2015
Bar Questions and Suggested Answers
Political Law
The Philippines and the Republic of Kroi Sha established diplomatic relations and immediately their respective Presidents signed the following: (1) Executive Agreement allowing the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila; and (2) Executive Agreement allowing the Republic of Kroi Sha to bring to the Philippines its military complement, warships, and armaments from time to time for a period not exceeding one month for the purpose of training exercises with the Philippine military forces and exempting from Philippine criminal jurisdiction acts committed in the line of duty by foreign military personnel, and from paying custom duties on all the goods brought by said foreign forces into Philippine territory in connection with the holding of the activities authorized under the said Executive Agreement.
Senator Maagap questioned the constitutionality of the said Executive Agreements and demanded that the Executive Agreements be submitted to the Senate for ratification pursuant to the Philippine Constitution. Is Senator Maagap correct? Explain. (4%)
SUGGESTED ANSWER:
Senator Maagap is correct in so far as the second Executive Agreement is concerned. The first Executive Agreement is in such a nature that such need not be concurred in by the Senate. In Bayan Muna v. Romulo, the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered executive agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights trademark and copyright protection, postal and navigation arrangements and the settlement of claims. However, for the second Executive Agreement which is in the nature of an International agreements involving political issues or changes on national policy and those involving international arrangements of a permanent character, is deemed as a treaty (Commissioner of Customs v. Eastern Sea Trading), in which case must be concurred in by the Senate (Section 21, Article VI, 1987 Constitution). Hence Senator Maagap is only correct as regards the second Executive Agreement which must be submitted for the concurrence of the Senate.
(1) A bill was introduced in the House of Representatives in order to implement faithfully the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which the Philippines is a signatory. Congressman Pat Rio Tek questioned the constitutionality of the bill on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution defining the Philippine internal waters and territorial sea. Do you agree or not with the said objection? Explain. (3%)
SUGGESTED ANSWER:
No, the objection is not tenable. UNCLOS has nothing to do with the redefinition of our territory. It merely regulates sea-use rights over maritime zones, contiguous zones, exclusive economic zones, and continental shelves which it delimits. Whether the bodies of water lying landward of the baselines of the Philippines are internal waters or archipelagic waters, the Philippines retains jurisdiction over them (Magallona v. Ermita, GR No. 187167, July 16, 2011, 655 SCRA 476).
(2) Describe the following maritime regimes under UNCLOS (4%)
(a) Territorial sea
(b) Contiguous zone
(c) Exclusive economic zone
(d) Continental shelf
SUGGESTED ANSWER:
Territorial sea – is the belt of waters adjacent to the coasts of the State, excluding internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction and which is 12 nautical miles from the baseline.
Contiguous zone – is that belt of waters measured 24 nautical miles from the same baseline used to measure the breadth of the territorial sea. In this zone, the coastal state may exercise the control necessary to
Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.
Punish infringement of the above laws and regulations committed within its territory or territorial sea (Article 53, UNCLOS)
Exclusive Economic Zone is an area beyond and adjacent to the territorial sea, over which a state has special rights over the exploration and utilization of marine resources. It shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. In case of archipelagic states, its breadth shall be measured from the archipelagic baseline (Article 57, 58, 48, UNCLOS)
Continental shelf - The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance (Article 76, UNCLOS).
Professor Masipag who holds a plantilla or regular item in the University of the Philippines (UP) is appointed as an Executive Assistant in the Court of Appeals (CA). The professor is considered only on leave of absence in UP while he reports for work at the CA which shall pay him the salary of the Executive Assistant. The appointment to the CA position was questioned, but Professor Masipag countered that he will not collect the salary for both positions; hence, he can not be accused of receiving double compensation. Is the argument of the professor valid? Explain. (4%)
SUGGESTED ANSWER:
No, the argument is not valid. The prohibition of dual employment does not apply to Professor Masipag because Section 5 [c], Canon III of the Code of Conduct for Court Personnel allows court personnel to acquire outside employment provided, among others, that the outside employment does not require the practice of law; and provided, however, that court personnel may render services as professor, lecturer, or resource person in law schools, review or continuing education centers or similar institutions. Dual employment applies to appointive officials who are not allowed to hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned corporation or their subsidiaries, unless otherwise allowed by law or the primary functions of his position (Article IX B Section 7 of the 1987 Constitution; Sections 1 and 2, Rule XVIII of the Omnibus Rules Implementing Book V of E.O. No. 292).
When is a facial challenge to the constitutionality of a law on the ground of violation of the Bill of Rights traditionally allowed? Explain your answer. (3%)
SUGGESTED ANSWER:
Facial challenge to the constitutionality of a law is traditionally allowed when it operates in the area of freedom of expression. The established rule is that a party can question the validity of a statute only if, as applied to him, it is unconstitutional. The exception is the so-called "Facial challenge". But the only time a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. ln such instance, the "overbreadth doctrine" permits a party to challenge the validity of a statute even though, as applied to him, it is not unconstitutional, but it might be if applied to others not before the Court whose activities are constitutionally protected. lnvalidation of the statute "on its face", rather than "as applied", is permitted in the interest of preventing a "chilling effect" on freedom of expression (Justice Mendoza's concurring opinion in Cruz v. DENR, G.R. No. 135385, December 06, 20001). A facial challenge to a legislative act is the most difficult challenge to mount successfully since the challenge must establish that no set of circumstances exists under which the act would be valid (Estrada v. Sandiganbayan, G.R. No. 148560, November 19,20011).
BD Telecommunications, Inc. (BDTI), a Filipino-owned corporation, sold its 1,000 common shares of stock in the Philippine Telecommunications Company (PTC), a public utility, to Australian Telecommunications (AT), another stockholder of the PTC which also owns 1,000 common shares. A Filipino stockholder of PTC questions the sale on the ground that it will increase the common shares of AT, a foreign company, to more than 40% of the capital (stock) of PTC in violation of the 40% limitation of foreign ownership of a public utility. A T argues that the sale does not violate the 60-40 ownership requirement in favor of Filipino citizens decreed in Section II, Article XII of the 1987 Constitution because Filipinos still own 70% of the capital of the PTC. AT points to the fact that it owns only 2,000 common voting shares and 1,000 non-voting preferred shares while Filipino stockholders own 1,000 common shares and 6,000 preferred shares, therefore, Filipino stockholders still own a majority of the outstanding capital stock of the corporation, and both classes of shares have a par value of Php 20.00 per share. Decide. (5%)
SUGGESTED ANSWER:
AT's contention does not hold water. The determination of the percentage of Filipino ownership in a corporation is no longer primarily based on the number of apparent shares of a stockholder, nor to the class of stock a shareholder holds. In the latest ruling of the Supreme Court in Narra Nickel Mining v. Redmont Consolidated Mines (G.R. No. 195580 January 28, 2015), the computation of the total percentage of the Filipino ownership in a corporation is applied to BOTH (a) the total outstanding shares of stock entitled to vote in the election of directors; AND (b) the total number of outstanding shares of stock, whether or not entitled to vote in the election of directors.
In Narra v. Redmont, foreign corporations have resorted to elaborate corporate layering as to make it appear that there is compliance with the minimum Filipino ownership in the Constitution. The corporate layering employed by certain foreign corporation was evidently designed to circumvent the constitutional caveat allowing only Filipino citizens and corporations 60%-owned by Filipino citizens to explore, develop, and use the country's natural resources. The application of the Control Test and the Grandfather Rule must be applied where doubts or various indicia that the "beneficial ownership" and "control" of the corporation do not in fact reside in Filipino shareholders but in foreign stakeholders. Hence, AT cannot claim that PTC is Filipino-owned based only on the apparent number of stocks belonging to Filipinos.
(1) Distinguish the President's authority to declare a state of rebellion from the authority to proclaim a state of national emergency. (2%)
SUGGESTED ANSWER:
(1) The authority to declare a state of rebellion emanates from the President's powers as Chief Executive (Sec. 4, Chapter 2, Book II, Administrative Code of 1997). Its declaration is deemed harmless and without legal significance (Canlakas v. Executive Secretary). In declaring a state of national emergency in PP1017, President Arroyo did not only rely on Sec. 18, Art. VII of the Constitution, but also on Sec. 17, Article Xll of the Constitution, calling for the exercise of awesome powers which cannot be deemed as harmless or without legal significance [David v. Macapagal -Arroyo, supra].
(2) What are the limitations, if any, to the pardoning power of the President? (3%)
SUGGESTED ANSWER:
The limitations to the pardoning power of the President are that, it:
Cannot be granted in cases of impeachment (Sec. 19, Art. VII)
Cannot be granted in cases of violation of election laws without the favorable recommendation of the Commission on Elections [Sec. 5, Art. IX-C].
Can be granted only after conviction by final judgment
Cannot be granted in cases of legislative contempt (as it would violate separation of powers), or civil contempt (as the State is without interest in the same)
Cannot absolve the convict of civil liability.
Cannot restore public offices forfeited [Monsanto v. Factoran, supra].
Senator Fleur De Lis is charged with plunder before the Sandiganbayan. After finding the existence of probable cause, the court issues a warrant for the Senator's arrest. The prosecution files a motion to suspend the Senator relying on Section 5 of the Plunder Law. According to the prosecution, the suspension should last until the termination of the case. Senator Lis vigorously opposes the motion contending that only the Senate can discipline its members; and that to allow his suspension by the Court would violate the principle of separation of powers. Is Senator Lis' contention tenable? Explain. (4%)
SUGGESTED ANSWER:
No, Senator Lis', contention is not tenable. The suspension contemplated in the Constitution to discipline Member of the Senate is not the suspension contemplated under the Sec. 5 of the Plunder Law. The latter is not a penalty but a preliminary preventive measure and is not imposed upon the petitioner for misbehavior as a member of Congress. In a synonymous case (Miriam Defensor-Santiago v. Sandiganbayan, G.R. No. 128055, April 18,2001) it appears to be a ministerial duty of the court to issue the order of suspension upon a determination of the validity of the criminal information filed before it. The order of suspension provided in RA 3019 is distinct from the power of Congress to discipline its own ranks. Neither does the order of suspension encroach upon the power of Congress. The doctrine of separation of powers, by itself, is not deemed to have effectively excluded the members of Congress from RA 3019.
A law provides that the Secretaries of the Departments of Finance and Trade and Industry, the Governor of the Central Bank, the Director General of the National Economic Development Authority, and the Chairperson of the Philippine Overseas Construction Board shall sit as ex-officio members of the Board of Directors (BOD) of a government owned and controlled corporation (GOCC). The other four (4) members shall come from the private sector. The BOD issues a resolution to implement a new organizational structure, staffing pattern, a position classification system, and a new set of qualification standards. After the implementation of the Resolution, Atty. Dipasupil questioned the legality of the Resolution alleging that the BOD has no authority to do so. The BOD claims otherwise arguing that the doctrine of qualified political agency applies to the case. It contends that since its agency is attached to the Department of Finance, whose head, the Secretary of Finance, is an alter ego of the President, the BOD's acts were also the acts of the President. Is the invocation of the doctrine by the BOD proper? Explain. (4 %)
SUGGESTED ANSWER:
The contention of the BOD is proper. Under the doctrine of qualified political agency or alter ego principle, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive, and, except in cases where the Chief Executive is required by the Constitution 0r law t0 act in person or the exigencies of the situation demand that he acts personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of Executive departments when performed and promulgated in the regular course of business or unless disapproved or reprobated by the Chief Executive, are presumptively the acts of the Chief Executive (Villena v. Secretary of the lnterior, No. 46574, April 21, 1939).
Under our governmental set-up, corporations owned or controlled by the government… partake of the nature of government bureaus or offices, which are administratively supervised by (one) "whose compensation and rank shall be that of a head of an Executive Department" and who "shall be responsible to the President of the Philippines under whose control his functions ... shall be exercised." (Executive Order No. 386 of December 22, 1950, section 1, issued under the Reorganization Act of 1950). (in Namarco v. Arca, 29 SCRA 648). Through the Secretary of Finance, any act of the BOD shall be subject to the constitutional power of control by the President over all executive departments, bureaus and offices.
Several senior officers of the Armed Forces of the Philippines received invitations from the Chairperson of the Senate Committees on National Defense and Security for them to appear as resource persons in scheduled public hearings regarding a wide range of subjects. The invitations state that these public hearings were triggered by the privilege speeches of the Senators that there was massive electoral fraud during the last national elections. The invitees Brigadier General Matapang and Lieutenant Coronel Makatuwiran, who were among those tasked to maintain peace and order during the last election, refused to attend because of an Executive Order banning all public officials enumerated in paragraph 3 thereof from appearing before either house of Congress without prior approval of the President to ensure adherence to the rule of executive privilege. Among those included in the enumeration are "senior officials of executive departments who, in the judgment of the department heads, are covered by executive privilege." Several individuals and groups challenge the constitutionality of the subject executive order because it frustrates the power of the Congress to conduct inquiries in aid of legislation under Section 21, Article VI of the 1987 Constitution. Decide the case. (5%)
SUGGESTED ANSWER:
The subject executive order is unconstitutional. The Court in Senate v. Ermita (GR No. 169777) declared that the executive privilege is the power of the government to withhold information from the public, the courts, and the Congress. But this is recognized only for certain types of information of a sensitive character. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one official may be exempted from this power -- the President.
Under the Constitution, there are two different functions of the Legislature: The power to conduct inquiries in aid of legislation and the power to conduct inquiry during question hour. The objective of conducting a question hour is to obtain information in pursuit of Congress' oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it had issued, the department heads' appearance is merely requested. The power of inquiry in aid of legislation is inherent in the power to legislate. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. And where the legislative body does not itself possess the requisite information, recourse must be had to others who do possess it. The executive privilege is the exception under this type of inquiry.
When an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. (Senate v. Ermita)
The Secretary of the Department of Environment and Natural Resources (DENR) issued Memorandum Circular No. 123-15 prescribing the administrative requirements for the conversion of a timber license agreement (TLA) into an Integrated Forestry Management Agreement (IFMA). ABC Corporation, a holder of a TLA which is about to expire, claims that the conditions for conversion imposed by the said circular are unreasonable and arbitrary and a patent nullity because it violates the non-impairment clause under the Bill of Rights of the 1987 Constitution.
ABC Corporation goes to court seeking the nullification of the subject circular. The DENR moves to dismiss the case on the ground that ABC Corporation has failed to exhaust administrative remedies which is fatal to its cause of action. If you were the judge, will you grant the motion? Explain. (4%)
SUGGESTED ANSWER:
The motion by the DENR to dismiss the case for ABC's failure to exhaust administrative remedies should be set aside. The rule on exhaustion of administrative remedies applies only to decisions of administrative agencies made in the exercise of their quasi-judicial powers [Association of Philippine Coconut Desiccators v. Philippine Coconut Authority, G.R. No. 110526, February 10, 1 9981. Thus, where what is assailed is the validity or constitutionality of a rule or regulation issued by the administrative agency in the performance of its quasi-legislative function, the regular courts have jurisdiction to pass upon the same (Smart communications v. National telecommunications commission, G.R. No. 151908, August 12, 2003).
(1) What is the concept of expanded judicial review under the 1987 Constitution? (3%)
SUGGESTED ANSWER:
The 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. (Belgica v. Ochoa, G.R. No. 208566 November 19, 2013)
(2) Differentiate the rule-making power or the power of the Supreme Court to promulgate rules under Section 5, Article VIII of the 1987 Constitution and judicial legislation. (2%)
SUGGESTED ANSWER:
The Rule-making power of the Supreme Court was vested by the 1987 Constitution to promulgate rules that would protect the constitutional rights of our people, pleadings, practice and proceedings in all courts. This is recognized power exclusive to the Supreme Court. But while the power of the judiciary is to interpret laws, judicial legislation takes place when a court steps in to craft missing parts or to fill in the gaps in laws or when it oversteps its discretional boundaries and goes beyond the law to coin doctrines or principles where none was before (Judicial Legislation: Dissected. M. Vidal). This is frowned upon because the courts should merely interpret laws, and not make new laws.
Discuss the evolution of the principle of jus sanguinis as basis of Filipino citizenship under the 1935, 1973, and 1987 Constitutions. (3%)
SUGGESTED ANSWER:
Under the 1935 Constitution, Filipino citizens under the principle of jus sanguinis are only those whose fathers are citizens of the Philippines. Under the 1973 and 1987 Constitutions, Filipino citizens are those whose fathers or mothers are Filipino citizens.
On August 15, 2015, Congresswoman Dina Tatalo filed and sponsored House Bill No. 5432, entitled "An Act Providing for the Apportionment of the Lone District of the City of Pangarap." The bill eventually became a law, R.A. No. 1234. It mandated that the lone legislative district of the City of Pangarap would now consist of two (2) districts. For the 2016 elections, the voters of the City of Pangarap would be classified as belonging to either the first or second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress as well as eight (8) members of the Sangguniang Panglungsod. R.A. No. 1234 apportioned the City's barangays. The COMELEC thereafter promulgated Resolution No. 2170 implementing R.A. No. 1234.
Piolo Cruz assails the COMELEC Resolution as unconstitutional. According to him, R.A. No. 1234 cannot be implemented without conducting a plebiscite because the apportionment under the law falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X o f the 1987 Constitution. Is the claim correct? Explain. (4%)
SUGGESTED ANSWER:
No, Piolo Cruz's claim in incorrect. While the Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of the boundary of a local government unit, no plebiscite requirement exists under the apportionment or reapportionment provision (Bagabuyo v. COMELEC). In the case at bar, RA 1234 merely increased its representation in the House of Representatives. There was no creation, division, merger, abolition or alteration of a local government unit that took place. RA 1234 did not bring about any change in the City of Pangarap's territory, population and income classification. Hence no plebiscite is required.
Congress enacted R.A. No. 14344 creating the City of Masuwerte which took effect on September 25, 2014. Section 23 of the law specifically exempts the City of Masuwerte from the payment of legal fees in the cases that it would file and/or prosecute in the courts of law. In two (2) cases that it filed, the City of Masuwerte was assessed legal fees by the clerk of court pursuant to Rule 141 (Legal Fees) of the Rules of Court. The City of Masuwerte questions the assessment claiming that it is exempt from paying legal fees under Section 23 of its charter. Is the claim of exemption tenable? Explain. (4%)
SUGGESTED ANSWER:
The claim of exemption is not tenable. Section 23 of the RA 14344 runs contrary to the provisions of the Constitution. Under the 1987 Constitution, only the Supreme Court has the power to promulgate its rules on pleadings, practice and procedures in court (Section 5, Article VIII, 1987 Constitution).
Payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards of this Court's institutional independence, the power to promulgate rules of pleading, practice and procedure is now the Court's exclusive domain. That power is no longer shared by this Court with Congress, much less with the Executive (AM No. 12-2-03-0). Such act by Congress also transgresses the fiscal autonomy of the Courts.
Hence the City of Masuwerte cannot question the assessment of legal fees for the cases it filed before the court.
The President appointed Dexter I. Ty as Chairperson of the COMELEC on June 14, 2011 for a term of seven (7) years pursuant to the 1987 Constitution. His term of office started on June 2, 2011 to end on June 2, 2018. Subsequently, the President appointed Ms. Marikit as the third member of the COMELEC for a term of seven (7) years starting June 2, 2014 until June 2, 2021. On June 2, 2015, Chairperson Ty retired optionally after having served the government for thirty (30) years. The President then appointed Commissioner Marikit as COMELEC Chairperson. The Commission on Appointments confirmed her appointment. The appointment papers expressly indicate that Marikit will serve as COMELEC Chairperson "until the expiration of the original term of her office as COMELEC Commissioner or on June 2, 2021." Matalino, a tax payer, files a petition for certiorari before the Supreme Court asserting that the appointment of Marikit as COMELEC Chairperson is unconstitutional for the following reasons: (1) The appointment of Marikit as COMELEC Chairperson constituted a re- appointment which is proscribed by Section 1(2), Article IX of the 1987 Constitution; and (2) the term of office expressly stated in the appointment papers of Marikit likewise contravenes the aforementioned constitutional provision. Will the constitutional challenge succeed?
SUGGESTED ANSWER:
No, the constitutional challenge will not succeed. It is well settled in the case of Matibag v. Benipayo, the Supreme Court said that when an ad interim appointment (of the Chairman of the Commission on Elections) is not confirmed (as it was by-passed, or that there was not ample time for the Commission on Appointments to pass upon the same), another ad interim appointment may be extended to the appointee without violating the Constitution.
XVI.
Gandang Bai filed her certificate of candidacy (COC) for municipal mayor stating that she is eligible to run for the said position. Pasyo Maagap, who also filed his COC for the same position, filed a petition to deny due course or cancel Bai's COC under Section 78 of the Omnibus Election Code for material misrepresentation as before Bai filed her COC, she had already been convicted of a crime involving moral turpitude. Hence, she is disqualified perpetually from holding any public office or from being elected to any public office. Before the election, the COMELEC cancelled Bai's COC but her motion for reconsideration (MR) remained pending even after the election. Bai garnered the highest number of votes followed by Pasyo Maagap, who took his oath as Acting Mayor. Thereafter, the COMELEC denied Bai's MR and declared her disqualified for running for Mayor. P. Maagap asked the Department of Interior and Local Government Secretary to be allowed to take his oath as permanent municipal mayor. This request was opposed by Vice Mayor Umaasa, invoking the rule on succession to the permanent vacancy in the Mayor's office. Who between Pasyo Maagap and Vice Mayor Umaasa has the right to occupy the position of Mayor? Explain your answer.
Explain. (4%)
SUGGESTED ANSWER:
Vice Mayor Umaasa has the right to occupy the position of Mayor. This was settled in Talaga v. COMELEC (G.R. No. 196804 October 9, 2012). where the court upheld that the disqualification of Bai created a situation of a permanent vacancy in the office of the Mayor. A permanent vacancy is filled pursuant to the law on succession defined in Section 44 of the LGC which states the "If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. "
Pasyo Maagap who garnered only the second highest number of votes lost to Gandang Bai. Applying the Labo case cited in Talaga, Maagap could not assume office for he was only second placer despite the disqualification of the Gandang Bai because the second placer was "not the choice of the sovereign will."60 Surely, the Court explained, a minority or defeated candidate could not be deemed elected to the office.61 There was to be no question that the second placer lost in the election, was repudiated by the electorate, and could not assume the vacated position.62 No law imposed upon and compelled the people of Lucena City to accept a loser to be their political leader or their representative.
The only time that a second placer is allowed to take the place of a disqualified winning candidate is when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that candidate's disqualification as to bring such awareness within the realm of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible candidate.64 Under this sole exception, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case the eligible candidate with the second highest number of votes may be deemed elected.65 The facts of the case at bar did not state the existence of such exception, thus it cannot apply in favor of Maagap simply because the second element was absent.
How do you differentiate the petition filed under Section 68 from the petition filed under Section 78, both of the Omnibus Election Code? (3%)
SUGGESTED ANSWER:
The two remedies available to prevent a candidate from running in an electoral race are under Section 68 and under Section 78 of the Omnibus Election Code. The candidate who is disqualified based on the grounds under Section 68 (i.e., prohibited acts of candidates, and the fact of a candidate's permanent residency in another country when that fact affects the residency requirement of a candidate) is merely prohibited to continue as a candidate. On the other hand, a candidate whose certificate is cancelled or denied due course based on a statement of a material representation in the said certificate that is false under Section 78, is not treated as a candidate at all, as if he/she never filed a Certificate of Candidacy. (Talaga v. COMELEC)
The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization of gay, bisexual, and transgender persons, filed for accreditation with the COMELEC to join the forthcoming party-list elections. The COMELEC denied the application for accreditation on the ground that GBTYA espouses immorality which offends religious dogmas. GBTY A challenges the denial of its application based on moral grounds because it violates its right to equal protection ofthe law.
What are the three (3) levels of test that are applied in equal protection cases? Explain. (3%)
SUGGESTED ANSWER:
The three kinds of tests applied in equal protection cases are:
Strict Scrutiny Test – requires the government to show that the challenged classifications serve a compelling state interest and that the classification is necessary to serve that interest. This is used in cases involving classifications based on race, national origin, religion, alienage, denial of right to vote, interstate migration, access to courts and other rights recognized as fundamental
Immediate or middle-tier scrutiny test – requires government to show that the challenged classification serves as an important state interest and that the classification is at least substantially related to serving that interest. This applies to suspect classification like gender or illegitimacy.
Minimum or rational basis scrutiny – according to which the government need only to show that the challenged classification is rationally related to serving a legitimate state interest. This is the traditional rationality test and it applies to all subjects other than those listed above. (see Bernas Commentary, in Ang Ladlad v. COMELEC, GR No. 190582, April 8, 2010 for the explanation)
Which of the three (3) levels of test should be applied to the present case? Explain. (3%) Rational Basis Test
SUGGESTED ANSWER
The Rational Basis Test should be applied to the present case. In our jurisdiction, the Supreme Court declared that the standard of analysis of equal protection challenges is the rational basis test. Jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, the classification shall be upheld as long as it bears a rational relationship to some legitimate end. In the case at bar, in so far as the party-list system is concerned, GBTYA is similarly situated as all other groups which are running for a party-list seat in Congress (Ang Ladlad v. COMELEC).
Around 12:00 midnight, a team of police officers was on routine patrol in Barangay Makatarungan when it noticed an open delivery van neatly covered with banana leaves. Believing that the van was loaded with contraband, the team leader flagged down the vehicle which was driven by Hades. He inquired from Hades what was loaded on the van. Hades just gave the police officer a blank stare and started to perspire profusely. The police officers then told Hades that they will look inside the vehicle. Hades did not make any reply. The police officers then lifted the banana leaves and saw several boxes. They opened the boxes and discovered several kilos of shabu inside. Hades was charged with illegal possession of illegal drugs. After due proceedings, he was convicted by the trial court. On appeal, the Court of Appeals affirmed his conviction.
In his final bid for exoneration, Hades went to the Supreme Court claiming that his constitutional right against unreasonable searches and seizures was violated when the police officers searched his vehicle without a warrant; that the shabu confiscated from him is thus inadmissible in evidence; and that there being no evidence against him, he is entitled to an acquittal.
For its part, the People ofthe Philippines maintains that the case ofHades involved a consented warrantless search which is legally recognized. The People adverts to the fact that Hades did not offer any protest when the police officers asked him if they could look inside the vehicle. Thus, any evidence obtained in the course thereof is admissible in evidence.
Whose claim is correct? Explain. (5%)
SUGGESTED ANSWER
Hades' claim is correct. The evidence obtained was illegally seized and is thus inadmissible in evidence.
A consented warrantless search, if it exists or whether it was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Hades' mere silence does not amount to consent. In the absence of such consent, evidence obtained thereof shall be inadmissible in evidence, in which case precludes conviction and calls for the acquittal of the accused (Ong v. People, GR No. 197788, Feb. 29, 2012).
Pursuant to its mandate to manage the orderly sale, disposition and privatization of the National Power Corporation's (NPC) generation assets, real estate and other disposable assets, the Power Sector Assets and Liabilities Management (PSALM) started the bidding process for the privatization of Angat Hydro Electric Power Plant (AHEPP). After evaluation of the bids, K-Pop Energy Corporation, a South Korean Company, was the highest bidder. Consequently, a notice of award was issued to K-Pop. The Citizens' Party questioned the sale arguing that it violates the constitutional provisions on the appropriation and utilization of a natural resource which should be limited to Filipino citizens and corporations which are at least 60% Filipino-owned. The PSALM countered that only the hydroelectric facility is being sold and not the Angat Dam; and that the utilization of water by a hydroelectric power plant does not constitute appropriation of water from its natural source of water that enters the intake gate of the power plant which is an artificial structure. Whose claim is correct? Explain. (4%)
SUGGESTED ANSWER
PSALM's claim is correct. Under the Water Code, a foreign company may not be said to be "appropriating" our natural resources if it utilizes the waters collected in the dam and converts the same into electricity through artificial devices such as the hydroelectric facility as in the case case at bar. Since the NPC remains in control of the operation of the dam by virtue of water rights granted to it, there is no legal impediment to foreign-owned companies undertaking the generation of electric power using waters already appropriated by the NPC, the holder of the water permit. With the advent of privatization of the electric power industry which resulted in its segregation into four sectors, NPC's generation and transmission functions were unbundled. Hence the acquisition by a foreign company of the hydroelectric facility did not violate any constitutional provision (IDEALS v. PSALM, GR No. 192088).
Typhoon Bangis devastated the Province of Sinagtala. Roads and bridges were destroyed which impeded the entry of vehicles into the area. This caused food shortage resulting in massive looting of grocery stores and malls. There is power outage also in the area. For these reasons, the governor of the province declares a state of emergency in their province through Proclamation No. 1. He also invoked Section 465 of the Local Government Code of 1991 (R.A. No. 7160) which vests on the provincial governor the power to carryout emergency measures during man-made and natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to suppress disorder and lawless violence. In the same proclamation, the governor called upon the members of the Philippine National Police, with the assistance of the Armed Forces of the Philippines, to set up checkpoints and chokepoints, conduct general searches and seizures including arrests, and other actions necessary to ensure public safety. Was the action of the provincial governor proper? Explain. (4%)
SUGGESTED ANSWER
No, the action of the governor is not proper. Under the Constitution, it is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, as well as the calling-out powers under Section 7, Article VII thereof. In the case at bar, the provincial governor is not endowed with the power to call upon the state forces at his own bidding. It is an act which is ultra vires and may not be justified by the invocation of Section 465 of the Local Government Code (Kulayan v. Gov. Tan, GR No. 187298, July 3, 2012).
The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major political party which has participated in every election since the enactment of the 1987 Constitution. It has fielded candidates mostly for legislative district elections. In fact, a number of its members were elected, and are actually serving, in the House of Representatives. In the coming 2016 elections, the PMP leadership intends to join the party-list system.
Can PMP join the party-list system without violating the Constitution and Republic Act (R.A.) No. 7941? (4%)
SUGGESTED ANSWER
Yes, the PMP can join the party-list system in accordance with the rules enunciated in Atong Paglaum v. COMELEC. Accordingly, political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition (Atong Paglaum v. COMELEC, GR Nos. 203766, 203818-19, et al.)
The President appoints Emilio Melchor as Chairperson of the Civil Service Commission. Upon confirmation of Melchor's appointment, the President issues an executive order including him as Ex-Officio member of the Board of Trustees of the Government Service Insurance System (GSIS), Employees Compensation Commission (ECC), and the Board of Directors of the Philippine Health Insurance Corporation (PHILHEALTH). Allegedly, this is based on the Administrative Code of 1997 (E.O. No. 292), particularly Section 14, Chapter 3, Title I-A, Book V. This provision reads: "The chairman ofthe CSC shall be a member of the Board of Directors of other governing bodies of government entities whose functions affect the career development, employment, status, rights, privileges, and welfare of government officials and employees..." A taxpayer questions the designation of Melchor as ex-officio member of the said corporations before the Supreme Court based on two (2) grounds, to wit: (1) it violates the constitutional prohibition on members of the Constitutional Commissions to hold any other office or employment during his tenure; and (2) it impairs the independence of the CSC. Will the petition prosper? Explain. (4%)
SUGGESTED ANSWER:
Yes, the petition will prosper. The appointment of Melchor as ex-officio member of the GSIS, ECC and PHILHEALTH during his tenure as the chairperson of the CSC is unconstitutional for violating Section 2, Article IX-A of the 1987 Constitution, prohibiting members of Constitutional Commissions from holding any other office or employment and impairing the independence of the CSC (Section 1, Article IX-A). This has been a settled case where the Court ruled that the CSC Chairperson's holding other offices resulted in double compensation and impairment to CSC's independence because other offices held by the CSC chairperson are under the Office of the President (Funa v. Duque, GR No. 191672, November 25, 2014).
