POLITICAL LAW

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1997 BAR EXAMINATIONS

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Question No. 1:

What do you understand by the "Doctrine of Incorporation" in Constitutional Law?

Answer:

The doctrine of incorporation means that the rules of international law form part of the law of the land and no
legislative action is required to make them applicable to a country. The Philippines follows this doctrine, because
Section 2, Article II of the Constitution states that the Philippines adopts the generally accepted principles of
international law as part of the law of the land.

Question No. 2:

The Sangguniang Panlungsod of Manila approved an ordinance (No. 1000) prohibiting the operation in the streets within
the city limits of taxicab units over eight years old (from year of manufacture). The imposable penalty for violation
thereof is a fine of P4,000.00 or imprisonment for one year upon the erring operator. Thereafter and while the city
ordinance was already in effect, Congress enacted a law (Republic Act No. 500) prohibiting the operation in the streets of
cities throughout the country of taxicab units beyond ten years old. The imposable penalty for violation thereof is the same
as in Ordinance No. 1000. A, an owner/operator of a taxicab unit operating in the City of Manila, was charged with
violation of the city ordinance. Upon arraignment, he pleaded not guilty; whereupon, trial was set five days thereafter. For
failure of the witnesses to appear at the trial, the City Court dismissed the case against A. The City Prosecutor of Manila
forthwith filed another information in the same court charging A with violation of Republic Act No. 500 for operating the
taxicab unit subject of the information in the first case. The accused moved to dismiss the second case against him
invoking double jeopardy.

How would you rule on A's motion if you were the Judge?

Answer:

If I were the judge, I would grant the motion. The dismissal of the first case for failure of the witnesses to appear
terminated the first jeopardy. As held in Caes vs. Intermediate Appellate Court, 179 SCRA 54, the dismissal of a case
for failure of the witnesses for the prosecution to appear constitutes an acquittal. The acquittal of A for violation of
Ordinance No. 1000 bars his prosecution for violation of Republic Act No. 500. Under Section 21, Article III of the
Constitution, if an act is punished by a law and an ordinance, conviction or acquittal under either bars another
prosecution for the same act.

ALTERNATIVE ANSWER:

If I were the judge, I would deny the motion. The dismissal of the first case is void and does not give rise to double
jeopardy. The dismissal of the first case is arbitrary and denied the prosecution due process of law. The trial was
set five days after the arraignment. There was no sufficient time to subpoena the witnesses and this was the first
time the witnesses failed to appear. As held in People vs. Declaro, 170 SCRA 142, the dismissal of a case for failure
of the witnesses to appear at the initial hearing is arbitrary and void and does not give rise to double jeopardy.

Question No. 3:

Are government-owned or controlled corporations within the scope and meaning of the "Government of the Philippines"?

Answer:

Section 2 of the Introductory Provision of the Administrative Code of 1987 defines the government of the
Philippines as the corporate governmental entity through which the functions of government are exercised
throughout the Philippines, including, same 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.
Government-owned or controlled corporation are within the scope and meaning of the Government of the
Philippines if they are performing governmental or political functions.

Question No. 4:

Upon request of a group of overseas contract workers in Brunei, Rev. Father Juan de la Cruz, a Roman Catholic priest,
was sent to that country by the President of the Philippines to minister to their spiritual needs. The travel expenses, per
diems, clothing allowance and monthly stipend of P5,000.00 were ordered charged against the President's discretionary
fund. Upon post audit of the vouchers therefor, the Commission on Audit refused approval thereof claiming that the
expenditures were in violation of the Constitution.

Was the Commission on Audit correct in disallowing the vouchers in question?

Answer:

Yes, the Commission on Audit was correct in disallowing the expenditures. Section 29(2), Article VI of the
Constitution prohibits the expenditure of public funds for the use, benefit, or support of any priest. The only
exception is when the priest is assigned to the armed forces, or to any penal institution, or government orphanage
or leprosarium. The sending of a priest to minister to the spiritual needs of overseas contract workers does not fall
within the scope of any of the exceptions.

Question No. 5:

To what extent, if at all, has the 1987 Constitution affected the "political question doctrine"?

Answer:

Section 1, Article VIII of the Constitution has expanded the scope of judicial power by including the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and
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 the Government. In Marcos vs. Manglapus, 177 SCRA 668, the
Supreme Court stated that because of this courts of justice may decide political questions if there was grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.

Question No. 6:

It is said that "waiver of immunity by the State does not mean a concession of its liability". What are the implications of
this phrase?

Answer:

The phrase that waiver of immunity by the State does not mean a concession of liability means that by consenting
to be sued, the State does not necessarily admit it is liable. As stated in Philippine Rock Industries, Inc. vs. Board of
Liquidators, 180 SCRA 171, in such a case the State is merely giving the plaintiff a chance to prove that the State is
liable but the State retains the right to raise all lawful defenses.

Question No. 7:

A month before a forthcoming election, "A" one of the incumbent Commissioners of the Commission on Elections, died
while in office and "B", another Commissioner, suffered a severe stroke. In view of the proximity of the elections and to
avoid paralyzation in the Commission on Elections, the President who was not running for any office, appointed
Commissioner C of the Commission on Audit, who was not a lawyer but a certified public accountant by profession, ad
interim Commissioner to succeed Commissioner A and designated, by way of a temporary measure, Associate Justice D of
the Court of Appeals as acting Associate Commissioner during the absence of Commissioner B.

Did the President do the right thing in extending such ad interim appointment in favor of Commissioner C and designating
Justice D acting Commissioner of the Commission on Elections?

Answer:

No. The President was wrong in extending an ad interim appointment in favor of Commissioner C. In Summers vs.
Ozaeta, 81 Phil. 754, it was held that an ad interim appointment is a permanent appointment. Under Section 15,
Article VII of the Constitution, within two months immediately before the next presidential elections and up to the
end of his term, the President cannot make permanent appointments.
The designation of Justice D as acting Associate Commissioner is also invalid. Section 1(2), Article IX-C of the
Constitution prohibits the designation of any Commissioner of the Commission on Elections in a temporary or
acting capacity. Section 12, Article VIII of the Constitution prohibits the designation of any member of the
Judiciary to any agency performing quasi-judicial or administrative functions.

Question No. 8:

About a hundred people occupied a parcel of land in Quezon City belonging to the city government and built shanties
thereon which they utilized for dwelling, sari-sari stores, etc. The City Mayor issued an order directing the occupants to
vacate the structures within five days from notice, otherwise they would be evicted and relocated and their shanties
removed, in order that the parcel of land could be converted into a park for public use and enjoyment. The inhabitants of
the parcel of land complained to the Commission on Human Rights, after conducting an investigation and finding that the
shanties of petitioners were already being demolished by then, ordered the Quezon City Mayor and persons implementing
his order to cease and desist from demolishing petitioners' shanties under pain of contempt.

What have you to say on the validity of the actuation of the Commission on Human Rights in relation to that of the
Quezon City Mayor?

Answer:

The actuation of the Commission on Human Rights is void. In Simon vs. Commission on Human Rights, 229 SCRA
117, the Court held that the Commission on Human Rights has no power to issue a restraining order or a writ of
injunction and has no power to cite for contempt for violation of the restraining order or a writ of preliminary
injunction. The cease and desist order, according to the Court, is a semantic interplay for a restraining order. Its
power to cite for contempt should be understood to apply only to violations of its adopted operational guidelines
and rules of procedure essential to carry out its investigatory powers, which it is constitutionally authorized to
adopt.

Question No. 9:

Due to over-crowding in the public market in Paco, Manila, the City Council passed an ordinance allowing the lease to
vendors of parts of the streets where the public market is located, provided that the lessees pay to the city government a
fee of P50.00 per square meter of the area occupied by the lessees. The residents in the area complained to the Mayor that
the lease of the public streets would cause serious traffic problems to them. The Mayor cancelled the lease and ordered the
removal of the stalls constructed on the streets.

Was the act of the Mayor legal?

Answer:

The cancellation of the lease and the removal of the stalls are valid. As held in Macasiano vs. Diokno, 212 SCRA
464, the lease of public streets is void, since they are reserved for public use and are outside the commerce of man.

Question No. 10:

A, while on board a passenger jeep one night, was held up by a group of teenagers who forcibly divested her of her watch,
necklace and wallet containing P100.00. That done, the trio jumped off the passenger jeep and fled. B, the driver, and A
complained to the police to whom they gave description of the culprits. According to the jeep driver, he would be able to
identify the culprits if presented to him. Next morning A and B were summoned to the police station where five persons
were lined up before them for identification. A and B positively identified C and D as the culprits. After preliminary
investigation, C and D and one John Doe were charged with robbery in an information filed against them in court. C and
D set up, in defense, the illegality of their apprehension, arrest and confinement based on the identification made of them
by A and B at a police line-up at which they were not assisted by counsel.

How would you resolve the issues raised by C and D?

Answer:

The arguments of the accused are untenable. As held in People vs. Acol, 232 SCRA 406, the warrantless arrest of
accused robbers immediately after their commission of the crime by police officers sent to look for them on the
basis of the information related by the victims is valid under Section 5(b), Rule 113 of the Rules on Criminal
Procedure. According to People vs. Lamsing, 248 SCRA 471, the right to counsel does not extend to police line-ups,
because they are not part of custodial investigations. However, according to People v. Macan, 238 SCRA 306, after
the start of custodial investigation, if the accused was not assisted by counsel, any identification of the accused in a
police line-up is inadmissible.

Question No. 11:

During a period of national emergency, Congress may grant emergency powers to the President. State the conditions under
which such a gesture is allowed.

Answer:

Under Section 23(2), Article VI of the Constitution, Congress may grant the President emergency powers subject to
the following conditions:

1. There is a war or other national emergency;

2. The grant of emergency powers must be for a limited period;

3. The grant of emergency powers is subject to such restrictions as Congress may prescribe; and

4. The emergency powers must be exercised to carry out a declared national policy.

Question No. 12:

Section 28, Title VI, Chapter 9, of the Administrative Code of 1987 requires all educational institutions to observe a
simple and dignified flag ceremony, including the playing or singing of the Philippine National Anthem, pursuant to rules
to be promulgated by the Secretary of Education, Culture and Sports. The refusal of a teacher, student or pupil to attend or
participate in the flag ceremony is a ground for dismissal after due investigation. The Secretary of Education, Culture and
Sports issued a memorandum implementing said provision of law. As ordered, the flag ceremony would be held on
Mondays at 7:30 a.m. during class days. A group of teachers, students and pupils requested the Secretary that they be
exempted from attending the flag ceremony on the ground that attendance thereto was against their religious belief. The
Secretary denied the request. The teachers, students, and pupils concerned went to Court to have the memorandum
circular declared null and void.

Decide the case.

Answer:

The teachers and the students should be exempted from the flag ceremony. As held in Ebralinag vs. Division
Superintendent of Schools of Cebu, 251 SCRA 569, to compel them to participate in the flag ceremony will violate
their freedom of religion. Freedom of religion cannot be impaired except upon the showing of a clear and present
danger of a substantive evil which the State has a right to prevent. The refusal of the teachers and the students to
participate in the flag ceremony does not pose a clear and present danger.

Question No. 13:

Upon complaint of the incumbent President of the Republic, "A" was charged with libel before the Regional Trial Court.
"A" moved to dismiss the information on the ground that the Court had no jurisdiction over the offense charged because
the President, being immune from suit, should also be disqualified from filing a case against "A" in court.

Resolve the motion.

Answer:

The motion should be denied according to Soliven vs. Makasiar, 167 SCRA 393, the immunity of the President from
suit is personal to the President. It may be invoked by the President only and not by any other person.

Question No. 14:

(a) When may the privilege of the writ of habeas corpus be suspended?

(b) If validly declared, what would be the full consequences of such suspension?

Answer:

(a) Under Section 18, Article VII of the Constitution, the privilege of the writ of habeas corpus may be suspended
when there is an invasion or rebellion and public safety requires it.
(b) According to Section 18, Article VII of the Constitution, the suspension of the privilege of the writ of habeas
corpus shall apply only to persons judicially charged with rebellion or offenses inherent in or directly connected
with invasion. Any person arrested or detained should be judicially charged within three days. Otherwise, he
should be released. Moreover, under Section 13, Article III of the Constitution, the right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended.

Question No. 15:

Governor A was charged administratively with oppression and was placed under preventive suspension from office during
the pendency of his case. Found guilty of the charge, the President suspended him from office for ninety days. Later, the
President granted him clemency by reducing the period of his suspension to the period he has already served. The Vice
Governor questioned the validity of the exercise of executive clemency on the ground that it could be granted only in
criminal, not administrative, cases.

How should the question be resolved?

Answer:

The argument of the Vice Governor should be rejected. As held in Llamas vs. Orbos, 202 SCRA 844, the power of
executive clemency extends to administrative cases. In granting the power of executive clemency upon the
President, Section 19, Article VII of the Constitution does not distinguish between criminal and administrative
cases. Section 19, Article VII of the Constitution excludes impeachment cases, which are not criminal cases, from
the scope of the power of executive clemency. If this power may be exercised only in criminal cases, it would have
been unnecessary to exclude impeachment cases from this scope. If the President can grant pardons in criminal
cases, with more reason he can grant executive clemency in administrative cases, which are less serious.

Question No. 16:

A, while serving imprisonment for estafa, upon recommendation of the Board of Pardons and Parole, was granted pardon
by the President on condition that he should not again violate any penal law of the land. Later, the Board of Pardons and
Parole recommended to the President the cancellation of the pardon granted to him because A had been charged with
estafa on 20 counts and was convicted of the offense charged although he took an appeal therefrom which was still
pending. As recommended, the President cancelled the pardon he had granted to A. A was thus arrested and imprisoned to
serve the balance of his sentence in the first case. A claimed in his petition for habeas corpus filed in court that his
detention was illegal because he had not yet been convicted by final judgment and was not given a chance to be heard
before he was recommitted to prison.

Is A's argument valid?

Answer:

The argument of A is not valid. As held in Torres vs. Gonzales, 152 SCRA 272, a judicial pronouncement that a
convict who was granted a pardon subject to the condition that he should not again violate any penal law is not
necessary before he can be declared to have violated the condition of his pardon. Moreover, a hearing is not
necessary before A can be recommitted to prison. By accepting the conditional pardon, A agreed that the
determination by the President that he violated the condition of his pardon shall be conclusive upon him and an
order for his arrest should at once issue.

Question No. 17:

State how (a) pre-proclamation controversies, on the one hand, and (b) election protests, on the other, are initiated, heard
and finally resolved.

Answer:

(a) Pre-Proclamation Controversies

Questions affecting the composition or proceeding of the board of canvassers may be initiated in the board of
canvassers or directly with the Commission on Elections. Questions involving the election returns and the
certificates of canvass shall be brought in the first instance before the board of canvassers only. (Section 17,
Republic Act No. 2166.)

The board of canvassers should rule on the objections summarily. (Section 20, Republic Act No. 7166.)
Any party adversely affected may appeal to the Commission on Elections. (Section 20, Republic Act No. 7166.)

The decision of the Commission on Election may be brought to the Supreme Court on certiorari by the aggrieved
party. (Section 7, Article IX-A of the Constitution.)

All pre-proclamation controversies pending before the Commission on Elections shall be deemed terminated at the
beginning of the term of the office involved and the rulings of the board of canvassers shall be deemed affirmed,
without prejudice to the filing of an election protest. However, the proceedings may continue when on the basis of
evidence presented so far, the Commission on Elections or the Supreme Court determines that the petition appears
to be meritorious. (Section 16, Republic Act No. 7166.)

(b) Election Contests

An election protest is initiated by filing a protest containing the following allegations:

1. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the election;

2. The protestee has been proclaimed; and

3. The date of the procalamation. (Miro vs. Commission on Elections, 121 SCRA 466)

The following have the jurisdiction over election contests:

1. Barangay officials - Inferior Court;

2. Municipal officials - Regional Trial Court;

3. Regional, provincial, and city officials- Commission on Elections (Section 2(2), Art. IX-C of the Constitution).;

4. Congressman - House of Representatives Electoral Tribunal.

5. Senators - Senate Electoral Tribunal. (Section 17, Article VI of the Constitution).

6. President and Vice President - Supreme Court (Section 4, Article VII of the Constitution).

The decision of the inferior court in election contests involving barangay officials and of the Regional Trial Court
in election contests involving municipal officials are appealable to the Commission on Elections. (Section 2(2),
Article IX-C of the Constitution.) The decision of the Commission on Elections may be brought to the Supreme
Court on certiorari on questions of law. (Rivera vs. Commission on Elections, 199 SCRA 178)

The decision of the Commission on Elections in election contests involving regional, provincial and city officials
may be brought to the Supreme Court on certiorari (Section 7, Article IX-A and Section 2(2), Article IX-C of the
Constitution.)

The decisions of the Senate Electoral Tribunal and of the House of Representatives Electoral Tribunal may be
elevated to the Supreme Court on certiorari if there was grave abuse of discretion. (Lazatin vs. Commission on
Elections, 168 SCRA 391)

Question No. 18:

A, while an incumbent Governor of his province, was invited by the Government of Cambodia as its official guest. While
there, the sovereign king awarded Governor A with a decoration of honor and gifted him with a gold ring of insignificance
monetary value, both of which he accepted.

Was Governor A's acceptance of the decoration and gift violative of the Constitution?

Answer:

Yes, it violated Section 8, Article IX-B of the Constitution. For his acceptance of the decoration of honor and the
gold ring from the Government of Cambodia to be valid, Governor A should first obtain the consent of Congress.

Question No. 19:

X, a Secretary and Consul in the American Embassy in Manila, bought from B a diamond ring in the amount of
P50,000.00 which he later gave as a birthday present to his Filipino girlfriend. The purchase price was paid in check
drawn upon the Citibank. Upon presentment for payment, the check was dishonored for insufficiency of funds. Because of
X's failure to make good the dishonored check, B filed a complaint against X in the Office of the City Prosecutor of
Manila for violation of Batas Pambansa Blg. 22. After preliminary investigation, the information was filed against X in
the City Court of Manila. X filed a motion to dismiss the case against him on the ground that he is a Secretary and Consul
in the American Embassy enjoying diplomatic immunity from criminal prosecution in the Philippines.

If you were the Judge, how would you resolve the motion to dismiss?

Answer:

If I were the Judge, I would grant the motion to dismiss.

As consul, X is not immune from criminal prosecution. Under paragraph 3 of Article 41 of the Vienna Convention
on Consular Relations, a consular officer is not immune from the criminal jurisdiction of the receiving state. In
Schneckenburger vs. Moran, 63 Phil. 249, it was held that a consul is not exempt from criminal prosecution in the
country where he is assigned. However, as secretary in the American Embassy, X enjoys diplomatic immunity from
criminal prosecution. As secretary, he is a diplomatic agent. Under Paragraph 1 of Article 31 of the Vienna
Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from the criminal jurisdiction of the
receiving State.

Question No. 20:

State the various modes of, and steps in, revising or amending the Philippine Constitution.

Answer:

There are three modes of amending the Constitution.

1. Under Section 1, Article XVIII of the Constitution, Congress may by three-fourths vote of all its Members
propose any amendment to or revision of the Constitution.

2. Under the same provision, a constitutional convention may propose any amendment to or revision of the
Constitution. According to Section 3, Article XVII of the Constitution, Congress may by a two-thirds vote of all its
Members call a constitutional convention or by a majority vote of all its Members submit the question of calling
such a convention to the electorate.

3. Under Section 2, Article XVII of the Constitution, the people may directly propose amendments to the
Constitution through initiative upon a petition of at least twelve per cent of the total number of registered voters, of
which every legislative district must be represented by at least three per cent of the registered voters therein.

According to Section 4, Article XVII of the Constitution, to be valid any amendment to or revision of the
Constitution must be ratified by a majority of the votes cast in a plebiscite.