University of Cebu Constitutional Law 1 MIDTERM EXAMINATION SUGGESTED ANSWERS (To the Essay Questions) Mecca, Saudi Arabia,

Islams holiest city. This is an appropriation for a clearly sectarian purpose. Thus, if I were the judge, I would nullify the resolution of the Sangguniang Panlalawigan.

1. (a) YES, this is a justiciable controversy. A justiciable controversy relates to the legality or validity of a contested act. When the grant of power in the Constitution is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable. [A political controversy, on the other hand, involves questions in regard to which full discretionary authority has been delegated to the political branches of the government and is concerned with the wisdom, not legality, of a particular measure.] In this case, the issue raised is the legality/validity of the removal of Representative CDM from the HRET on account of party disloyalty. The constitutional power of the House of Representatives to appoint members of the HRET is qualified and subject to limitations. Further, this case does this involve the wisdom of Representative CDMs removal from the HRET. Therefore, this is a justiciable controversy. (b) YES, the contention of Representative CDM is correct. Party disloyalty is not a valid cause for termination of membership in the HRET. As judges, HRET members must be non-partisan and independent even from the political party to which they belong. HRET members, as sole judge of congressional election contests, are entitled to security of tenure just as members of the judiciary have security of tenure. In this case, Representative CDM was removed on the sole ground of party disloyalty for voting against a party-mate in a case decided by the HRET. There is no [other] valid cause for termination of her membership in the HRET. Thus, the contention of Representative CDM is correct.

3. NO, Congressman WB may not validly move for the dismissal of the complaint on the ground of parliamentary immunity. The Constitution provides that no Member of Congress shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. The implication is that a member of Congress may be questioned by his very own colleagues (and may even be ultimately held liable) for a speech he made in the plenary or in any committee of the House. This is consistent with the constitutional power of Congress to punish its Members for disorderly behaviour. In this case, the complaint was filed against Congressman WB by his very own colleagues in the Ethics Committee of the Lower House. His parliamentary immunity of speech and debate being not applicable, Congressman WB may not therefore validly move for the dismissal of the complaint.

4. If Amer Kano has not yet been proclaimed or taken his oath of office, Pili Pino may still contest his election as Senator before the Comelec since technically Amer Kano is not yet a member of the Senate. And in the meantime, Pili Pino should immediately seek the suspension of Amer Kanos proclamation. However, once Amer Kano has already been proclaimed and has taken his oath of office and is thus already a Member of the Senate, Pili Pino should contest his election before the Senate Electoral Tribunal. Under the Constitution, the Electoral Tribunal of each House shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.

2. If I were the judge, I would nullify the resolution of the Sangguniang Panlalawigan. The Constitution provides that the separation of Church and State shall be inviolable. It further provides that no law shall be made respecting an establishment of religion. Finally, it prohibits appropriations for sectarian purposes. In this case, the challenged ordinance violates the separation of the church and the state and the establishment clause since it favours the Muslim faith. Moreover, the money appropriated is intended to be spent in the Governor-led pilgrimage of his Muslim province-mates to

5. (a) If I were the counsel for Tom Cat, my legal basis for the disqualification of Annevil Drama would be that she has not complied with the residence requirement of the Constitution. A would-be member of the House of Representatives must be a resident of the district where he/she seeks to be elected for a period of not less than 1 year immediately preceding the

day of the election. This residence requirement has been repeatedly construed by the Supreme Court to mean domicile and not just actual residence. As regards Annevil Drama, her domicile is not in the South Congressional District of Cebu City. Her domicile of origin is in the North District of Cebu City since she was born and actually grew up in Brgy. Banilad, Cebu City. On the other hand, her domicile by operation of law when she st got married is in the 1 District of Makati City where lives with her husband and their family. What she obtained in Brgy. Pardo in the South District of Cebu City is only an actual residence absent a showing that she has abandoned either her domicile of origin or domicile by operation of law. Therefore, Annevil Drama should be disqualified. (b) If I were the counsel for Annevil Drama, I will justify her candidacy by arguing that she has complied with all the requirements enumerated in the Constitution. She is after all (i) a naturalborn citizen of the Philippines; (ii) at least 25 years of age on the day of the election; (iii) able to read and write; (iv) a registered voter in the South District of Cebu City, and (v) a resident of the South District of Cebu City for a period of not less than 1 year immediately preceding the May 2013 elections since she established her residence in Brgy. Pardo in April 2012. On the issue raised against her residence, I will argue that she lost her domicile of origin when she acquired her domicile by operation of law upon marrying her husband and living with him in Makati City. Thereafter, her intention of establishing a new domicile in the South District of Cebu City is manifested by her act of purchasing, and not just renting, a house and lot in Brgy. Pardo, which she habitually uses as her residence every time she is in Cebu City. I would argue further that the best person to know my clients state of mind is my client herself. And she has manifested this intention through the overt act of purchasing the house and lot in Brgy. Pardo and transferring her voters registration therein. Finally, I would argue that, in any case, more important than the technical dichotomy between residence and domicile is the compliance with the one-year period itself. This is the more significant point of consideration since a candidate for a district representative must be familiar with the problems and issues involving his/her prospective constituency. In the case of Annevil Drama, she has already complied with this threshold period when she established her residence in the South District of Cebu City in April 2012. (c) FIRST ALTERNATIVE ANSWER YES, Annevil Drama may instead run for district representative in the North District of Cebu City. Her domicile of origin is in Brgy. Banilad in the North District of Cebu City, which she did not abandon despite her marriage to the unnamed actor and transfer of actual residence in Makati City. This is best shown by her act of maintaining contact with her family in Cebu City and her

frequent visits to her ancestral home despite having already established an actual residence in Makati City. Domicile cannot be easily changed; a person must show by overt acts that she/he intends to abandon the former domicile, establish a new one, and remain therein. Annevil Drama must however transfer her voters registration from Makati City to the North District of Cebu City. The rest of the requirements (citizenship, age and literacy) have already been complied with. SECOND ALTERNATIVE ANSWER NO, Annevil Drama may not run for district representative in the North District of Cebu City. When Annevil Drama got married, she lost her domicile of origin and acquired her husbands domicile in Makati City. Her act of maintaining contact with her family in Cebu City and her frequent visits her ancestral home is of no moment since the loss of her domicile of origin is by operation of law. Moreover, the theory of automatic reversion of domicile is not applicable in this case since Annevil Dramas husband is still alive. Besides, it is too late already for her to perform acts to re-acquire her domicile of origin by reestablishing herself in the North District. The May 2013 election is less than a year away. (d) YES, Annevil Drama may instead run as st representative of the 1 District of Makati. When Annevil Drama married her husband, she st follows his domicile in the 1 District of Makati. This happens by operation of law; thus, her overt act of maintaining contact with her domicile of origin is of no moment. In fact, she has been a st resident and registered voter in the 1 District of Makati for more than 30 years. However, she has to maintain her voters st registration in Dasmarias in the 1 District of Makati City. If she has already transferred it to st Cebu City, she has to transfer again to the 1 District of Makati City. The rest of the qualifications (citizenship, age and literacy) have already been complied with. (e) I will advise Annevil Drama that it is legally th feasible for her to run as representative of the 6 district of the Province of Cebu. At that point in time (January 2012), she still has sufficient time to establish a domicile of choice in th the 6 congressional district of the Province of Cebu and to transfer her voters registration therein. I will advise my client to make sure that she clearly establishes by overt acts her intention (i) to abandon her former domiciles domicile of origin in Cebu City and domicile by operation of law in Makati City; (ii) to establish her new th domicile in any of the localities of the 6 district of the Province of Cebu; and (iii) to remain in this new domicile at least for the duration of the election period so as not to give her opponent/s an ammunition to question her compliance with the one-year residency requirement.

parliamentary immunity from arrest is no longer applicable. 6. (a) NO, the party-list representatives may not invoke their parliamentary immunity of freedom from arrest to avoid being taken into custody. Parliamentary immunity of freedom from arrest only applies if (i) the offense charged against a member of Congress is punishable by not more than 6 years of imprisonment; and (ii) Congress is in session. In the instant controversy, the prescribed penalty for rebellion is reclusion perpetua, or 20 years and 1 day to 40 years of imprisonment. Further, Congress is already adjourned sine die, i.e., not anymore in session. Ergo, the party-list representatives may not invoke their parliamentary immunity of freedom from arrest. (b) Supposing Congress is in session, this would not make a difference in my answer. Parliamentary immunity of freedom from arrest does not apply when the offense charged is punishable by more than 6 years of imprisonment regardless of whether or not Congress is in session. In this case, the prescribed penalty of rebellion is reclusion perpetua, or 20 years and 1 day to 40 years of imprisonment. Hence, even if Congress is in session, the party-list representatives may not invoke their parliamentary immunity of freedom from arrest. (c) I qualify. The concerned party-list representatives may now invoke their parliamentary immunity from arrest if Congress is in session. If it is not in session, the immunity cannot be invoked. As already stated above, parliamentary immunity of freedom from arrest only applies if (i) the offense charged is punishable by not more than 6 years of imprisonment; and (ii) Congress is in session. In this third scenario, the offense charged is inciting to sedition, which has a prescribed penalty of prision correccional, or imprisonment of 6 months and 1 day to 6 years. Hence, the concerned party-list representatives may invoke their parliamentary immunity from arrest if Congress is in session. (d) If the concerned party-list representatives are subsequently convicted by final judgment, the protection of parliamentary immunity from arrest is no longer applicable. Parliamentary immunity from arrest only applies before conviction by final judgment; i.e., after arrest becomes otherwise proper, for instance upon the issuance of a warrant of arrest against a particular member of Congress. The arrest of the accused is necessary in order for the court to acquire jurisdiction over his/her person. In this fourth scenario, there is already conviction by final judgment against the party-list representatives. Therefore, the protection of

7. YES, the grant of authority to impose the alternative penalty (of imprisonment) in the discretion of the court is an undue delegation of legislative power. There is undue delegation of legislative power when the law is not complete in all its terms and conditions when it leaves the Congress, and/or when it does not have a sufficient standard to which the delegate must conform in the performance of his functions. In the instant case, 32 of RA No. 4670 is incomplete. It does not provide the duration of the imprisonment that the courts may impose as alternative penalty. This leaves the courts with unlimited discretion in the determination of how long the sentence of imprisonment should be. Therefore, the grant of authority to impose the alternative penalty is an undue delegation of legislative power.

8. (a) YES, the law enforcement officers may arrest Congressman RE. Parliamentary immunity of freedom from arrest only applies if (i) the offense charged is punishable by not more than 6 years of imprisonment; and (ii) Congress is in session. In the case at bar, the maximum imposable penalty exceeds 6 years. Regardless of whether or not Congress is in session, parliamentary immunity of freedom from arrest does not apply. Hence, the law enforcement officers may arrest Congressman RE pursuant to the warrant issued against him. (b) YES, Congressman RE may be arrested anytime to start serving his sentence. Freedom from arrest no longer applies when a judgment of conviction already becomes final and executory. The convicted member of Congress has to start serving his sentence forthwith. The duration of the penalty, and the holding or non-holding of session of Congress, both become irrelevant to the question of whether the concerned legislator may already be arrested. In this case, Congressman RE has been convicted by final judgment of the offense charged. Accordingly, Congressman RE may be arrested anytime to start serving his sentence.

9. (a) NO, Senator Lapit may not validly appear before the IPO as a lawyer representing his clients company. The Constitution provides that no Senator or Member of the House of Representatives may personally appear as counsel before any court of

justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. In the given problem, Senator Lapit is a lawyerSenator who is sought to personally appear before the IPO (now IPOPHL), a government agency exercising quasi-judicial and administrative functions relating to intellectual property rights. Clearly, therefore, Senator Lapit may not validly appear before the IPO as a lawyer representing his clients company. (b) NO, it would not make a difference if Senator Lapit is also one of the stockholders of the company still, he may not validly appear before the IPO as a lawyer representing the company. The constitutional prohibition that no member of Congress may personally appear as counsel in judicial, quasi-judicial, or administrative bodies applies even if the lawyer-legislator is also a shareholder or owner of the company that he seeks to represent before such bodies. In the given problem, Senator Lapit is still a lawyer-Senator even as he is also a shareholder of the company. Ergo, he may not validly appear before the IPO as a lawyer representing the company.

10. If I were the lawyer of Cong. May (Gay) Weather, I would question the validity of the Comelec ruling by arguing that the Comelec has already lost its jurisdiction to decide the disqualification case filed by Manny Pakyow. The Constitution provides that the Electoral Tribunal of each House of Congress shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. A winning candidate becomes a member of either House of Congress once he is proclaimed and has taken his oath of office. In the case at bar, Cong. May (Gay) Weather was proclaimed, took his oath of office, and thereafter began performing the functions of a member of the House of Representatives. So it is now the HRET, and not the Comelec, that has jurisdiction to decide the controversy relating to his qualifications. The Comelec ruling is therefore invalid for lack of jurisdiction.