005 20 Comments

Carlos P. Garcia Eugeniano Perez Jaime Hernandez Filomeno B. Pascual Marciano P. Catral Strauss S. Mendoza Elizalde P. Rodrigazo Fernando S. Ruiz Anacleto C. Magaser Neptali Gonzales Dexter B. Calizar

7th 1st 7th 1st 1st 9th 8th 6th 1st 9th 9th

86.60 88.10 83.10 90.30 89.70 88.75 88.65 93.85 95.85 92.50 84.70

Posted in Bar Matters, Bar Trivia, Law Schools | Tags: Bar Topnotchers, Bar Trivia, Philippine Law School
Posted by: Elmer Brabante | September 10, 2009

Bar Topnotchers, 1977-2009

8 Votes 1977 1 Virgilio B. Gesmundo 2 Lowell T. Yap 3 Ruben O. Purisima 4 Eduardo V. Viloria 5 Richard N. Ferrer 6 Pelagio T. Ricalde 7 Avelino J. Cruz, Jr. 8 Ruen M. Cleofe 9 Joel M. Famador 10 Nicolas J. Gomez, Jr. 1978

AdeMU UE AdeMU UE AdeMU UP UP AdeMU USC AdeMU

91.80 91.35 91.18 91.05 90.72 90.45 90.42 90.05 89.61 89.48

1 2 3 4 5 6 7 8 8 9 10

Cosme D. Rosell Domingo M. Navarro Alexander J. Poblador Phillip B. King Edgardo A. Camello Ramon C. Casano Andres S. Santos Viveca L. Codamon Rodolfo C. Farias Spyros L. Osorio Susan N. delos Reyes

UP SBC UP AdeMU UP SBC UE LP AdeMU SBC ZAEC

92.47 90.97 90.95 90.52 90.42 90.35 90.02 89.90 89.90 89.87 89.35

1979 1 Gregorio M. Batiler, Jr. 2 Rene B. Gorospe 3 Barbara Anne C. Migallos 4 Marius P. Corpus 5 Simeon V. Marcelo 6 Mario Luza Bautista 7 Rolando V. Medalla, Jr. 8 Jaime M. Blanco, Jr. 9 Gabriel L. Villareal 10 Guillermo A. Villasor, Jr. 1980 1 Rafael L. Lagos 2 Marilyn a. Victorio 3 Jaime S. Jacob 4 Purisimo S. Buyco 4 Reynaldo G. Salutan 5 Bayani K. Tan 6 Noel G. Sanchez 7 Jose F. Caoibes, Jr. 8 Epifania Q. Navarro 9 Dante G. Ilaya 9 Joseph H. Reyes 10 Giorgidi B. Aggabao 1981

AdeMU UST UP AdeMU UP UP UP UP UP UNO-R

91.40 90.60 90.30 90.00 89.90 89.20 89.05 88.90 88.80 88.05

UP UP SBC UP AdeMU UP AdeMU UP AdeMU MLQU AdeMU AdeMU

89.75 89.55 89.45 88.70 87.70 87.25 87.00 86.70 86.55 86.50 86.50 86.45

1 2 3 4 5 6 6 7 8 8 8 9 10

Irene Regodon-Guevarra Cesar L. Vilanueva Arthur T. Lim Edgardo M. de Vera Celia Librea-Leagogo Virgilio s. Jacinto Jose Jesus Laruel Victoria R. Timbancaya Edgar Julio S. Asuncion Jose P. Crisostomo, Jr. Omar B. Redula Soledad G. Fuentes Rogelio V. Quevado

AdeMU AdeMU USC AdeMU UP UP AdeMU SU UP USC AdeMU UP

90.95 90.15 90.10 88.80 88.45 88.25 88.25 87.95 87.70 87.70 87.70 87.40 87.30

1982 1 Ray C. Espinosa 2 Lily U. Valencia 3 Silverio Benny J. Tan 4 Luisito V. Liban 5 Efren L. de Leon 6 Edwin C. Yan 7 Vidor A. Nosce 8 Eduardo P. Lizares 9 Francisco S. de Guzman 10 Simeon R. Raya, Jr. 1983 1 Manuel Antonio J. Teehankee 2 Salvador S. Hipolito 3 William Y. Wee 4 Melvyn S. Jurisprudencia 5 Rocky L. Reyes 6 Agerico T. Paras 7 Rosendo U. Castillo, Jr. 7 Yolanda T. Mendoza 8 Jose Arturo R. Natividad 9 Reynaldo S. Nicolas 10 Gil A. Valera

AdeMU UNO-R UP UP AdeMU FEU AdeMU UP SBC AdeMU

90.95 90.85 90.80 90.15 89.82 89.70 89.32 88.55 88.52 88.35

UP UE AdMU UNO-R UP AdMU SBC UP AdeMU UP AdeMU

91.40 90.60 90.55 89.75 88.35 88.30 88.15 88.15 87.90 87.75 87.70

1984 1 Richard M. Chiu 2 Roy Joseph M. Rafols 3 Dolores P. Abad 3 Manuel J. Laserna, Jr. 4 Ernesto R. Aasco 5 Vivencio F. Abao 5 Priscilla baltazar-Padilla 6 Manuel M. Macasaet 7 Victor L. Chan 8 Renato C. Pineda 9 Arnold L. Barba 10 Antonio P. Bonilla 1985 1 Janette Susan L. Pea 2 Menardo I. Guevarra 3 Edison F. Quintin 3 Lilian B. Hefti 4 Abelardo T. Domondon 5 Oscar Gerard C. Breva 5 Ma. Victoria S. Rotor 6 Buenaventura C. Go-Soco, Jr. 7 Edward S. Serapio 8 Leila M. De Lima-Bohol 9 Fe D. Vivencio 10 Ma. Elena G. Opinion 10 Mary Carolyn S. Que 1986 Laurence L. Go Armando S. Kho Solomon M. Hermosrura Jose Ismael Enrique C. Palma, Jr. Roberto a. Gana Andrea L. Si Bernardo V. Cabal Cresencio Fortunato R. Balsbas Peter Donnely A. Barot

AdeMU AdeMU USA FEU SBC AdeMU LP AdeMU AdeMU AdeMU XU AdeMU

92.85 91.32 90.95 90.85 90.65 90.30 90.30 90.27 90.05 89.95 89.92 89.75

UP AdeMU MLQU SBC AdU AdeMU AdeMU DWU AdeMU SBC AdeMU USA SBC

89.40 88.22 87.70 87.7 87.45 87.40 87.40 86.65 86.30 86.26 86.15 86.12 86.12

1 2 3 4 5 6 7 8 9

AdeMU AdeMU SBC AdeMU AdeMU UNO-R AdeMU UP UP

88.60 87.60 86.80 86.60 86.40 86.30 86.30 86.15 86.0

9 Andres Willhelm B. Camarista 10 Corazon G. Ferrer-Flores 1987 1 Mario P. Victorino 2 Rey D. Tancinco 3 Elmore O. Capule 4 Miguel F. Gudio, Jr. 5 Mario M. Tavora 6 Linus G. Abaquin 7 Francisco M. Macalino 8 Fernando C. Soriano 9 Imelda A. Manguiat 10 Jose Ma. G. Hofilea 1988 1 Maria Yvette O. Navarro 2 Antonio M. Bernardo 3 Ma. Jasmine S. Oporto 4 Ma. Valentina S. Santana 5 Hever M. Bascon, Jr. 6 Ben Hur R. Olivas 7 Cyril Regalado 8 Timoteo B. Aquino 9 Rene V. Tria 10 Silvina Q. Mamaril 1989 1 Gilberto Eduardo Gerardo C. Teodoro, Jr. 2 Meinrado Enrique A. Bello 3 Antonio Gabriel M. La Via 3 Ranulfo G. Mendoza 4 Persida V. Rueda 5 Thaddeus E. Venturaza 6 Rowena L. Garcia 7 Thaddeus R. Alvizo 8 Jalilo O. dela Torre 9 Sinforoso R. Pagunsan 10 Jefferson M. Marquez

UI UST

86.00 85.75

AdeMU UP AdeMU SU AdeMU AdeMU AdeMU AdeMU UP AdeMU

88.55 87.65 87.60 87.40 87.35 87.15 86.80 86.60 86.10 86.05

UP AdeMU UP UP AdeMU AdeMU USA SBC SBC SLU

88.12 87.78 87.74 86.81 86.51 86.33 86.325 86.32 86.31 86.20

UP AdeMU UP SBC UE AdeMU SBC UP USJ-R AdeMU SBC

86.18 86.08 86.02 86.02 85.62 85.53 85.20 85.14 85.10 85.09 84.94

1990 1 Aquilino L. Pimentel III 2 Augusto A. San Pedro, Jr. 3 Mylene Garcia-Albano 4 Maximilian Joseph T. Uy 5 Marciano G. Delson 6 Romeo Johann I. Fernandez 7 Frederick G. Young 8 Ruben C. Carranza 9 Fernando Y. Concepcion 10 Reynaldo B. Robles 1991 1 Joseph P. San Pedro 2 Maribeth A. Lipardo 3 Joseph Ferdinand M. Dechavez 4 Susan Pearl D. Villanueva 5 Gerardo June T. Buan 6 Risel G. Castillo 7 Gafar E. Lutian 8 Angelo C. Perez 9 Susan P. Cariaga 10 Antonio T. Kho, Jr. 1992 1 Jayme A. Sy, Jr. 2 Gerard A. Mosquera 3 Carina C. Laforteza 4 Joel Jude R. Mutia 5 Angelique A. Santos 6 Edilberto T. Castaeda 7 Michael G. Aguinaldo 8 Imelda M. Abadilla 8 Peter-Joey B. Usita 8 Ma. Divina s. Andaya-Carandang 9 Angela P. Garia 10 Priscilla B. Valer

UP UP AdeMU UP SBC AdeMU AdeMU UP AdeMU FEU

89.85 89.35 88.95 88.20 87.95 87.75 87.60 87.45 87.20 87.10

AdeMU AdeMU SBC UP SBC SBC SBC AdeMU UP SBC

89.95 89.75 87.97 87.32 87.10 86.57 86.25 85.97 85.70 85.65

AdeMU AdeMU UP AdeMU AdeMU UP AdeMU SBC SBC LP UNO-R AdeMU

87.00 86.30 85.95 85.90 85.70 85.60 85.35 84.75 84.75 84.75 84.41 84.40

1993 1 Anna Leah Fidelis T. Castaeda 2 Crisostomo M. Akol 3 Rosemari U. Grio 4 Pablo John F. Garcia, Jr. 5 Ma. Josefina G. Se 5 Patrick V. Santo 5 Nelson S. Victorino 6 Andrew Michael s. Ong 7 Jose Jesus M. Disini, Jr. 8 Rogelio J. Bondoc, Jr. 9 Manuel P. Casio 10 Maria SocorroZ. Manguiat 1994 1 Francisco Noel R. Fernandez 2 Fernando C Sioson 3 Gregorio V. Cabantac 4 Harrison M. Paltongan 5 Marlon J. Manuel 6 Caroline V. Henson 7 Alan John B. Tantoco 8 Joel G. Tinitigan 9 Felix T. Sy, Jr. 10 Arnel M. Santos 10 Maria Paz Romana S. Angeles 1995 Leonor Y. Dicidican Emmanuel Donato K. Guzman Winston M. Ginez Abner C. Gener, Jr. David Emmanuel B. Puyat Carla E. Santamaria Shennan A. Sy Gwen B. Grecia Arnold F. de Vera Maria Grace C. de Jesus Jeanne Merced M. Macasaet

AdeMU SBC AdeMU UP AdeMU UP ArU UP UP AdeMU SBC AdeMU

88.32 87.30 86.82 86.51 85.27 85.27 85.27 85.25 85.22 84.90 84.55 84.47

UP AdeMU UP SBC AdeMU AdeMU AdeMU AdeMU AdeMU AdeMU AdeMU

89.20 88.45 87.90 87.70 87.35 87.25 87.05 86.75 86.45 86.10 86.10

1 2 3 4 4 5 6 7 8 9 9

UP UP SBC UP UP UST AdeMU UP UP UP UP

91.20 89.20 88.00 87.10 87.10 87.05 86.95 86.75 86.35 86.25 86.25

10 Lyssa Grace S. Pagano-Lubrica 1996 1 Patricia Ann T. Progalidad 2 Peter L. Pacheco 3 Katherine Agnes MC Arnaldo 4 Recaredo C. Borgonia, Jr. 5 Amante A. Liberato 5 Herminigildo G. Mukarami, Jr. 6 Shirley F. Alinea 7 Yasmin Suzette J. Tan 8 Rosalia S. Bartolome 9 Amor M. Datinguinoo 10 Edgar DL Bernal 1997 1 Ma. Celia H. Fernandez 2 Mary Ann L. Villamor 3 Rhett Emmanuel C. Serfino 4 Ma. Trina Eliza K. Ngo 5 Jose Raullito E. Paras 6 Emmanuel S. Ypil 7 Teodulfo Antonio G. San Juan 8 Philbert E. Varona 9 Alleniery Allan V. Exclamador 10 Ralph S. Sarmiento 1998 1 Janet B. Abuel 2 Norma Margarita B. Patacsil 3 Maria Franchette M. Acosta 4 Benigno G. Par, Jr. 5 Andre C. Palacios 6 Kenneth L. Chua 7 Aaron Philip B. Cruz 8 Gregorio M. Perex\z 9 Margie P. Colinayo 10 Ambrosio L. Cantada II

BCF

86.00

UP AdeMU AdeMU UP FEU AdeMU UP UP UP UP UP

90.60 90.50 90.35 89.65 89.50 89.50 89.45 89.40 89.30 89.15 89.00

UP UP MLQU AdeMU SBC AdeMU UP AdeMU MSU UStL

90.02 89.40 89.20 89.15 88.82 88.07 87.77 87.55 87.00 86.82

BCF UP UP UST UP AdeMU AdeMU USC AdeMU AdeMU

91.80 91.40 91.25 90.85 90.70 89.70 89.65 89.30 89.15 89.10

1999 1 Edwin R. Enrile 1 Florin T. Ibay 2 Dara C. Acusar 3 Francis Joseph H. Ampil 4 Roel A. Refran 5 Maritess B. Avila 6 Randy T. Ceniza 7 Karen B. Caparros 7 Lourdes C. Echavez-de Leon 8 Riafe M. Cagas 9 Fritzie P. Tangkia 10 Grainoil U. Baysa-Pee 2000 1 Eliseo M. Zuiga, Jr. 2 Arvin Dexter M. Lopoz 3 Jean G. Pantaleon-Pallorina 4 Rogelio G. Largo 5 Joan D. Adci 6 Machael Felipe A. Mercado 7 Valerie C. Feria 7 Princess Lou D. Managuelod 8 Prudence Angelita A. Kasala 9 Andrea Antonette A. Sese-Relucio 10 Ma. Cristina T. Suralvo 2001 1 Rodolfo Ma. A. Ponferrada 2 Jesus Paolo U. Protacio 3 Anthony Mark A. Gutierrez 4 Solomon F. Lumba 5 Katrina Diane Noelle C. Monsod 6 Ma. Theresa U. Ballelos 7 Amabelle Grace G. Mascardo 8 Adonis V. Gabriel 9 John Noah M. Red 10 Dante R. Bravo

AdeMU UP AdeMU AdeMU AdeMU SBC AdeDU UP AdeMU UP UP AdeMU

88.50 88.50 87.70 87.20 86.90 86.55 86.05 85.90 85.90 85.75 85.55 85.50

UP AdeDU AdeMU AdeDU UP SBC UP UP UST AdeMU UP

90.60 90.55 89.20 88.55 88.40 88.30 88.15 88.15 87.85 87.80 87.45

UP AdeMU AdeMU UP AdeMU UP SU SBC AdeMU SBC

93.80 90.05 89.85 88.55 88.50 88.40 88.35 88.25 88.10 87.95

2002 1 Arlene M. Maneja 2 Connie G. Chu 3 Eric R. Recalde 4 Ma. Ngina Teresa V. Chan-Gonzaga 4 Michelle Ann U Juan 5 Dorothy A. Uy 6 Maria Gracia R. GAmez 7 Joel Emerson J. Gregorio 8 Rex S. Austria 9 George O. Ortha II 10 Joseph Lyle K. Sarmiento 2003 1 Aeneas Eli S. Diaz 2 Harvey Lawrence N. Dychiao 3 Saben C. Loyola 4 Mark Oliver M. Karaan 5 Sabrina Kate D. Paner 6 Dorothy B. Dizon 7 Mani Thess Q. Pea 8 Melissa Romana P. Suarez 9 Henry M. Francisco 10 Jose C. Evan 2004 1 January Sanchez 2 Ronald P. De Vera 3 Charlito Martin R. Mendoza 4 Ma. Cristina C. Larrobis 5 Efren Vincent M. Dizon 6 Michael Geronimo G. Martin Maria Melissa G. Tan 7 Joseph Joemer C. Perez 8 Neil Simon S. Silva 9 Ma. Melissa D. Jamero 10 Ronald P. De Vera 2005

UST AdeMU SBC AdeMU AdeMU AdeMU UP AdeMU SBC SBC AdeMU

92.90 90.40 90.30 89.80 89.80 89.50 89.40 89.10 89.05 89.00 88.75

AdeMU AdeMU SBC SBC AdeMU AdeMU UP AdeDU SBC BiC

88.53 87.58 87.29 85.35 85.17 85.12 85.06 85.00 84.82 84.64

UP UP SBC USC SBC AdMU SBC UP UP USC UP

87.45 86.95 86.75 86.30 86.10 86.05 85.55 85.45 85.40 85.30 86.95

1 2 3 4 5 6 7 8 9 10

Joan de Venecia Jomini C. Nazareno Sheryl May B. Tanquilut Nyerson Dexter Tito Q. Tualla Tamsin Rae N. Lucila Gladys V. Gervacio Claudine B. Orocio-Isorena Pedro Jose F. Bernardo Dexter B. Calizar Johnson A.H. Ong

UP AdMU AdMU MLQU UP UPHR UP AdMU PLS FEU

86.40 85.95 85.45 85.35 85.30 85.20 85.05 84.70 84.65

2006 1 Noel Neil Q. Malimban 2 Deborah S. Acosta 2 Ricardo M. Ilares III 3 Erika Ana Andrea C. Jimenez 4 Maria Charizza B. Carlos 5 Gina Lyn R. Rubio 6 Anjuli Larla A. Tan 7 Karen H. Gaviola 8 Al-shwaid L. Ismael 9 Timothy Joseph M. Mendoza 10 Alain Charles J. Veloso 2007 1 Mercedita L. Ona 2 Jennifer T. Ong 3 Yvanna DL. Maalat 4 Jennie C. Aclan 5 John Michael S. Galauran 6 Karen S. Canullas 7 Sheryl Ann D. Tizon 7 Cecille L. Mejia 8 Marforth T. Fua 9 Ruby M. Luy 10 Christian B. Llido 10 Vivian S. Tan 2008

UC 87.60 UP 87.40 AdeMU 87.40 AdeMU 86.60 AdeMU 86.10 FEU 85.75 DVOREFI 85.70 USC 85.68 UC 85.65 UP 85.55 UP 85.50

AdeMU UP AdeMU USC UNC SSC UP AdeMU SBC AdeDU UC UP

83.55 83.35 82.75 82.10 81.60 81.40 81.35 81.35 81.20 81.15 80.90 80.90

1 2 3 4 5 6 7 7 8 9 9 10

Judy Lardizabal Mylene Amerol Macumbal Oliver Baclay Jr. Majesty Eve Jala Mari Elizabeth Liceralde Michael Macapagal Denise Dy April Love Regis Christine Joy Tan Jihan Jacob Shirley Velasquez Vanessa Raymundo

SSC MSU AdMU AdMU UP UP AdMU AdMU AdMU SBC UP SBC

85.65 85.50 85.55 85.40 84.15 84.00 84.00 83.80 83.75 83.75 83.70

1 2 3 4 5 6 7 8 9 10 10

2009 Rainier Paul R. Yebra Charlene Mae C. Tapic John Paul T. Lim Caroline P. Lagos Eric Daivd C. Tan Yves Randolph P. Gonzales Joan Mae S. To Herminio C. Bagro III Timothy Joseph N. Lumauig Naealla Rose M. Bainto Sheila Abigail O. Go

SBC SBC AdMU UP AdMU AdMU AdMU UP AdMU AdMU AdMU

84.80 84.60 84.50 84.40 84.05 83.90 83.65 83.40 83.20 83.10 83.10

1 Comment Posted in Bar Matters, Bar Trivia, Law Schools | Tags: Bar Matters, Bar Topnotchers, Bar Trivia, Law Schools
Posted by: Elmer Brabante | September 10, 2009

Bar Topnotchers, 1946-1976

6 Votes August 1946 1 Gregoria Cruz 2 Roberto H. Benitez 3 Aurora Marcos 4 Amadeo R. Neri 5 Antonio G. Ibarra 6 Natividad G. Adduru 7 Alberto B. Villaraza 8 Teodoro C. Unson 9 Vicente Caluag Jr. 10 Jesus P. Garcia November 1946 1 Pedro L. Yap 2 Jose S. Zafra 3 Fermin R. Mesina 4 Arturo M. del Rosario 5 Jose L. Papa 6 Jose R. Quintos 7 Eriberto D. Ignacio 8 Alberto V. Seeris 9 Strauss S. Mendoza 10 Emilio Centena 1947 UP UP UP SC UP UP UP FEU UP UST 92.25 92.05 91.75 91.50 90.90 90.15 90.10 89.70 89.65 88.25

UP ACL UP UST UST FLS UP SU PLS UP

91.70 91.30 89.40 89.30 89.30 89.20 89.15 88.80 88.75 88.45

1 2 3 3 4 5 6 7 7 8 9 10

Aumerfina A. Melencio Augusto G. Syjuco Juan M. Hagad Antonio V. Montelibano Aguedo F. Agbayani Buenaventura S. dela Fuente Lorna Lombos Ambrosio A. Acevedo Jesus SJ Sayuc Elizalde P. Rodrigazo Francisco Sumulong Emma Quisumbing

UP AU UP CSA UP UP UP AdeMU FEU PLS AU UP

93.85 92.90 91.75 91.75 91.40 89.05 88.95 88.70 88.70 88.65 88.60 88.30

1948 1 Manuel G. Montecillo 2 Jose M. Evangelista 3 Francisco T. Papa 4 Lorenzo Miravite 5 Blasito E. Angeles 6 Fernando S. Ruiz 7 Avelino C. Teao 8 Kaulayao V. Faylona 8 Bienvenido A. Tan Jr. 9 Irene R. Cortez 10 Alberto P. San Juan 1949 1 Anacleto C. Magaser 2 Dominador Aytona 3 Ramon Encarnacion Jr. 4 Celso L. Magsino 5 Jose C. Campos Jr. 5 Nicias Mendoza 6 Enrique M. Belo 7 Ladislao L. Reyes 8 Generoso V. Jacinto 9 Neptali A. Gonzales 10 Robustiano Espiritu

FEU UM UP MLQU MLQU PLS Special MLQU UP UP UP

95.50 95.05 94.50 94.45 94.35 93.85 93.70 93.45 93.45 92.95 92.50

PLS UM MLQU FEU UP MLQU UP UP UP PLS MLQU

95.85 94.55 94.10 93.50 93.10 93.10 92.95 92.90 92.80 92.50 92.15

1950 1 Carolina C. Grio 2 Ramon O. Reynoso, Jr. 3 Rodolfo Ganzon 4 Andres E. Matias 5 Alicia V. Sempio 6 Mariano V. Ampil Jr. 7 Deogracias P. Lirio 8 Gregorio S. Turiano 9 Arturo T. de Guia 10 Miguel V. Gonzales 10 Ciriaco G. Lopez 1951 1 Vicente R. Acsay 2 Andres R. Narvasa 3 Pablo P. Garcia 4 William R. Veto 5 Fortunato A. Vailoces 6 Isidro C. Zarraga 7 Benildo G. Hernandez 8 Isagani A. Cruz 9 Timoteo J. Sumawang 10 Cesar B. Dadivas 1952 1 Pedro S. C. Animas 2 Gabriel C. Singson 3 Marciano C. Sicat 4 Augusto Almeda-Lopez 4 Rosalino A. Centeno 5 Andres C. Regalado 6 Florentino P. Feliciano 7 Alfredo Marigomen 7 Roman D. Valdez 8 Jeremias U. Montemayor 9 Meynardo A. Tiro 10 Godofredo F. Trajano

Special UP ICC FLS MLQU UP FEU FEU UST MLQU UP

92.05 91.15 91.10 90.30 90.05 89.30 89.15 88.85 88.80 88.50 88.50

UM UST USC AdeMU USC UP MLQU MLQU MLQU FLS

92.25 91.60 91.50 91.20 90.85 90.55 90.45 90.15 90.10 89.85

UP AdeMU FEU UP FEU UP UP UP FEU AdeMU AdeMU UST

94.25 93.75 93.30 93.10 93.10 92.90 92.90 92.55 92.55 92.50 92.30 92.05

1953 1 Leonardo A. Amores 2 Juan J. Diaz 3 Jose B. Aquino 4 Jose C. Reyes 5 Bernanrdo P. Fernandez 6 Vicenzo A. Sagun 7 Leopoldo A. Francisco 8 Oscar M. Herrera 9 Lauro V. Francisco 10 Ernesto D. Tobias 1954 1 Florenz D. Regalado 2 Renato L. dela Fuente 3 Antonio R. Quintos 4 Raymundo A. Armovit 5 Bienvenido V. Reyes 5 Jose R. Vias 6 Benjamin V. Abela 6 Rodolfo J. Herman 6 Salome A. Montoya 7 Quirico T. Carag Jr. 8 Pacifico M. Castro 9 Rene Espina 10 Banjamin P. Paulino 1955 Tomas P. Matic, Jr. Juan G. Colias, JR. Emmanuel S. Tipon Ricardo M. Ilarde Valentino G. Castro Jose S. Balajadia Manuel T. Muro Artemio R. Aliva Vicente V. Asuncion, Jr. Jovencio F. Cinco Francisco G. de Guzman

UM MLQU AdeMU AdeMU SBC SU MLQU FEU MLQU UP

94.05 93.85 93.25 93.10 92.75 92.55 92.40 92.25 92.20 92.05

SBC SBC AdeMU UP MLQU MLQU UP ONI FEU UP UST USP UE

96.70 95.95 95.50 94.30 93.70 93.70 93.50 93.50 93.50 93.45 93.35 93.20 93.00

1 2 3 4 5 6 6 7 7 7 8

FEU UP UP MLQU MLQU UP FEU UP AdeMU FEU MLQU

90.55 89.90 89.55 87.90 86.80 86.30 86.30 86.25 86.25 86.25 86.15

9 Julio T. Baldonado 10 Lourdes J. Fajutrao 1956 1 Francisco C. Catral 2 Nereo J. Paculdo 3 Carlos R. Imperial 4 Alfonso B. Camillo 4 Juanito R. Remulla 5 Artemio R. Corpuz 5 Melencio C. Corpuz 5 Benjamin M. Grecia 6 Raul L. Correa 7 Benigno A. Bernardo 8 Andre L. Navato 9 Ernesto M. Maceda 10 Victor L. Sison 1957 1 Gregorio R. Castillo 2 Antonio F. Navarrete 3 Samson S. Alcantara 4 Don M. Ferry 5 Sabino R. Padilla, Jr. 6 Vicente D. Millora 7 Jose E. Picazo 8 Enrique D. Perez 9 Romeo C. dela Cruz 10 Perfecto V. Fernandez 1958 Manuel G. Abello Jose dlC Concepcion Jose N. Nolledo Antonio J. Navas, Jr. Norberto S. Gonzales Virgilio C. Manguera Sergio A. Apostol Raul Flores

MLQU MLQU

86.00 85.95

SBC UP AdeMU UST UP LP UE FEU UP FEU SBC AdeMU SBC

90.20 89.55 89.50 89.40 89.40 89.15 89.15 89.15 89.10 88.95 88.60 88.55 88.50

UP AdeMU MLQU UP UP UP UP SBC UP UP

89.15 88.65 88.20 88.15 88.00 87.65 87.40 87.05 87.00 86.95

1 2 3 4 5 6 7 8

UP UP FEU UST MLQU UP AdeMU MLQU

89.25 89.10 88.95 86.75 86.70 86.60 86.45 86.30

9 Amado M. Santiago, Jr. 10 Benjamin A. Claveria 1959 1 Agustin O. Benitez 2 Lorenzo G. Timbol 3 Amado A./ Bulaong, Jr. 4 Custodio O. Parlade 5 Romulo M. Villa 6 Ismael G. Khan, Jr. 7 Nelly A. Favias 8 Efren G. Gutierrez 9 Francis M. Zosa 10 Pedro G. Banzon 1960 1 Ismael Andres 2 James J. Litton 3 Florencio Z. Sioson 4 Redentor A. Salonga 5 David C. Naval 6 Artemio V. Panganiban, Jr. 7 Jose S. Brillantes 8 Rolando N. Velasco 9 Gregorio P. Molina 10 Valerio Salazar 1961 1 Avelino V. Cruz 2 Antonio T. Lacson 3 Manuel B. Zamora, Jr. 4 Victor J. Lee 5 Eugenio S. Suarez 6 Reginaldo I. Oben 7 Filemon Fernandez 7 Isidro E. Real, Jr. 8 Eliddoro G. Ubiadas 9 Maxie S. Aguillon 10 Jovito E. Talabong

AdMU UNC

86.25 85.95

FEU UP UP FEU UP UP UP UP AdeMU UST

89.20 88.75 88.45 88.40 88.05 87.95 87.50 87.40 87.15 87.10

MLQU UP LP AdeMU UNC FEU AdeMU SBC AdeMU USC

91.70 91.65 91.15 90.15 89.85 89.55 89.20 88.95 88.75 88.25

SBC AdeMU UP FEU UP UST USC LP UP UST LuzC

90.95 89.20 87.45 86.80 86.70 86.60 86.45 86.45 86.35 86.00 85.80

1962 1 Deogracias G. Eufemio 2 Felicisimo R. Quioque 3 Ma. Luisa A. Mendoza 4 Adolfo S. Azcuna 5 Virgilio B. Jara 6 Elizabeth R. Tan 7 Manuel R. Castro 8 Haydee B. Uorac 9 Joaquin G. Bernas 10 Prospero A. Olivas 1963 1 Cornelio C. Gison 2 Hector A. Martinez 3 Wenceslao R. dela Paz 4 Teodoro a. Almazen 4 Myrna Policrpio Cruz 5 Antonio A. Picazo 6 REnato V. Saguisag 7 Carmelo Betita 8 Honorato Y. Aquino 8 Remeo Limpingco 8 Roberto P. Ocampo 9 Jose P. Mendoza 10 Antonio H. Abad, Jr. 1964 1 Jesus P. Castelo 2 Demetrio G. Demetria 3 Fernando T. Chua 4 Eduardo G. Berenguer 5 Raymundo Dizon, Jr. 6 Manuel S. Ferandos 7 Adolfo A. Angala 8 Ferdinand S. Tinio 9 Ma. Ana C. Chanco 10 Raul S. Picardo

UP SBC LP AdeMU SBC UP UP UP AdeMU BC

90.80 89.70 87.10 86.80 86.35 86.30 86.00 86.95 85.10 84.95

AdeMU UP USA UV UST UP SBC UP BCF FEU UE SBC FEU

86.35 85.95 85.05 84.95 84.95 84.90 84.85 83.20 83.05 83.05 83.05 83.00 82.80

SBC UE AdeMU AdeMU AdeMU SBC AdeMU UP UP SBC

88.40 86.85 86.75 86.15 86.10 85.60 85.35 85.00 84.60 84.40

1965 1 Victor S. dela Serna 2 Mercedita V. Santiago 3 Angelito C. Imperio 4 Jose I. Castell 5 Luisito G. Baluyot 6 Trudon G. German 7 Frank Y. Tan 8 Pio Y. Go 9 Antonio V. Ramil 10 Roberto Palmares 1966 1 Roberto San Jose 2 Ruben F. Balane 2 Pablo S. Trillana III 3 Teodoro Villarmia, Jr. 4 Francisco D. Yap 5 Wilfredo M. Chato 6 Sonia Bautista 7 Arturo G. Cabilete 8 Hildegardo F. Iigo 9 Ramon Aviado, Jr. 10 Antonio B. Dayrit 1967 1 Rodolfo D. Robles 2 Mario Guarin\a III 3 Basilio H. Alo 4 Douglas R. Cagas 5 Sylvia Katherine F. Luczon 5 Rolando s. Santos 5 Thomas V. Tieng 6 Manuel S. Quimbo 7 Antonio B. Nachura 8 Pablito V. Sanidad 9 Fulgencio S. Factoran, Jr. 10 Franklin M. Ebdalin

SBC UP UP FEU AdeMU AdeMU AdeMU USC UP USC

89.80 89.55 88.70 87.45 86.50 85.85 85.50 85.30 84.95 84.85

UP UP SBC AdMU SU UP UP AdMU AdeC AdeMU FEU

90.60 88.50 88.50 88.45 87.70 87.00 86.75 86.60 86.35 86.25 86.20

SBC USA UE UE FEU SBC SBC AdeMU SBC UP UP AdeMU

89.60 87.80 87.15 86.85 86.05 86.05 86.05 86.00 85.70 85.50 84.90 84.80

1968 1 Oscar B. Glovasa 2 Jose Mario C. Buag 3 Jacinto D. Jimenez 4 Franco L. Loyola 5 Leandro C. Pancito 6 Soledad M. Cagampang 7 Raul Cabrera 8 Antonio B. Panopio 10 Nestor I. Madlansacay 1969 1 Ronaldo B. Zamora 2 Nicolas B. Madrazo 3 Franklin M. Drilon 4 Arthur B. Soller 5 Aniceto Y. Dideles 5 Danilo L. Protacio 6 William P. Mellana 6 Procopio V. Vergel de Dios, Jr. 7 German a. Gineta 8 Antonio H. Dujua 8 Quintin J. Garcia 9 Oswaldo A. Esperat 10 Silvestre J. Acejas 1970 1 Romulo D. San Juan 2 Kamar M. Boloto 2 Jesus N. Borillo, Jr. 3 Arturo M. de Catro 4 Obed C. Cutaran 5 Juan D. de Zuiga 6 Jose L. Baizas 7 Lou G. Tirol 8 Hermogenes R. Liwag 9 Marcelo T. Oate 10 Rodrigo I. Alano

UB AdeMU AdeMU FEU MLQU UP AdeMU UE LP

87.45 86.85 86.80 86.05 86.75 85.52 85.50 85.00 84.8

UP UE UP AdeMU UP AdeMU AdeMU AdeMU UST AdeMU SBC SU UP

87.30 87.25 86.85 86.05 85.80 85.80 85.60 86.80 85.55 85.25 85.25 85.15 84.95

UP UE AdeMU UP FEU FEU FEU SBC LP FEU FEU

87.50 86.75 86.75 86.60 85.40 85.25 84.95 84.75 84.55 84.50 84.40

1971 1 Henry R. Villarica 2 Prospero C. Nograles 3 Victor P. Lazatin 4 Liberador V. Villegas 5 Romulo P. Atencia 6 Virgilio Ma. S. del Rosario 6 Presbitero J. Velasco, Jr. 7 Angelito W. Chua 8 Amando M. L. Suratos 9 Eduardo N. Aguillon 10 Flavio P. Gutierrez 1972 1 Januario B. Soller, Jr. 2 Jesus M. Manalastas 3 George A. Eduvala 3 Leo J. Palma 4 Solon R. Garcia 5 Francis Y. Gaw 6 Domingo C. Palarca 7 Felito S. Ramirez 8 Corazon D. Martinez 9 Jesus F. Balicanta 10 Felino M. Ganal 1973 1 Vicente R. Solis 2 Victoria Piera 3 Ricardo T. Chu, Jr. 4 Charles S. Anastacio 5 Manuel L. M. Torres 6 Ernesto R. Lim, Jr. 7 Frumencio A. Lagustan 8 Abraham B. Borreta 9 Lucas P. Bersamin 10 Jesus G. Dureza

UP AdMU UP AdeMU AdeMU AdeMU UP FEU AdeMU USA UST

92.40 90.95 9.65 90.65 90.45 89.95 89.85 89.60 89.30 89.25 88.95

AdeMU UP SBC UP AdeMU AdeMU UP SBC UST SBC UP

87.13 86.43 86.08 86.08 85.80 85.50 85.13 84.83 84.50 84.28 84.13

AdeMU AdeMU USA SBC SBC SBC SBC UP UE AdeD

90.30 89.60 88.60 87.20 87.05 86.90 86.80 86.45 86.30 86.25

1974 1 Arturo D. Brion 2 Ferdinand T. Santos 3 Francis H. Jardeleza 4 Rafael A. Morales 5 Francisco B. Luna 6 Delfin M. Quijano 7 Nanette R. de Castro 8 Kenneth M. Barredo 9 Marcelo J. Abibas, Jr. 10 Luis A. Vera Cruz, Jr. 1975 1 Nicanor B. Padilla, Jr. 2 Natividad B. Kwan 3 Emmanuel R. Pacquiao 4 Augusto G. Panlilio 5 Edmundo I. Imperial 6 Antonio T. Carpio 6 Roldan B. Dalman 7 Edgardo A. Abinales 8 William L. Chua 9 Rosmari D. Carandang 10 Vicente B. Amador 10 Josefa K. CAuton 10 Vicente Q. Roxas 1976 Enrique Y. Teehankee Pedro Y. Aquino Arthur E. Galace Vicente F. Ruaro Jose A. Curammeng, Jr. Arturo C. Villamor Mariano E. Sarmiento II Ruben V. Abarquez Florencio M. Martinez

AdeMU SBC UP UP FEU CSJ-R UP UNO-R MLQU UP

91.65 90.70 88.35 87.79 87.39 87.34 86.90 86.70 86.20 85.88

UE AdeMU UV AdeMU AdeMU UP AdeMU UE UNO-R UP UP UP UP

86.70 86.55 86.50 86.35 86.25 85.70 85.70 85.30 85.05 84.95 84.90 84.90 84.90

1 2 3 4 5 6 7 8 9

UP FEU BCF AdeMU UST USC UP AdeD SBC

90.80 89.95 89.45 88.50 88.25 88.05 87.95 87.65 87.65

10 Federico C. Cabilao, Jr. 8 Comments

UDC

87.50

Posted in Bar Matters, Bar Trivia, Law Schools | Tags: Bar Matters, Bar Topnotchers, Law Schools
Posted by: Elmer Brabante | September 10, 2009

Bar Topnotchers, 1913-1944

4 Votes BAR EXAMS TOPNOTCHERS

YEAR 1913 1 Manuel Roxas 1914 1 Manuel Goyena 1915 1 Fran Villanueva, Jr. 1916 1 Paulino Gullas 1917 1 Felipe Ismael 1918 1 Alejo Labrador

SCHOOL

AVE.

UP

92.00

MLQU

93.00

UP

90.00

UP

93.00

UP

92.00

UP

87.00

1919 1 Gregorio Anonas 2 Cesar Bengzon 1920 1 Adolfo Brillantes 1921 1 Amando L. Velilla 1923 Roque Desquitado Conrado Sanchez Cipriano Primicias Carlos P. Garcia

PLS UP

87.00 86.00

Escuela de Derecho 84.10

UP

89.10

1 3 6 7

UP PLS UM PLS

90.90 87.90 86.70

1924 1 Roberto Concepcion 1925 1 Rafael Dinglasan 1926 1 Eugeniano Perez 7 Jaime Hernandez 1927 1 Cesar Kintanar 1928 1 Filomeno B. Pascual 1929 1 Lorenzo Sumulong 1930 1 Tecla San Andres

UST

89.10

UP

91.10

PLS PLS

88.10 83.10

UP

87.70

PLS

90.30

UP

92.50

UP

89.40

1931 1 Jose Leuterio 1932 1 Hermenegildo Atienza 1933 1 Lope C. Quimbo 1934 1 Marciano P. Catral 2 Arturo Tolentino 1935 1 Enrique Estrellado 1936 1 Diosdado Macapagal 2 Macario Peralta 1937 1 Cecilia A. Muoz 1938 1 Emmanuel Pelaez 2 Corazon Juliano 2 Manuel de Leon 1939 1 Ferdinand E. Marcos 1940 1 Claudio Teehankee 2 Jesus Peralta 1941 1 Emmet P. D. Shea 2 Agapito S. Mendoza 3 Oscar R. Victoriano

UP

89.40

UP

93.00

UM

92.45

PLS UP

89.70 89.65

UP

91.70

UST UP

89.85 89.75

UP

92.60

UM UP UP

91.30 88.50 88.50

UP

92.35

AdeMU PLS

94.35 93.50

UP FEU SU

90.20 89.9 89.55

4 Alfredo R. Illenberger 5 Carlos F. Ledesma 6 Manuel S. Tomacruz 7 Victor R. Gochuico 8 Dakila F. Castro 8 Meneleo C. Melicor 9 Florentino S. Galutera 10Leonor T. dela Cruz 1944 1 Jovito R. Salonga 1 Jose W. Diokno

FEU UP AM AM UP UP UM

89.50 89.45 89.35 89.30 88.85 88.85 88.80 88.70

UP Special (UST)

95.30 95.30

This was compiled from various sources. Please see separate posts for records of succeeding years. Help us update the record or make necessary corrections if errors are found. Leave a Comment Posted in Bar Matters, Bar Trivia, Law Schools | Tags: Bar Matters, Bar Topntochers, Law Schools, Mar Exams
Posted by: Elmer Brabante | September 10, 2009

Summary of Schools that Placed (1-10) in the Bar Exams, 1913-2008

8 Votes 1 2 3 4 5 6 University of the Philippines Ateneo de Manila University San Beda College Far Eastern University Manuel Luis Quezon University University of Santo Tomas 240 193 78 41 32 26

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

University of the East University of San Carlos Philippine Law School University of Manila University of the Cordilleras / Baguio Colleges Foundation Unioversity of San Agustin Ateneo de Davao University of Negros Occidental-Recoletos Silliman University LP Arellano University Francisco Law School University of Nueva Caceres University of the Visayas University of San Jose-Recoletos San Sebastian College Mindanao State University Manila Law College (Escuela de Derecho de Manila) SC ICC ONI USP Luzon Colleges Ateneo de Cagayan University of Baguio UDC ZAEC Xavier University Adamson University Divine Word University University of Iloilo Saint Louis University University of St Lasalle Bicol Colleges University of Perpetual Help of Rizal DEVOREFI

16 15 12 8 7 7 7 7 7 9 4 3 3 2 2 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 742

5 Comments Posted in Bar Matters, Bar Trivia, Law Schools | Tags: Bar exams, Bar Matters
Posted by: Elmer Brabante | September 7, 2009

Bar Exams 2009 Questions in Political and International Law

6 Votes PART I I TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] A law making Bayan Ko the new national anthem of the Philippines, in lieu of Lupang Hinirang, is constitutional. [b] Under the archipelago doctrine, the waters around, between, and connecting the islands of the archipelago form part of the territorial sea of the archipelagic state. [c] A law that makes military service for women merely voluntary is constitutional. [d] A law fixing the passing grade in the Bar examinations at 70%, with no grade lower than 40% in any subject, is constitutional. [e] An educational institution 100% foreign-owned may be validly established in the Philippines. II Despite lingering questions about his Filipino citizenship and his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His opponent, Vito, hires you as lawyer to contest Gabriels candidacy. [a] Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons. (2%) [b] If, during the pendency of such action/s but before election day, Gabriel withdraws his certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If not, why not? (2%)

[c] If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being proclaimed the winner in the election, can the issue of his candidacy and/or citizenship and residence still be questioned? If so, what action or actions may be filed and where? If not, why not? (2%) III The Municipality of Bulalakaw, Leyte, passed Ordinance No. 1234, authorizing the expropriation of two parcels of land situated in the poblacion as the site of a freedom park, and appropriating the funds needed therefor. Upon review, the |Sangguniang Panlalawigan of Leyte disapproved the ordinance because the municipality has an existing freedom park which, though smaller in size, is still suitable for the purpose, and to pursue expropriation would be needless expenditure of the peoples money. Is the disapproval of the ordinance correct? Explain your answer. (2%) IV The Municipality of Pinatukdao is sued for damages arising from injuries sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the municipal hall. The municipality files a motion to dismiss the complaint, invoking state immunity from suit. Resolve the motion with reasons. (3%) V To address the pervasive problem of gambling, Congress is considering the following options: (1) prohibit all forms of gambling; (2) allow gambling only on Sundays; (3) allow gambling only in government-owned casinos; and (4) remove all prohibitions against gambling but impose a tax equivalent to 30% on all winnings. [a] If Congress chooses the first option and passes the corresponding law absolutely prohibiting all forms of gambling, can the law be validly attacked on the ground that it is an invalid exercise of police power? Explain your answer. (2%) [b] If Congress chooses the last option and passes the corresponding law imposing a 30% tax on all winnings and prizes won from gambling, would the law comply with the constitutional limitations on the exercise of the power of taxation? Explain your answer. (2%) VI In a criminal prosecution for murder, the prosecution presented, as witness, an employee of the Manila Hotel who produced in court a videotape recording showing the heated exchange between the accused and the victim that took place at the lobby of the hotel barely 30 minutes before the killing. The accused objects to the admission of the videotape recording on the ground that it was taken without his knowledge or consent, in violation of

his right to privacy and the Anti-Wire Tapping law. Resolve the objection with reasons. (3%) VII Crack agents of the Manila Police Anti-Narcotics Unit were on surveillance of a cemetery where the sale and use of prohibited drugs were rumored to be rampant. The team saw a man with reddish and glassy eyes walking unsteadily towards them, but he immediately veered away upon seeing the policemen. The team approached the man, introduced themselves as peace officers, then asked what he had in his clenched fist. Because the man refused to answer, a policeman pried the fist open and saw a plastic sachet filled with crystalline substance. The team then took the man into custody and submitted the contents of the sachet to forensic examination. The crystalline substance in the sachet turned out to be shabu. The man was accordingly charged in court. During the trial, the accused: [a] challenged the validity of his arrest; (2%) and [b] objected to the admission in evidence of the prohibited drug, claiming that it was obtained in an illegal search and seizure. (2%) Decide with reasons. VIII Congressman Nonoy delivered a privilege speech charging the Intercontinental Universal Bank (IUB) with the sale of unregistered foreign securities, in violation of R.A. 8799. He then filed, and the House of Representatives unanimously approved, a Resolution directing the House Committee on Good Government (HCGG) to conduct an inquiry on the matter, in aid of legislation, in order to prevent the recurrence of any similar fraudulent activity. The HCGG immediately scheduled a hearing and invited the responsible officials of IUB, the Chairman and Commissioners of the Securities and Exchange Commission (SEC), and the Governor of the Bangko Sentral ng Pilipinas (BSP). On the date set for the hearing, only the SEC Commissioners appeared, prompting Congressman Nonoy to move for the issuance of the appropriate subpoena ad testificandum to compel the attendance of the invited resource persons. The IUB officials filed suit to prohibit HCGG from proceeding with the inquiry and to quash the subpoena, raising the following arguments: [a] The subject of the legislative investigation is also the subject of criminal and civil actions pending before the courts and the prosecutors office; thus, the legislative inquiry would preempt judicial action; (3%) and

[b] Compelling the IUB officials, who are also respondents in the criminal and civil cases in court, to testify at the inquiry would violate their constitutional right against selfincrimination. (3%) Are the foregoing arguments tenable? Reasons. [c] May the Governor of the BSP validly invoke executive privilege and, thus, refuse to attend the legislative inquiry? Why or why not? (3%) IX Warlito, a natural-born Filipino, took up permanent residence in the United States, and eventually acquired American citizenship. He then married Shirley, an American, and sired three children. In August 2009, Warlito decided to visit the Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20; and Luisa, 17. While in the Philippines, a friend informed him that he could reacquire Philippine citizenship without necessarily losing U.S. nationality. Thus, he took the oath of allegiance required under R.A. 9225. [a] Having reacquired Philippine citizenship, is Warlito a natural-born or a naturalized Filipino citizen today? Explain your answer. (3%) [b] With Warlito having regained Philippine citizenship, will Shirley also become a Filipino citizen? If so, why? If not, what would be the most speedy procedure for Shirley to acquire Philippine citizenship? Explain. (3%) [c] Do the children Johnny, Warlito Jr., and Luisa become Filipino citizens with their fathers reacquisition of Philippine citizenship? Explain your answer. (3%) X Maximino, an employee of the Department of Education, is administratively charged with dishonesty and gross misconduct. During the formal investigation of the charges, the Secretary of Education preventively suspended him for a period of sixty (60) days. On the 60th day of the preventive suspension, the Secretary rendered a verdict, finding Maximino guilty, and ordered his immediate dismissal from the service. Maximino appealed to the Civil Service Commission (CSC), which affirmed the Secretarys decision. Maximino then elevated the matter to the Court of Appeals (CA). The CA reversed the CSC decision, exonerating Maximino. The Secretary of Education then petitions the Supreme Court (SC) for the review of the CA decision. [a] Is the Secretary of Education a proper party to seek the review of the CA decision exonerating Maximino? Reasons. (2%)

[b] If the SC affirms the CA decision, is Maximino entitled to recover back salaries corresponding to the entire period he was out of the service? Explain your answer. (3%) *** END OF PART I *** PART II XI TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] Aliens are absolutely prohibited from owning private lands in the Philippines. [b] A de facto public officer is, by right, entitled to receive the salaries and emoluments attached to the public office he holds. [c] The President exercises the power of control over all executive departments and agencies, including government-owned or controlled corporations. [d] Decisions of the Ombudsman imposing penalties in administrative disciplinary cases are merely recommendatory. [e] Dual citizenship is not the same as dual allegiance. XII William, a private American citizen, a university graduate and frequent visitor to the Philippines, was inside the U.S. embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many shocked witnesses, he killed the person he was arguing with. The police came, and brought him to the nearest police station. Upon reaching the station, the police investigator, in halting English, informed William of his Miranda rights, and assigned him an independent local counsel. William refused the services of the lawyer, and insisted that he be assisted by a Filipino lawyer currently based in the U.S. The request was denied, and the counsel assigned by the police stayed for the duration of the investigation. William protested his arrest. [a] He argued that since the incident took place inside the U.S. embassy, Philippine courts have no jurisdiction because the U.S. embassy grounds are not part of Philippine territory; thus, technically, no crime under Philippine law was committed. Is William correct? Explain your answer. (3%) [b] He also claimed that his Miranda rights were violated because he was not given the lawyer of his choice; that being an American, he should have been informed of his rights in

proper English; and that he should have been informed of his rights as soon as he was taken into custody, not when he was already at the police station. Was William denied his Miranda rights? Why or why not? (3%) [c] If William applies for bail, claiming that he is entitled thereto under the international standard of justice and that he comes from a U.S. State that has outlawed capital punishment, should William be granted bail as a matter of right? Reasons. (3%) XIII A terrorist group called the Emerald Brigade is based in the State of Asyaland. The government of Asyaland does not support the terrorist group, but being a poor country, is powerless to stop it. The Emerald Brigade launched an attack on the Philippines, firing two missiles that killed thousands of Filipinos. It then warned that more attacks were forthcoming. Through diplomatic channels, the Philippines demanded that Asyaland stop the Emerald Brigade; otherwise, it will do whatever is necessary to defend itself. Receiving reliable intelligence reports of another imminent attack by the Emerald Brigade, and it appearing that Asyaland was incapable of preventing the assault, the Philippines sent a crack commando team to Asyaland. The team stayed only for a few hours in Asyaland, succeeded in killing the leaders and most of the members of the Emerald Brigade, then immediately returned to the Philippines. [a] Was the Philippine action justified under the international law principle of selfdefense? Explain your answer. (3%) [b] As a consequence of the foregoing incident, Asyaland charges the Philippines with violation of Article 2.4 of the United Nations Charter that prohibits the threat or use of force against the territorial integrity or political independence of any State. The Philippines counters that its commando team neither took any territory nor interfered in the political processes of Asyaland. Which contention is correct? Reasons. (3%) [c] Assume that the commando team captured a member of the Emerald Brigade and brought him back to the Philippines. The Philippine Government insists that a special international tribunal should try the terrorist. On the other hand, the terrorist argues that terrorism is not an international crime and, therefore, the municipal laws of the Philippines, which recognize access of the accused to constitutional rights, should apply. Decide with reasons. (3%) XIV The Philippine Government is negotiating a new security treaty with the United States which could involve engagement in joint military operations of the two countries armed forces. A loose organization of Filipinos, the Kabataan at Matatandang Makabansa (KMM)

wrote the Department of Foreign Affairs (DFA) and the Department of National Defense (DND) demanding disclosure of the details of the negotiations, as well as copies of the minutes of the meetings. The DFA and the DND refused, contending that premature disclosure of the offers and counter-offers between the parties could jeopardize on-going negotiations with another country. KMM filed suit to compel disclosure of the negotiation details, and be granted access to the records of the meetings, invoking the constitutional right of the people to information on matters of public concern. [a] Decide with reasons. (3%) [b] Will your answer be the same if the information sought by KMM pertains to contracts entered into by the Government in its proprietary or commercial capacity? Why or why not? (3%) XV The KKK Television Network (KKK-TV) aired the documentary, Case Law: How the Supreme Court Decides, without obtaining the necessary permit required by P.D. 1986. Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the airing of KKK-TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review over all television programs, except newsreels and programs by the Government, and the subject documentary does not fall under either of these two classes. The suspension order was ostensibly based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an order. KKK-TV filed a certiorari petition in court, raising the following issues: [a] The act of MTRCB constitutes prior restraint and violates the constitutionally guaranteed freedom of expression; (3%) and [b] While Memorandum Circular No. 98-17 was issued and published in a newspaper of general circulation, a copy thereof was never filed with the Office of the National Register of the University of the Philippines Law Center. (2%) Resolve the foregoing issues, with reasons. XVI [a] Angelina, a married woman, is a Division Chief in the Department of Science and Technology. She had been living with a married man, not her husband, for the last fifteen (15) years. Administratively charged with immorality and conduct prejudicial to the best interest of the service, she admits her live-in arrangement, but maintains that this conjugal understanding is in conformity with their religious beliefs. As members of the religious sect, Yahwehs Observers, they had executed a Declaration of Pledging Faithfulness which has been confirmed and blessed by their Council of Elders. At the formal investigation of the administrative case, the Grand Elder of the sect affirmed Angelinas testimony and

attested to the sincerity of Angelina and her partner in the profession of their faith. If you were to judge this case, will you exonerate Angelina? Reasons. (3%) [b] Meanwhile, Jenny, also a member of Yahwehs Observers, was severely disappointed at the manner the Grand Elder validated what she considered was an obviously immoral conjugal arrangement between Angelina and her partner. Jenny filed suit in court, seeking the removal of the Grand Elder from the religious sect on the ground that his act in supporting Angelina not only ruined the reputation of their religion, but also violated the constitutional policy upholding the sanctity of marriage and the solidarity of the family. Will Jennys case prosper? Explain your answer. (2%) XVII Filipinas Computer Corporation (FCC), a local manufacturer of computers and computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City. To remedy the citys acute housing shortage, compounded by a burgeoning population, the Sangguniang Panglungsod authorized the City Mayor to negotiate for the purchase of the lot. The Sanggunian intends to subdivide the property into small residential lots to be distributed at cost to qualified city residents. But FCC refused to sell the lot. Hard pressed to find a suitable property to house its homeless residents, the City filed a complaint for eminent domain against FCC. [a] If FCC hires you as lawyer, what defense or defenses would you set up in order to resist the expropriation of the property? Explain. (5%) [b] If the Court grants the Citys prayer for expropriation, but the City delays payment of the amount determined by the court as just compensation, can FCC recover the property from Pasig City? Explain. (2%) [c] Suppose the expropriation succeeds, but the City decides to abandon its plan to subdivide the property for residential purposes having found a much bigger lot, can FCC legally demand that it be allowed to repurchase the property from the City of Pasig? Why or why not? (2%) XVIII What are the essential elements of a valid petition for a peoples initiative to amend the 1987 Constitution? Discuss. (2%) 1 Comment Posted in Bar Exams 2009, Bar Matters, International Law, Political & Constitutional Law | Tags: Bar, Bar Exams 2009, Political & Constitutional Law, Political and International Law Newer Posts - Older Posts

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THOUGHTLESS EXTRAVAGANCE IN EXPENSES FOR PLEASURE OR DISPLAY DURING A PERIOD OF ACUTE PUBLIC WANT OR EMERGENCY MAY BE STOPPED BY ORDER OF THE COURTS AT THE INSTANCE OF ANY GOVERNMENT OR PRIVATE CHARITABLE INSTITUTION. -Article 25, Civil Code of the Philippines

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xxx THE PRESIDENT SHALL NOT BE ELIGIBLE FOR ANY RE-ELECTION. NO PERSON WHO HAS SUCCEEDED AS PRESIDENT AND HAS SERVED AS SUCH FOR MORE THAN FOUR YEARS SHALL BE QUALIFIED FOR ELECTION TO THE SAME OFFICE AT ANY TIME. xxx - Art. VII, Sec. 4, 1987 Philippine Constitution

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In C&M Timber Corporation v. Alavala, GR No. 111088 6/13/97, on the issue that the "total log ban" is a new policy which should be applied prospectively and not affect the rights of petitioner vested under the Timber Licensing Agreement (TLA), the Supreme Court declared that this is not a new policy but a mere reiteration of the policy of conservation and protection expressed in Sec. 16, Art. II of the Constitution. In Oposa v. Factoran, 224 SCRA 792, it was held that the petitioners, minors duly joined by their respective parents, had a valid cause of action in questioning the continued grant of TLA for commercial logging purposes, because the cause focuses on a fundamental legal right: the right to a balanced and healthful ecology.

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