The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
Political Law Bar
Questions and An-
swers (1996-2017)
Table of Contents
CONSTITUTIONAL LAW 1 .....................................1
CONSTITUTIONAL LAW 2 ...................................28
ADMINISTRATIVE LAW .......................................45
LOCAL GOVERNMENT .......................................48
PUBLIC OFFICERS ..............................................53
ELECTION LAW ................................................... 59
PUBLIC INTERNATIONAL LAW ...........................64
General Principles .............................................64
Treaties .............................................................65
The United Nations and International Court of
Justice ...............................................................69
State Sovereignty ..............................................70
State Recognition ..............................................70
Use of Force and the Right of a State to Self-De-
fense .................................................................71
Nationality, Citizenship and Statelessness ........72
Diplomatic Law and Sovereign Immunity ..........72
International Criminal Law................................. 75
Space Law ........................................................76
United Nations Convention on Law of the Sea
(UNCLOS) and International Maritime Law .......76
International Human Rights Law .......................80
Law of War and International Humanitarian Law ..
81
Neutrality ...........................................................81
Law of State Responsibility and Treatment of
Aliens ................................................................81
The Right of Jurisdiction....................................82
!1
CONSTITUTIONAL LAW 1
A priority thrust of the Administration of change of the form of the
government of unitary to federal. The change can be effected only
through constitutional amendment or revision.
[a] What are the methods of amending the Constitution?
Explain briefly each method. (3%)
[b] Cite at least three provisions of the Constitution that
need to be amended or revised to effect the change from unitary
to federal, and briefly explain why? (3%) ’17 Q1
[a] The Constitution may be amended or revised by the vote of at least
three-fourths of all the Members of Congress, acting as a Constituent
Assembly, by way of a proposal (Article XVII, Sec. 1(1) of the 1987
Constitution).
Any amendment or revision under this provision shall be valid upon
ratification by a majority of the votes cast in a plebiscite which shall be
held not earlier than 60 days or later than 90 days after the approval of
the amendment or revision (Article XVII, Sec. 4 of the 1987 Constitu-
tion).
The Constitution may also be amended or revised by a Constitutional
Convention. Congress may, by vote of at least two-thirds of all its
members, call a Constitutional Convention, or by a majority vote of all
its Member subject to the electorate the calling of a Constitutional
Convention (Article XVII, Sec. 3 of the 1987 Constitution. Any amend-
ment or revision under this provision shall be valid in the same manner
as in Article XVII, Sec. 1(1) of the 1987 Constitution.
Amendments to the Constitution may be directly proposed by the peo-
ple through initiative upon petition of at least 12% of the registered
voters, and at least 3% of the registered voters in every legislative
district must be represented (Article XVII, Sec. 2 of the 1987 Constitu-
tion).
The people cannot propose revisions and may propose only amend-
ments. The petition must be signed by the required number of people,
and the full text of the proposed amendments must be embodied in the
petition (Lambino v. COMELEC, G.R. Nos. 174153 & 174299, October
25, 2006. 503 SCRA 1650).
Any amendment under Article XVII, Sec. 2 of the 1987 Constitution,
shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty days nor later than
ninety days after the certification by the Commission on Elections of
the sufficiency of the petition (Article XVII, Sec. 4 of the 1987 Constitu-
tion).
[b] Examples of provisions need to be amended or revised to effect the
change from unitary to federal:
1. Article X, Sec. 3 must be omitted because the legislature will no
longer define the scope of the powers of the government.
2. Article X, Sec. 4 will have to be omitted. The President will no longer
have the power of supervision over local governments.
3. Article X, Sec. 5 must be omitted. Congress will no longer be al-
lowed to impose limitations on the power of taxation of local govern-
ments.
[Note: The panel wishes to recommend liberality in favor of the exami-
nee for this question, as answers can be gleaned from many articles
and provisions of the Constitution, among them Articles VI, VII, and X.]
A. Under the doctrine of immunity from suit, the State cannot be
sued without its consent. How may the consent be given by the
State? Explain your answer. (3%)
B. The doctrine of immunity from suit in favor of the State extends
to public officials in the performance of their official duties. May
such officials be sued nonetheless to prevent or to undo their
oppressive or illegal acts, or to compel them to act? Explain your
answer. (3%)
 The Sigma Rho Fraternity
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C. Do government-owned or-controlled corporations also enjoy
the immunity of the State from suit? Explain your answer. (3%) ’17
- Q2
A. The State may be sued, with its consent, either expressly or implied-
ly. Only Congress can give a written waiver of immunity from suit in the
form ·of a law (United States v. Guinto, G.R. Nos. 76607, 79470,
80018 & 80258, February 26, 1990, 182 SCRA 664); Republic v. Feli-
ciano, G.R. No. L-70853, March 12, 1987, 148 SCRA 424).
If a government agency undertakes a proprietary function, it waives its
immunity from suit. When the Philippines Tourism Authority entered
into a contract for the construction of a golf course, it engaged' in a
proprietary function (Philippine Tourism Authority v. Philippine Golf
Development and Equipment, Inc., G.R. No. 176628, March 19,2012,
668 SCRA 408).
B. Public officials may be sued if they acted oppressively or illegally in
the performance of their duties. A suit against a public officer who act-
ed illegally is not a suit against the state (Aberca v. Ver, G.R. No.
69866, April IS, 1988, 160 SCRA 590).
A public official may be compelled to act through a writ of mandamus.
The main objective of mandamus is to compel the performance of a
ministerial duty on the part of the respondent official; however, the writ
does not issue to control or review the exercise of discretion or to
compel a course of conduct. The writ of prohibition can also be availed
of, as it is an extraordinary writ which can directed against a public
officer ordering said officer to desist from further proceeding when said
proceedings are without or is in excess of said officer’s jurisdiction, or
are accompanied with grave abuse of discretion (Rule 65, Revised
Rules of Court).
C. A government-owned or controlled corporation may be sued. A suit
against it is not a suit against the State, because it has a separate
Juridical personality (Social Security Systems v. Court of Appeals, G.R.
No. L-41299, February 21, 1983, 120 SCRA 707).
A. What is the pardoning power of the President under Art. VIII,
Sec. 19 of the Constitution? Is the exercise of the power abso-
lute? (4%)
B. Distinguish pardon from amnesty. (4%) ’17 Q4
A. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations and
pardons, and remit fines and forfeitures, after conviction by final judg-
ment. He shall also have the power to grant amnesty with the concur-
rence of a majority of all the Members of the Congress (Article VII,
Sec. 19 of the 1987 Constitution).
No pardon, amnesty, parole, or suspension of sentence for violation of
election laws, rules, and regulations shall be granted by the President
without the favorable recommendation of the Commission (Article IX-C,
Sec. 5 of the 1987 Constitution).
The only instances in which the President may not extend pardon re-
main to be in: (1) impeachment cases; (2) cases that have not yet
resulted in a final conviction; and (3) cases involving violations of elec-
tion laws, coming from the COMELEC. Any act of Congress by any
way of statute cannot operate to delimit the pardoning power of the
President (Risos-Vidal v. COMELEC, G.R. No. 206666, January 21,
2015).
B. 
 ings from its appropriations. Needing P3,000,000.00 for the con-
1. Pardon can be given only after final conviction; amnesty can be
given any time and even before the filing of a criminal case.
2. Pardon looks forward; amnesty looks backward, as if the accused
never committed a crime.
3. Pardon is given to individuals. Amnesty is given to a class of per-
sons.
4. Pardon is given for all criminal offenses. Amnesty is given for politi-
cal offenses.
!2
5. Pardon does not require the concurrence of Congress. Amnesty
requires the concurrence of Congress.
6. Pardon must be proven, because it is a private act; amnesty need
not be proven, because it is a public act (Barrioquinto v.Fernandez,
G.R. No. L-1278, January 21, 1949,82 Phils. 642).
Section 8 of P.D. No. 910, entitled “Creating an Energy Develop-
ment Board, defining its powers and functions, providing funds
therefor and for other purposes,” provides that: “All fees, rev-
enues and receipts of the Board from any and all sources x x x
shall form part of a Special Fund to be used to finance energy
resource development and exploitation programs and projects of
the government and for such other purposes as may be hereafter
directed by the President.”
The Malampaya NGO contends that the provision constitutes an
undue delegation of legislative power since the phrase “and for
such other purposes as may be hereafter directed by the Presi-
dent” gives the President unbridled discretion to determine the
purpose for which the funds will be used. On the other hand, the
government urges the application of ejusdem generis.
[a] Explain the “completeness test”' and “sufficient standard
test.” (2.5%)
[b] Does the assailed portion of section 8 of PD 910 hurdle the
two (2) tests? (2.5%) ’16 – Q6
[a] The completeness test means that the law sets forth the policy to be
executed, carried out or implemented by the delegate (Abakada Guro
Party List v. Ermita, 469 SCRA 1 [2005}).
[b] The “sufficient standard test” means the law lays down adequate
guidelines or limitations to map out the boundaries of the authority of
the delegate and prevent the delegate from miming riot. The standard
must specify the limits of the authority of the delegate, announce the
legislative policy and identify the condition under which it is to be im-
plemented (Abakada Gum Party List v. Ermita, 469 SCRA 1 [2005}).
[c] The assailed portion of Presidential Decree No. 910 does not satisfy
the two tests. The phrase “and for such other purposes as may be
hereafter directed by the President” gives the President unbridled dis-
cretion to determine the purpose for which the funds will be used. An
infrastructure is any basic facility needed by society. The power to
determine what kind of infrastructure to prioritize and fund is a power to
determine the purpose of the appropriation and is an undue delegation
of the power to appropriate (Belgica v. Ochoa, Jr., 710 SCRA 1 [2013]).
The assailed provision does not fall under the principle of ejusdem
generis. First, the phrase “energy resource development and exploita-
tion programs and projects of the government states a singular and
general class. Second, it exhausts the class it represents (Belgica v,
Ochoa, Jr., 710 SCRA 11 [2013]).
A. The President appoints the Vice President as his Administra-
tion's Housing Czar, a position that requires the appointee to sit
in the Cabinet. Although the appointment of the members of the
Cabinet requires confirmation by the Commission on Appoint-
ment (CA), the Office of the President does not submit the ap-
pointment to the CA. May the Vice President validly sit in the Cab-
inet? (2.5%)

B. The Executive Department has accumulated substantial sav-
duct of a plebiscite for the creation of a new city but has no funds
appropriated soon by the Congress for the purpose, the COM-
ELEC requests the President to transfer funds from the savings of
the Executive Department in order to avoid a delay in the holding
of the plebiscite.
May the President validly exercise his power under the 1987 Con-
stitution to transfer funds trom the savings of tl1e Executive De-
partment, and make a cross-border transfer P3,000,000.00 to the
 The Sigma Rho Fraternity
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COMELEC by way of augmentation? Is your answer the same if
the transfer is treated as aid to the COMELEC? Explain your an-
swer. (4%) ’17 — Q6
A. The Vice President may validly sit in the Cabinet even if he was not
confirmed by the Commission on Appointments. Under Article VII, Sec.
3 of the Constitution, the appointment of the Vice President as cabinet
member requires no confirmation (Araullo v. Aquino III, G.R. No.
209287, July 1, 2014,728 SCRA 1).
B. The President may not transfer savings to the Commission on Elec-
tions as aid. The constitutional prohibition against the transfer of ap-
propriations to other branches of government or Constitutional Com-
mission applies for whatever reason (Araullo v. Aquino III, G.R. No.
209287, July 1, 2014,728 SCRA 1).
Give the limitations on the power of the Congress to enact the
General Appropriations Act? Explain your answer. (5%) ’17— Q7
Sections 24 and 25 of Article VI provide the limitations on the power of
Congress to enact General Appropriations Acts.
All appropriation; revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate
exclusively in the House of Representative, but the Senate may pro-
pose or concur with amendments (Article VI, Sec. 24 of the 1987 Con-
stitution).
The Congress may not increase the appropriations recommended by
the President for the operation of the Government as specified in the
budget. The form, content, and manner of preparation of the budget
shall be prescribed by law. No provision or enactment shall be em-
braced in the general appropriations bill unless it relates specifically to
some particular appropriation therein. Any such provision or enactment
shall be limited in its operation to the appropriation to which it relates.
The procedure in approving appropriations for the Congress shall
strictly follow the procedure for approving appropriations for other de-
partments and agencies. A special appropriations bill shall specify the
purpose for which it is intended, and shall be supported by funds actu-
ally available as certified by the National Treasurer, or to be raised by a
corresponding revenue proposed therein (Article VI, Sec. 25 of the
1987 Constitution).
No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court,
and the heads of Constitutional Commissions may, by law, be autho-
rized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appro-
priations (Article VI, Sec.25 oft he 1987 Constitution).
Discretionary funds appropriated for particular officials shall be dis-
bursed only for public purposes to be supported by appropriate vouch-
ers and subject to such guidelines as may be prescribed by law. If, by
the end of any fiscal year, the Congress shall have failed to pass the
general appropriations bill for the ensuing fiscal year, the general ap-
propriations law for the preceding fiscal year shall be deemed reenact-
ed and shall remain in force and effect until the general appropriations
bill is passed by the congress (Article VI, Sec. 25 of the 1987 Constitu-
tion).
A bank acquired a large tract of land as the highest bidder in the
foreclosure sale of the mortgaged assets of its borrower. II ap-
pears that the land has been originally registered under the Tor-
rens system in 1922 pursuant to the provisions of the Philippine
Bill of 1902, the organic act of the Philippine Islands as a colony
of the USA. Sec. 21 of the Philippine Bill of 1902 provided that "all
valuable mineral deposits in public lands in the Philippine Is-
lands, both surveyed and unsurveyed, are hereby declared to be
free and open to exploration, occupation and purchase, and the
!3
land in which they are found to occupation and purchase, by citi-
zens of the United States, or of said Islands." Sec. 27 of the law
declared that a holder of the mineral claim so located was entitled
to all the minerals that lie within his claim, but he could not mine
outside the boundary lines of his claim.
The 1935 Constitution expressly prohibited the alienation of nat-
ural resources except agricultural lands. Sec. 2, Art. XII of the
1987 Constitution contains a similar prohibition, and proclaims
that all lands of the public domain, waters, minerals, coal, pe-
troleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. This provision enunci-
ates the Regalian Doctrine.
May the Government, on the basis of the Regalian Doctrine enun-
ciated in the constitutional provisions, deny the bank its right as
owner to the mineral resources underneath the surface of its
property as recognized under the Philippine Bill of 1902? Explain
your answer. (5%) ’17— Q8
The government cannot deny the bank its right as owner of the mineral
resources underneath the surface of the property. The mining rights
acquired under Philippine Bill of 1902 before the effectivity of the 1935
Constitution were vested rights that cannot be impaired by the Gov-
ernment (Yinhu Bicol Mining Corporation v. Trans-Asia Oil and Energy
Development Corporation, G.R. No. 207942·, January 12,2015, 745
SCRA 154).
A. Under the enrolled bill doctrine, the signing of a bill by both the
Speaker of the House of Representatives and the President of the
Senate and the certification by the secretaries of both Houses of
Congress that the bill was passed on a certain date are conclu-
sive on the bill's due enactment. Assuming there is a conflict be-
tween the enrolled bill and the legislative journal, to the effect that
the enrolled bill signed by the Senate President and eventually
approved by the President turned out to be different from what
the Senate actually passed as reflected in the legislative journal.
(a) May the Senate President disregard the enrolled bill doctrine
and consider his signature as invalid and of no effect? (2.5%)
(b) May the President thereafter withdraw his signature? Explain
your answer. (2.5%)
B. Sec. 26(2), Art. VI of the Constitution provides that no bill
passed by either House of Congress shall become a law unless it
has passed three readings on separate days and printed copies of
it on its final form have been distributed to the Members of the
House three days before its passage.
Is there an exception to the provision? Explain your answer. (3%)
’17— Q10
A. (a) The Senate President may withdraw his signature from the bill
since it was not actually the bill that was approved by Congress, so
there was no enrolled bill to speak of (Astorga v. Villegas, G.R. Np.
L-23475, April 30, 1974, 56 SCRA 714).
(b) Yes, he can because of the prior withdrawal of the signature of
Senate President and Speaker accordingly, there could be no "enrolled
bill" that could have been validly approved (Astorga v. Villegas, G.R.
No. L-23475, Apri130, 1974, 56 SCRA 714).
B. The exception to this provision is when the President certifies to the
necessity of its immediate enactment to meet a public calamity or ne-
cessity (Article VI, Sec. 27(i) of the 1987 Philippine Constitution; and
Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994,
235 SCRA 630).
The Congress establishes by law Philippine Funds, Inc., a private
corporation, to receive foreign donations coming from abroad
during national and local calamities and disasters, and to enable
 The Sigma Rho Fraternity
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the unhampered and speedy disbursements of the donations
through the mere action of its Board of Directors. Thereby, delays
in the release of the donated funds occasioned by the stringent
rules of procurement would be avoided. Also, the releases would
not come under the jurisdiction of the Commission on Audit
(COA).
(a) Is the law establishing Philippine Funds, Inc. constitutional?
Explain your answer. (3%)
(b) Can the Congress pass the law that would exempt the foreign
grants from the jurisdiction of the COA? Explain your answer.
(3%) ’17— Q12
(a) The establishment of Philippine Funds, Inc. is valid. It was created
to enable the speedy disbursements of donations for calamities and
disasters. Public purpose is no longer restricted to traditional govern-
ment functions (Petitioner-Organization v. Executive Secretary, G.R.
Nos. 147036-37 & 147811, April 10, 2012, 269 SCRA 49).
(b) Congress cannot exempt the foreign grants from the jurisdiction of
the Commission on Audit. Its jurisdiction extends to all government-
owned or controlled corporations, including those funded by donations
through the Government (Art IX-D, Sec. 3 of the 1987 Philippine Con-
stitution; and Petitioner-Corporation v. Executive Secretary, G.R. Nos.
147036-37 & 147811, April 10, 2012, 269 SCRA 49).
Command responsibility pertains to the responsibility of com-
manders for crimes committed by subordinate members of the
armed forces or other persons subject to their control in in-
ternational wars or domestic conflicts. The doctrine has now
found application in civil actions for human rights abuses, and in
proceedings seeking the privilege of the writ of amparo.
(a) What are the elements to be established in order to hold the
superior or commander liable under the doctrine of command
responsibility? (4%)
(b) May the doctrine of command responsibility apply to
the President for the abuses of the armed forces (AFP and PNP)
given his unique role as the commander-in-chief of all the armed
forces? Explain your answer. (4%) ’17— Q13
(a) The doctrine of command responsibility can be invoked to deter-
mine the author who is accountable for, and has the duty to address
the disappearance and harassment complained of to enable the courts
to devise remedial measures that may be appropriate under the
premises to protect their rights covered by the writ of amparo. To hold
someone liable under the doctrine of command responsibility, the fol-
lowing elements must obtain:
(1) the existence of a superior-subordinate relationship between the
accused as superior and the perpetrator of the crime as his subordi-
nate;
(2) the superior knew or had reason to know that the crime was about
to be or had been committed; and
(3) the superior failed to take the necessary and reasonable measures
to prevent the criminal acts or punish the perpetrators thereof (Ro-
driguez v. Macapagal-Arroyo, G.R. No. 191805, November 15, 2011,
660 SCRA 843).
(b) The president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him as a
superior within the purview of the command responsibility doctrine. The
incumbent President is Immune from suit during his incumbency. The
immunity, however, exists only during the incumbency of the President.
Once his or her term has ended, he or she may be held accountable
under this doctrine (Rodriguez v. Macapagal-Arroyo, G.R. No. 191805,
November 15, 2011, 660 SCRA 843).
!4
A. According to Sec. 3, Art. VIII of the Constitution, the Judiciary
shall enjoy fiscal autonomy. What does the term fiscal autonomy
signify? Explain your answer. (3%)
B. May a complaint for disbarment against the Ombudsman pros-
per during her incumbency? Explain your answer. (3%)
C. Sec. 3, Art. XI of the Constitution states that "[n]o impeachment
proceedings shall be initiated against the same official more than
once within a period of one year."
What constitutes initiation of impeachment proceedings Under
the provision? (3%) ’17—Q15
A. The fiscal autonomy of the Judiciary means that the appropriation
for the Judiciary may not be reduced by Congress below the amount
appropriated for the previous year, and after approval, shall be auto-
matically and regularly released (Article Vlll, Sec. 3 of the 1987 Consti-
tution).
Fiscal autonomy authorizes the Supreme Court to levy, assess and
collect fees; and to determine how its funds should be utilized (Beng-
zon v. Drilon, G.R. No.103S24, April 15, 1992, 208 SCRA 133).
B. A complaint for disbarment cannot be filed against the Ombudsman
during her incumbency. Article XI, Sec. 8 of the 1987 Philippine Consti-
tution imposes membership of the Philippine Bar as a qualification to
be an Ombudsman. The Ombudsman is removable only by impeach-
ment. If the Ombudsman were to be disbarred, he would be removed
from office without undergoing impeachment (Article XI, Section 2 of
the 1987 Philippine Constitution).
C. Initiation of impeachment proceedings under Article XI, Sec. 3 of the
Constitution starts with the filing of the complaint. The initiation of im-
peachment proceedings starts with the filing of the complaint, and the
vote of one-third of the House in a resolution of impeachment does not,
initiate the impeachment proceedings which was already initiated by
the filing of a verified complaint under Section 3, paragraph (2), Article
XI of the Constitution (Francisco v. House of Representatives, G.R. No.
160261, November 10, 2003, 415 SCRA 44).
Sec. 11, Art. XII of the Constitution, provides: “No franchise, cer-
tificate or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines
or to corporations or associations organized under the laws of
the Philippines at least sixty per centum of whose capital is
owned by such citizens x x x.” Does the term “capital” mentioned
in the cited section refer to the total common shares only, or to
the total outstanding capital stock, or to both or “separately to
each class of shares, whether common, preferred non-voting,
preferred voting or any class of shares?” Explain your answer.
(5%) ’16 – Q2
The term “capital” mentioned in Section 11, Article XII of the Constitu-
tion refers to the total outstanding capital stock of public utilities. The
requirement that at least sixty percent of the capital must be owned by
Filipino citizens applies separately to each class of shares, whether
common, preferred, non-voting, preferred voting, or any class of
shares. Mere legal title is not enough. Full beneficial ownership of sixty
percent of the outstanding capital stock is required (Gamboa v. Teves,
652 SCRA 690, [2011]).
Several concerned residents of the areas fronting Manila Bay,
among them a group of students who are minors, filed a suit
against the Metro Manila Development Authority (MMDA), the
Department of Environment and Natural Resources (DENR), the
Department of Health (DOH), the Department of Agriculture (DA),
the Department of Education (DepEd), the Department of Interior
and Local Government (DILG), and a number of other executive
agencies, asking the court to order them to perform their duties
 The Sigma Rho Fraternity
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relating to the cleanup, rehabilitation and protection of Manila
Bay. The complaint alleges that the continued neglect by defen-
dants and their failure to prevent and abate pollution in Manila
Bay constitute a violation of the petitioners’ constitutional right to
life, health and a balanced ecology.
[a] If the defendants asset that the students/petitioners who
are minors do not have locus standi to file the action, is the asser-
tion correct? Explain your answer. (2.5%)
[b] In its decision which attained finality, the Court ordered
the defendants to clean up, rehabilitate and sanitize Manila Bay
within eighteen (18) months, and to submit to the Court periodic
reports of their accomplishment, so that the Court can monitor
and oversee the activities undertaken by the agencies in compli-
ance with the Court’s directives. Subsequently, a resolution was
issued extending the time periods within which the agencies
should comply with the directives covered by the final decision. A
view was raised that the Court’s continued intervention after the
cases has been decided violates the doctrine of separation of
powers considering that the government agencies all belong to
the Executive Department and are under the control of the Presi-
dent. Is this contention correct? Why or why not? (2.5%) ’16 – Q4
[a] The assertion that the students/petitioners who are minors have no
locus standi is erroneous. Pursuant to the obligation of the State under
Section 16s, Article II of the Constitution to protect and advance the
right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature, minors have standing to sue based
on the concept of intergenerational responsibility (Oposa v. Factor an,
224 SCRA 792 [1993]).
[b] The order of the Supreme Court to the defendants to clean up,
rehabilitate and sanitize Manila Bay is an exercise of judicial power,
because the execution of its decision is an integral part of its adjudica-
tive function. Since the submission of periodic reports is needed to fully
implement the decision, the Supreme Court can issue a continuing writ
of mandamus to the Metropolitan Manila Development Authority until
full compliance with its order is shown (Metropolitan Manila Develop-
ment Authority v. Concerned Residents of Manila Bay, 643 SCRA 90
[2011).
[c] A government-owned or controlled corporation may be sued. A suit
against it is not a suit against the State, because it has a separate
Juridical personality (Social Security Systems v. Court of Appeals, G.R.
No. L-41299, February 21, 1983, 120 SCRA 707).
The Government, through Secretary Toogoody of the Department
of Transportation (DOTr), filed, a complaint for eminent domain to
acquire a 1,000-hectare property in Bulacan, owned by Bal-
domero. The court, granted the expropriation, fixed the amount of
just compensation, and installed, the Government in full posses-
sion of the property.
[a] If the Government does not immediately pay the amount fixed
by the court as just compensation, can Baldomero successfully
demand the return of the property to him? Explain your answer.
(2.5%)
[b] Of the Government paid full compensation but after two years
it abandoned its plan to build an airport on the property, can. Bal-
domero compel the Government to re-sell the property back to
him? Explain your answer. (2.5%) ’16 – Q9
[a] If the government does not pay Baldomero the just compensation
immediately, he cannot demand the return of the property to him. In-
stead, legal interest should be paid from the time of taking of the prop-
erty until actual payment in full (Republic v. Court of Appeals, 383
SCRA 611 [20021).
[b] With respect to the element of public use, the expropriator should
commit to use the property for the purpose stated in the petition. If not,
!5
it is incumbent upon it to return the property to the owner, if the owner
desires to reacquire it. Otherwise, the judgment of expropriation will
lack the element of public use. The owner will be denied due process
and the judgment will violate his right to justice (Mactan-Cebu Airport
Authority v. Lozada, Sr., 613 SCRA 618 [2010J). If the just compensa-
tion was not paid within 5 years from finality of judgment, the owner is
entitled to recover the property (Republic v. Lim, 462 SCRA 265
[2005]).
BD Telecommunications, Inc. (BDTI), a Filipino-owned corpora-
tion, 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 owner-
ship of a public utility.
Onofre, a natural born Filipino citizen, arrived in the United States
in 1985. In 1990, he married Salvacion, a Mexican, and together
they applied for and obtained American citizenship in 2001. In
2015, the couple and their children - Alfred, 2! years of age,
Robert, 16, and Marie, 14, who were all bom in the U.S. - returned
to the Philippines on June 1,2015, informed that he could reac-
quire Philippine citizenship without losing his American citizen-
ship, Onofre went home to the Philippines and took the oath of
allegiance prescribed under R.A. No. 9225. On October 28, 2015,
he filed a Certificate of Candidacy to run in the May 9, 2016 elec-
tions for the position of Congressman in his home province of
Palawan, running against re-electionist Congressman Profundo.
[a] Did Onofre’s reacquisition of Philippine citizenship ben-
efit his wife, Salvacion, and their minor children and confer upon
them Filipino citizenship? Explain your answer. (2.5%)
[b] Before the May 9, 2016 elections, Profundo’s lawyer filed
a Petition to Deny Due Course or to Cancel the Certificate of Can-
didacy against Onofre. What grounds can he raise in his Petition
to support it? Explain your answer. (2.5%) ’16 – Q14
[a] The reacquisition of Philippine citizenship by Onofre did not auto-
matically make his American wife, Salvacion, a Filipino citizen.
Nowhere does Republic Act No. 9228 provide that the foreign wife of a
former Filipino citizen who reacquired his Filipino citizenship will auto-
matically become a Filipino citizen.[fb] Robert, who is 16 years old, and
Marie, who is 14 years old, also became Filipino citizens. The unmar-
ried children below eighteen (18) years of age, of those who reacquire
Philippine citizenship are also deemed citizens of the Philippines (Sec-
tion 4 of Republic Act No. 9225).
[c] The lawyer of Congressman Profundo can ask for the cancellation
of the certificate of candidacy on the ground that he did not execute an
affidavit renouncing his American citizenship as required by Section
5(2) of Republic Act No. 9225 and he lacked one-year residence in the
Philippines as required by Section 6, Article VI of the Constitution.
Under Sec. 5, Article VIII of the Constitution, the Supreme Court
shall have the power to “promulgate rules concerning the protec-
tion and enforcement of constitutional rights, pleading, practice
and procedure in all courts x x x.” Section 23 of R.A. No. 9165 or
the Comprehensive Dangerous Drugs Act of 2002 provides that
“any person charged under any provision of this Act regardless
of the imposable penalty shall not be allowed to avail of the pro-
vision on plea-bargaining.” Patricio, a user who was charged with
alleged sale of shabu but who wants to enter a plea of guilty to a
charge of possession, questions the constitutionality of Sec. 23
on the ground that Congress encroached on the rule-making
 The Sigma Rho Fraternity
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power of the Supreme Court under Sec. 5, Article VIII. He argues
that plea-bargaining is procedural in nature and is within the ex-
clusive constitutional power of the Court. Is Patricio correct?
Explain your answer. (5%) ’16 – Q20
Patricio is not correct. Defining the penalty for a criminal offense in-
volves the exercise of legislative power (People v. Dacuycuy, 173
SCRA 90 [1989]). When Section 23 of the Comprehensive Dangerous
Drugs Act prohibited plea-bargaining, Congress defined what should
be the penalty for the criminal offense. The power of the Supreme
Court to promulgate rules of procedure is subject to the limitation that it
should not modify substantive rights (Section 5(5), Article VIII of the
Constitution).
AT argues that the sale does not violate the 60-40 ownership re-
quirement in favor of Filipino citizens described in Section II, Arti-
cle 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 6,000 preferred shares, therefore,
Filipino stockholders still own a majority of the outstanding capi-
tal stock of the corporation, and both classes of shares have a
par value of Php 20.00 per share. Decide (5%) ‘15 - Q5
“The application of the grandfather Rule is justified by the circum-
stances of the case to determine the nationality of petitioners… the use
of the Grandfather Rule as a “supplement” to the Control Test is not
prescribed the Constitution…”
“The Grandfather Rule, standing alone, should not be used to deter-
mine the Filipino ownership and control in a corporation, as it could
result in an otherwise foreign corporation rendered qualified to perform
nationalized or partly nationalized activities. Hence, it is only when the
Control Test is first complied with that the Grandfather Rule may be
applied. Put in another manner, if the subject corporation’s Filipino
equity falls below the threshold 60%, the corporation is immediately
considered foreign-owned, in which case, the need to resort to the
Grandfather Rule disappears. On the other hand, a corporation that
complied with the 60-40 Filipino to foreign equity requirement can be
considered a Filipino corporation if there no doubt as to who has the
“beneficial ownership” and “control” of the corporation. In that instance,
there is no need for a dissection or further inquiry on the ownership of
the corporate shareholders in both the investing and investee corpora-
tion or the application of the Grandfather Rule. As a corollary rule, even
if the 60-40 Filipino to foreign equity ratio is apparently met by the sub-
ject or investee corporation, a resort to the Grandfather Rule is neces-
sary if doubt exists as to the locus of the “beneficial ownership” and
“control.” (Narra Nickel Mining and Development Corporation v. Red-
mont Consolidated Mines Corporation, G.R. No. 195580, January 28,
2015).” … the “doubt” that demands the application of the Grandfather
Rule in addition to or in tandem with the Control Test is not confined to,
or more bluntly, does not refer to the fact that the apparent Filipino
ownership of the corporation’s equity falls below the 60% threshold.
Rather, “doubt” refers to various indicia that the “beneficial ownership”
and “control” of the corporation do not in fact reside in Filipino share-
holders but in foreign stakeholders. As provided in DOJ Opinion No.
165, Series of 1984, which applied the pertinent of the Anti-Dummy
Law in relation to the minimum Filipino equity requirement in the Con-
stitution, “significant indicators of the dummy status” have been recog-
nized in view of reports “that some Filipino investors or businessmen
are being utilized or [are] allowing themselves to be used as dummies
by foreign investors” specifically in joint ventures for national resource
exploitation. These indicators are:
!6
1. That the foreign investors provide practically all the funds for
the joint investment undertaken by these Filipino business-
men and their foreign partner;
2. That the foreign investors undertake to provide practically all
the technological support for their joint venture;
3. That the foreign investors, while being minority stockholders,
manage the company and prepare all economic viability
studies.” (Narra Nickel Mining and Development corporation
v. Redmont Consolidated Mines Corporation, G.R. No.
195580, January 27, 2015).
(Note: This question should have been asked in Mercantile Law, I re-
spectfully ask that answers featuring the foregoing discussion should
be accepted as correct).
(1) Distinguish the President’s authority to declare a state
of rebellion from the authority to proclaim a state of
national emergency. (2%) ‘15 - Q6(1)
The power of the President to declare a state of rebellion is based on
the power of the President as chief executive and commander-in-chief
of the Armed Forces of the Philippines. It is not necessary for the Pres-
ident to declare a state of rebellion before calling out the Armed Forces
of the Philippines to suppress it. The proclamation only gives notice to
the nation that such a state exists and that the Armed Forces of the
Philippines. It is not necessary for the President to declare a state of
rebellion before calling out the Armed Forces of the Philippines to sup-
press it. (Sanlakas v. Executive Secretary, 421 SCRA 656 [2004]).
In a proclamation of a state of national emergency, the President is
already calling out the Armed Forces of the Philippines to suppress not
only rebellion but also lawless violence. (David v. Arroyo, 489 SCRA
162 [2006]).
(2) What are the limitations, if any, to the pardoning power
of the President? (3%)‘15 - Q6(2)
The following are the limitations to the pardoning power of the Presi-
dent:
1. The President cannot pardon impeachment cases.
2. The President may grant pardons only after conviction by
final judgment.
3. Amnesty requires the concurrence of the majority of all the
Members of Congress. (Section 19, Article VII of Constitu-
tion)
4. The President cannot grant pardon, amnesty, parole or sus-
pension of sentence for violation of election laws, rules and
regulations without the favorable recommendation of the
Commission on Elections. (Section 9, Article IX-C of Consti-
tution.)
5. The President cannot pardon members and employees of
the Judiciary found guilty by the Supreme Court in adminis-
trative cases, because it will encroach upon the exclusive
power of administrative supervision of the Supreme Court
over them. (In re Petition for Judicial Clemency of Manuel V.
Romilo, Jr., G.R. No. 97091, December 9, 1997).
ALTERNATIVE ANSWER:
“The 1987 Constitution, specifically Section 19 of Article VII and Sec-
tion 5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of execu-
tive clemency, to wit:
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“Section 19. Except in cases of impeachment, or as otherwise provided
in this Constitution, the President may grant reprieves, communica-
tions, and pardons, and remit fines and forfeitures after conviction by
final judgment.
“He shall also have the power to grant amnesty with the concurrence
of a majority of all the Members of the Congress.
“Section 5. No pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission.
“It is apparent from the foregoing constitutional provisions that the only
instances in which the President may not extend pardon remain to be
in: (1) impeachment cases; (2) cases that have not yet resulted in a
final conviction and (3) cases involving violations of election laws, rules
and regulations in which there was no favorable recommendation com-
ing from the COMELEC.”
(Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015).
It may be added that pardons may not be extended to a person con-
victed of legislative contempt, as this would violate the doctrine of sep-
aration of powers, or of civil contempt since this would involve the ben-
efit not of the State itself but of the private litigant whose rights have
been violated by the contemner. Pardon cannot also be extended for
purposes of absolving the pardonee of civil liability, including judicial
costs, since, again, the interest that is remitted does not belong to the
State but to the private litigant. (Cruz and Cruz, Philippine Political
Law, 2014 Edition, page 445).
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 Authori-
ty, 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 organiza-
tional 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 politi-
cal 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%) ‘15 - Q8
The invocation of the qualified political agency doctrine is not correct.
Although some members of the Board of Directors were cabinet mem-
bers, they did not become members of the Board of Directors because
of their appointment but because of their designation by the law. When
they implemented a new organizational plan, they were not acting as
alter egos of the President but as members of the Board of Directors
pursuant to the law. (Manalang-Demigillo v. Trade and Investment
Development Corporation of the Philippines, 692 SCRA 359 [2012]).
Several senior officers of the Armed Forces of the Philippines
received invitations from the Chairperson of the Senate Commit-
tees on National Defense and Security for them to appear as re-
source 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 elec-
!7
tions. 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 be-
cause of an Executive Order banning all public officials enumer-
ated in paragraph 3 thereof from appearing before either house of
Congress without prior approval of the President to ensure ad-
herence 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 frus-
trates 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%) ‘15 - Q9
Under Section 5, Article XVI of the Constitution, the President is com-
mander-in-chief of the Armed Forces of the Philippines. By virtue of
this power, the President can prevent Brigadier General Matapang and
Lieutenant Colonel Makatuwiran from appearing before the Senate to
testify before a legislative investigation. (Gudani v. Senga, 498 SCRA
671 [2006]).
The provision in the Executive Order which authorized Department
Secretaries to invoke executive privilege in case senior officials in their
departments are asked to appear in a legislative investigation is not
valid. It is upon the President that executive power is vested. Only the
President can make use of Executive Privilege. (Senate v. Ermita, 488
SCRA 1 [2006]).
(1) What is the concept of expanded judicial review under
the 1987 Constitution? (3%) ‘15 - Q11(1)
Because of the expanded power of the judicial review of the Supreme
Court, the facial challenge of the constitutionality of laws is no longer
limited to laws which violate freedom of speech but applies to all viola-
tions of fundamental rights under the Bill of Rights. (Imbong v. Ochoa,
Jr., 721 SCRA 140 [2014]).
In addition, the remedies of certiorari and prohibition in the Supreme
Court are broader in scope and may be issued to correct errors of
jurisdiction of judicial, quasi-judicial or ministerial actions and may be
invoked to restrain any act of grave abuse of discretion of any branch
of government, even if it does not exercise judicial, quasi-judicial or
ministerial functions. (Araullo v. Aquino III, 728 SCRA 1 [2014]).
ALTERNATIVE ANSWER:
The concept of “expanded judicial power” is specified in the second
paragraph of Section 1 of Article VIII of the Constitution where it is
provided that judicial power includes the duty “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.”
(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 legisla-
tion. (2%) ‘15 - Q11(2)
Judicial legislation refers to the encroachment by the Judiciary upon
the function of the legislature by making law rather than declaring,
construing or enforcing the law. (Ballentine’s Law Dictionary, 3rd ed., p.
685).
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Section 3 (5), Article VIII of Constitution granted the Supreme Court
power to promulgate rules concerning the protection and enforcement
of constitutional rights. In the exercise of this power, the Supreme
Court promulgated the Rule on the Writ of Amparo, the Rule on the
Writ of Habeas Data, and the Rule of Procedure for Environmental
Cases.
On August 15, 2015, Congresswoman Dina Tatalo filed and spon-
sored House Bill No. 5432, entitled “An Act providing for the Ap-
pointment 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 con-
stituents of each district would elect their own representative to
Congress as well as eight (8) members of the Sangguniang Pan-
glungsod. R.A. No. 1234 apportioned the City’s barangays. The
COMELEC thereafter promulgated Resolution No. 2170 imple-
menting R.A. No. 1234. Piolo Cruz assails the COMELEC Resolu-
tion as unconstitutional. According to him, R.A. No. 1234 cannot
be implemented without conducting a plebiscite because the ap-
pointment under the law falls within the meaning of creation, divi-
sion, merger, abolition or substantial alteration of boundaries of
cities under Section 10, Article X of the 1987 Constitution. Is the
claim correct? Explain. (4%) ‘15 - Q13
The claim of Piolo Cruz is not correct. The Constitution does not re-
quire a plebiscite for the creation of a new legislative district by a leg-
islative reappointment. It is required only for the creation of new local
government units. (Bagabuyo v. Commission on Elections, 573 SCRA
290 [2008]).
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 Rule 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 exemp-
tion tenable? Explain. (4%) - ’15 Q14
The exemption from payment of legal fees is not valid. The rules pro-
mulgated by the Supreme Court for the payment of legal fees were in
the exercise of its rule-making power cannot be modified by a law
granting an exemption from payment. (In Re Exemption from Payment
of Court and Sheriff’s Fees of Duly Registered Cooperatives, 668
SCRA 1 [2012]).
Pursuant to its mandate to manage the orderly sale, disposition
and privatization of the National Power Corporation’s (NPC) gen-
eration 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 Citi-
zens’ Party questioned the sale arguing that it violates the consti-
tutional provisions on the appropriation and utilization of a natur-
al resource which should be limited to Filipino citizens and corpo-
rations which are at least 60% Filipino-owned. The PSALM coun-
tered that only the hydroelectric facility is being sold and not the
Angat Dam; and that the utilization of water by a hydroelectric
!8
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? Ex-
plain. (4%) ‘15 - Q19
The PSALM is correct. Foreign ownership of a hydroelectric power
plant is not prohibited by the Constitution. The PSALM will retain own-
ership of Angat Dam. Angat Dam will trap the natural flow of water from
the river. The water supplied by PSALM will then be used for power
generation. Once the water is removed from its natural source, it ceas-
es to be part of the natural resources of the Philippines and may be
acquired by foreigners. (Initiatives for Dialogue and Empowerment
through Alternative Legal Services, Inc. v. Power Sector Assets and
Liabilities Management Corporation, 682 SCRA 602 [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 leader-
ship intends to join the party-list system. Can PMP join the party-
list system without violating the Constitution? ‘15 - Q21
Yes, the Partido Ng Mga Mapagkakatiwalaang Pilipino can join the
party-list system provided it does not field candidates in the legislative
district elections. (Atong Paglaum, Inc. v. Commission on Elections,
694 SCRA 477 [2013]).
With the passage of time, the members of the House of Represen-
tatives increased with the creation of new legislative districts and
the corresponding adjustments in the number of party-list repre-
sentatives. At a time when the House membership was already
290, a great number of the members decided that it was time to
propose amendments to the Constitution. The Senators, however,
were cool to the idea. But the members of the House insisted.
They accordingly convened Congress into a constituent assem-
bly in spite of the opposition of the majority of the members of
the Senate. When the votes were counted, 275 members of the
House of Representatives approved the proposed amendments;
Only 10 Senators supported such proposals. The proponents now
claim that the proposals were validly made, since more than the
required three-fourths vote of Congress has been obtained. The
14 Senators who voted against the proposals claim that the pro-
posals needed not three-fourths vote of the entire Congress but
each house. Since the required number of votes in the Senate
was not obtained, then there could be no valid proposals, so ar-
gued the Senators.
Were the proposals validly adopted by Congress? (5%) ‘14 - Q1
The proposals were not validly adopted, because the ten (10) Senators
who voted in favor of the proposed amendments constituted less than
three-fourths of all the Members of the Senate. Although Section 1,
Article XVII of the Constitution did not expressly provide that the Sen-
ate and the House of Representatives must vote separately, when the
Legislature consists of two (2) houses, the determination of one house
is to be submitted to the separate determination of the other house
(Miller v. Mardo, G.R. No. L-15138, July 31, 1961, 2 SCRA 898).
Several citizens, unhappy with the proliferation of families domi-
nating the political landscape, decided to take matters into their
own hands. They proposed, to come up with a people’s initiative
defining political dynasties. They started a signature campaign
for the purpose of coming up with a petition for that purpose.
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Some others expressed misgivings about a people’s initiative for
the purpose of proposing amendments to the Constitution, how-
ever. They cited the Court’s decision in Santiago,v. Commission
on Elections (G.R. No. 127325, June 10, 1997, 270 SCRA 106), as
authority for their position that there is yet no enabling law for
such purpose. On the other hand, there are also those who claim
that the individual votes of the justices in Lambino v. Commission
on Elections (G.R. No. 174153, October 25, 2006, 505 SCRA 160),
mean that Santiago’s pronouncement has effectively been aban-
doned.
If you were consulted by those behind the new attempt at a peo-
ple’s initiative, how would you advise them? (4%) ‘14 - Q2
I shall advise those starting a people's initiative that initiative to pass a
law defining political dynasties may proceed as their proposal is to
enact a law only and not to amend the Constitution. The decision in
Santiago v. Commission on Elections (G.R. No. 127325, June 10,
1997, 270 SCRA 106), which has not been reversed, upheld the ade-
quacy of the provisions In Republic Act 6735 on initiative to enact a
law.
ALTERNATIVE ANSWER:
I shall advise those starting a people's initiative that the ruling in Santi-
ago v. Commission on Elections that there is as yet no enabling law for
an Initiative has not been reversed. According to Section 4 (3), Article
VIII of the Constitution, a doctrine of law laid down in a decision ren-
dered by the Supreme Court en banc may not be reversed except by it
acting en banc. The majority opinion In Lambino v. Commission on
Elections (G.R. No. 174153, October 25, 2006, 505 SCRA 160), re-
fused to re-examine the ruling in Santiago v. Commission on Elections
(G.R. No. 127325, March 19, 1997, 270 SCRA 106), because it was
not necessary for deciding the case. The Justices who voted to reverse
the ruling constituted the minority.
In Serrano v. Gallant Maritime Services, Inc. (G.R. No. 167614,
March 24, 2009, 582 SCRA 254), the Supreme Court declared as
violative the Equal Protection Clause of the 5th paragraph of Sec.
10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of
1995) for discriminating against illegally dismissed OFWs who
still had more than a year to their contract compared to those who
only had less than a year remaining. The next year, Congress
enacted R.A. No. 10222, an amendment to the Migrant Workers
and Overseas Filipinos Act, which practically reinstated the pro-
vision struck down in Serrano.
Seamacho, an overseas seafarer who still had two years remain-
ing in his contract when he was illegally terminated, and who
would only be entitled to a maximum of six-month’s pay under the
reinstated provision, engages you as his counsel.
How are you to argue that the new law is invalid insofar as it
brings back to the statute books a provision that has already
been struck down by the Court? (5%) ‘14 - Q3
I will argue that since Section 10 of Republic Act No. 8042 has already
been declared unconstitutional by the Supreme Court, its nullity cannot
be cured by reincorporation or re-enactment of the same or a similar
law or provision. Once a law has been declared unconstitutional, it
remains unconstitutional unless circumstances have so changed as to
warrant a reverse conclusion (Sameer Overseas Placement Agency v.
Cabiles, G.R. No. 170139, August 5, 2014).
!9
Greenpeas is an ideology-based political party fighting for envi-
ronmental causes. It decided to participate under the party-list
system. When the election results came in, it only obtained 1.99
percent of the votes cast under the party-list system. Bluebean, a
political observer, claimed that Greenpeas is not entitled to any
seat since it failed to obtain at least 2% of the votes. Moreover,
since it does not represent any of the marginalized and underrep-
resented sectors of society, Greenpeas is not entitled to partici-
pate under the party-list system.
How valid are the observations of Bluebean? (4%) ‘14 - Q5
The claim of Bluebean that Greenpeas is not entitled to a seat under
the party-list system because it obtained only 1.99 percent of the votes
cast under the party-list system is not correct. Since the provision in
Section 5 (2), Article VI of the Constitution that the party-list represen-
tatives shall constitute twenty percent (20%) of the total number of the
Members of the House of Representatives Is mandatory, after the par-
ties receiving at least two percent (2%) of the total votes case for the
party-list system have been allocated one seat, the remaining seats
should be allocated among the parties by the proportional percentage
of the votes received by each party as against the total party-list votes
(Barangay Association for National Advancement and Transparency v.
Commission on Elections, G.R. No. 179271, April 21, 2009, 586 SCRA
211).
The claim of Bluebean that Greenpeas is not entitled to participate in
the party-list elections because it does not represent any marginalized
and underrepresented sectors of society is not correct. It is enough
that its principal advocacy pertains to the special interests of its sector
(Atong Panglaum, Inc. v. Commission on Elections, G.R. No. 203766,
April 2, 2013, 694 SCRA 477).
A few months before the end of the present Congress, Strongwill
was invited by the Senate to shed light in an inquiry relative to the
alleged siphoning and diverting of the pork barrel of members of
Congress to non-existent or fictitious projects. Strongwill has
been identified in the news as the principal actor responsible for
the scandal, the leader of a non-governmental organization which
ostensibly funnelled the funds to certain local government
projects which existed only on paper. At the start of the hearings
before the Senate, Strongwill refused at once to cooperate. The
Senate cited him in contempt and sent him to jail until he would
have seen the light. The Congress, thereafter, adjourned sine die
preparatory to the assumption to office of the newly-elected
members. In the meantime, Strongwill languished behind bars
and the remaining senators refused to have him released, claim-
ing that the Senate is a continuing body and, therefore, he can be
detained indefinitely.
Are the senators right? (4%) ‘14 - Q6
Yes, the senators are right. The Senate is to be considered as a con-
tinuing body for purposes of its exercise of its power punish for con-
tempt. Accordingly, the continuing validity of its orders punishing for
contempt should not be affected by its sine die adjournment (Arnault v.
Nazareno, G.R. No. L-3820, July 19, 1950, 87 Phil. 29).
ALTERNATIVE ANSWER:
The Senators are right. While the Senate as an institution is continuing,
in the conduct of its day-to-day business, the Senate of each Congress
acts separately from the Senate of the Congress before it. All pending
matters terminate upon expiration of each Congress (Neri. v. Senate
 The Sigma Rho Fraternity
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Committee on Accountability of Public Officers and Investigation, G.R.
No. 180643, September 4, 2008, 564 SCRA 152).
Margie has been in the judiciary for a long time, starting from the
lowest court. Twenty (20) years from her first year in the judiciary,
she was nominated as a Justice in the Court of Appeals. Margie
also happens to be a first- degree cousin of the President. The
Judicial and Bar Council included her in the short-list submitted
to the President whose term of office was about to end —it was a
month before the next presidential elections.
Can the President still make appointments to the judiciary during
the so-called midnight appointment ban period? Assuming that
he can still make appointments, could he appoint Margie, his
cousin? (4%) ‘14 - Q7
The President can make appointments to the Supreme Court two
months before a presidential election until the end of his term but not to
the rest of the Judiciary like the Court of Appeals. Under Section 4 (1),
Article VIII of the Constitution, vacancies in the Supreme Court shall be
filled within ninety (90) day from the occurrence of the vacancy. Under
Section 9, Article VIII of the Constitution, .vacancies in the lower courts
shall be filled within ninety (°0) days from submission of the list of nom-
inees. These appointments are screened by the Judicial and Bar
Council, and the process necessarily precludes or prevents the Presi-
dent from making purely political appointments to the courts, which is
what is sought to be prevented by the prohibition (De Castro v. Judicial
and Bar Council, G.R. No. 191002, April 20, 2010, 615 SCRA 666).
The President may also appoint his first cousin, Margie, as Justice of
the Court of Appeals. The prohibition in Section 13, Article VII of the
Constitution against appointment by the President of relatives within
the fourth degree by consanguinity or affinity does not include ap-
pointments to the Judiciary.
ALTERNATIVE ANSWER (FOR FIRST QUESTION):
The President cannot make appointments to the Judiciary during two
months before the presidential election until the end of his term be-
cause of the ban in Section 15, Article VII of the Constitution. Despite
the constitutional mandate to fill vacancies in Judiciary within the pre-
scribed periods, the prohibitions against the appointments releases the
President from the obligation to appoint within them. The delay is ex-
cusable, since it will be impossible to comply with his obligation.
The President, concerned about persistent reports of widespread
irregularities and shenanigans related to the alleged ghost
projects with which the pork barrel funds of members of Con-
gress had been associated, decided not to release the funds au-
thorized under a Special Appropriations Act for the construction
of a new bridge. The Chief Executive explained that, to properly
conserve and preserve the limited funds of the government, as
well as to avoid further mistrust by the people, such a project -
which he considered as unnecessary since there was an old
bridge near the proposed bridge which was still functional -
should be scrapped.
Does the President have such authority? (4%) ‘14 - Q8
The President has the authority to withhold the release of the funds
under a Special Appropriation Act for a project which he considered
unnecessary. The faithful execution of the laws requires the President
to desist from implementing a law If by doing so will prejudice public
interest. It is folly to require the President to spend the entire amounts
!10
appropriated in the law in such a case (Philippine Constitution Associa-
tion v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506).
ALTERNATE ANSWER:
The President does not possess the authority to scrap the Special
Appropriations Act for the construction of the new bridge. His refusal to
spend the funds appropriated for the purpose is unlawful. The Presi-
dent is expected to faithfully implement the purpose for which Con-
gress appropriated funds. Generally, he cannot replace legislative
discretion with his own personal judgment as to the wisdom of a law
(Araullo v. Aquino, G.R. No. 209287, July 1, 2014).
Gerrymandering refers to the practice of: (1%) ‘14 - Q9
(A) creating or dividing congressional districts in a manner
intended to favor a particular party or candidate
(B) truancy as applied to Members of Congress
(C) loafing among members of Congress
(D) coming up with guessing game when it comes to legis-
lation
(E) commandeering large chunks of the budget for favoured
congressional districts
(A) creating or dividing congressional districts in a manner intended to
favor a particular party or candidate
The Court had adopted the practice of announcing its decision in
important, controversial or interesting cases the moment the
votes had been taken among the justices, even as the final print-
ed decision and separate opinions are not yet available to the
public. In a greatly anticipated decision in a case of wide-ranging
ramifications, the voting was close - 8 for the majority, while 7
were for the other side. After the Court had thus voted, it issued a
press release announcing the result, with the advice that the
printed copy of the decision, together with the separate opinions,
were to be issued subsequently. The following day, however, one
of the members of the Court died. The Court then announced that
it would deliberate anew on the case since apparently the one
who died belonged to the majority. Citizens for Transparency, a
group of civic-spirited professionals and ordinary citizens dedi-
cated to transparency and accountability in the government,
questioned the act of the Court. The petitioners claimed the deci-
sion had already been validly adopted and promulgated. There-
fore, it could no longer be recalled by the Court, At the same time,
the group also asked the Court to disclose to the public the origi-
nal decision and the separate opinions of the magistrates, to-
gether with what they had deliberated on just before they came up
with the press release about the 8-7 decision. (6%)
(A) Was the announced 8-7 decision already validly promul-
gated and thus not subject to recall? ‘14 - Q12(A)
The decision cannot be deemed to have been promulgated simply
because of the announcement of the voting in a press release, be-
cause the decision has not yet been issued and filed with the Clerk of
Court. Until the decision is filed with the Clerk of Court, the Justices still
have control over the decision and they can still change their votes
(Limkaichong v. Commission on Elections, G.R. Nos. 178831-32, July
30, 2009, 594 SCRA 434).
(B) If the decision was not yet finalized at the time when the
justice died, could it still be promulgated? ‘14 - Q12(B)
The decision can no longer be promulgated if the Justice who be-
longed to the majority died, for lack of a majority vote. The vote he cast
 The Sigma Rho Fraternity
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is no longer valid, as he was no longer an incumbent member of the
Supreme Court (Lao v. To-Chip, G.R. No. 76597, February 26, 1988,
150 SCRA 243).
ANOTHER ALTERNATIVE ANSWER FOR (B):
(B) The decision can be promulgated even if the Supreme Court en
banc is equally divided, if after the case was again deliberated upon,
no majority decision was reached. If the case is an original action, it
should be dismissed. If it is an appealed case, the decision appealed
from should be affirmed if it is a civil case. If it is a criminal case, the
accused should be acquitted (Section 7, Rule 56 of the Rules of Court;
Section 3, Rule 125, Revised Rules on Criminal Procedure).
(C) If the decision was still being finalized, should the Court
release to the public the majority decision and the sepa-
rate opinions as originally announced, together with
their deliberations on the issues? ‘14 - Q12(C)
The Supreme Court should not release to the public the majority opin-
ion and the separate opinions, as well as its deliberations. They are
part of its confidential internal deliberations (Limkaichong v. Commis-
sion on Elections, G.R. Nos. 178831-32, July 30, 2009, 594 SCRA
434).
Towards the end of the year, the Commission on Audit (COA)
sought the remainder of its appropriation from the Department of
Budget and Management (DBM). However, the DBM refused be-
cause the COA had not yet submitted a report on the expendi-
tures relative to the earlier amount released to it. And, pursuant to
the “no report, no release” policy of the DBM, COA is not entitled
to any further releases in the meantime. COA counters that such a
policy contravenes the guaranty of fiscal autonomy granted by
the Constitution.
Is COA entitled to receive the rest of its appropriations even with-
out complying with the DBM policy? (4%) ‘14 - Q17
The Commission on Audit is entitled to receive the rest of its appropria-
tions even without complying with the policy of the Department of Bud-
get and Management. Section 5, Article IX-A of the Constitution pro-
vides that its approved annual appropriations shall be automatically
and regularly released. The Secretary of Budget and Management
cannot make the release of the appropriations subject to the submis-
sion of reports (Civil Service Commission v. Department of Budget and
Management, G.R. No. 158791, July 22, 2005, 464 SCRA 115).
Congress enacted a law exempting certain government institution
providing social services from the payment of court fees. Atty.
Kristopher Timoteo challenged the constitutionality of the said
law on the ground that only the Supreme Court has the power to
fix and exempt said entities from the payment of court fees.
Congress, on the other hand, argues that the law is constitutional
as it has the power to enact said law for it was through legislative
fiat that the Judiciary Development Fund (JDF) and the Special
Allowance for Judges and Justices (SAJJ), the funding of which
are sourced from the fees collected by the courts, were created.
Thus, Congress further argues that if it can enact a law utilizing
court fees to fund the JDF and SAJJ, a fortiori it can enact a law
exempting the payment of court fees.
Discuss the constitutionality of the said law, taking into account
the arguments of both parties? (4%) ‘14 - Q27
!11
The law is unconstitutional. The Constitution has taken away the power
of Congress to repeal, alter, or supplement the Rule of Court. The
fiscal autonomy of the Judiciary guaranteed by Section 3, Article VIII of
the Constitution recognized the authority of the Supreme Court to levy,
assess, and collect fees. Congress cannot amend the rules promulgat-
ed by the Supreme Court for the payment of legal fees by granting
exemptions (in re Petition for Recognition of Exemption of the Gov-
ernment Service insurance System from payment of Legal Fees, A.M.
No. 08-2-01-0, February 11, 2010, 612 SCRA 193; In re Exemption of
National Power Corporation from Payment of Filing/Docket Fees, A.M.
No. 05-10-20-SC, March 10, 2010, 615 SCRA 1; In re Exemption from
Payment of Court and Sheriff’s Fees of Duly Registered Cooperatives,
A.M. No. 12-2-03-0, March 13, 2012, 668 SCRA 1).
In the last quarter of 2013, about 5000 container vans of imported
goods intended for the Christmas Season was seized by the
agents of the Bureau of Customs. The imported goods were re-
leased only on January 10, 2013. A group of importers got togeth-
er and filed an action for damages before the Regional Trial Court
of Manila against the Department of Finance and the Bureau of
Customs.
The Bureau of Customs raised the defense of immunity from suit,
and alternatively, that liability should lie with XYZ Corp. which the
Bureau had contracted for the lease of ten (10) high-powered van
cranes but delivered only five (5) of these cranes, thus causing
the delay in its cargo-handling operations. It appears that the
Bureau, despite demand, did not pay XYZ Corp. the Php1Million
deposit and advance required under their contract.
(A) Will the action by the group of imposters prosper? (5%)
‘13 - Q1a
No, the action of the group of importers will not prosper. The primary
function of the Bureau of Customs is governmental, that of assessing
and collecting lawful revenues from imported articles and all other tariff
and customs duties, fees, charges, fines and penalties (Mobil Philip-
pines Exploration, Inc. v. Customs Arrastre Service, G.R. No. L-23139,
December 17, 1966, 18 SCRA 120).
(B) Can XYZ Corp. sue the Bureau of Customs to collect
rentals for the delivered cranes?(5%) ‘13 - Q1b
No, the XYZ Corporation cannot sue the Bureau of Customs to collect
rentals for the delivered cranes. The contract was a necessary incident
to the performance of its governmental function. To properly collect the
revenues and customs duties, the Bureau of Customs must check to
determine if the declaration of the importers tallies with the landed
merchandise. The cranes are needed to haul the landed merchandise
to a suitable place for inspection (Mobil Philippines Exploration, Inc. v.
Customs Arrastre Service, G.R. No. L-23139, December 17, 1966, 18
SCRA 1120).
ALTERNATIVE ANSWER:
No, XYZ Corporation cannot sue the Bureau of Customs, because it
has no juridical personality separate from that of the Republic of the
Philippines (Mobil Philippines Exploration, Inc. v. Customs Arrastre
Service, G.R. No. L-23139, December 17, 1966, 18 SCRA 1120).
ANOTHER ALTERNATIVE ANSWER:
No, the XYZ Corporation may sue the Bureau of Customs because the
contract is connected with a proprietary function, the operation of the
arrastre service (Philippine Refining Company v. Court of Appeals, 256
 The Sigma Rho Fraternity
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SCRA 667, May 8 1996). Besides, XYZ Corporation leased its van
cranes, because the Bureau of Customs undertook to pay its rentals.
Justice and equity demand that the Bureau of Customs should not be
allowed to invoke state immunity from suit (Republic v. Unimex-Micro
Electronics GmBH, G.R. No. 166309-10, November 25, 2008, 518
SCRA 19).
While Congress was in session, the President appointed eight
Acting Secretaries. A group of Senators from the minority bloc
questioned the validity of the appointments in a petition before
the Supreme Court on the ground that while Congress is in ses-
sion, no appointment requires confirmation by the Commission
on Appointments, can be made without the latter’s consent, and
that an undersecretary should instead be designated as Acting
Secretary.
Should the petition be granted? (5%) ‘13 - Q2
No, the petition should not be granted. The Department Head is an
alter ego of the President and must enjoy his confidence even if the
appointment will be merely temporary. The Senators cannot require the
President to designate an Undersecretary to be the temporary alter
ego of the President (Pimentel, Jr. v. Ermita, G.R. No. 164978, October
13, 2005, 472 SCRA 587).
Congress enacted a law providing for trial by jury for those
charged with crimes or offenses punishable by reclusion perpet-
ua or life imprisonment. The law provides for the qualifications of
members of the jury, the guidelines for the bar and bench for their
selection, the manner a trial by jury shall operate, and the proce-
dures to be followed.
Is the law constitutional? (6%) ‘13 - Q4
The law providing for trial by jury is unconstitutional because of the
omission of in Article VIII, Section 5(5) of the 1987 Constitution of the
provisions of Article VIII, Section 13 of the 1935 Constitution and Article
X, Section 5(5) of the 1973 Constitution, which both authorized the
Legislature to repeal, alter or supplement the rules of procedure pro-
mulgated by the Supreme Court. Congress can no longer enact any
law governing rules of procedure for the courts (Echegaray v. Secre-
tary of Justice, G.R. No. 132601, October 12, 1998, 301 SCRA 96).
ALTERNATIVE ANSWER:
The law is valid, because of the grant of a right to trial by jury involves
a substantive law and is within the competence of Congress (Article
VII, Section 5(5) of the 1987 Constitution).
Bobby, an incoming third-year college student, was denied ad-
mission by his university, a premiere educational institution in
Manila, after he failed three (3) major subjects in his sophomore
year. The denial of admission was based on the university’s
school rules and policies.
Unable to cope up with the depression that his non-admission
triggered, Bobby committed suicide. His family sued the school
for damages, citing the school’s grossly unreasonable rules that
resulted in the denial of admission. They argued that these rules
violated Bobby’s human rights and the priority consideration that
the Constitution gives to the education of the youth.
You are counsel for the University. Explain your arguments in
support of the university’s case. (6%) ‘13 - Q8
!12
I shall argue that under Article XIV, Section 5(2), of the 1987 Constitu-
tion enjoys academic freedom. Academic freedom includes its rights to
prescribe academic standards, policies and qualifications for the ad-
mission of a student (University of San Agustin Inc. v. Court of Appeals,
G.R. No. 100588, March 7,1994,230 SCRA 761).
In the May 2013 elections, the Allied Workers’ Group of the Philip-
pines (AWGP), representing land based workers in the Philippines
and overseas, won in the party-list congressional elections. Atty.
Abling, a labor lawyer, is its nominee.
As part of the party’s advocacy and services, Congressman
Abling engages in labor counseling, particularly for local workers
with claims against their employers and for those who need rep-
resentation in collective, bargaining negotiations with employers.
With labor cases arise, AWGP enters its appearance in represen-
tation of the workers and the Congressman makes it a point to be
there to accompany the workers, although a retained counsel also
formally enters his appearance and is invariably there. Con-
gressman Abling largely takes a passive role in the proceedings
although he occasionally speaks to supplement the retained
counsel’s statements. It is otherwise in CBA negotiations where
he actively participates.
Management lawyers, feeling that a congressman should not ac-
tively participate in cases before labor tribunals and before em-
ployers because of the influence a congressman can wield, filed a
disbarment case against the Congressman before the Supreme
Court for his violation of the Code of Professional Responsibility
and for breach of trust , in relation particularly with the prohibi-
tions on legislators under the Constitution.
Is the cited ground for disbarment meritorious? (6%) ‘13 - Q12
Being a congressman, Atty. Abling is disqualified under Article VI, Sec-
tion 14, of the 1987 Constitution from personally appearing as counsel
before quasi-judicial and other administrative bodies. His speaking for
workers before administrative bodies handling labor cases constitutes
personal appearance before them (Puyat v. De Guzman, G.R. No.
L-5122, March 25, 1982, 1135 SCRA 33). His involvement in collective
bargaining negotiations also involves the practice of law, because he is
making use of his legal knowledge for the benefit of others (Cayetano
v. Monsod, G.R. No. 100113, September 3, 1991, 201 SCRA 210). The
Bureau of Labor Relations is involved in the collective bargaining nego-
tiations. (Article 250 of the Labor Code).
Atty. Abling should not be disbarred but should merely be suspended
from the practice of law. Suspension is the appropriate penalty for
involvement in the unlawful practice of law (Tapay v. Bancolo, A.C. No.
9604, March 20, 2013, 694 SCRA 1).
ALTERNATIVE ANSWER:


No, Atty. Abling cannot be disbarred. A retained counsel formally ap-
pears for AWGP. His role is largely passive and cannot be considered
as personal appearance. His participation in the collective bargaining
negotiations does not entail personal appearance before an adminis-
trative body (Article VI, Section 13 of the 1987 Constitution).
d) What is judicial power? Explain briefly. (2%). ‘12 - Q4d
Judicial power- Sec. 1 (1) Art. 8 is the authority to settle justifiable con-
troversies or disputes involving rights that are enforceable and de-
mandable before the courts of justice or the redress of wrongs for vio-
lation of such rights. (Lopez vs. Roxas, 17 SCRA 7561) It includes the
 The Sigma Rho Fraternity
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duty of the courts 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. (Section 1, Article VIII of Constitution.)
Constitutionality of law filed by a representative which benefitted
her co-party representative’s industrial estate. ’10 – Q5
The law is constitutional.
Sec. 12, Art. VI of the Constitution does not prohibit the enact-
ment of a law which will benefit the business interests of a member of
the Senate or the House of Representatives. It only requires that if the
member of Congress whose business interests will be benefitted by
the law is the one who will file the bill, he should notify the House con-
cerned of the potential conflict of interest.
Constitutionality of law which gave the Joint-Congressional
Oversight Committee authority to screen the list of beneficiary
families initially determined by the DSWD in a conditional cash
transfer program of the government. ’10 – Q5
On the assumption that Mang Pandoy is a beneficiary of the fi-
nancial legal assistance. He may be prejudiced by the improper
screening of the beneficiary families (Province of Batangas v. Romulo,
492 SCRA 736 [2004]). Besides, since the implementation of the law
will require the expenditure of public funds, as a taxpayer Mang Pan-
doy has legal standing to question the law (Cruz v. Secretary of Envi-
ronment and Natural Resources, 347 SCRA 128 [2000].)
The grant of authority to the Oversight Committee is unconstitu-
tional. It violates the principle of separation of powers. By being in-
volved in the implementation of the law, the Oversight Committee will
be exercising executive power (Abakada Guro Party List v. Purisima,
562 SCRA 251 [2008].)
Proclamation of state of emergency is not sufficient to allow the
President to take over any public utility. ’10 – Q7a
The statement that a proclamation of emergency is sufficient to
allow the President to take over any public utility is false. Since it is an
aspect of emergency powers, in accordance with Section 23(2), Article
VI of the Constitution, there must be a law delegating such power to
the President (David v. Macapagal-Arroyo, 489 SCRA 160 [2006].)
A treaty which provides tax exemption needs no concurrence by a
majority of all the Members of the Congress. ’10 – Q7b
The statement that a treaty which provides tax exemption needs
no concurrence by a majority of all the Members is true. It is only a law,
not a treaty, granting tax exemption which requires the concurrence of
a majority of all the Members of Congress (Section 28(4), Article VI of
the Constitution.) Without respect to its lawful substantive content, a
treaty to be valid, requires concurrence by at least two-thirds of all the
Members of the Senate (Sec. 21, Article VI of the Constitution).
Presidential Communications Privilege and Deliberative Process
Privilege; Distinction. ’10 – Q8
Presidential communications privilege applies to decision-making
of the President. The deliberative process privilege applies to decision-
making of executive officials. Unlike the “deliberative process
privilege,” “the presidential communications privilege applies to docu-
ments in their entirety and covers final and post-decisional matters, as
well as pre-deliberative ones. The deliberative process privilege in-
cludes advisory opinions, recommendation and deliberations compris-
ing part of a process by which governmental decisions and policies are
formulated (Neri v. Senate Committee on Accountability of Public Offi-
cers and Investigations, 549 SCRA 77 [2008].)
Power of President to prevent entry of aliens. ’10 – Q9
The argument of Central Luzon State University is not valid.
Since an alien has no right to enter the Philippines, preventing
Sing Kui from entering the Philippines is not a violation of his rights
!13
(Lee and Quigley, Consular Law and Practice, 3rd ed., p. 220.) Since
the President has the power of control over foreign relations, he has
the power to ban aliens from entering the Philippines (United States v.
Curtiss-Wright Export Corp., 299 U.S. 304 [1936].)
Defense of Executive Privilege by a Division Chief of the DBM and
Secretary of DBM in refusing to testify in a House inquiry in aid of
legislation; Sanctions. ’10 – Q18
X may be compelled to appear and testify. Only the President or
the Executive Secretary by order of the President can invoke executive
privilege (Senate of the Philippines v. Ermita, 488 SCRA 13 [2006].) He
can be cited for contempt and ordered to be arrested (De le Paz v.
Senate Committee on Foreign Relations, 579 SCRA 521 [2009].)
Likewise, the Secretary of Budget and Management is not shield-
ed by executive privilege from responding to the inquiries of the House
Committee on Appropriations, because the inquiry is in aid of legisla-
tion and neither the President nor the Executive Secretary by order of
the President can invoke executive privilege (Senate of the Philippines
v. Ermita, 488 SCRA 13 [2006].) For refusing to testify, he may be cited
for contempt and ordered to be arrested (De le Paz v. Senate Commit-
tee on Foreign Relations, 579 SCRA 521 [2009].)
Doctrine of Operative Facts; definition. ’10 - Q20a
The doctrine of operative facts means that before a law is de-
clared unconstitutional, its actual existence must be taken into account
and whatever was done while the law was in operation should be rec-
ognized as valid (Rieta v. People, 436 SCRA 273 [2004].)
Doctrine of Necessary Implication; Definition. ’10 – Q20d
The doctrine of necessary implication means that every statute is
understood by implication to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make effective
rights, powers, privileges or jurisdiction which it grants, including all
such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms (Pepsi-Cola Products Philippines, Inc.
v. Secretary of Labor, 312 SCRA 104 [1999].)
Rotational Scheme of Appointments in COMELEC; Other Consti-
tutional Offices where scheme applicable. ’10 – Q25; ’99 – Q13
The rotational scheme of appointments in the Commission on
Elections refers to the scheme in which there is a regular recurrence of
a two-year interval between the expiration of terms of the Chairman
and the Commissioners (Gaminde v. Commission on Audit, 347 SCRA
655 [2000].)
The two (2) conditions for the workability of the rotational scheme
of appointments are the following: (1) the terms of the first Chairman
and Commissioners should start on a common date, irrespective of
variation of dates of their appointments and qualifications, and (2) any
vacancy due to the death, resignation or disability before expiration of
the term should be filled only for the unexpired balance of the term
(Gaminde v. Commission on Audit, 347 SCRA 655 [2000].)
The rotational scheme of appointments applies also to the Judicial
and Bar Council, the Civil Service Commission and the Commission on
Audit (Section 9(2), Article VIII, Section 1(2), Article IX-B and Section
1(2), Article IX-D of the Constitution.)
Pocket veto and Item veto; distinction. ’10-Q26
A pocket veto is when the President is considered to have reject-
ed the bill submitted to him for his approval when Congress adjourns
during the period given to the President to approve or reject the bill.
On the other hand, an item veto, or partial veto, is the power of
the President to nullify or cancel specific provisions of a bill, usually a
budget appropriations bill, without vetoing the entire legislative pack-
age.
Congress may adopt a new national anthem, but is shall take ef-
fect only upon ratification by the people in a national referendum.
(Section 2, Article XVI of the Constitution). ’09 – Q1a
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A law which makes military service for women voluntary is un-
constitutional. ’09 - Q1c
In the defense of the state, all citizens may be required by law to
render personal, military or civil service (Section 4, Article II of the
Constitution). The duty is imposed on all citizens without distinction as
to gender.
A law fixing the passing grade in the Bar examinations at 70%,
with no grade lower than 40% in any subject, is unconstitutional.
’09 – Q1d
Such a law entails amendment of the Rules of Court promulgated
by the Supreme Court. The present Constitution has taken away the
power of Congress to alter the Rules of Court (Echegaray v. Secretary
of Justice, 301 SCRA 96 [1999].) The law will violate the principle of
separation of powers.
An educational institution 100% foreign-owned may be validly
established in the Philippines. ’09 – Q1e
An education institution which is 100% foreign-owned may be
established in the Philippines if it established by religious groups and
mission boards (Section 4(2), Article XIV of the Constitution).
Police Power; Constitutionality of Congress enacting a law which
absolutely prohibits all forms of gambling. ’09 – Q5a
The law absolutely prohibiting all forms of gambling is a valid
exercise of police power, because it is an evil that undermines the
social, moral and economic growth of the nation (People v. Punto, 68
Phil. 481 1939].)
Taxation; Constitutionality of law imposing a tax of 30% on all
winnings from gambling. ’09 – Q5b
A tax of 30% on winnings from gambling does not violate due
process as to the reasonableness of the rate of the tax imposed. Taxes
on non-useful enterprise may be increased to restrain the number of
persons who might engage in it (Ermita-Malate Hotel and Motel Opera-
tors Association, Inc. v. City Mayor of Manila, 20 SCRA 849 [1967].)
Taxes may be imposed for the attainment of the objective of police
power (Lutz v. Araneta, 98 Phil. 148 [1955].)
Inquiry in aid of legislation; tenability of argument that since the
subject of the legislation is also the subject of criminal and civil
actions pending in the courts and the prosecutor’s office, thus
the legislative inquiry would pre-empt judicial action. ’09 – Q8a
The argument is not tenable; since this is an essential component
of legislative power, it cannot be made subordinate to criminal and civil
actions. Otherwise, it would be very easy to subvert any investigation
in aid of legislation through the convenient ploy of instituting criminal
and civil actions (Standard Chartered Bank [Philippine Branch] v. Sen-
ate Committee on Banks, Financial Institutions and Currencies, 541
SCRA 456 [2007].)
Refusal to testify at the inquiry on the grounds that it will violate
their right against self-incrimination. ’09 – Q8b
The argument is untenable. Since IUB officials were not being
subjected to a criminal penalty, they cannot invoke their right against
self-incrimination unless a question calling for an incriminating answer
is propounded (Standard Chartered Bank [Philippine Branch] v. Senate
Committee on Banks, Financial Institutions and Currencies, 541 SCRA
456 [2007].)
The Governor of the BSP cannot validly invoke executive privilege
in refusing to attend the legislative inquiry. ’09 – Q8c
The power to invoke executive privilege is limited to the president
(Senate of the Philippines v. Ermita, 488 SCRA 1 [2006].)
!14
A natural-born Filipino who lost his Filipino citizenship and sub-
sequently reacquired Filipino citizenship through repatriation is a
natural-born citizenship; Effect of his reacquisition as to the citi-
zenship of his American wife and three children. ’09 – Q9; ’03 –
Q4b; ’02 – Q1
Warlito is a natural-born Filipino citizenship. Repatriation of Fil-
ipinos results in the recovery of the original nationality. Since Warlito
was a natural-born citizen before he lost his Filipino citizenship, he was
restored to his former status as a natural-born Filipino citizen (Bengzon
v. House of Representatives Electoral Tribunal, 357 SCRA 545 [2001];
R.A. No. 2630.)
However, his wife Shirley will not become a Filipino citizen. Un-
der R.A. No. 9225, Warlito’s reacquisition of Philippine citizenship did
not extend its benefits to Shirley. She should instead file with the Bu-
reau of Immigration a petition for the cancellation of her alien certificate
of registration on the ground that in accordance with Section 15 of the
Naturalization Law, because of her marriage to Warlito, she should be
deemed to become a Filipino citizen. She must allege and prove that
she possesses none of the disqualifications to become a naturalized
Filipino citizen (Burca v. Republic, 51 SCRA 248 [1973].)
Under Section 18 of R.A. No. 9225, only the unmarried children
who are below eighteen years of age of those who reacquire Philippine
citizenship shall be deemed Filipino citizens. Thus, only Luisa, who is
seventeen years old, became a Filipino citizen.
Aliens are not absolutely prohibited from owning private lands in
the Philippines. ’09 – Q11a
Under Section 7, Article XII of the Constitution, aliens may acquire
private lands by hereditary succession. Under Section 8, Article XII of
the Constitution, natural-born Filipino citizens who lost their Filipino
citizenship may be transferees of private land,
The president exercises the power of control over all executive
departments and agencies, including government-owned or con-
trolled corporations. ’09 - Q11c
Under Section 18, Article VII of the Constitution, the President has
control of all executive departments, bureaus and offices. His power of
control extends to agencies with respect to their administrative func-
tions, even if they are performing quasi-judicial functions (Cruz v. Sec-
retary of Environment and Natural Resources, 347 SCRA 128 [2000])
and to government-owned or controlled corporations (National Market-
ing Corp. v. Arca, 29 SCRA 648 [1969].)
Dual citizenship is not the same as dual allegiance. ’09 – Q11e
Dual citizenship arises when, as a result of the concurrent appli-
cation of the different laws of two or more states, a person is simulta-
neously considered a national by those states and is involuntary.
Dual allegiance refers to the situation in which a person simulta-
neously owes by some positive and voluntary act, loyalty to two or
more states (Mercado v. Manzano, 307 SCRA 630 [1999].)
Defense in an action for expropriation by the Sangguniang Pan-
glungsod of a commercial lot the purpose of distribution at cost
to qualified city residents. ’09 – Q17a
I will raise the defense that the selection of lot to be expropriated
violates due process, because it is arbitrary. Since it is devoted to
commercial use, the beneficiaries of the expropriation will not settle
there and will instead merely lease out or resell the lot for a profit
(Manotok v. National Housing Authority, 150 SCRA 89 [1987].)
Mere delay in payment of just compensation will not entitle the
owner of the expropriated property to recover the land. ’09 – Q17b
The mere delay in the payment of the just compensation will
not entitle the Filipinas Computer Corporation to recover the property.
Instead, legal interest on the just compensation should be
paid (National Power Corp. v. Henson, 300 SCRA 751 [1998].) Howev-
er, if payment was not made within five (5) years from the finality of
judgment in the expropriation case, Filipinas Corporation can recover
 The Sigma Rho Fraternity
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the property. To be just, the compensation must be paid within a rea-
sonable time (Republic v. Lim, 462 SCRA 265 [2005].)
Owner of expropriated property can legally demand to repurchase
the property if the lot was expropriated with the condition that it
can only be used for low-cost housing and such purpose was
abandoned. ’09 – Q17c
If the lot was expropriated with the condition that it can be used
only for low-cost housing, it should be returned to Filipinas Computer
Corporation upon abandonment of the purpose (Heirs of Timoteo
Moreno v. Mactan-Cebu International Airport Authority, 413 SCRA 502
[2003].)
Elements of a petition for a people’s initiative to amend the 1987
Constitution. ’09 – Q18
The elements of a valid petition for a people’s initiative are the
following:
1. At least twelve per cent (12% ) of the registered voters, of
which every legislative district must be represented by at
least three per cent (3%) of the registered voters in it, should
directly sign the entire proposal; and
2. The draft of the proposed amendment must be embodied in
the petition (Lambino v. Commission on Elections, 505
SCRA 160 [2006].)
Power of eminent domain of the NHA; propriety of expropriating a
property previously excluded for not posing a blight or health
problem. ’08 - Q4
The power of the National Housing Authority is a delegated power
of eminent domain, strictly construed against its holder and limited to
the public purpose of redevelopment of slum areas. The expropriation
of a property already previously excluded for not posing a blight or
health problem lacks public purpose and exceeds the delegated power
of NHA.
The power of expropriation cannot be used to benefit private par-
ties (Pascual v. Secretary, No. L-10495, 29 December 1960.) In this
case, the main beneficiary of would be the private realty company. The
taking of private property and then transferring it to private persons is
not within the power of eminent domain (Heirs of Moreno v. Mactan-
Cebu International Airport Authority, G.R. No. 156273, 9 August 2005.)
Effect of Executive Secretary granting a petition for executive
clemency filed in the OP to a RTC judge who was found by the SC
for serious misconduct and efficiency. ’08 – Q8
The Supreme Court has supervisory jurisdiction over all courts
and personnel thereof (Sec. 5(6), Article VII of the Constitution; Judge
Caoibes v. Ombudsman, G.R. No. 132177, 19 July 2001.) Exercising
clemency over judges disciplined by the Court is a violation of the sep-
aration of powers. Moreover, executive clemency cannot be delegated.
Propriety of congress enacting a law abolishing a GOCC not-
withstanding that its charter has a proviso saying that Congress
may not abolish the corporation until after the completion of its
purpose. ’08 – Q14
Congress may not pass an irrepealable law prohibiting the aboli-
tion of MWWC, because that would diminish the power of future Con-
gresses. The right to create government owned corporations includes
the right to abolish them. Under the facts of the case, the repeal of the
law which is unable to serve its purpose, is not unreasonable.
Constitutionality of a law requiring graduates of public science
high schools henceforth to take up agricultural of mining engi-
neering as their college course as a reaction to the rice shortage
and dearth of mining engineers. ’08 – Q17
The law violates the constitutional provision which states that
“Every citizen has a right to select a profession or course of study,
subject to fair, reasonable and equitable admission and academic re-
quirements” (Section 5(3), Article XIV of the Constitution; DECS v. San
!15
Diego, G.R. No. 89572, 21 December 1989; Lupangco v. CA, G.R. No.
77372, 29 April 1988.)
For purposes of communication and instruction, the official lan-
guages of the Philippines are Filipino, and until otherwise provid-
ed by law, English. ’07 – Q1a
Section 7, Article XIV of the Constitution provides that: “For pur-
poses of communication and instruction, the official language of the
Philippines are Filipino, and until otherwise provided by law, English.”
Filipino is a permanent official language that cannot be otherwise be
changed by law. On the other hand, Congress may change English as
an official language for purposes of communication and instruction.
CHR cannot stop the implementation of an E.O. issued by a city
mayor which prohibits all hospitals operated by the city from pre-
scribing the use of artificial methods of contraception. ’07 – Q2c;
’05 – Q4(1)(b)
The Commission on Human Rights cannot order the City Mayor to
stop the implementation of the Executive Order, because it has no
power to issue writs of injunction, The Commission of Human Rights is
purely investigatory body and does not perform adjudicative functions
(Export Processing Zone Authority v. Commission on Human Rights,
208 SCRA 125 [1992].)
A statement which states that “An amendment to the Constitution
shall be valid upon a vote of three-fourths of all Members of the
Congress” is not valid. ’07 – Q6a
First, an amendment proposed by Congress must be approved by
at least three-fourths (3/4) vote of the Senate and of the House of Rep-
resentatives voting separately. It is inherent in a bicameral legislature
for the two houses to vote separately (II Record of the Constitutional
Commission 493). Second, the amendment shall be valid only when
ratified by a majority of votes case in a plebiscite (Section 4, Article
XVII of the Constitution.
All public officers and employees shall take an oath or affirmation
to uphold and defend this Constitution (Section 4, Article IX-B of
the Constitution.) ’07 – Q6b
Validity of a Department of Education (DepEd) requirement that
any school applying for a tuition fee increase must offer full tu-
ition scholarships to students from low-income families as a con-
dition in granting the increase; What if the DepEd requires a full
tuition scholarship for the highest ranking students in each
grade, determined solely on the bases of academic grades and
rank. ’07 - Q9
The requirement is valid. Under Section 7 of Presidential Decree
No. 451, as a condition to the grant of any increase in tuition, private
schools with a total enrolment of at least 1,000 are required to provide
scholarships to poor but deserving students at the rate of one scholar-
ship for every 500 students enrolled.
However, if the DepEd requires a full tuition scholarship for the
highest ranking students in each grade, determined solely on the
bases of academic grades and rank, the requirement will be void. Un-
der Section 7 of Presidential Decree No. 44, the grant of scholarships
by private schools to the students with scholastic distinctions is left to
the discretion of the private schools.
Formula for allocating seats for party-list representatives based
on (1) the twenty-percent allocation; (2) the two percent thresh-
old; and (3) the three-seat limit; Constitutional and Legal Basis.
’07 – Q10
Answers from UP LAW BOC Political Law Reviewer [2013]:
The combined number of all party-list representatives shall not
exceed 20% of the total membership of the House of Representatives,
including those elected under the party-list.
Only those parties garnering a minimum of 2% of the total votes
cast shall be entitled to one guaranteed seat each. The additional
seats shall be computed in “proportion to their total number of votes.”
 The Sigma Rho Fraternity
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Each party, regardless of the number of votes it actually obtained,
is entitled to a maximum of three seats; one qualifying and 2 additional
seats.
In Barangay Association for National Advancement and Trans-
parency (BANAT) v. Commission on Elections, 592 SCRA 294 [2009],
the Supreme Court said that in computing the allocation of the addi-
tional seats, the continued operation of the 2% threshold for the distri-
bution of the additional seats as found in the second clause of Sec.
11(b) of R.A. No. 7941 which provides that “those garnering more than
2% of the votes shall be entitled to additional seats in proportion to
their total number of votes” is unconstitutional. The 2% threshold frus-
trates the attainment of the permissive ceiling that 20% of the mem-
bers of the House of Representatives shall consist of party-list repre-
sentatives.
[However, in Atong Paglaum v. COMELEC, G.R. No.
203766, April 2, 2013, In the Supreme Court abandoned the criteria for
participating in the party-list system laid down in Ang Bagong Bayani v.
COMELEC (ABB) and BANAT v. COMELEC (BANAT) should be ap-
plied by the COMELEC in the May 2013 elections. adopted new para-
meters for the upcoming elections; thus, it remanded the case to
COMELEC so the latter can determine the status of the petitioners
based on the following new guidelines:
1. Three different groups may participate in the party-list sys-
tem: (1) national parties or organizations, (2) regional parties
or organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or
organizations do not need to organize along sectoral lines
and do not need to represent any “marginalized and under-
represented” sector.
3. 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 inde-
pendent sectoral party, and is linked to a political party
through a coalition.
4. Sectoral parties or organizations may either be “marginalized
and underrepresented” or lacking in “well-defined political
constituencies.” It is enough that their principal advocacy
pertains to the special interest and concerns of their sector.
The sectors that are “marginalized and underrepresented”
include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and overseas
workers. The sectors that lack “well-defined political con-
stituencies” include professionals, the elderly, women, and
the youth.
5. A majority of the members of sectoral parties or organiza-
tions that represent the “marginalized and underrepresented”
must belong to the “marginalized and underrepresented”
sector they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack “well-defined politi-
cal constituencies” must belong to the sector they represent.
The nominees of sectoral parties or organizations that repre-
sent the “marginalized and underrepresented,” or that repre-
sent those who lack “well-defined political constituencies,”
either must belong to their respective sectors, or must have
a track record of advocacy for their respective sectors. The
nominees of national and regional parties or organizations
must be bona-fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall
not be disqualified if some of their nominees are disqualified,
provided that they have at least one nominee who remains
qualified.
According to the Supreme Court, the framers of the Constitution
never intended the party-list system to be reserved for sectoral parties.
The latter were only part of the party-list system not the entirety of it.
There were two more groups composing the system — national and
regional parties. This is evident from the phrasing of Section 5, Article
VI of the Constitution, which states that:
The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed
by law, who shall be elected from legislative districts…and
!16
those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and sectoral
parties or organizations. (emphasis supplied)
National and regional parties are different from sectoral parties
such that the former need not organize along sectoral lines and repre-
sent a particular sector. Hence, it is not necessary for these parties to
be representative of the marginalized and underrepresented. In fact,
Republic Act No. 7941, the enabling law of the party-list elections un-
der the Constitution, does not require these parties to fall under this
criterion. The Supreme Court emphasized that the phrase ‘marginal-
ized and underrepresented’ appeared only once in R.A. No. 7941,
particularly in the Declaration of Policy. The section provides:
The State shall promote proportional representation in the elec-
tion of representatives to the House of Representatives through
a party-list system of registered national, regional and sectoral
parties or organizations or coalitions thereof, which will enable
Filipino citizens belonging to marginalized and underrepre-
sented sectors, organizations and parties, and who lack
well-defined political constituencies but who could con-
tribute to the formulation and enactment of appropriate legisla-
tion that will benefit the nation as a whole, to become members
of the House of Representatives. Towards this end, the State
shall develop and guarantee a full, free and open party system
in order to attain the broadest possible representation of party,
sectoral or group interests in the House of Representatives by
enhancing their chances to compete for and win seats in the
legislature, and shall provided the simplest scheme possible.
The oft-quoted phrase neither appeared in the specific implement-
ing provisions of R.A. No. 7941 nor did it require sectors, organiza-
tions, or parties to fall under the criterion as well. In this regard, how
then should the broad policy declaration in Section 2 of R.A. No. 7941
be harmonized with its specific implementing provisions, bearing in
mind the applicable provisions of the 1987 Constitution on the matter?
The Supreme Court answered in this wise:
The phrase “marginalized and underrepresented” should re-
fer only to the sectors in Section 5 that are, by their nature,
economically “marginalized and underrepresented.” These
sectors are: labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, overseas work-
ers, and other similar sectors. For these sectors, a majority
of the members of the sectoral party must belong to the
“marginalized and underrepresented.” The nominees of the
sectoral party either must belong to the sector, or must
have a track record of advocacy for the sector represent-
ed…
The recognition that national and regional parties, as well as
sectoral parties of professionals, the elderly, women and the
youth, need not be “marginalized and underrepresented” will
allow small ideology-based and cause-oriented parties who
lack “well-defined political constituencies” a chance to win
seats in the House of Representatives. On the other hand,
limiting to the “marginalized and underrepresented” the sec-
toral parties for labor, peasant, fisherfolk, urban poor, indige-
nous cultural communities, handicapped, veterans, overseas
workers, and other sectors that by their nature are economical-
ly at the margins of society, will give the “marginalized and
underrepresented” an opportunity to likewise win seats in the
House of Representatives.
This interpretation will harmonize the 1987 Constitution and
R.A. No. 7941 and will give rise to a multi-party system where
those “marginalized and underrepresented,” both in economic
and ideological status, will have the opportunity to send their
own members to the House of Representatives. This interpreta-
tion will also make the party-list system honest and transparent,
eliminating the need for relatively well-off party-list representa-
tives to masquerade as “wallowing in poverty, destitution and
infirmity,” even as they attend sessions in Congress riding in
SUVs.
Based on the Court’s ratiocination, only sectoral parties for labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, hand-
icapped, veterans, overseas workers, and other sectors that by their
nature are economically at the margins of society must comply with the
criterion of representing the marginalized and underrepresented. For
national, regional, and sectoral parties of professionals, the elderly,
women and the youth, it is sufficient that they consist of “citizens who
 The Sigma Rho Fraternity
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advocate the same ideology or platform, or the same governance prin-
ciples and policies, regardless of their economic status as citizens.”
Consequently, since political parties are essentially national and
regional parties, the Supreme Court categorically stated that they may
participate in the party-list elections. The rules for their participation are
found under guideline number three.]
“Calling-out Power” of the President under Section 18, Article VII
of the Constitution. ’06 – Q1a
The calling-out power of the President refers to the power of the
President to order the armed forces, whenever it becomes necessary,
to suppress lawless violence, invasion or rebellion (David v. Macapa-
gal-Arroyo, 489 SCRA 160 [2006].)
Constitutionality of Proclamation No. 1017 issued by President
Gloria Macapagal-Arroyo declaring a state of national emergency.
’06 – Q1b
Proclamation No. 1017 is constitutional insofar as it called out the
Armed Forces of the Philippines to prevent or suppress all forms of
lawless violence, and any act of insurrection or rebellion because the
finding of the President that there was a plot to overthrow the govern-
ment. It is unconstitutional insofar as it ordered the Armed Forces of
the Philippines to enforce laws even though not related to lawless vio-
lence and all decrees to be issued by the President, and to impose
standards on media or any form of prior restraint on the press, be-
cause the Constitution does not grant these powers to the President.
These powers are reserved to the legislature (David v. Macapagal-
Arroyo, 489 SCRA 160 [2006].)
Legality of arrests made by the police for acts of terrorism during
the effectivity of Proclamation No. 1017. - ’06 – Q1c
The arrest of Gener, Lito and Bong for acts of terrorism is illegal,
because Congress has not yet passed a law punishing acts of terror-
ism and their warrantless arrests have no basis (David v. Macapagal-
Arroyo, 489 SCRA 160 [2006].)
A citizen has standing to question the validity of a Presidential
Proclamation placing the Philippines under Martial Law. ’06 –
Q3(1)
Robert has standing to challenge Proclamation No. 1018, be-
cause any citizen may question the sufficiency of its factual basis (Sec-
tion 18, Article VII of the Constitution.)
President’s determination of whether an exigency has arisen re-
quiring the exercise of this power to declare Martial Law is not
conclusive upon the courts. ’06 – Q3(2)
The Supreme Court should reject the contention of the Solicitor
General. Since the exercise of the power to proclaim martial law is
subject to the condition that there is invasion or rebellion and that pub-
lic safety requires the proclamation, the Supreme Court may inquire
into the sufficiency of the factual basis of Proclamation No. 1018 (Sec-
tion 18, Article VII of the Constitution; Lansang v. Garcia, 42 SCRA 448
[1971].)
The Constitution authorizes the Supreme Court to be a trier of
facts in the determination whether the rebellion poses dangers to
public safety. ’06 – Q3(3)
The Supreme Court should reject the argument of the Solicitor
General. Since the Constitution authorized the Supreme Court to re-
view the sufficiency of the factual basis of Proclamation No. 1018, it
allows the Supreme Court to be a trier of facts in this case (Section 18,
paragraph 3, Article VII of the Constitution.)
Effect of Congress not revoking the proclamation of Martial Law
after the President reported it to Congress to the citizen suit
brought before the Supreme Court. ’06 – Q3(4)
The inaction of Congress does not affect the suit brought by
Robert. The power of the Supreme Court to review the sufficiency of
!17
the factual basis of Proclamation No. 1017 is over and above the pow-
er of Congress to revoke it (Record of the Constitutional Commission,
Vol. II, pp. 493-494.)
A law fixing the term of local elective officials other than barangay
officials, to 6 years is unconstitutional. ’06 – Q4(3)
A law fixing the terms of local officials, other than barangay offi-
cials, at six (6) years is unconstitutional, because the Constitution fixes
the terms of local offices at three (3) years. The Congress may only
determine the terms of barangay officials (Section 8, Article X of the
Constitution.)
A law changing the design of the Philippine flag is unconstitu-
tional. ’06 – Q4(4)
Since the design of the flag is provided for in Section 1, Article
XVI of the Constitution, it cannot be changed by law and may be
changed only by constitutional amendment.
A law creating a state corporation to exploit, develop, and utilize
compressed national gas may be constitutional. ’06 – Q4(5)
A law creating a State corporation to exploit, develop and utilize
compressed natural gas is constitutional if it is for the common good
and is economically viable. Congress may be law create a govern-
ment-owned and controlled corporation in such cases (Section 16,
Article XII of the Constitution.) The State owns all natural resources in
the Philippines and may directly undertake the exploration, develop-
ment and utilization of natural resources (Section 2, Article XII of the
Constitution.)
Function of the Senate Electoral Tribunal and House of Represen-
tatives Electoral Tribunal. ’06 – Q5(1)
The function of the Senate Electoral Tribunal and House of Rep-
resentatives Electoral Tribunal is to be the sole judge of all contests
relating the election, returns and qualifications of Senators and Con-
gressmen respectively (Section 17, Article VI of the Constitution.)
Composition of SET and HRET. ’06 – Q5(1)
The Senate Electoral Tribunal and House of Representatives
Electoral Tribunal are composed of nine member, three of whom are
Justices of the Supreme Court designated by the Chief Justice, and
the remaining six members are Senators and Congressmen respec-
tively, chosen on the basis of proportional representation from the polit-
ical parties as well as parties registered under the party-list system
represented in the House of Representatives, in the case of the latter
(Section 17, Article VI of the Constitution.)
Principal identifying features of presidential and parliamentary
forms of government. ’06 – Q6(1)
The principal identifying feature of a presidential form of govern-
ment is the principle of separation of powers. Legislative power is giv-
en to the legislature, whose member hold office for a fixed term. Exec-
utive power is given to a separate executive, who holds for a fixed
term. Judicial power is given to an independent judiciary. The President
enjoys a prominent position as chief executive (Bernas, The 1987
Constitution of the Republic of the Philippines: A Commentary, 2003
ed., p. 52.)
In a parliamentary form of government, the cabinet, the executive
arm, are simultaneously members of the legislature. The Prime Minis-
ter is the head of the cabinet. The cabinet remains in power only so
long as it enjoys the support of the legislature. The Prime Minister may
be removed on a vote of “no confidence.” The Prime Minister can dis-
solve the legislature and call for new elections. In a parliamentary form
of government, there is fusion of executive and legislative powers
(Bernas, ibid, pp. 52-53.)
Constitutional provisions which institutionalize the principle of
civilian supremacy. ’06 – Q6(2)
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The provisions of the Constitution which institutionalize the princi-
ple of civilian supremacy are Section 3, Article II, which makes civilian
authority supreme at all times over the military, and Section 18, Article
VII, which makes the President the commander-in-chief of the armed
forces of the Philippines
Permit to Carry Firearm Outside Residence (PTCFOR) is not a
property right protected by the Constitution. ’06 – Q6(3)
A permit to carry a firearm outside the residence is not a property
right protected by the Constitution. It is merely a statutory privilege.
The Constitution does not contain a provision similar to the Second
Amendment of United States Constitution, which guarantees the right
to bear arms (Chavez v. Romulo, 431 SCRA 534 [2004].)
Offices which the legislature may validly abolish. ’06 – Q7(2)
The legislature cannot abolish the Commission on Appointments,
the Office of Ombudsman, the Judicial and Bar Council and the Com-
mission on Audit since they are constitutionally-created offices under
the Constitution.
The legislature may abolish the Court of Tax Appeals, because it
was created by R.A. No. 1125, as amended. It is a statutory court. The
authority of the legislature to create the Court of Tax Appeals implies its
authority to abolish it (De La Llana v. Alba, 112 SCRA 294 [1982].)
Whether or not a legitimate daughter of a Chinese father and a
Filipino mother, born in 1945 and elected Philippine citizenship at
age 21, is a natural-born Filipino citizen to be considered as a
candidate for the position of Associate Justice of the Supreme
Court. ’06 – Q8(1)
The contention that Atty. Emily Go is not a natural-born Filipino
citizen is not correct. She was born before January 17, 1973 of a Chi-
nese father and a Filipino mother. She elected Philippine citizenship
when she reached twenty-years of age. Those who elect Philippine-
citizenship under Section 1(3), Article IV of the Constitution are natural-
born citizens.
Whether or not a person who was born in 1964, a legitimate son
of a Chinese father and a Filipino mother and whose father be-
came a naturalized Filipino citizen when he was still a minor, and
later filed an affidavit with the Bureau of Immigration electing
Philippine citizenship, a Filipino citizen in a complaint for disbar-
ment. ’06 – Q8(2)
Atty. William Chua should not be disbarred. In accordance with
Section 15 of the Revised Naturalization Act, he became a naturalized
citizen when his father became a Filipino citizen during his minority.
Hence, there was no need for him to elect Philippine citizenship (Co v.
Electoral Tribunal of the House of Representatives, 199 SCRA 692
[1991].)
Compare and differentiate the processes of Initiative and Refer-
endum. ’05 – Q1a
Initiative is the power of the people to propose amendments to the
Constitution or to propose and enact legislations through an election
called for the purpose (Section 3(a), Republic Act No. 6735.)
Referendum is the power of the electorate to approve or reject
legislation through an election called for that purpose (Section 3(c),
Republic Act No. 6735.)
Bruno’s sentence was conditionally pardoned by the President.
Among the conditions imposed that he would not “again violate
any of the penal laws of the Philippines.” Bruno accepted all of
the conditions and was released. Shortly thereafter, Bruno was
charged with 20 counts of estafa. He was then incarcerated to
serve the unexpired portion of his sentence following the revoca-
tion by the President of the pardon. Bruno’s family filed a petition
for habeas corpus, alleging that it was error to have him recom-
mitted as the charges were false. In fact, half of them were already
dismissed. Resolve the petition. ’05 – Q5(1); ’97 – Q16
!18
The petition for habeas corpus should be denied. Conviction of a
crime is not necessary before the President can determine that Bruno
violated the condition of his pardon. By accepting the terms of the con-
ditional pardon, Bruno agreed that the determination of the President
that he had violated its condition would be conclusive upon him. Thus,
such determination cannot be reviewed by the courts (Torres v. Gonza-
les, 152 SCRA 272 [1987].)
Pedro Masipag filed a complaint with the Ombudsman against
RTC Judge Palacpac with violation of Article 204 of the RPC for
knowingly rendering an unjust judgment in a criminal case. Judge
Palacpac filed a motion with the Ombudsman to refer the com-
plaint to the Supreme Court to determine whether an administra-
tive aspect was involved in said case. The Ombudsman denied
the motion on the ground that no administrative case against
Judge Palacpac relative to the decision in the criminal case was
filed and pending in his office. Is the Ombudsman’s ruling cor-
rect? ’05 – Q5(3)
The ruling of the Ombudsman is not correct. The criminal com-
plaint against Judge Palacpac for knowingly rendering an unjust deci-
sion arises from his administrative duties. The Ombudsman cannot
investigate the complaint, because it will encroach upon the power of
the Supreme Court of administrative supervision over all courts and
their personnel (Section 6, Article VII of the Constitution; Maceda v.
Vasquez, 221 SCRA 464 [1993].)
What is the effect of the addition in the 1987 Constitution of the
following provision: “Judicial power includes 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 grave abuse of discretion amount-
ing to lack or excess of jurisdiction on the part of any part of any
branch or instrumentality of the government”? ’04 – Q1a; ’98 –
Q4(2); ’97 – Q5
The effect of the second paragraph of Section 1, Article VIII of the
1987 Constitution is to limit the resort to the political question doctrine
and to broaden the scope of judicial inquiry into areas which the Judi-
ciary, under the previous Constitutions, would have left to the political
departments decide. If a political question is involved, the Judiciary can
determine whether or not the official whose action is being questioned
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction (Marcos v. Manglapus, 177 SCRA 668 [1989]; Daza v.
Singson, 180 SCRA 496 [1989].)Thus, although the House of Repre-
sentatives Electoral Tribunal has exclusive jurisdiction to decide elec-
tion contests involving members of the House of Representatives, the
Supreme Court nullified the removal of one of its members for voting in
favor of the protestant, who belonged to a different party (Bondoc v.
Pineda, 201 SCRA 792 [1991].)
SDO was elected Congressman. Before the end of his first year in
office, he inflicted physical injuries on a colleague, ETI, in the
course of a heated debate. Charges were filed in court against
him as well as in the House Ethics Committee. Later, the House of
Representatives, dividing along party lines, voted to expel him.
Claiming that his expulsion was railroaded and tainted by bribery,
he filed a petition seeking a declaration by the Supreme Court
that the House gravely abused its discretion and violated the
Constitution. He prayed that his expulsion be annulled and that
he should be restored by the Speaker to his position as Con-
gressman. Is SDO’s petition before the Supreme Court justicia-
ble? ’04 – Q1b
While under Section 1, Article VIII of the 1987 Constitution, the
Supreme Court may inquire whether or not the decision to expel SDO
is tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction, the petition should be dismissed. In Alejandrino v. Quezon,
46 Phil. 83 [1924], the Supreme Court held that it could not compel
another Senator to reinstate a Senator who assaulted another Senator
and was suspended for disorderly behavior, because it could not com-
pel a separate and co-equal department to take any particular action.
In Osmeña v. Pendatun, 109 Phil. 863 [1960], it was held that the
Supreme Court could not interfere with the suspension of a Congress-
man for disorderly behaviour, because the House of Representatives is
 The Sigma Rho Fraternity
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the judge that constitutes disorderly behavior. The assault of a fellow
Senator constitutes disorderly behavior.
TCA, a Filipina medical technologist, left in 1975 to work in ZOZ
State. In 1988, she married ODH, a citizen of ZOZ. Pursuant to
ZOZ’s law, by taking an oath of allegiance, she acquired her hus-
band’s citizenship. ODH died in 2001. TCA returned home in 2002
and sought elective office in 2004 by running for Mayor of APP,
her hometown. Her opponent sought to have her disqualified be-
cause of her ZOZ citizenship. She replied that although she ac-
quired ZOZ’s citizenship because of marriage, she did not lose
her Filipino citizenship. Both her parents, she said, are Filipino
citizens. Is TCA qualified to run for Mayor? ’04 – Q4a
On the assumption that TCA took an oath of allegiance to ZOZ
to acquire citizenship of her husband, she is not qualified to run for
mayor. She did not become a citizen of ZOZ merely by virtue of her
marriage; she also took an oath of allegiance to ZOZ. By this act, she
lost her Philippine citizenship (Section 1(3), Commonwealth Act No.
63.)
An amendment to or a revision of the present Constitution may be
proposed by a Constitutional Convention or by the Congress
upon a vote of three-fourths of all its members. Is there a third
way of proposing revisions of or amendments? If so, how? ‘04 –
Q4b
There is no third way of proposing revisions to the Constitution;
however, the people through initiative of at least twelve per cent (12%)
of the total number of registered voters, of which every legislative dis-
trict must be represented by at least three per cent (3%) of the regis-
tered voters in it, may directly propose amendments to the Constitu-
tion. This right is not operative without an implementing law (Section 2,
Article XVII of the Constitution; Lambino vs. Commission on Elections,
505 SCRA 160 [2006].)
EAP is a government corporation created for the purpose of re-
claiming lands, including foreshore and submerged areas, as well
as to develop, improve, acquire, lease and sell any and all kinds
of lands. A law was passed transferring title to EAP of lands al-
ready reclaimed in the foreshore and offshore areas of MM Bay,
particularly the so-called Liberty Islands, as alienable and dispos-
able lands of the public domain. Titles were duly issued in EAP’s
name. Subsequently, EAP entered in to a joint venture agreement
(JVA) with ARI, a private foreign corporation to develop Liberty
Islands. Additionally, the JVA provided for the reclamation of 250
hectares of submerged land in the area surrounding Liberty Is-
lands. EAP agreed to sell and transfer to ARI a portion of Liberty
Islands and a portion of the area to be reclaimed as the consider-
ation for ARI’s role and participation in the joint venture, upon
approval by the Office of the President. Is there any constitutional
obstacle to the sale and transfer to the sale and transfer by EAP
to ARI of both portions as provided for in the JVA? ’04 – Q8b
ARI cannot acquire a portion of Liberty Islands, although EAP has
titled to Liberty Islands and thus such lands are alienable and dispos-
able land, they cannot be sold, only leased, to private corporations.
The portion of the area to be reclaimed cannot be sold and transferred
to ARI because the seabed is inalienable land of the public domain
(Section 3, Article XII of the Constitution; Chavez v. Public Estates
Authority, 384 SCRA 152 [2002].)
Section 3, Article II of the 1987 Constitution expresses, in part,
that the “Armed Forces of the Philippines is the protector of the
people and (of) the State.” Describe briefly what this provision
means. Is the Philippine National Police covered by the same
mandate? ’03 – Q1a
Section 3, Article II of the Constitution means that the Armed
Forces of the Philippines should not serve the interest of the President
but of the people and should not commit abuses against the people
(Record of the Constitutional Commission, Vol. V., p. 133.) This provi-
sion is specifically addressed to the Armed Forces of the Philippines
and not to the Philippine National Police, because the latter is separate
!19
and distinct from the former people (Record of the Constitutional
Commission, Vol. V., p. 296; Manalo v. Sistoza, 312 SCRA 239 [1999].)
Miguel Sin was born a year ago to a Chinese father and a Filipino
mother. His parents met in Shanghai where they were lawfully
married just two years ago. Is Miguel Sin a Filipino citizen? ’03 –
Q4a
Miguel Sin is a Filipino citizen because he is a legitimate child of a
Filipino mother. Under Section 4, Article IV of the Constitution, his
mother retained her Filipino citizenship despite her marriage to an alien
husband, and according to Section 1(2), Article IV of the Constitution,
children born of a Filipino mother are Filipino citizens.
The instant case arose from complaints filed by a group of em-
ployees of the Province of Iloilo against Representative Valera,
then Provincial Governor for alleged violation of the Anti-Graft
and Corrupt Practices Act. The Sandiganbayan resolved to sus-
pend Valera from his position as Member of the House of Repre-
sentatives and from any other government position he may be
holding at present or hereafter. He assails the authority of the
Sandiganbayan to decree a ninety-day preventive suspension
against him. He contends that under Section 16(3), Article VI of
the Constitution, he can only be suspended only by the House of
Representatives and that the criminal case against him did not
arise from his actuations as a member of the House of Represen-
tatives. Is Representative Valera’s contention correct? ’02 – Q2
The contention of Representative Valera is not correct. As held in
Santiago v. Sandiganbayan, 356 SCRA 636 [2001], the suspension
contemplated in Section 16(3), Article VI of the Constitution is a pun-
ishment that is imposed by the Senate or the House of Representa-
tives against an erring member. It is distinct from the suspension under
Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a
penalty but a preventive measure. Since Section 13 of the Anti-Graft
and Corrupt Practices Act does not state that the public officer must be
suspended only in the office where he is alleged to have committed the
acts which he has been charged, it applies to any office which he may
be holding.
Suppose there are 202 members in the House of Representatives.
Of this number, 185 belong to the Progressive Political Party
(PPP), while 17 belong to the Citizens Party (CP).
1. How many seats would the PPP be entitled to have in
the Commission on Appointments?
The 185 members of the Progressive Party of the Philippines
(PPP) represent 91.58% of the 202 members of the House of Repre-
sentatives. In accordance with Section 18, Article VI of the Constitu-
tion, it is entitled to have ten of the twelve seats in the Commission of
Appointments. Although the 185 members of the PPP represent
91.58% in the Commission on Appointments, under the ruling in
Guingona, Jr. v. Gonzales, 214 SCRA 789 [1992], a fractional mem-
bership cannot be rounded off to full membership because it will result
in over-representation of that political party and under-representation
of the other political parties.
2. Suppose 15 of the CP representatives, while maintaining
their party affiliation, entered into a political alliance
with the PPP in order to form the “Rainbow Coalition” in
the House. What effect, if any would this have on the
right of CP to have a seat or seat in the Commission on
Appointments? ’02 – Q3
The political alliance formed by the 15 members of the Citizens
Party with the Progressive Party of the Philippines will not result in the
diminution of the number of seats in the Commission on Appointments
to which the Citizens Party is entitled. As held in Cunanan v. Tan, 5
SCRA 1 [1962], a temporary alliance between members of one political
party and another political party does not authorize a change of mem-
bership of the Commission on Appointments. Otherwise, the Commis-
sion on Appointments will have to be reorganized as often as votes
shift from one side to another in the House of Representatives.
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In an election case, the HRET rendered a decision upholding the
protest of protestant A, a member of the Freedom Party, against
B, a member of the Federal Party. The deciding vote in favor of A
was cast by Representative X, a member of the Federal Party. For
having voted against his party-mate, Representative X was re-
moved by Resolution of the House of Representatives, at the in-
stance of his party (Federal Party), from membership in the HRET.
Representative X protested his removal on the ground that he
voted on the basis of the evidence presented and contended that
he had security of tenure as a HRET member and he cannot be
removed except for a valid cause. With whose contention do you
agree, that of the Federal Party or that of Representative X? ’02 –
Q4
I agree with the contention of Representative X. As held in Bon-
doc v. Pineda, 201 SCRA 792 [19991], the members of the House of
Representatives Tribunal are entitled to security of tenure like mem-
bers of the judiciary. Membership may not be terminated except for a
just cause. Disloyalty to a party is not a valid ground for the expulsion
of a member of the House of Representatives Electoral Tribunal. Its
members must discharge their functions with impartiality and indepen-
dence from the political party to which they belong.
This is a case questioning the constitutionality and legality of the
permanent appointments issued by a former President to the re-
spondent senior officers of the Philippine National Police who
were promoted to the ranks of Chief Superintendent and Director
without their appointments submitted to the Commission on Ap-
pointments for confirmation under Section 16, Article VII of the
1987 Constitution and Republic Act 6975 otherwise known as the
Local Government Act of 1990. Impleaded in the case was the
former Secretary of Budget and Management, who approved and
effected the disbursements for the salaries and other emoluments
of subject police officers. ’02 – Q5
The appointments of Matapang and Mahigpit are valid even if
they were not confirmed by the Commission on Appointments, be-
cause they are not among the public officials whose appointments are
required to be confirmed by the first sentence of Section 16, Article VII
of the Constitution. According to Manalo v. Sistoza, 312 SCRA 239
[1999], Sections 26 and 31 of Republic Act No. 6975 are unconstitu-
tional because Congress cannot by law expand the list of public offi-
cials required to be confirmed by the Commission on Appointments.
Since the appointments of Matapang and Mahigpit are valid, the dis-
bursements of their salaries and emoluments are valid.
A, a Filipino citizen, and his wife B, a Japanese national, bought a
five-hectare agricultural land from X, a Filipino citizen. The couple
later executed a deed of donation over the same land in favor of
their only child C. A year later, however, C did in a vehicular acci-
dent without leaving a last will and testament. Now, X brought suit
to recover the land on the ground that B, being an alien, was not
qualified to buy the land when B and A jointly bought the land
from him and that, upon death of C, the land was inherited by his
parents but B cannot legally acquire and/or inherit it. How should
the case be decided? If X filed the suit against C when the latter
was still alive, would your answer be the same? ’02 – Q9
X cannot recover the land whether from C or A and B. Under Sec-
tion 1(2), Article IV of the Constitution, C is a Filipino citizen since his
father is a Filipino. When A and B donated the land to C, it became a
property of a Filipino citizen. As held in Halili v. Court of Appeals, 287
SCRA 465 [1998], the sale of land to an alien can no longer be an-
nulled if it has been conveyed to a Filipino citizen. Since C left no will
and his parents are his heirs, in accordance with Section 7, Section XII
of the Constitution, B can acquire the land by hereditary succession.
From mainland China where he was born of Chinese parents, Mr.
Nya Tsa Chan migrated to the Philippines in 1894. As of April 11,
1899, he was already a permanent resident of the Philippine Is-
lands and continued to reside in this country until his death. Dur-
ing his lifetime and when he was already in the Philippines, Mr.
Nya Tsa Chan married Charing, a Filipina, with whom a begot one
son, Hap Chan, who was born on October 18, 1897. Hap Chan got
married also to Nimfa, a Filipina, and one of their children was
!20
Lacqui Chan who was born on September 27, 1936. Lacqui Chan
finished the course of Commerce and eventually engaged in
business. In the May 1989 election, Lacqui Chan ran for and was
elected Representative. His rival candidate filed a quo warranto or
disqualification case against him on the ground that he was not a
Filipino citizen. It was pointed out in particular, that Lacqui Chan
did not elect Philippine citizenship upon reaching the age of 21.
Decide whether or not Mr. Lacqui Chan suffers from a disqualifi-
cation or not. ’01 – Q1
Lacqui Chan is a Filipino citizen and need not elect Philippine
citizenship. His father, Hap Chan was a Spanish subject, was residing
in the Philippines on April 11, 1989, and continued to reside in the
Philippines. In accordance with Section 4 of the Philippine Bill of 1902,
he was a Filipino citizen. Hence, in accordance with Section 1(3) of the
1935 Constitution, Lacqui Chan is a natural born Filipino citizen, since
his father was Filipino citizen.
The Republic of the Philippines, through the DPWH, constructed a
new highway linking Metro Manila and Quezon province, and
which major thoroughfare traversed the land owned by Mang
Pandoy. The government neither filed any expropriation proceed-
ings nor paid any compensation to Mang Pandoy for the land thus
taken and used as a public road. Mang Pandoy filed a suit against
the government to compel payment for the value of his land. The
DPWH filed a motion to dismiss the case on the ground that the
State is immune from suit. Resolve the motion. ’01 – Q3
The motion to dismiss should be denied. As held in Amigable v.
Cuenca, 43 SCRA 300 [1972], when the Government expropriates
private property without paying compensation, it is deemed to have
waived its immunity from suit. Otherwise, the constitutional guarantee
that private property shall not be taken for public use without payment
of just compensation will be rendered nugatory.
Can an alien be a lessee of a private agricultural land? ’01 – Q4a
Yes, an alien can be a lessee of private agricultural land. As stat-
ed in Krivenko v. Register of Deeds of Manila, 79 Phil. 461 [1947],
aliens can lease private agricultural land, because they are granted
temporary rights only and this is not prohibited by the Constitution.
During his third term, “A”, a member of the House of Representa-
tives, was suspended from office for a period of 60 days by his
colleagues upon a vote of two-thirds of all the members of the
House. In the next succeeding election, he filed his certificate of
candidacy for the same position. “B”, the opposing candidate,
filed an action for disqualification of “A” on the ground that the
latter’s candidacy, violated Section 7, Article VI of the Constitution
which provides that no Member of the House of Representatives
shall serve for then three consecutive terms. “A” answered that
he was not barred from running again for that position because
his service was interrupted by his 60-day suspension which was
voluntary. Can “A” legally continue with his candidacy or is he
already barred? ’01 – Q5
“A” cannot legally continue with his candidacy. He was elected as
Member of the House of Representatives for a third term. This term
should be included in the computation of the term limits, even if “A” did
not serve for a full term (Record of the Constitutional Commission, Vol.
II, p. 592.) He remained a Member of the House of Representatives
even if he was suspended.
Suppose that the forthcoming General Appropriations Law for
Year 2002, in the portion pertaining to the DECS, will contain a
provision to the effect that the ROTC is all colleges and universi-
ties is hereby abolished, and in lieu thereof all male college stu-
dents shall be required to plant ten trees for every two years to be
designated by the DENR in coordination with the DepEd and the
LGU concerned. It further provides that same provision shall be
incorporated in future General Appropriations Acts. There is no
specific item for appropriation of funds for the purpose. Comment
on the constitutionality of said provision. ’01 – Q7
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The provision is unconstitutional, because it is a rider. Section
25(2), Article Vi of the Constitution provides, “No provision or enact-
ment shall be embraced in the general appropriations bill until it related
specifically to some particular appropriation therein.” The abolition of
the Reserve Officers Training Court involves a policy matter. As held in
Philippine Constitution Association v. Enriquez, 235 SCRA 506 [1994],
this cannot be incorporated in the General Appropriations Act but must
be embodied in a separate law.
The Philippine National Bank was then one of the leading gov-
ernment-owned and controlled corporations and it was under the
audit jurisdiction of the COA. A few years ago, it was privatized.
What is the effect, if any, of the privatization of PNB on the audit
jurisdiction of the COA? ’01 – Q8
In accordance with the ruling in Philippine Airlines v. Commission
on Audit, 245 SCRA 39 [1995], since the Philippine National Bank is no
longer owned by the Government, the Commission on Audit no longer
has jurisdiction to audit it as an institution. Under Section 2(2), Article
IX-D of the Constitution, it is government-owned or controlled corpora-
tions and their subsidiaries which are subject to audit by Commission
on Audit. However, in accordance with Section 2(1), Article IX-D of the
Constitution, the Commission on Audit can audit the Philippine National
Bank with respect to its accounts because the Government still has
equity in it.
Is the Supreme Court a continuing Constitutional Commission?
’00 – Q1a
I do not agree that the Supreme Court is continuing Constitutional
Convention. The criticism is based on the assumption that in exercising
its power of judicial review, the Supreme Court is not merely interpret-
ing the Constitution but is trying to remake the Government on the
basis of the personal predilections of the Members of the Supreme
Court. This is a power that properly belongs to the people.
The Supreme Court cannot decide cases merely on the basis of
the letter of the Constitution. It has to interpret the Constitution to give
effect to the intent of its framers and of the people adopting it. In inter-
preting the Constitution, the Supreme Court has to adopt it to the ever-
changing circumstances of society. When the Supreme Court strikes
down an act of the Legislative or the Executive Department, it is merely
discharging its duty under the Constitution to determine conflicting
claims of authority.
What are the constitutional safeguards to maintain judicial inde-
pendence? ’00 – Q1b
The following are the constitutional safeguards to maintain judicial
independence:
1. The Supreme Court is a constitutional body and cannot be
abolished by mere legislation;
2. The members of the Supreme Court cannot be removed
except by impeachment;
3. The Supreme Court cannot be deprived of its minimum juris-
diction prescribed in Section 5, Article VIII of the Constitu-
tion;
4. The appellate jurisdiction of the Supreme Court cannot be
increased by law without its advice and concurrence;
5. Appointees to the Judiciary are nominated by the Judicial
and Bar Council and are not subject to confirmation by the
Commission on Appointments;
6. The Supreme Court has administrative supervision over all
courts and their personnel;
7. The Supreme Court has exclusive power to discipline judges
of lower courts;
8. The Members of the Judiciary have security of tenure, which
cannot be undermined by a law reorganizing the Judiciary;
9. Members of the Judiciary cannot be designated to any
agency performing quasi-judicial or administrative functions;
10. The salaries of the Supreme Court cannot be decreased
during their continuance in office;
11. The Judiciary has fiscal autonomy;
12. The Supreme Court has exclusive power to promulgate rules
of pleading, practice and procedure;
!21
13. Only the Supreme Court can temporarily assign judges to
other stations;
14. It is the Supreme Court who appoints all officials and em-
ployees of the Judiciary (Cruz, Philippine Political Law, 1995
ed., pp. 229-231.)
Is cronyism a legal ground for the impeachment of the President?
’00 – Q2
Yes, cronyism is a legal ground for the impeachment of the Presi-
dent. Under Section 2, Article XI of the Constitution, betrayal of public
trust is one of the grounds for impeachment. This refers to violation of
the oath of office and includes cronyism which includes unduly favour-
ing a crony to the prejudice of public interest (Record of the Constitu-
tional Commission, Vol. II, p. 272.)
What are the provisions on the Constitution on women? ’00 – Q9b
The following are the provisions of the Constitution on women:
1) The State shall equally protect the life of the mother and the
life of the unborn from conception (Section 12, Article II);
2) The State recognizes the role of women in nation-building
and shall ensure the fundamental equality before the law of
women and men (Section 14, Article II);
3) The State shall protect working women by providing safe
and healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities that
will enhance their welfare and enable them to realize their
full potential in the service of the nation (Section 14, Article
XIII.)
Declaring a rebellion, hostile groups have opened and maintained
armed conflicts on the Islands of Sulu and Basilan. To quell this,
can the President place under martial law the islands of Sulu and
Basilan? ’00 – Q17a
If public safety requires it, the President can place Sulu and Basi-
lan under martial law since there is an actual rebellion. Under Section
18, Article VII of the Constitution, the President can place any part of
the Philippines under martial law in case of rebellion, when public safe-
ty requires it.
[In Ampatuan v. Puno, 651 SCRA 228 [2011], the Supreme Court
held that the President did not proclaim a national emergency, only a
state of emergency in the three places mentioned. The calling out
power of the armed forces to prevent or suppress lawless violence is a
power that directly vests in the President. She did not need a congres-
sional authority to exercise the same. It is clearly to the President that
the Constitution entrusts the determination of the need for calling out
the armed forces to prevent and suppress lawless violence. Unless it is
shown that such determination was attended by grave abuse of discre-
tion, the court will accord respect to the President’s judgment.]
What are the constitutional safeguards on the exercise of the
President’s power to proclaim martial law? ’00 – Q17b
The following are the constitutional safeguards to the exercise of
the power of the President to proclaim martial law:
1) There must be actual invasion or rebellion;
2) The duration of the proclamation shall not exceed sixty (60)
days;
3) Within forty-eight (48) hours, the President shall report his
action to Congress. If Congress is not in session, it must
convene within forty-eight (48) hours;
4) Congress may by majority vote of all its members voting
jointly revoke the proclamation, and the President cannot set
aside the revocation;
5) By the same vote and in the same manner, upon initiative of
the President, Congress may extend the proclamation if the
invasion or rebellion continues and public safety requires the
extension;
6) The Supreme Court may review the factual sufficiency of the
proclamation, and the Supreme Court must decide the case
within thirty (30) days from the time it was filed;
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7) Martial law does not automatically suspend the privilege of
the writ of habeas corpus or the operation of the Constitu-
tion. It does not supplant the functioning of the civil courts
and of Congress. Military courts have no jurisdiction over
civilians where civil courts are able to function (Cruz, Philip-
pine Political Law, 1995 ed., pp. 213-214.)
Andy Lim, an ethnic Chinese, became a naturalized citizen in
1935. But later he lost his Philippine citizenship when he became
a citizen of Canada in 1971. He bought, in 1987, a residential lot
and a commercial lot in Binondo. Are there sales valid? ’00 – Q18a
No, the sales are not valid. Under Section 8, Article XII of the
Constitution, only a natural-born citizen of the Philippines who lost his
Philippine citizenship may acquire private land. Since Andy Lim was a
former naturalized Filipino, he is not qualified to acquire private lands.
How can a former natural-born citizen Philippine citizen, who may
have lost their Philippine citizenship by reason of their acquisi-
tion of foreign citizenship of a foreign country, reacquire their
Philippine citizenship? ’00 – Q18b
1. By taking an oath of allegiance under R.A. No. 9225;
2. By naturalization;
3. By repatriation pursuant to R.A. No. 8171; and
4. By direct act of Congress (Section 2, C.A. No. 63.)
What are the restrictions prescribed by the Constitution on the
power of the President to contract or guarantee foreign loans on
behalf of the Republic of the Philippines? ’99 – Q1b
Under Section 20, Article VVII of the Constitution, the power of
the President to contract or guarantee loans on behalf of the Republic
of the Philippines is subject to the prior concurrence of the Monetary
Board and subject to such limitations as may be provided by law.
What are the limitations/restrictions provided by the Constitution
on the power of Congress to authorize the President to fix tariff
rates, import and export quotas, tonnage and wharfage dues? ’99
– Q1c
According to Section 28(2), Article VI of the Constitution, Con-
gress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions it may impose, tariff
rates, import and export quotas, tonnage and wharfage dues and other
duties or imposts within the framework of the national development
program of the Government.
Give the duties of the state mandated by the Constitution regard-
ing education. ’99 – Q2b
Article XIV of the Constitution imposes the following duties re-
garding education upon the State:
1) The State shall protect and promote the right of all citizens to
quality education at all levels and shall take appropriate
steps to make such education accessible to all [Section 1];
2) The State shall establish, maintain and support a complete,
adequate, and integrated system of education relevant to the
needs of the people [Section 2(1)];
3) The State shall establish and maintain a system of free pub-
lic education in the elementary and high school levels [Sec-
tion 2(2)];
4) The State shall establish and maintain a system of scholar-
ship grants, student loan programs, subsidies, and other
incentives which shall be available to deserving students in
both public and private schools, specially to the underprivi-
leged [Section 2(3)];
5) The State shall encourage non-formal, formal, and indige-
nous learning systems, as well as self-learning, independent
and out-of-school study program particularly those that re-
spond to community needs [Section 2(4)];
6) The State shall provide adult citizens, the disable, and out-
of-school youth with training in civics, vocational efficiency
and other skills [Section 2(5)];
!22
7) The State shall take into account regional and sectoral
needs and conditions and shall encourage local planning in
the development of educational policies and programs [Sec-
tion 5(1)];
8) The State shall enhance the rights of teachers to profession-
al advancement. Non-teaching academic and non-academic
shall enjoy the protection of the State [Section 5(4)]
9) The State shall assign the highest budgetary priority to edu-
cation and ensure that teaching will attract and retain its
rightful share of the best available talents through adequate
remuneration and other means of job satisfaction and fulfill-
ment [Section 5(5)].
What is the rule on the number of aliens who may enroll in educa-
tional institutions in the Philippines? Give the exception to the
rule. May such institutions accept donations from foreign stu-
dents under the pretext that such donations are to be used to buy
equipment and improve school facilities? ’99 – Q2c
Under Section 4(2), Article XIV of the Constitution, no group of
aliens shall comprise more than one-third (1/3) of the enrollment in any
school. The exception refers to schools established for foreign diplo-
matic personnel and their dependents and, unless otherwise provided
by law, for other foreign temporary residents.
Education institutions may accept donations from foreign stu-
dents. No provision in the Constitution or any law prohibits it.
What is the constitutional provision concerning the teaching of
religion in elementary and high schools in the Philippines? ’99 –
Q2d
Under Section 3(3), Article XIV of the Constitution, at the option
expressed in writing by the parents or guardians, religion shall be al-
lowed to be taught to their children of wards in public elementary and
high schools within the regular class hours by instructors designated or
approved by the religious authorities, without additional cost to the
Government.
What are the effects of marriages of: 1) a citizen to an alien; and
2) an alien to a citizen on their spouses and citizen? ’99 – Q3a
According to Section 4, Article IV of the Constitution, Filipino citi-
zens who marry aliens retain their citizenship, unless by their act or
omission they are deemed, under the law, to have renounced it.
According to Mo Ya Lim Yao v. Commissioner of Immigration, 41
SCRA 292 [1971], under Section 15 of the Revised Naturalization Law,
a foreign who marries a Filipino citizen becomes a Filipino citizen pro-
vided she possesses none of the disqualifications for naturalization. A
foreign man who marries a Filipino citizen does not acquire Philippine
citizenship. However under Section 3 of the Revised Naturalization
Law, in such a case, the residence requirement will be reduced from
ten (10) to five (5) years.
Under Section 1(2), Article IV of the Constitution, the children of
an alien and a Filipino citizen are citizens of the Philippines.
Julio Hortal was born of Filipino parents. Upon reaching the age
of majority, he became a naturalized citizen in another country.
Later, he reacquired Philippine citizenship. Could Julio regain his
status as natural-born Filipino citizen? Would your answer be the
same whether he reacquires his Filipino citizenship by repatria-
tion or act of Congress? ’99 – Q3b
Julio can regain his natural status by repatriating. Since repatria-
tion involves restoration of a person to citizenship previously lost by
expatriation and Julio was previously a natural born citizen, in case he
repatriates he will be restored to his status as a natural-born citizen.
If he acquired his citizenship by an act of Congress, Julio will not
be a natural born citizen, since he reacquired his citizenship by legisla-
tive naturalization.
Victor Ahmad was born on December 16, 1972 of a Filipino mother
and an alien father. Under the law of his country, his mother did
not acquire his father’s citizenship. Victor consults you on De-
cember 21, 1993 and informs you of his intention to run for Con-
 The Sigma Rho Fraternity
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gress in the 1995 elections. Is he qualified to run? What advice
would you give him? Would your answer be the same if he had
seen and consulted you on December 16, 1991 and informed you
of his desire to run for Congress in the 1992 elections? ’99 – Q3c
No, Victor is not qualified to run for Congress in the 1995 elec-
tions. Under Section 6, Article VI of the Constitution, a member of the
House of Representatives must be at least twenty-five (25) years of
age on the day of the election. Since he will be less than twenty-five
(25) years of age in 1995, Victor is not qualified to run.
Under Section 2, Article IV of the Constitution, to be deemed a
natural-born citizen, Victor must elect Philippine citizenship upon
reaching the age of majority. I shall advise him to elect Philippine citi-
zenship, if he has not yet done so, and to wait until the 1998 elections.
My answer will be the same if he consulted me in 1991 and in-
formed me of his desire to run in the 1992 elections.
What are the constitutional limitations on the pardoning power of
the President? ’99 – Q4a
The following are the limitations on the pardoning power of the
President:
1. It cannot be granted in cases of impeachment;
2. Reprieves, commutations, pardon, and remission of fines
and forfeitures can be granted only after conviction by final
judgment;
3. The favorable recommendation of the Commission on Elec-
tions is required for violation of election laws, rules and regu-
lations.
Distinguish between pardon and amnesty. ’99 – Q4b
According to Barrioquinto v. Fernandez, 82 Phil. 642 [1949], the
following are the distinctions between pardon and amnesty:
1. Pardon is a private act and must be pleaded by the person
pardoned; while amnesty is a public act of which courts can
take judicial notice;
2. Pardon does not require the concurrence of Congress, while
amnesty requires the concurrence of Congress;
3. Pardon is granted to individuals, while amnesty is granted to
classes of persons or communities;
4. Pardon may be granted for any offense, while amnesty is
granted for political offenses;
5. Pardon is granted after final conviction, while amnesty may
be granted at any time; and
6. Pardon looks forward and relieves the offender from the
consequences of this offense, while amnesty looks backward
and the person granted it stands before the law as though he
had committed no offense.
A City Assistant Treasurer was convicted of estafa through falsifi-
cation of a public document. While serving sentence, he was
granted pardon by the President.
Assuming the position of Assistant City Treasurer has remained
vacant, would he be entitled to a reinstatement without need of a
new appointment?
If later the same position becomes vacant, could he re-apply and
be re-appointed? ’99 – Q4c
As held in Monsanto v. Factoran, 170 SCRA 190 [1989], pardon
merely frees the individual from all the penalties and legal disabilities
imposed upon him because of his conviction. It does not restore him to
the public office relinquished by reason of the conviction.
The Assistant City Treasurer can re-apply and be appointed to the
position, since the pardon removed the disqualification to hold public
office.
What do you understand by state immunity? How may the con-
sent of the state to be sued be given? ’99 – Q6a
State immunity from suit means that the State cannot be sued
without its consent. A corollary principle is that properties used by the
State in the performance of its governmental functions cannot be sub-
ject to judicial execution.
!23
Consent of the State to be sued may be made expressly as in the
case of a specific, express provision of law as waiver of State immunity
from suit is not inferred lightly (e.g., C.A. No. 327, as amended by P.D.
No. 1445) or impliedly as when the State engages in proprietary func-
tions (United States v. Ruiz, 136 SCRA 487 [1985]) or when it files a
suit in which case the adverse party may file a counterclaim (Froilan v.
Pan Oriental Shipping Co., 95 Phil. 905 [1954]) or when the doctrine
would in effect be used to perpetuate an injustice (Amigable v. Cuenca,
43 SCRA 360 [1972].)
The employees of the Philippine Tobacco Administration (PTA)
sued to recover overtime pay. In resisting such claim, the PTA
theorized that is it performing governmental functions. Decide
and explain. ’99 – Q6b
As held in Philippine Virginia Tobacco Administration v. Court of
Industrial Relations, 65 SCRA 416 [1975], the Philippine Tobacco Ad-
ministration is not liable for overtime pay, since it is performing gov-
ernmental functions. Among its purposes are to promote the effective
merchandising of tobacco so that those engaged in the tobacco indus-
try will have economic security, to stabilize the price of tobacco, and to
improve the living conditions of those engaged in the tobacco industry.
Enumerate the cases required by the Constitution to be heard en
banc by the Supreme Court? ’99 – Q11a
The following are the cases required by the Constitution to be
heard en banc by the Supreme Court:
1. Cases involving the constitutionality of a treaty, international
or executive agreement, or law;
2. Cases which are under the Rules of Court are required to be
heard en banc;
3. Cases involving the constitutionality, application, or operation
of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations;
4. Cases heard by a division when the required majority is not
obtained;
5. Cases where a doctrine or principle of law previously laid
down will be modified or reversed;
6. Administrative cases against judges when the penalty is
dismissal; and
7. Election contests for President and Vice-President.
What does it mean when a Supreme Court Justice concurs in a
decision pro hac vice? ’99 – Q11b
When a decision is pro hac vice, it means the ruling will apply to
this particular case only.
What is the composition of the Judicial and Bar Council and the
term of office of its regular members? ’99 – Q11c
The Judicial and Bar Council is composed of the following:
1. The Chief Justice as ex officio chairman;
2. The Secretary of Justice as ex officio member;
3. A representative of Congress as ex officio member;
4. A representative of the Integrated Bar;
5. A professor of law;
6. A retired Justice of the Supreme Court; and
7. A representative of the private sector [Section 8(1), Article
VIII of the Constitution.]
What do you understand by the mandate of the Constitution that
the Judiciary shall enjoy fiscal autonomy? Cite the constitutional
provisions calculated to bring about the realization of the said
constitutional mandate. ’99 – Q11d
Under Section 3, Article VIII of the Constitution, the fiscal auton-
omy of the Judiciary means that that appropriations may not be re-
duced by the legislature below the amount appropriated for the previ-
ous year and, after approval, shall be automatically and regularly re-
leased.
In Bengzon v. Drilon, 208 SCRA 133 [1992], the Supreme Court
explained that fiscal autonomy contemplates a guarantee of full flexibil-
 The Sigma Rho Fraternity
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ity to allocate and utilize resources with the wisdom and dispatch that
the needs require. It recognizes the power and authority to deny, as-
sess and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay plans of the
government and allocate and disburse such sums as may be provided
by law or prescribed by it in the course of the discharge of its functions.
What is meant by National Patrimony? ’99 – Q12
According to Manila Prince Hotel v. Government Service Insur-
ance System, 267 SCRA 408 [1997], the national patrimony refers not
only to our natural resources but also to our cultural heritage.
What are the grounds for impeachment? ’99 – Q15
Under Section 2, Article XI of the Constitution, the grounds for
impeachment are culpable violations of the Constitution, treason,
bribery, graft and corruption, other high crimes, and betrayal of public
trust.
Culpable violation of the Constitution means intentional violation
of the Constitution and not violations committed in good faith.
Treason and bribery have the same meaning as in the Revised
Penal Code.
Graft and corruption refers to prohibited acts enumerated in the
Anti-Graft and Corrupt Practices Act.
High crimes refer to offenses that strike at the very life or orderly
working of the government. Betrayal of public trust refers to any viola-
tion of the oath of office (Cruz, Philippine Political Law, 1998 ed., pp.
336-337; Bernas, The 1987 Constitution of the Philippines: A Commen-
tary, 1996 ed., pp. 991-992.)
The DND entered into a contract with Raintree Corporation for the
supply of ponchos to the AFP, stipulating that, in the event of
breach, action may be filed in the proper courts in Manla. Sup-
pose the AFP failed to pay for the delivered ponchos, where must
Raintree file its claim? Why? ’98 – Q1
Raintree Corporation must file its claim with the Commission on
Audit. Under Section 2(1), Article IX-D of the Constitution, the Com-
mission on Audit has the authority to settle all accounts pertaining to
expenditure of public funds. Raintree Corporation cannot file a case in
court. The Republic of the Philippines did not waive its immunity from
suit when it entered into the contract with Raintree Corporation for the
supply of ponchos for the use of the Armed Forces of the Philippines
and therefore relates to a sovereign function.
In United States v. Ruiz, 136 SCRA 487, 492 [1985], the Supreme
Court held:
“The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic affairs.
State differently, a State may have said to have descended to the
level of an individual and can thus be deemed to have tacitly giv-
en its consent to be sued only when it enters into business con-
tracts. It does not apply where the contract relates to the exercise
of its sovereign functions. In this case, the projects are an integral
part of the naval base which is devoted to the defense of both the
United States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for nor dedi-
cated to commercial or business purposes.”
The provision for venue in the contract does not constitute a
waiver of the State immunity from suit, because the express waiver of
this immunity can only be made by a statute.
In Republic v. Purisima, 78 SCRA 470, 474 [1977], the Supreme
Court ruled:
“Apparently respondent Judge was misled by the terms of the
contract between the private respondent, plaintiff in his sala, and
defendant Rice and Corn Administration which, according to him,
anticipated the case of a breach of contract between the parties
and the suits that may thereafter arise. The consent, to be effec-
tive though, must come from the State acting through a duly en-
acted statute as pointed out by Justice Bengzon in Mobil.”
The Constitution distinguishes between two types of owned and/
or controlled corporations: those with original charters and those
which are subsidiaries of such corporations. In which of the fol-
!24
lowing rule/rules is such a distinction made? Consider each of
the following items explain briefly your answer, citing pertinent
provisions of the Constitution.
1. The rule prohibiting the appointment of certain govern-
ment positions, of the spouse and relatives of the Presi-
dent within the fourth degree of consanguinity of affini-
ty;
Section 13, Article VII of the Constitution, which prohibits the
President from appointing his spouse and relatives within the fourth
degree of consanguinity or affinity, does not distinguish between corpo-
rations with original charters and their subsidiaries, because the prohi-
bition applies to both.
2. The rule making it incompatible for members of Con-
gress to hold offices or employment in the government;
Section 13, Article VI of the Constitution, which prohibits Members
of Congress from holding any other office during their term without
forfeiting their seat, does not distinguish between corporations with
original charters and their subsidiaries, because the prohibition applies
to both.
3. The rule prohibiting members of the Constitutional
Commissions, during their tenure, to be financially in-
terested in any contract with or any franchise or privi-
lege granted by the government;
Section 2, Article IX-A of the Constitution, which prohibits Mem-
bers of the Constitutional Commissions from being financially interest-
ed in any contract with or any franchise or privilege granted by the
Government, does not distinguish between corporations with original
charters and their subsidiaries, because the prohibition applies to both.
4. The rule providing for post audit by the COA of certain
government agencies.
Section 2(1), Article IX-D of the Constitution, which provides for
post audit by the Commission on Audit of government corporations,
does not distinguish between corporations with original charters and
their subsidiaries, because the prohibition applies to both.
5. The rule requiring Congress to provide for the standard-
ization of compensation of government officials and
employees. ’98 – Q2
Section 5, Article IX-B of the Constitution, which provides for the
standardization of the compensation of government officials and em-
ployees, distinguishes between government corporations and their
subsidiaries, for the provision applies only to government with original
charters.
Whether or not, an individual, corporation or association, who is
qualified to acquire private lands, is also qualified to acquire pub-
lic lands in the Philippines. ’98 – Q3(1)
No. Under Section 7, Article XII of the Constitution, a corporation
or association which is sixty percent (60%) owned by Filipino citizens
can acquire private lands, because it can lease public land and can
therefore hold public land. However, it cannot acquire public land. Un-
der Section, Article XII of the Constitution, private corporations and
associations can only lease and cannot acquire public land.
Under Section 8, Article XII of the Constitution, a natural-born
Filipino who lost his Philippine citizenship may acquire private land
only and cannot acquire public land.
Whether or not a religious corporation is qualified to have lands
in the Philippines on which it may build its church and make other
improvements provided these are actually, directly and exclusive-
ly used for religious purposes. ’98 – Q3(2)
No. The mere fact that a corporation is religious does not entitle it
to own public land. As held in Register of Deeds of Rizal v. Ung Sui Si
Temple, 97 Phil. 58 [1955], land tenure is not indispensable to the free
exercise and enjoyment of religious profession of worship. The reli-
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gious corporation can own private land only if it is at least sixty per cent
(60%) owned by Filipino citizens.
Whether or not a religious corporation can lease private lands in
the Philippines. ’98 – Q3(3)
Yes. Under Section 1 of Presidential Decree No. 471, corpora-
tions and associations owned by aliens are allowed to lease private
lands up to twenty-five (25) years, renewable for another period of
twenty-five (25) years upon agreement of the lessor and the lessee.
Hence, even if the religious corporation is owned by aliens, it can lease
private lands.
Whether or not a religious corporation can acquire private lands
in the Philippines provided all its members are citizens of the
Philippines. ’98 – Q3(4)
No. For a corporation to qualify to acquire private lands in the
Philippines, under Section 7, Article XII of the Constitution in relation to
Section 2, Article XII of the Constitution, only sixty per cent (60%) of
the corporation is required to be owned by Filipino citizens for it to
qualify to acquire private lands.
Whether or not a foreign corporation can only lease private lands
in the Philippines. ’98 – Q3(5)
Yes. A foreign corporation can lease private lands only and cannot
lease public land. Under Section 2, Article XII of the Constitution, the
exploration, development and utilization of public lands may be under-
taken through co-production, joint-venture or production-sharing
agreements only with Filipino citizens of corporations or associations
which are at least sixty per cent (60%) owned by Filipino citizens.
Andres Ang was born of a Chinese father and a Filipino mother in
Sorsogon on January 20, 1973. In 1988, his father was naturalized
as a Filipino citizen. On May 11, 1998, Andres was elected as Rep-
resentative of the 1st District of Sorsogon. Juan Bonto, who re-
ceived the second highest number of votes, filed a petition for
quo warranto against Andres with the HRET. Juan contends that
Andres is not a natural-born citizen of the Philippines and is
therefore disqualified to be a member of the House. Is Andres a
natural-born citizen of the Philippines? ’98 – Q4(1)
Andres Ang should be considered as a natural born citizen of the
Philippines. He was born of a Filipino mother on January 20, 1973.
This was after the effectivity of the 1973 Constitution on January 17,
1973. Under Section(1), Article III of the 1973 Constitution, those
whose fathers or mothers are citizens of the Philippines are citizens of
the Philippines. Andres Ang remained a citizen of the Philippines after
the effectivity of the 1987 Constitution. Section 1, Article IV of the 1987
Constitution provides:
“The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.”
The City of Cebu expropriated the property of Carlos for as a mu-
nicipal parking lot. The Sangguniang Panlalawigan appropriated
P10 million for this purpose but the RTC fixed for the compensa-
tion for the taking of the land at P15 million.
1. What legal remedy, if any, does Carlos have to recover
the balance of P5 million for the taking of his land? ’98 –
Q6(1)
The remedy of Carlos is to levy on the patrimonial property of the
City of Cebu. In Municipality of Paoay v. Manaois, 86 Phil. 629, 632,
the Supreme Court held:
“Property, however, which is patrimonial and which is held by a
municipality in its proprietary capacity as treated by the great
weight of authority as the private asset of the town and may be
levied upon and solder under an ordinary execution.”
If the City of Cebu does not have patrimonial property, the remedy
of Carlos is to file a petition for mandamus to compel it to appropriate
money to satisfy the judgment. In Municipality of Makati v. Court of
Appeals, 190 SCRA 207, 213 [1990], the Supreme Court held:
!25
“Where a municipality fails or refuses, without justifiable rea-
son, to effect payment of a final money judgment rendered
against it, the claimant may avail of the remedy of mandamus
in order to compel the enactment and approval of the neces-
sary appropriation ordinance, and the corresponding disburse-
ment of municipal funds therefor.”
2. If the City of Cebu has money in bank, can it be gar-
nished? ’98 – Q6(2)
No, the money of the City of Cebu in the bank cannot be gar-
nished if it came from public funds. As held in Municipality of Makati v.
Court of Appeals, 190 SCRA 207, 212 [1990], public funds are ex-
empted from garnishment.
Suppose a Commissioner of the COMELEC is charged before the
Sandiganbayan for allegedly tolerating violation of election laws
against proliferation of prohibited billboards and election propa-
ganda with the end in view of removing him from office. Will the
action prosper? ’98 – Q9
No, the action will not prosper. Under Section 8, Article XI of the
Constitution, the Commissioners of the Commission on Elections are
removable by impeachment. As held in the case of In re Gonzales, 160
SCRA 771, 774-775, a public officer who is removable by impeach-
ment cannot be charged before the Sandiganbayan with an offense
which carries with it the penalty of removal from office unless he is first
impeached. Otherwise, he will be removed from office by a method
other than impeachment.
Lim Tong Biao, a Chinese citizen, applied for and was granted
Philippine citizenship by the court. He took his oath of office of
the Philippine in July 1963. In 1975, the Office of the Solicitor
General filed a petition to cancel his citizenship for the reason
that in August 1963, the Court of Tax Appeals found him guilty of
tax evasion fro deliberately understating his income taxes for the
years 1959-1961.
1. Could Lim raise the defense of prescription of the action
for cancellation of this Philippine citizenship?
No, Lim Tong Biao cannot raise the defense of prescription. As
held in Republic v. Go Bon Lee, 1 SCRA 1166, 1170, a decision granti-
ng citizenship is not res judicata and the right of the government to ask
for the cancellation of a certificate of naturalization is not barred by the
lapse of time.
2. Supposing Lim had availed of the Tax Amnesty of the
government for his tax liabilities, would this constitute a
valid defense to the cancellation of this Filipino citizen-
ship? ’98 – Q10
The fact the Lim Tong Biao availed of the tax amnesty is not a
valid defense to the cancellation of this Philippine citizenship.
In Republic v. Li Yao, 214 SCRA 748, 754 [1992], the Supreme
Court held:
“In other words, the tax amnesty does not have the effect of
obliterating his lack of good moral character and irreproachable
conduct which are grounds for denaturalization.”
Suppose the President submits a budget which does not contain
provisions for CDF (Countrywide Development Funds), popularly
known as the pork barrel, and because of this, Congress does not
pass the budget.
1. Will that mean paralyzation of government operations in
the next fiscal year for lack of an appropriation law? ’98
– Q11a
No, the failure of Congress to pass the budget will not paralyze
the operations of the Government.
Section 25(7), Article VI of the Constitution provides:
“If, by the end of any fiscal year, the Congress shall have failed
to pass the general appropriations bill for the ensuing fiscal
year, the general appropriations law for the preceding fiscal
year shall be deemed re-enacted and shall remain in force and
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effect until the general appropriations bill is passed by the Con-
gress.”
2. Suppose in the same budget, there is a special provi-
sion in the appropriations for the AFP authorizing the
Chief of Staff, AFP, subject to the approval of the Secre-
tary of National Defense, to use savings in the appropri-
ations provided therein to cover up whatever losses
suffered by the AFP Retirement and Separation Benefits
System (RSBS) n the last 5 years fur to alleged bad
business judgment. Would you question the constitu-
tionality/validity of the special provision? ’98 – Q11b
Yes, the provision authorizing the Chief of Staff, with the approval
of the Secretary of National Defense, to use savings to cover the loss-
es suffered by the AFP Retirement and Separation Benefits System is
unconstitutional,
Section 25(5), Article VI of the Constitution provides:
“No law shall be passed authorizing any transfer of appropria-
tions; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, and the heads of the Constitutional Com-
missions may, by law, authorized to augment any item in the
general appropriations law for their respective offices from
savings in other items of their respective appropriations.”
In Philippine Constitution Association v. Enriquez, 235 SCRA 506,
544 [1994], the Supreme Court held that a provision in the General
Appropriations Act authorizing the Chief Staff to use savings to aug-
ment the fund of the AFP Retirement and Separation Benefits Systems
was unconstitutional.
“While Section 25(5) allows as an exception the realignment of
savings to augment items in the general appropriations law for
the executive branch, such right must and can be exercised
only by the President pursuant to a specific law.”
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? ’97 – Q6
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. v, Board of Liquidators, 180 SCRA 171, in such a case,
the State is merely giving the plaintiff the chance to prove that the
State is liable but the State retains the right to raise all lawful defenses.
During a period of national emergency, Congress may grant
emergency powers to the President. State the conditions under
which such a vesture is allowed. ’97 – Q11
Under Section 23(2), Article VI of the Constitution, Congress may
grant the President emergency powers subject to the following condi-
tions:
1. There is 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 restric-
tions as Congress may prescribe; and
4. The emergency powers must be exercised to carry out a
declared national policy.
Upon complaint of the incumbent President of the Republic, “A”
was charged with libel before the RTC. “A” moved to dismiss the
Information on the ground that the court has 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. ’97 – Q13
The motion should be denied. According to Soliven v. Makasiar,
167 SCRA 393 [1988], the immunity of the President from suit is per-
sonal to the President. It may be invoked by the President only and not
by any other person.
!26
When may the privilege of the writ of habeas corpus be suspend-
ed? If validly declared, what would be the full consequences of
such suspension? ’97 – Q14
Under Section 18, Article VII of the Constitution, the privilege of
the writ of habeas corpus may be suspended only when there is an
invasion or rebellion and public safety requires it.
According to Section 18, Article VII of the Constitution, the sus-
pension of the privilege of the writ of habeas corpus shall apply only to
persons judicially charged with rebellion or offenses inherent in or di-
rectly connected with invasion. Any person arrested or detained should
be judicially charged within three (3) 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.
Governor A was charged administratively with oppression and
was place 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 ques-
tioned the validity of the exercise of the executive clemency on
the ground that it could be granted only in criminal, not adminis-
trative, cases. How should the question be resolved? ’97 – Q15
The argument of the Vice Governor should be rejected. As held in
Llamas v. 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. Sec-
tion 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 be 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.
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 insignificant monetary value,
both of which he accepted. Was Governor A’s acceptance of the
decoration and gift violative of the Constitution? ’97 – Q18
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 Gov-
ernment of Cambodia to be valid, Governor A should first obtain the
consent of Congress.
State the various modes, and steps in, revising or amending the
Philippine Constitution. ’97 – Q20
There are three (3) modes of amending the Constitution:
1. Under Section 1, Article XVII of the Constitution, Congress
may by three-fourths (3/4) 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, Con-
gress may by two-thirds (2/3) vote of all its Members call a
constitutional conventions 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
(12%) of the total number of registered voters, of which
every legislative district must be represented by at least
three per cent (3%) 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.
 The Sigma Rho Fraternity
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Is a bill originating from the Senate, which provides for the cre-
ation of the Public Utility Commission to regulate public service
companies and appropriating the initial funds need to establish
the same, constitutional? ’96 – Q5(1)
A bill providing for the creation of the Public Utility Commission to
regulate public service companies and appropriating funds needed to
establish it may originate from the Senate. It is not an appropriation bill,
because the appropriation of public funds is not the principal purpose
of the bill. In Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform, 175 SCRA 343 [1989], it was held that a
law is not an appropriation measure if the appropriation of public funds
is not its principal purpose and the appropriation is only incidental to
some other objective.
Is a bill creating a joint legislative-executive commission to give,
on behalf of the Senate, its advice, consent and concurrence to
treaties entered into by the President, constitutional? The bill
contains the guidelines to be followed by the commission in the
discharge of its functions. ’96 – Q5(2)
A bill creating a joint legislative-executive commission to give, on
behalf of the Senate, its advice, consent and concurrence to treaties
entered into by the President, is unconstitutional. The Senate cannot
delegate this function to such a commission, because under Section
21, Article VII of the Constitution, the concurrence of at least two-thirds
of the Senate itself is required for the ratification of the treaties.
Can the Judge-Advocate General of the AFP be appointed a
Trustee of the GSIS? ’96 – Q7(1)
No, the Judge-Advocate General of the Armed Forces of the
Philippines cannot be appointed as trustee of the Government Service
Insurance System. Under Section 5(4), Article XVI of the Constitution,
no member of the Armed Forces of the Philippines in the active service
shall at any time be appointed or designated in any capacity to a civil-
ian position in the Government, including government-owned or con-
trolled corporations.
Can the President take active part in the legislative process? ’96 –
Q7(3)
The President can take active part in the legislative process to the
extent allowed by the Constitution. He can address Congress at any
time to propose the enactment of certain laws. He recommends the
general appropriations bill. He can call a special session of Congress
at any time. He can certify to the necessity of the immediate enactment
of a bill to meet a public calamity or emergency. He can veto a bill.
Can five members of the Supreme Court declare a municipal ordi-
nance unconstitutional? ’96 – Q7(4)
Yes, five members of the Supreme Court sitting en banc can de-
clare a municipal ordinance unconstitutional. Under Section 4(2), Arti-
cle VIII of the Constitution, a municipal ordinance can be declared
unconstitutional with the concurrence of a majority of the Members of
the Supreme Court who actually took part in the deliberation on the
issues and voted thereon. If only eight Members of the Supreme Court
actually took part in deciding the case, there will still be a quorum. Five
Members will constitute a majority of those who took part in deciding
the case.
A law was passed dividing the Philippines into three regions (Lu-
zon, Visayas, and Mindanao), each constituting an independent
state except on matters of foreign relations, national defense and
national taxation, which are vested in the Central government. Is
the law valid? ’96 – Q8(1)
The law dividing the Philippines into three regions, each constitut-
ing an independent state and vesting in a central government, matters
of foreign relations, national defense, and national taxation, is uncon-
stitutional. First, it violates Article I, which guarantees the integrity of
the national territory of the Philippines because it divided the Philip-
pines into three states. Second, it violates Section 1, Article II of the
Constitution, which provides for the establishment of democratic and
!27
republican State by replacing it with three States organized as a con-
federation. Third, it violates Section 22, Article II of the Constitution
which, while recognizing and promoting the rights of indigenous cultur-
al communities, provides for national unity and development. Fourth, it
violates Section 15, Article X of the Constitution which, provides for
autonomous regions in Muslim Mindanao and in the Cordilleras within
the framework of national sovereignty as well as territorial integrity of
the Republic of the Philippines. Fifth, it violates the sovereignty of the
Republic of the Philippines.
(Please see Province of North Cotabato v. Government of the
Republic of the Philippines Peace Panel of Ancestral Domain, 568
SCRA 402 [2008])
X was born in the US of a Filipino mother and a Mexican father. He
returned to the Philippines when he was 26 years of age, carrying
an American passport and he was registered as an alien with the
Bureau of Immigration. Was X qualified to run for membership in
the 1995 elections? ’96 – Q8(2)
Whether or not X was qualified to run for membership in the
House of Representatives in the 1995 elections depends on the cir-
cumstances.
If X was an illegitimate child, he is not qualified to run for the
House of Representatives. According to the case of In re Mallare, 59
SCRA 45, an illegitimate child follows the citizenship of the mother.
Since the mother of X is a Mexican citizen, he will be a Mexican citizen
if he is an illegitimate child, even if his father is a Filipino.
If X is a legitimate child, he is a Filipino citizen. Under Section
2(2), Article IV of the Constitution, those whose fathers are citizens of
the Philippines are Filipino citizens. Since X was born in the United
States, which follows jus soli, X is also an American citizen. In accor-
dance with Aznar v. Commission on Elections, 185 SCRA 703 [1990],
the mere fact a person with dual citizenship registered as an alien with
the Bureau of Immigration and Deportation does not necessarily mean
that he is renouncing his Philippine citizenship. Likewise, the mere fact
the X used an American passport did not result in the loss of this
Philippine citizenship. As held in Kawakita v. United States, 343 U.S.
717, since a person with dual citizenship has the rights of citizenship in
both countries, the use of a passport issued by one country is not in-
consistent with his citizenship in the other country.
X, a clerk of court in the RTC of Manila, was found guilty of being
absent without official leave for 90 days and considered dis-
missed from the service by the Supreme Court. He appealed to
the Office of the President for executive clemency. Acting on the
appeal, the Executive Secretary, by order of the President, com-
muted the penalty to a suspension of 6 months.
1. Can the Supreme Court review the correctness of the
action of the President in commuting the penalty im-
posed on X?
Yes, the Supreme Court can review the correctness of the action
of the President in commuting the penalty imposed on X. By doing so,
the Supreme Court is not reviewing the wisdom of the commutation of
the penalty. What it is deciding is whether or not the President has the
power to commute the penalty of X. As stated in Daza v. Singson, 180
SCRA 496 [1989], it is within the scope of the judicial power to pass
upon the validity of the actions of the other departments of the Gov-
ernment.
2. Was the action of the President constitutional? ’96 –
Q10(1)
The commutation by the President of the penalty imposed by the
Supreme Court upon X is unconstitutional. Section 6, Article VIII of the
Constitution vests the Supreme Court with the power of administrative
supervision over all courts and their personnel. In Garcia v. De la Peña,
229 SCRA 766, it was held that no other branch of the Government
may intrude into this exclusive power of the Supreme Court.
 The Sigma Rho Fraternity
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CONSTITUTIONAL LAW 2
To fulfill a campaign promise to the poor folk in a far-flung area in
Mindanao, the President requested his friend, Pastor Roy, to de-
vote his ministry to them. The President would pay Pastor Roy a
monthly stipend of P50,000.00 from his discretionary fund and
would also erect a modest house of worship in the locality in an
area of the latter’s choice.
Does the President thereby violate any provisions of the Constitu-
tion? Explain your answer. (3%) ’17— Q14
SUGGESTED ANSWER
The President violated Sec. 29 (2), Article VI of the Constitution. Public
money can be given to Pastor Roy only when he is assigned to the
armed forces, a penal institution, or government orphanage or lep-
rosarium. No public money can be given for the benefit of the church
for the construction of a house of worship.
ALTERNATIVE ANSWER
The President violated Sec. 5 of Article III of the Constitution, also
known as the non-establishment clause, which states that no law shall
be made respecting an establishment of religion, or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall
forever be allowed. Such payment of a monthly stipend and the erec-
tion of the house is a preference which falls under this prohibition.
The contents of the vault of ABC Company consisting of cash and
documents were stolen. Paulyn, the treasurer of ABC, was invited
by the Makati City Police Department to shed light on the amount
of cash stolen and the details of the missing documents. Paulyn
obliged and volunteered the information asked. Later, Paulyn was
charged with qualified theft together with suspects. Paulyn claims
her rights under the Constitution and pertinent laws were blatant-
ly violated. The police explained that they were just gathering
evidence when Paulyn was invited for a conference and she was
not a suspect at that time. Rule on her defense. (5%) ’16 – Q1
No, the defense of Paulyn is not valid. When she was invited for ques-
tioning by the Makati City Police Department and she volunteered
information, she was not yet a suspect. Her constitutional rights of a
person under investigation for the commission of an offense under
Section 12(1), Article HI of the Constitution begins to operate when the
investigation ceases to be a general inquiry upon an unsolved crime
and begins to be aimed upon a particular suspect who has been taken
into custody and the questions tend to elicit incriminating statements
(People v. Marra, 236 SCRA 565 (1994]),
Pornographic materials in the form of tabloids, magazines and
other printed materials, proliferate and are being sold openly in
the streets of Visaya City. The city Mayor organized a task force
which confiscated these materials. He then ordered that the mate-
rials be burned in public. Dominador, publisher of the magazine,
“Plaything”, filed a suit, raising the following constitutional is-
sues: (a) the confiscation of the materials constituted an illegal
search and seizure, because the same was done without a valid
search warrant; and (b) the confiscation, as well as the proposed
destruction of the materials, is a denial of the right to disseminate
information, and thus, violates the constitutional right to freedom
of expression. Is either or both contentions proper? Explain your
answer. (5%) ’16 – Q6
The confiscation of the materials constituted an illegal search and
seizure, because it was done without a valid search warrant. It cannot
be justified as a valid warrantless search and seizure, because such
search and seizure must have been an incident of a lawful arrest.
!28
There was no lawful arrest (Pita v. Court of Appeals, 178 SCRA 362
[1989]).
The argument of Dominador that pornographic materials are protected
by the constitutional right to freedom of expression is erroneous. Ob-
scenity is not protected expression (Fernando v. Court of Appeals, 510
SCRA 351 [2006]). Section 2 of Presidential Decree No. 969 requires
the forfeiture and destruction of pornographic materials (Nograles v.
People, 660 SCRA 475 [2011]).
Ernesto, a minor, while driving a motor vehicle, was stopped at a
mobile checkpoint. Noticing that Ernesto is a minor, SPO1 Jojo
asked Ernesto to exhibit his driver’s license but Ernesto failed to
produce it. SPO1 Jojo requested Ernesto to alight from the vehi-
cle and the latter acceded. Upon observing a bulge in the pants of
Ernesto, the policeman frisked him and found an unlicensed .22-
caliber pistol inside Ernesto’s right pocket. Ernesto was arrested,
detained and charged. At the trial, Ernesto, through his lawyer,
argued that, policemen at mobile checkpoints are empowered to
conduct nothing more than a “visual search”. They cannot order
the persons riding the vehicle to alight. They cannot frisk, or con-
duct a body search of the driver or the passengers of the vehicle.
Ernesto’s lawyer thus posited that:
[a] The search conducted in violation of the Constitution
and established jurisprudence was an illegal search; thus, the
gun which was seized in the course of an illegal search is the
“fruit of the poisonous tree” and is inadmissible in evidence.
(2.5%)
[b] The arrest made as a consequence of the Invalid search
was likewise illegal, because an unlawful act (the search) cannot
be made the basis of a lawful arrest. (2.5%)
Rule on the correctness of the foregoing arguments, with rea-
sons. ’16 – Q7
The warrantless search of motor vehicles at checkpoints should be
limited to a visual search. Its occupants should not be subjected to a
body search (Aniag, Jr. v. Commission on Elections, 237SCRA 424
[1994]).
The “stop and frisk rule” applies when a police officer observes suspi-
cious activity or unusual activity which may lead him to believe that a
criminal act may be afoot. The “stop and frisk” is merely a limited pro-
tective search of outer clothing for weapons (Luz v. People, 667 SCRA
421 (2012)).
Since there was no valid warrantless search, the warrantless search
was also illegal. The unlicensed .22 caliber pistol is inadmissible in
evidence (Luz v. People, 667SCRA 421 (2012)).
A law is passed intended to protect women and children from all
forms of violence. When a woman perceives an act to be an act of
violence or a threat of violence against her, she may apply for a
Barangay Protection Order (BPO) to be issued by the Barangay
Chairman, which shall have the force and effect of law. Conrado,
against whom a BPO had been issued on petition of his wife, went
to court to challenge the constitutionality of the law. He raises the
following grounds:
[a] The law violates the equal protection clause, because
while it
extends protection to women who may be victims of violence by
their husbands, it does not extend the same protection to hus-
bands who may be battered by their wives. (2.5%) .
[b] The grant, of authority to the Barangay Chairman to
issue a Barangay Protection. Order (BPO) constitutes an undue
delegation of judicial power, because obviously, the issuance of
the BPO entails the exercise of judicial power. (2.5%)
 The Sigma Rho Fraternity
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Rule on the validity of the grounds raised by Conrado, with rea-
sons. ’16 – Q8
[a] The law does not violate the equal protection clause. It is
based on substantial distinctions. The unequal power relationship be-
tween
women and men, the greater likelihood for women than men to be
victims of violence, and the widespread gender bias and prejudice
against women all make for real differences (Garcia v. Dr Hon, 699
SCRA 352 [20131).
[b] The grant of authority to the Barangay Chairman to issue a
Barangay Protection Order is a purely executive function pursuant to
his duty to enforce ail laws and ordinances and to maintain public order
(Garcia v. Drilon, 599 SCRA 352 [2013]).
Paragraphs c, d and f of Section 36 of Republic Act No. 9165 pro-
vide:
“Sec. 36. Authorized drug testing, x x x The following shall be
subjected to undergo drug testing: x x x
c. Students of secondary and tertiary schools x x x;
d. Officers and employees of public and private offices x x
x;
f. All persons charged before the prosecutor’s office with
a criminal offense having an imposable imprisonment of not less
than 6 years and 1 day;”
Petitioners contend that the assailed portions of Sec. 36 are un-
constitutional for violating the right to privacy, the right against
unreasonable searches and seizures and the equal protection
clause. Decide if the assailed provisions are 'unconstitutional.
(5%) ’16 – Q12
The drug testing of students of secondary and tertiary schools is valid.
Deterring their use of drugs by random drug testing is as important as
enhancing efficient enforcement.
Random drug testing of officers and employees of public and private
offices is justifiable. Their expectation of privacy in office is reduced.
The drug tests and results are kept confidential. Random drug testing
is an effective way of deterring drug use and is reasonable.
Public officials and employees are required by the Constitution to be
accountable at all times to the people and to serve them with utmost
responsibility and efficiency.
The mandatory testing of all persons charged before the prosecutor’s
office of a criminal offense punishable with imprisonment of at least six
years and one day is void. They are not randomly picked and are not
beyond suspicions. They do not consent to the procedure or waive
their right to privacy (Social Justice Society v. Dangerous Drugs Board,
570 SCRA 410 [2008J).
Congress passed a bill appropriating PI 00-billion. Part of the
money is to be used for the purchase of a 200-hectare property in
Antipolo. The rest shall be spent for the development of the area
and the construction of the Universal Temple for all the World’s
Faiths (UTAW-F). When completed, the site will be open, free of
charge, to all religions, beliefs, and faiths, where each devotee or
believer shall be accommodated and treated In a fair and equal
manner, without distinction, favor, or prejudice. There will also be
individual segments or zones in the area which can be used for
the conduct of whatever rituals, services, sacraments, or ceremo-
nials that may be required by the customs or practices of each
particular religion. The President approved the bill, happy in the
thought that this could start, the healing process of our wounded
country and. encourage people of varied and often conflicting
faiths to live together in harmony and in peace.
If the law is questioned in the ground that it violates Sec. 5, Article
II of the Constitution that “no law shall be made respecting an
!29
establishment of religion or prohibiting the free exercise thereof,”
how will you resolve the challenge? Explain. (5%) ’16 – Q15
The contention must be rejected. The use of the site temple will not be
limited a particular religious sect. It will be made available to all reli-
gious sects. The temporary use of public property for religious purpos-
es without discrimination does not violate the Constitution (Ignacio v.
De la Cruz, 99 Phil 346 [1956]; People v. Fernandez, 40 O.G. 1089
[1956]).
ALTERNATIVE SUGGESTED ANSWER:
The contention is meritorious. The state cannot pass laws which aid
one religion, all religions, or prefer one religion over another (Emerson
v. Board of Education, 330 U.S.A. 1 [1947j).
NOTE: It is recommended that both answers he accepted as correct
and be given full credit.
Jojo filed a criminal complaint against Art for theft of a backpack,
worth P 150.00 with the Office of the City Prosecutory of Manila.
The crime is punishable with arresto mayor to prision correc-
cional in its minimum period, or not to exceed 4 years and 2
months. The ease was assigned to Prosecutor Tristan and he
applied Sec. 8(a) of Rule 1 12 which reads: “(a) If' filed with the
prosecutor.
If the complaint is filed directly with the prosecutor involving an
offense punishable by imprisonment of less than four (4) years,
two (2) months and one (3) day, the procedure outlined in Sec.
3(a) of this Rule shall be observed. The Prosecutor shall act on
the complaint within ten (10) days from its filing.”
On the other hand, Sec. 3(a) of Rule 112 provides: “(a) The com-
plaint shall state the address of the respondent and shall be ac-
companied by affidavits of the complainant and his witnesses as
well as other supporting documents to establish probable cause,
x x x”
Since See. 8(a) authorizes the Prosecutor to decide the complaint
on the basis of the affidavits and other supporting documents
submitted, by the complainant, Prosecutor Tristan, did not notify
Art nor require him to submit a counter-affidavit. He proceeded to
file the Information against Art with the Metropolitan Trial Court.
Art vehemently assails Sec. 8(a) of Rule 1 12 as unconstitutional
and violative of due process and his rights as an accused under
the Constitution for he was not informed of the complaint nor was
he given the opportunity to raise his defenses thereto before the
Information was filed. Rule on the constitutionality of Sec, 8(a) of
Rule 1 12. Explain. (5%) ’16 – Q16
The contention of Art is not meritorious. The right to be informed of the
complaint and to be given the opportunity to raise one’s defenses does
not apply to preliminary investigation. Preliminary investigation is mere-
ly procedural. It may be dispensed with without violating the right of the
accused to due process (Bustos v. Lucero, 81 Phil. 640 (1948]}.
Fernando filed an administrative complaint against his co-teacher,
Amelia, claiming that the latter is living with a married man who is
not her husband, Fernando charged Amelia, with committing
“disgraceful and immoral conduct” in violation of the Revised
Administrative Code and, thus, should not be allowed to remain
employed in the government. Amelia, on the other hand, claims
that she and her partner are members of a religious sect that al-
lows members of the congregation who have been abandoned by
their respective spouses to enter marital relations under a “Decla-
ration of Pleading Faithfulness.” Having made such Declaration,
she argues that she cannot be charged with committing immoral
 The Sigma Rho Fraternity
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conduct for she is entitled to free exercise of religion under the
Constitution.
[a] Is Amelia administratively liable? State your reasons briefly,
(2.5%)
[b] Briefly explain the concept of “benevolent neutrality. (2.5%) ’16
– Q19
[a] Amelia is not administratively liable. There is no compelling
state interest that justifies inhibiting the free exercise of religious be-
liefs. The means used by the government to achieve its legitimate
objective is not the least intrusive means (Estrada v. Escritor, 492
SCRA 1 [2006]).
[b] Benevolent neutrality means that with respect to governmen-
tal actions, accommodation of religion may be permitted to allow indi-
viduals and groups to exercise their religion without hindrance. What is
sought is not a declaration of unconstitutionality of the law but an ex-
emption from its application (Estrada v. Escritor, 492 SCRA 1 [2006]).
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%) ‘15 - Q4
“In United States (US) constitutional law, a facial challenge, also known
as a First Amendment Challenge, is one that is launched to assail the
validity of statutes concerning not only protected speech, but also all
other rights in the First Amendment. These include religious freedom,
freedom of the press, and the right of the people to peaceably assem-
ble, and to petition the Government for a redress of grievances. After
all, the fundamental right to religious freedom, freedom of the press
and peaceful assembly are but component rights of the right to one’s
freedom of expression, as they are modes which one’s thoughts are
externalized.
“In this jurisdiction, the application of doctrines originating from the
U.S has been generally maintained, albeit with some modifications.
While this Court has withheld the application of facial challenges to
strictly penal statutes, it has expanded its scope to cover statutes not
only regulating free speech, but also those involving religious freedom,
and other fundamental rights. The underlying reason for this modifica-
tion is simple. For unlike its counterpart in the U.S., this Court, under
its expanded jurisdiction, is mandated by the Fundamental Law 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 ex-
cess of jurisdiction on the part of any branch or instrumentality of the
Government,” (Imbong v. Ochoa, 721 SCRA 146 [2014]).
Discuss the evolution of the principle of jus sanguinis as basis of
Filipino citizenship under the 1935, 1973, and 1987 Constitutions.
(3%) ‘15 - Q12
Section 1, Article III of the 1935 Constitution adopted the jus sanguinis
principle as the basis of Filipino citizenship if the father is a Filipino
citizen. However, Subsection 4, Section 1, Article III of the Constitution
provided that if the mother was a Filipino citizen who lost her Philippine
citizenship because of her marriage to a foreign husband, her children
could elect Philippine citizenship upon reaching the age of majority.
Subsection 2, Section 1, Article III of the 1973 Constitution provided
that a child born of a father or a mother who is a citizen of the Philip-
pines is a Filipino citizen.
Section 2, Article III of the 1973 Constitution provided that a child
whose father or mother is a Filipino citizen is a Filipino citizen. Subsec-
tion 3, Section 1, Article IV of the 1987 Constitution provided that a
!30
child born before January 1, 1973, of Filipino mothers, who elected
Philippine citizenship upon reaching the age of majority under the 1973
Constitution is a natural-born Filipino citizen. (Tecson v. Commission
on Elections, 424 SCRA 277 [2004]).
(NOTE: The 1935 and the 1973 Constitutions are not included in the
coverage of the examinations).
The Gay, Bisexual and Transgender Youth Association (GBTY A),
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 accredita-
tion on the ground that GBTY A espouses immorality which of-
fends religious dogmas. GBTY A challenges the denial of its ap-
plication based on moral grounds because it violates its right to
equal protection of the law.
(1) What are the three (3) levels of test that are applied in
equal protection cases? Explain. (3%) ‘15 - Q17(1)
The three levels of test applied in equal protection cases are the strict
scrutiny review, the intermediate scrutiny review and rationality review.
If the legislative classification disadvantages a subject class or im-
pinges upon a fundamental right, the statute must fall unless the gov-
ernment can show that the classification serves a compelling govern-
ment interest.
If the classification, while not facially invidious, gives rise to recurring
constitutional difficulties or disadvantages a quasi-suspect class, it will
be treated under intermediate review. The law must not only further an
important government interest and be related to that interest. The justi-
fication must be genuine and must not depend on broad generaliza-
tions.
If neither the strict nor the intermediate scrutiny is appropriate, the
statute will be tested for mere rationality. The presumption is in favor of
the classification, the reasonableness and fairness of state action and
of legitimate grounds of distinction.
ALTERNATIVE ANSWER:
The three levels of tests that may be applied in equal protection cases
may be classified as follows: the strict scrutiny test, for laws dealing
with freedom of the mind or restricting the political process, the rational
basis standard for the review of economic legislation; and heightened
or intermediate scrutiny for evaluating classifications based on gender
and legitimacy.
(2) Which of the three (3) levels of test should be applied to
the present case? Explain. (3%) ‘15 - Q17(2)
Classification on the basis of sexual orientation is a quasi- subject
classification that prompts intermediate review. Gay and lesbian per-
sons historically were and continue to be the target of discrimination
due to their sexual orientation. Sexual orientation has no relation to a
person’s ability to contribute to society. The discrimination that distin-
guish the gays and lesbians persons are beyond their control. The
group lacks sufficient political strength to bring an end to discrimination
through political means. (Ang Ladlad LGBT Party v. Commission on
Elections. 618 SCRA 32 [2010]).
ALTERNATIVE ANSWER:
 The Sigma Rho Fraternity
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Bar Questions and Answers
It is submitted that the strict scrutiny test should be applied in case
because the challenged classification restricts the political process.
Around 12:00 midnight, a team of police officers was on routine
patrol in Barangay Makatarungan when it noticed an open deliv-
ery 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 con-
victed 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 rights against unreasonable
searches and seizures was violated when the police officers
searched his vehicle without a warrant; that the shabu confiscat-
ed 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 of the Philippines maintains that the case
of Hades involved a consented warrantless search which is legal-
ly 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%) ‘15 - Q18
The warrantless search was illegal. There was no probable cause to
search the van. The shabu was not immediately apparent. It was dis-
covered only after they opened the boxes. The mere passive silence of
Hades did not constitute consent to the warrantless search. (Caballes
v. Court of Appeals, 373 SCRA 221 [2005]).
The void-for-vagueness doctrine is a concept which means that:
(1%) ‘14 - Q10
(A) if a law is vague, then it must be void
(B) any law which could not be understood by laymen is a
nullity
(C) if a law is incomprehensible to ordinary people such
that they do not really know what is required or prohib-
ited, then the law must be struck down
(D) a government regulation that lacks clear standards is
nonsensical and useless as a guide for human conduct
(E) clarity in legal language is a mandate of due process
(C) if a law is incomprehensible to ordinary people such that they do
not really know what is required or prohibited, then the law must be
struck down
In keeping with the modern age of instant and incessant informa-
tion and transformation, Congress passed Cybercrime Prevention
Act to regulate access to and use of the amenities of the cyber-
space. While ostensibly the law is intended to protect the inter-
ests of society, some of its provisions were also seen as imper-
missibly invading and impairing widely cherished liberties of the
people particularly the freedom of expression. Before the law
could even be implemented; petitions were filed in the Supreme
Court questioning said provisions by people who felt threatened,
!31
for themselves as well as for the benefit of others who may be
similarly affected but not minded enough to challenge the law.
The Solicitor General countered that there is no basis for the ex-
ercise of the power of judicial review since there has yet been no
violation of the law, and therefore, there is no actual case or con-
troversy to speak of, aside from the fact that the petitioners have
no locus standi since they do not claim to be in imminent danger
of being prosecuted under the law. Can the Court proceed to de-
cide the case even if the law has not yet become effective? (4%)
‘14 - Q11
The Supreme Court can proceed to decide the case even if the law
has not yet become effective. Since the petitions filed sought to nullify
the Cybercrime Prevention Act, because it violated several provisions
of the Bill of Rights, the Supreme Court became duty-bound to settle
the dispute (Tanada v. Angara, G.R. No. 118296, May 2, 1997, 272
SCRA 18). Since it is alleged that the Cybercrime Prevention Act vio-
lates various provisions of the Bill of Rights, including freedom of
speech, freedom of the press, and the right against unreasonable
searches and seizures, the issues raised are of paramount public in-
terest, of transcendental importance and with far-reaching constitution-
al Implications, that justify dispensation with locus standi and exercise
of the power of judicial review by the Supreme Court (Chavez v. Gon-
zales, G.R. No. 168338, February 15, 2008, 545 SCRA 441). Jurispru-
dence provides that locus standi is not required when the action was
filed to prevent a chilling effect on the exercise of the right to freedom
of expression and overbreadth.
Allmighty Apostles is a relatively new religious group and move-
ment with fast-growing membership, one time, DeepThroat, an
investigative reporter, made a research and study as to what the
group’s leader, Maskeraid was actually doing. DeepThroat even-
tually came up with the conclusion that Maskeraid was a phony
who is just fooling the simple-minded people to part with their
money in exchange for the promise of eternal happiness in some
far-away heaven. This was published in a newspaper which cause
much agitation among the followers of Maskeraid. Some threat-
ened violence against DeepThroat, while some others already
started destroying properties while hurting those selling the
newspaper. The local authorities, afraid of the public disorder that
such followers might do, decided to ban the distribution of the
newspaper containing the article. DeepThroat went to court com-
plaining about the prohibition placed on the dissemination of his
article. He claims that the act of the authorities partakes of the
nature of heckler’s veto, thus a violation of the guaranty of press
freedom. On the other hand, the authorities counter that the act
was necessary to protect the public order and the greater interest
of the community. (4%)
If you were the judge, how would you resolve this issue? ‘14 - Q15
If I were the judge, I would rule that the distribution of the newspaper
cannot be banned. Freedom of the news should be allowed although it
induces a condition of unrest and stirs people to anger. Freedom of the
press includes freedom of circulation (Chavez v. Gonzales, G.R. No.
168338, February 15, 2008, 545 SCRA 441). When governmental
action that restricts freedom of the press is based on content, it is giv-
en the strictest scrutiny and the government must show that there is a
clear and present danger of the substantive evil which the government
has the right to prevent. The threats of violence and even the destruc-
tion of properties while hurting those selling the newspaper do not
constitute a clear and present danger as to warrant curtailment of the
right of DeepThroat to distribute the newspaper (Chavez v. Gonzales,
G.R. No. 168338, February 15, 2008, 545 SCRA 441).
 The Sigma Rho Fraternity
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Bar Questions and Answers
ALTERNATIVE ANSWER:
The action of the government is justified.
The fact that some people had already started destroying properties
while hurting those selling the newspaper can be validly considered by
the government as a clear and present danger, which will justify its
banning of the further distribution of the newspaper containing the
article. The test for limitations on freedom of expression continues to
be the clear and present danger rule --- that words are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that the
lawmaker has a right to prevent (Chavez v. Gonzales, G.R. N.o
168338, February 15, 2008, 545 SCRA 441).
The National Building Code and its implementing rules provide,
inter alia, that operators of shopping centers and malls should
provide parking and loading spaces, in accordance with a pre-
scribed ratio. The Solicitor General, heeding the call of the public
for the provision of free parking spaces in malls, filed a case to
compel said business concerns to discontinue their practice of
collecting parking fees. The malls owners and operators oppose,
saying that this is an invalid taking of their property, thus a viola-
tion of due process. The Solicitor General justifies it, however,
claiming that it is a valid exercise of police power.
Could the mall owners and operators be validly compelled to pro-
vide free parking to their customers? (4%) ‘14 - Q18
No, the mall owners and operators cannot be validly compelled to pro-
vide free parking to their customers, because requiring them to provide
free parking space to their customers is beyond the scope of police
powers. It unreasonably restricts the right to use property for business
purposes and amounts to confiscation of property (Office of the Solici-
tor General v. Ayala Land, Inc., G.R. No. 177056, September 18, 2009,
600 SCRA 617).
Surveys Galore is an outfit involved in conducting nationwide
surveys. In one such survey, it asked the people about the degree
of trust and confidence they had in several institutions of the
government. When the results came in, the judiciary was shown
to be less trusted than most of the government offices. The re-
sults were then published by the mass media. Assension, a trial
court judge, felt particularly offended by the news. He then issued
a show-cause order against Surveys Galore directing the survey
entity to explain why it should not be cited in contempt for com-
ing up with such a survey and publishing the results which were
so unflattering and degrading to the dignity of the judiciary. Sur-
veys Galore immediately assailed the show-cause order of Judge
Assension, arguing that it is violative of the constitutional guaran-
ty of freedom of expression.
Is Surveys Galore’s petition meritorious? (4%) ‘14 - Q19
The petition of Surveys Galore is meritorious. Freedom of speech and
freedom of the press may be identified with the liberty to discuss pub-
licly and truthfully any matter of public interest without censorship and
punishment. There should be no previous restraint on the communica-
tion of views or subsequent liability whether in libel suits, prosecution
for sedition, or action for damages, or contempt proceedings unless
there is a clear and present danger of substantive evil that Congress
has a right to prevent (Chavez v. Gonzales, G.R. No. 168338, February
15, 2008, 545 SCRA 441). Freedom of speech should not be impaired
through the exercise of the power to punish for contempt of court un-
less the statement in question is a serious and imminent threat to the
!32
administration of justice. Here, the publication of the results of the sur-
vey was not intended to degrade the Judiciary (Cabansag v. Fernan-
dez, G.R. No. L-8974, October 18, 1957, 102 Phil. 152).
The National Power and Grid Corporation (NPGC), a government
entity involved in power generation distribution, had its transmis-
sion lines traverse some fields belong to Farmerjoe. NPGC did so
without instituting any expropriation proceedings. Farmerjoe, not
knowing any better, did not immediately press his claim for pay-
ment until after ten years later when a son of his took up Law and
told him that he had a right to claim compensation. That was then
the only time that Farmerjoe earnestly demanded payment. When
the NPGC ignored him, he instituted a case for payment of just
compensation. In defense, NPGC pointed out that the claim had
already prescribed since under its Charter it is clearly provided
that “actions for damages must be filed within five years after the
rights of way, transmission lines, substations, plants or other
facilities shall have been established and that after said period,
no suit shall be brought to question the said rights of way, trans-
mission lines, substations, plants or other facilities.”
If you were the lawyer of Farmerjoe, how would you protect and
vindicate the rights of your client? (4%) ‘14 - Q22
Farmerjoe’s demand for payment is justified and cannot be considered
as prescribed. His demand for payment is an action for the payment of
just compensation and not an action for damages as provided in the
Charter of the National Power and Grid Corporation. It partakes of the
nature of a reverse eminent domain proceeding (or inverse condemna-
tion proceeding) wherein claims for just compensation for property
taken can be made and pursued (National Power Corporation v. Vda.
De Capin, G.R. No. 175176, October 17, 2008, 569 SCRA 648); Na-
tional Power Corporation v. Heirs of Sangkay, G.R. No. 165828, August
24, 2011, 656 SCRA 60).
ALTERNATIVE ANSWER:
I will claim that since the National Power and Grid Corporation took the
property traversing the fields of Farmerjoe without first acquiring title
through expropriation or negotiated sale, his action to recover just
compensation is imprescriptible (Republic v. Court of Appeals, G.R.
No. 147245, March 31, 2005, 454 SCRA 510).
The police got a report about a shooting incident during a town
fiesta. One person was killed. The police immediately went to the
scene and started asking the people about what they witnessed.
In due time, they were pointed to Edward Gunman, a security
guard, as the possible malefactor. Edward was then having re-
freshment in one of the eateries when the police approached him.
They asked him if he had a gun to which question he answered
yes. Then they asked if he has seen anybody shot in the vicinity
just a few minutes earlier and this time he said he did not know
about it. After a few more questions, one of the policemen asked
Edward if he was the shooter. He said no, but then the policeman
who asked him told him that several witnesses pointed to him as
the shooter. Whereupon Edward broke down and started explain-
ing that it was a matter of self-defense. During his trial, the state-
ments he made to the police were introduced as evidence against
him. He objected claiming that they were inadmissible since he
was given his Miranda rights. On the other hand, the prosecution
countered that there was no need for such rights to be given
since he was not yet arrested at the time of the questioning.
If you were the judge, how would you rule on the issue? (4%) ‘14 -
Q23
 The Sigma Rho Fraternity
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Bar Questions and Answers
If I were the judge, I would rule that the confession is inadmissible.
First, the rights under investigation in Section 12, Article III of the Con-
stitution are applicable to any person under investigation began when
a policeman told Edward that several witnesses pointed to him as the
shooter, because it started to focus on him as a suspect (People v.
Bariquit, G.R. No. 122733, October 2, 2000, 341 SCRA 600). Second,
under Section 2 of Republic Act No. 7438, for a confession to be ad-
missible, it must be in writing (People v. Labtan, G.R. N.o. 127493,
December 8, 1999, 320 SCRA 140).
A robbery with homicide had taken place and Lito, Badong and
Rollie were invited for questioning based on information fur-
nished by a neighbor that he saw them come out of the victim’s
house and at about the time of the robbery/killing. The police con-
fronted the three with this and other information they had gath-
ered, and pointedly accused them of committing the crime.
Lito initially resisted, but eventually broke down and admitted
participation in the crime. Elated by this break and desirous of a
written confession soonest, the police called City Attorney Juan
Buan to serve as the trio’s counsel and to advise them about their
rights during the investigation.
Badong and Rollie, weakened in spirit by Lito’s early admission,
likewise admitted their participation. The trio thus signed a joint
extrajudicial confession which served as the main evidence
against them at their trial. They were convicted based on their
confession.
Should the judgement of conviction be affirmed or reversed on
appeal? (5%) ‘13 - Q3
The judgement of conviction, should be reversed on appeal. It relied
mainly on the extrajudicial confession of the accused. The lawyer as-
sisting them must be independent. City Attorney Juan Buan is not in-
dependent. As City Attorney, he provided legal support to the City
Mayor in performing his duties, which include the maintenance of
peace and order (People v. Sunga, G.R. No. 126029, March 27, 2003,
399 SCRA 624).
ALTERNATIVE ANSWER:
The judgement of conviction, should be affirmed if the accused failed
to object when their extrajudicial confession was offered in evidence,
which has rendered it admissible (People v. Samus, G.R. No. 135957-
58, September 17, 2002, 389 SCRA 93).
As he was entering a bar, Arnold - who was holding an unlit cig-
arette in his right hand - was handed a matchbox by someone
standing near the doorway. Arnold unthinkingly opened the
matchbox to light his cigarette and as he did so, a sprinkle of
dried leaves fell out, which the guard noticed . The guard immedi-
ately frisked Arnold, grabbed the matchbox, and sniffed its con-
tents. After confirming that the matchbox contained marijuana, he
immediately arrested Arnold and called in the police.
At the police station, the guard narrated to the police that he per-
sonally caught Arnold in possession of dried marijuana leaves.
Arnold did not contest the guard’s statement; he steadfastly re-
mained silent and refused to give any written statement. Later in
court, the guard testified and narrated the statements he gave to
the police over Arnold’s counsel’s objections. While Arnold pre-
sented his own witnesses to prove that his possession and ap-
prehension had been set-up, he himself did not testify.
!33
The court convicted Arnold, relying largely on admission of the
charge by silence at the police investigation and during trial.
From the constitutional law perspective, was the court correct in
its ruling? (6%) ‘13 - Q7
The court was wrong in relying on the silence of Arnold during the po-
lice investigation and during the trial. Under Article III, Section 12 of the
1987 Constitution, he had the right to remain silent. His silence cannot
be taken as a tacit admission, otherwise, his right to remain silent
would be considered nugatory. Considering that his right against self-
incrimination protects his right to remain silent, he cannot be penalized
for exercising it (People v. Galvez, G.R. No. 157221, March 30, 2007,
519 SCRA 521).
ALTERNATIVE ANSWER:
The court correctly convicted Arnold. There is no showing that the
evidence for prosecution was insufficient. When Arnold remained
silent, he runs the risk of an inference of guilt from non-production of
evidence on his behalf (People v. Solis, G.R. No. 124127, June 29,
1998, 128 SCRA 217).
Conrad is widely known in the neighborhood as the drug addict.
He is also suspected of being a member of the notorious “Akyat
Condo Gang” that has previously broken into and looted condo-
minium units in the area.
Retired Army Colonel Sangre - who is known as an anti-terrorism
fighter who disdained human and constitutional rights and has
been nicknamed “terror of Mindanao” - is now Head of Security of
Capricorn Land Corporation, the owner and developer of Sagittar-
ius Estates where a series of robberies has recently taken place.
On March 1,2013, Conrad informed his mother, Vannie, that uni-
formed security guards had invited him to talk in their office but
refused to come. Later that day, however, Conrad appeared to
have relented; he was seen talking to the security office flanked
by two security guards. Nobody saw him leave the office after-
wards.
Conrad did not go home that night and was never seen again. The
following week and after a week-long search, Vannie feared the
worst because of Col. Sangre’s reputation. She thus reported
Conrad’s disappearance to the police. When nothing concrete
resulted from the police investigation, Vannie - at the advice of
counsel - filed a petition for a writ of amparo to compel Col. San-
gre and the Sagittarius Security Office to produce Conrad and to
hold them liable and responsible for Conrad’s disappearance.
(A) Did Vannie’s counsel give the correct legal advice? (6%)
‘13 - Q9a
The advice of Vannie’s counsel that she file a petition for a writ of am-
paro is not correct. In order that a writ of amparo can be availed of
against a private individual for a disappearance of someone, the in-
volvement of the government is indispensable. There is no showing of
any participation of the government in Conrad’s disappearance (Navia
v. Pardico, G.R. No. 184467, June 19, 2012,673 SCRA 618).
(B) If the petition would prosper, can Col. Sangre be held
liable and/or responsible for Conrad’s disappearance?
(6%) ‘13 - Q9b
 The Sigma Rho Fraternity
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Bar Questions and Answers
No, Col. Sangre cannot be held responsible for the disappearance of
Conrad. Command responsibility has no applicability to an amparo
proceeding (Rubrico v. Macapagal-Arroyo, G.R. No. 183871, February
18,2010, 613 SCRA 312).
ALTERNATIVE ANSWER:
Although the writ of amparo does not pinpoint criminal culpability for a
disappearance, it determines responsibility or at least accountability,
for the purpose of imposing the appropriate remedy. Responsibility
refers to the extent of the actors have been established to have partici-
pated in an enforced disappearance, as a measure of the remedy, to
be crafted, such as the directive to file the appropriate criminal and civil
cases against the responsible parties (Razon Jr. v. Tagitis, G.R. No.
182498, December 3,2009, 606 SCRA 598).
Mr. Violet was convicted by the RTC of Estafa. On appeal, he filed
with the Court of Appeals a Motion to Fix Bail for Provisional Lib-
erty Pending Appeal. The Court of Appeals granted the motion
and set a bail amount in the sum of five (5) Million pesos, subject
to the conditions that he secure “a certification/ guaranty from the
Mayor of the place of his residence that he is a resident of the
area and that he will remain to be a residence therein until final
judgement is rendered or in case he transfers residence, it must
be with prior notice the court”. Further, he was ordered to surren-
der his passport at the Division, Clerk of Court for safekeeping
until the court orders its return.
a) Mr. Violet challenges the conditions imposed by the
Court of Appeals as violative of his liberty of abode and
right to travel. Decide with reasons (5%) ‘12 - Q1a
The right to change abode and the right to travel are not absolute. The
liberty of changing abode is merely being required to inform the Court
of Appeals if he does. (Yap vs. Court of Appeals, 358 SCRA 564)
b) Are “liberty of abode” and “the right to travel” absolute
rights? Explain. What are the respective exception/s to
each right if any? (5%) ‘12 - Q1b
The liberty of abode and the right to travel are not absolute. The liberty
of abode and of changing it can be imposed within the limits prescribed
by law upon lawful order of the court. The right to travel may be im-
paired in the interest of national security, public safety, or public health
as may be provided by law. (Section 6, Article III of the Constitution.)
In addition, the court has the inherent power to restrict the right of an
accused who has pending criminal case to travel abroad to maintain
jurisdiction over him. (Santiago vs. Vasquez 217 SCRA 633.)
Mr. Brown, a cigarette vendor, was invited by P01 White to a near-
by police station. Upon arriving at the police station, Brown was
asked to stand side-by-side with five (5) other cigarette vendors in
a police line-up. P01 White informed them that they were looking
for a certain cigarette vendor who snatched the purse of a passer-
by and the line-up was to allow the victim to point at the vendor
who snatched her purse. No questions were to be asked from the
vendors.
a) Brown, afraid of a “set-up” against him, demanded that
he be allowed to secure his lawyer and for him to be
present during the police line-up. ls Brown entitled to
counsel? Explain (5%); ‘12 - Q3a
!34
Brown is not entitled to counsel during the police line-up. He was not
yet being asked to answer for a criminal offense. (Gamboa vs. Cruz,
162 SCRA 642.)
b) Would the answer in (a.) be the same if Brown was
specifically invited by White because an eyewitness to
the crime identified him as the perpetrator? Explain.
(3%); ‘12 - Q3b
Brown would be entitled to the assistance of n lawyer. He was already
considered as a suspect and was therefore entitled to the rights under
custodial investigation» (People vs; Legaspi, 331 SCRA 95.)
c) Briefly enumerate the so-called ‘Miranda rights”. (2%).
‘12 - Q3c
The Miranda warning means that a person in custody who will be inter-
rogated must be informed of the following:
1. He has the right to remain silent;
2. Anything said can be used as evidence against him;
3. He has the right to have counsel during the investigation;
and,
4. He must be informed that if he is indigent, a lawyer will be
appointed to represent him. (Miranda vs. Arizona, 384 U.S.
436.)
a) What is the doctrine of "overbreadth"? In what context
can "it not be correctly applied? Not correctly applied?’
Explain (5%); ‘12 - Q8a
A statute ls overbroad when a governmental purpose to control or pre-
vent activities constitutionally subject to state regulations is sought to
be achieved by means which sweep unnecessarily broadly and invade
the area of protected freedom. It applies both to free speech cases and
penal statutes. However, a facial challenge on the ground of over-
breadth can only be made in free speech cases because of its chilling
effect upon protected speech. A facial challenge on the ground of
overbreadth ls not applicable to penal statutes, because in general
they have an in terrorem effect. (Southern Hemisphere Engagement.
Network, Inc. vs. Anti-Terrorism Council, 632 SCRA 146.)
(NOTE: The word “overbreath" should read “overbreadth”.)
b) What is the doctrine of “void for vagueness”? In what
context can it be correctly applied? Not correctly ap-
plied? Explain (5%). ‘12 - Q8b
A statute is vague when it lacks comprehensible standards that men of
common intelligence that guess at its meaning and differ to its applica-
tion. It applies to both free speech cases and penal statutes. However,
a facial challenge on the ground of vagueness can he made only in
free speech cases. It does not apply to penal statutes. (Southern
Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, 632
SCRA 14-6.)
In a protest rally along Padre Faura Street, Manila, Pedrong Pula
took up the stage and began shouting “Kayong mga kurakot
kayo! Magsi-resign na kayo! Kung hindi, manggugulo kami
dito!” (you corrupt officials, you better resign now, or else we will
cause trouble here!”) simultaneously, he brought out a rock the
size of a fist and pretended to hurl it at the flagpole area of a gov-
ernment building. He did not actually throw the rock.
 The Sigma Rho Fraternity
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Bar Questions and Answers
a) Police officers who were monitoring the situation imme-
diately approach Pedrong Pula and arrested him. He
was prosecuted for seditious speech and was convict-
ed. On appeal, Pedrong Pula argued he was merely ex-
ercising his freedom of speech and freedom of expres-
sion guaranteed by the Bill of Rights. Decide with rea-
sons. (5%); ‘12 - Q9a
Pedrong Pula should be acquitted. His freedom of speech should not
be limited in the absence of a clear and present danger of a substan-
tive evil that the state had the right to prevent. He pretended to hurl a
rock but did not actually throw it. He did not commit any act of lawless
violence. (David vs. Macapagal-Arroyo, 489 SCRA 160.]
b) What is “commercial speech"? ls it entitled to constitu-
tional protection? What. must be shown in order for
government to curtail “commercial speech”? Explain.
(3%). ‘12 - Q9b
Commercial speech is communication which involves only the com-
mercial interests of the speaker and the audience, such as advertise-
ments. (Black's Law Dictionary, 9th ed., p. 1529.)
Commercial speech is entitled to constitutional protection. (Ayer Pro-
ductions Pty. , Ltd. vs. Capulong, 160 SCRA 861.]
Commercial speech may be required to be submitted to a government
agency for review to protect public interests by preventing false or
deceptive claims. [Pharmaceutical and Health Care Association of the
Philippines vs. Duque, 535 SCRA 265.)
c) What are the two (2) basic prohibitions of the freedom of
speech and of the press clause? Explain (2%). ‘12 - Q9c
The two basic prohibitions on freedom of speech and freedom of the
press are prior restraint and subsequent punishment. (Chavez vs.
Gonzales, 545 SCRA 441.)
a) What do you understand by the term “hierarchy of civil
liberties”? Explain. (5%); ‘12 - Q10a
The hierarchy of civil liberties means that freedom of expression and
the rights of peaceful assembly are superior to property rights. (Philip-
pine Blooming Mills Employees Organization vs. Philippine Blooming
Mills Company, Inc.; 51 SCRA 189.)
b) Distinguish fully between the “free exercise of religion
clause” and the “non-establishment of religion clause”.
(3%); ‘12 - Q10b
The freedom of exercise of religion entails the right to believe, which is
absolute, and the right to act on one’s belief which is subject to regula-
tion. As a rule, the freedom of exercise of religion can be restricted only
if there is a clear and present danger of a substantive evil which the
state has the right to prevent. (Iglesia Ni Cristo vs. Court of Appeals,
259 SCRA 529.)
The non-establishment clause implements the principle of separation
of church and state.
The state cannot set up a church, pass laws that aid one religion, and
all religions prefer one religion over another, force or influence a per-
son to go to or remain away from church against his will, or force him
to profess a belief or disbelief in any religion. (Everson vs. Board of
Education, 330 U.S. 1.)
!35
c) When can evidence “in plain view" be seized without
need of a search warrant? Explain. (2%). ‘12 - Q10c
Evidence in plain view can be seized without need of a search warrant
if the following elements are present:
1. There was a prior valid intrusion based on the valid warrant-
less arrest in which the police were legally present pursuant
of their duties;
2. The evidence was inadvertently discovered by the police
who had the right to be where they were;
3. The evidence must be immediately apparent; and,
4. Plan view justified seizure of the evidence without further
search. (Del Rosario vs. People, 358 SCRA 37.)
Objection to the production of a photocopy of a master plan of a
military camp on the ground of violation against right to self-in-
crimination. ’10 – Q10
The objection of Lt. Valdez is not valid.
The right against self-incrimination refers to testimonial evidence
and does not apply to the production of a photocopy of the master plan
of Camp Aquino, because it is a public record. He cannot object to the
request for him to confirm his custody of the master plan, because he
is the public officer who had custody of it. (Almonte v. Vasquez, 244
SCRA 286 [1995].)
Warrantless search and seizure; Waiver must be given by the
person whose right is violated. ’10 – Q12
The warrantless search and seizure was not valid. It was not
made as an incident to a lawful warrantless arrest (People v. Baula,
344 SCRA 663 [2000].) The caretaker had no authority to waive the
right of the brothers Pilo and Ramon Maradona against unreasonable
search and seizure. The warrantless seizure of ski masks and bats
cannot be justified under the plain view doctrine, because they were
seized after an invalid intrusion in to the house (People v. Bolasa, 321
SCRA 459 [1999].)
Liability of principal in a case in which the PTA of the school con-
tributed funds for the construction of a grotto and chapel where
ecumenical religious services and seminars are being held after
school hours. ’10 – Q19
The principal is liable.
Although the grotto and the chapel can be used by different reli-
gious sects without discrimination, the land occupied by the grotto and
the chapel will be permanently devoted to religious use without being
required to pay rent. This violated the prohibition against the estab-
lishment of religion enshrined in a Section 5 of the Bill of Rights (Opin-
ion No. 12 of the Secretary of Justice dated February 2, 1979.) Al-
though religion is allowed to be taught in public elementary and high
schools, it should be without additional cost to the government (Section
3(3), Article XIV of the Constitution.)
Overbreadth Doctrine and Void-for-Vagueness Doctrine; Distinc-
tion. ’10 – Q24
While the overbreadth doctrine decrees that a governmental pur-
pose may not be achieved by means in a statute which sweep unnec-
essary broadly and thereby invades the area or protected freedom, a
statute is void for vagueness when it forbids or requires the doing of an
act in terms so vague that men of common intelligence cannot neces-
sarily guess its meaning and differ as to its application (Estrada v.
Sandiganbayan, 369 SCRA 394 [2001].)
Admissibility of videotape recording of what occurred in a hotel
lobby; Right to Privacy. ’09 – Q6
The objection should be overruled. What the Anti-Wire Tapping
law prohibits is the overhearing, intercepting, and recording of private
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communications. Since the exchange of heated words is not private, its
videotape recording is not prohibited (Navarro v. Court of Appeals, 313
SCRA 153 [1999].)
Warrantless arrest of a person walking unsteadily with reddish
eyes in an area where sale and use of prohibited drugs is ram-
pant; Admissibility in evidence of prohibited drugs seized from
him. ’09 – Q7; ’00 – Q14a
The warrantless arrest of the accused was valid. The cemetery
was rumoured to be a place where the sale of drugs was rampant. The
eyes of the accused were reddish and glassy. He was walking un-
steadily, veered away from the policemen upon seeing them, and re-
fused to say what was in his clenched fist. The policemen had suffi-
cient reason to stop him and investigate if he was high on drugs. Since
the investigation showed that the accused was in possession of shabu,
he could be arrested without the need for a warrant (Manalili v. Court of
Appeals, 280 SCRA 400 [1997].)
Since the search and seizure of the shabu was incidental to a
valid and warrantless arrest, the shabu is admissible in evidence
(Manalili v. Court of Appeals, 280 SCRA 400 [1997].)
Miranda rights not violated if he was not given the lawyer of his
choice from the U.S. and when his rights were informed to him in
halting English and he was already at the police station. ’09 –
Q12b
The fact that the police officer gave him the Miranda rights in
halting English does not detract from its validity. Under Section 2(b) of.
R.A. No. 7438, it is sufficient that the language known to and under-
stood by him. William need not be given the Miranda warning before
the investigation started. William was not denied his Miranda rights. It
is not practical to require the police officer to provide a lawyer of his
own choice form the United States (Gamboa v. Cruz, 162 SCRA 642
[1988].)
“International Standard of Justice” and that he comes from a
state that has outlawed capital punishment are not valid grounds
in granting bail as a matter of right. ’09 – Q12c
William should not be granted bail as a matter of right. He is sub-
ject to Philippine criminal jurisdiction, therefore, his right to bail must be
determined on the basis of Section 13, Article III of the Constitution.
Constitutionality of MTRCB in suspending the airing of a TV sta-
tion on the ground that said station aired a documentary without
obtaining the necessary permit required by P.D. 1986. Under said
law, MTRCB has the power of review over all TV programs, except
“newsreels” and programs “by the Government.” ’09 – Q15a
The contention of KKK-TV is not tenable. The prior restraint is a
valid exercise of police power and does not violate the right of freedom
of expression. Television is a medium which reaches even the eyes
and ears of children (Iglesia ni Cristo v. Court of Appeals, 259 SCRA
529 [1996].)
Exemption from administrative charge on immorality; Cohabiting
with a married man with church sanction evidenced by a docu-
ment of “Declaration of Pledging Faithfulness.” ’09 – Q16a
Angelina should be exonerated. First, it has not been shown that
there is compelling state interest which will be undermined by granting
her an exemption. Second, it has not been shown that the least intru-
sive means possible was used so that he free exercise of religion is not
infringed any more than necessary (Estrada v. Escritor, 492 SCRA 1
[2006].)
Removal of Grand Elder of a religious sect on the ground of im-
morality is not within the ambit of the courts. ’09 – Q16b
The case will not prosper. This involves the performance of the
official functions of religious authorities. Because of the separation of
Church and State, courts must respect the autonomy of the religious
sect in such matters (Taruc v. De la Cruz, 453 SCRA 123 [2005].)
!36
Warrantless search and seizures; Defenses. ’08 – Q5
I will invoke my client’s right against unreasonable search and
seizure (Sec. 2, Article II of the Constitution) which guarantees: (1)
sanctity of the home; (2) inadmissibility of the capsules seized; and (3)
inviolability of the person. A mere tip from a reliable source is not suffi-
cient to justify a warrantless arrest or search (People v. Nuevas, G.R.
No. 170233, 22 February 2007.)
The court should declare the search and seizure illegal:
1. The entry into the accused’s home was not a permissible
warrantless action because the police had no personal
knowledge that any crime was taking place;
2. Due to the invalid entry, whatever evidence the police had
gathered would be inadmissible; and
3. The arrest of the accused was already invalid and causing
him to vomit while under custody was an unreasonable inva-
sion of personal privacy (U.S. v. Montoya, 473 U.S. 531
[1985].)
Constitutionality of PNP circular which directed all its members
the style and length of male officers’ hair, sideburns and mous-
taches, as well as the size of their waistlines. ’09 – Q6
Although the National Police is civilian in character, it partakes of
some of the characteristics of military life, thus permitting the imposi-
tion of reasonable measures of discipline, uniformity in behaviour and
presentableness. The circular does not go beyond what is reasonable
and therefore passes the test of due process (Gudani v. Senga, G.R.
No. 170165, 15 August 2006.)
In Kelley v. Johnson, 425 U.S. 238 (1976), the U.S. Supreme
Court said that the regulation of policemen could be justified so long as
there was a rational connection between the regulation and the promo-
tional safety of persons and property. The requisite connection was
present since the government had a legitimate interest in policemen’s
appearances so that they would: (1) be readily recognizable to the
public and (2) feel a sense of “esprit de corps” that comes from being
similar.
Bail, as a matter of right, in a murder case. ’08- Q7a
Bail is a matter of right unless the evidence of guilt is strong (Sec-
tion 13, Article III of the Constitution.) Whether or not JC is entitled to
bail will depend on whether the court, after a bail hearing, finds that the
evidence against him is strong. If the evidence is not strong, he is enti-
tled to bail
Effect of presenting evidence after entering a plea of guilty of the
prosecution’s appeal acquitting the accused. ’08 – Q7b
By presenting evidence of self-defense, JC effectively withdrew
his plea of guilty (People v. Balisacan, G.R. No. L-26376, 31 August
1966.) In the absence of a valid plea, an essential element for jurisdic-
tion of the court and first jeopardy was absent. Consequently, the court
had no jurisdiction to acquit JC. Thus, an appeal by the prosecution
would not violate the rule against double jeopardy.
Constitutionality of law establishing the right to trial by jury of an
accused charged with a felony or offense punishable with reclu-
sion perpetua or life imprisonment. ’08 – Q13
No. Trial by jury is not contemplated or granted under the Consti-
tution. Jury trial supposes the division of judicial power into fact finding
and legal decision on facts found. The Philippine Constitution says that
judicial power shall be vested in one Supreme Court and such other
courts which may be created by law (Sec. 5(5) of the Constitution.) In
our system, all trials, because they involve the exercise of judicial
power, are by courts and may not involve juries. In Echegaray v. Secre-
tary of Justice, G.R. No. 132601, 19 January 1999, the Supreme Court
ruled that Congress has no power to repeal, alter or supplement rules
concerning pleading, practice and procedure.
Constitutionality of written offer by the principal of a public high
school to parents and guardians of all the school students in-
forming them that the school was willing to provide religious in-
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struction to its Catholic students during class hours provided
they give their consent in writing. ’08 – Q15a
The principal complied with the constitutional command that reli-
gious instruction shall be allowed to students in public schools at the
option of their parents or guardians expressed in writing (Sec. 3(3),
Article XIV of the Constitution.)
The offer does not violate the constitutional prohibition against the
establishment of religion because Sec. 3(3), Article XIV of the Constitu-
tion states the option expressed in writing by the parents or guardian,
religion shall be taught to their children in public elementary and high
schools within regular class hours.
Constitutionality of rejection of the Catholic principal of the de-
mand of the parents of evangelical Christian students that they
too be entitled to have their children instructed in their own reli-
gious faith during class hours. ’08 – Q15b
Under the equal protection clause, parents and children of
evangelical churches have the same right. Sec. 3(3), Article XIV of the
Constitution states that at the option expressed in writing by the par-
ents or guardian, religion shall be taught to their children in public and
elementary high school during class hours. Section 13, Article II of the
Constitution provides that the government shall support the natural and
primary right and duty of parents in rearing the youth for the develop-
ment of their moral character.
Whether or not student leaders, who encouraged students to
wear black T-shirts as a symbol of their protest both against high
prices and the university ban on demonstrations, be expelled. ’08
– Q16
The wearing of black T-shirts is symbolic speech protected by the
Constitution. Absent any disruption of public order, whether in or out of
campus, it is akin to pure speech and cannot be made punishable. The
school regulation violates the rule against subsequent punishment of
acts which present no clear and present danger of public disorder
(Malabanan v. Ramento, G.R. No. L-62270, 21 May 1984.)
The 1987 Constitution has increased the scope of academic free-
dom recognized under the previous Constitution. ’07 – Q1b
According to Section 8(2), Article XV of the 1973 Constitution,
“[A]ll institutions of higher learning shall enjoy academic freedom.” On
the other hand, Section 5(2), Article XIV of the 1987 Constitution states
that “[A]cademic freedom shall be enjoyed in all institutions of higher
learning.” The change in text means that academic freedom will not
only be enjoyed by institutions of higher learning, but also by those
who make them such as teachers, students and researchers (Record
of the Constitutional Commission, Vol. IV, p. 439.)
Constitutionality of an E.O. issued by a city mayor which pro-
hibits all hospitals operated by the city from prescribing the use
of artificial methods of contraception. ’07 – Q2a
The Executive Order is constitutionally infirm. It violates the guar-
antees of due process and equal protection. Due process includes the
right to decisional privacy, which refers to the ability to make one’s own
decisions and act on these decisions, free from governmental or un-
wanted interference. Forbidding the use of artificial methods of contra-
ception infringes on the freedom of choice in matters of marriage and
family life (Griswold v. Connecticut, 381 U.S.415 [1965].) Moreover, the
Executive Order violates equal protection as it discriminates against
poor women in the city who cannot afford to pay private clinics.
There is no infringement of constitutional rights when a private
association organized for self-regulation of the advertising indus-
try ordered the pull-out of the advertisement because it failed to
abide by its ethical guidelines. ’07 – Q5a
Destilleria Felipe Segundo cannot claim that its constitutional
rights were infringed. In this case, a private association formed by
advertising companies for self-regulation was the one who ordered that
the advertisement be pulled out, because Destilleria did not comply
with the association’s ethical guidelines. The guarantee of freedom of
!37
speech is a limitation on state action and on the action of private par-
ties (Lloyd Corp. v. Tanner, 407 U.S. 551 [1972].) The mass media are
private enterprises, and their refusal to accept any advertisement does
not violate the freedom of speech (Times-Picayune Publishing Co. V.
United States, 345 U.S. 594 [1953]; Columbia Broadcasting System,
Inc. v. Democrat Control Committee, 412 U.S. 94 [1973].)
Government-owned and controlled corporation cannot boycott
and block any advertising funds for any newspaper, radio or TV
station that carried the “kinse anyos” advertisements. ‘07 – Q5b
The government-owned and controlled corporations and the gov-
ernment nominees in sequestered corporations cannot block any ad-
vertising funds allocated for any newspaper, radio or television station
which carries the advertisement of Destilleria Felipe Segundo. Since
they are government entities and officers, they are bound by the guar-
antee of freedom of speech. Freedom of speech extends to commer-
cial advertisements [Metromedia, Inc. v. San Diego, 453 U.S. 490
[1981].) The mere fact that an advertisement is offensive cannot justify
its suppression (Carey v. Population Services International, 431 U.S.
678 [1977].) The blocking of advertising funds is a threat intended to
prevent the freedom of speech of Destilleria Felipe Segundo through
the fear of consequences. Such a threat qualifies as prior restraint
(Rosden, The Law of Advertising, Vol. I, pp. 5-13.)
Was the action of the Manila police stopping a protest after the
protesters three meter after crossing the boundary between Mani-
la and QC a valid exercise of police power; Protesters had se-
cured a permit from the Mayor of QC but not from the Mayor of
Manila. ’07 – Q7a
Since the protesters merely reached three meters beyond the
boundary of Quezon City, the police authorities in Manila should not
have stopped them, as there as was no clear and present danger to
public order. In accordance with the policy of maximum tolerance, the
police authorities should have asked the protesters to disperse and if
they refused, the public assembly may be dispersed peacefully.
May the SLEX security police validly stop a caravan of vehicles
and marchers on the ground that some banners had been blown
off by the wind which caused hazard to other motorists and pro-
ceeded to march after they were stopped by the security police.
’07 – Q7b
In accordance with the policy of maximum tolerance, the security
police should not have stopped the protesters. They should have sim-
ply asked the protesters to take adequate steps to prevent their ban-
ners from being blown off, such as rolling them while they were in the
expressway and required the protesters to board their vehicles and
proceed on their way.
Remedy against denial by City Mayor of its application for a per-
mit to hold a rally on Mendiola Street. ’06 – Q2(1)
The Samahan ng Mga Mahihirap may contest the denial of its
application for a permit by filing an action in an appropriate court of law
(Section 6(e) of B.P. Blg. 880, The Public Assembly Act of 1985).
Availability of a Freedom Park does not by itself justify the denial
for a permit to hold a rally. ’06 – Q2(2)
The availability of a Freedom Part does not by itself justify the
denial of the application for a permit, because a rally may be held in
another public place, such as, in a campus of a government-owned or
operated educational institution or even in a private property, unless
there is a clear and present danger of a substantive evil which the
State has the right to prevent (Section 4, B.P. Blg 880)
Requirement to apply for a permit to hold a rally is not a prior
restraint on freedom of speech and assembly. ’06 – Q2(3)
The requirement to apply for a permit to hold a rally us not a prior
restraint on freedom of speech and assembly, because the require-
ment merely regulates the exercise of the right as to the time, place
and matter of the rally to the extent needed to avoid a clear and
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present danger of the substantive evil which the State has the right to
prevent. The requirement is no content-based, since the content of the
speech is not relevant to the regulation (Bayan v. Ermita, 488 SCRA
227 [2006)].)
Legality of warrantless arrests made by the police of SM members
who held the rally despite the denial of SM’s application for a
permit to hold a rally. ’06 – Q2(4)
Only the leader or organizer can be arrested without a warrant
during the rally for holding a rally without a permit, but no person can
be arrested for merely participating in or attending the rally if it was
peaceful (Section 13(a), B.P. Blg. 880.) The rally should be peacefully
dispersed (Section 12, B.P. Blg. 880.)
A law prohibiting Chinese citizens from engaging in retail trade is
unconstitutional. ’06 – Q4(1)
A law prohibiting Chinese citizens from engaging in retail trade is
unconstitutional because it violates the guarantee of equal protection
of the laws found in the Bill of Rights (Section 1, Article III of the Con-
stitution.) Equal protection applies even to aliens. It singled out Chi-
nese citizens and did not include other aliens although they are similar-
ly situated. The prohibition should have applied to all aliens. For a
classification to be valid, it must apply to all those belonging to the
same class (Central Bank Employees Association, Inc. v. Bangko Sen-
tral ng Pilipinas, 446 SCRA 299 [2004].)
A law denying person charged with crimes punishable by reclu-
sion perpetua or death the right to bail is unconstitutional. ’06 –
Q4(2)
A law denying person charged with crimes punishable by reclu-
sion perpetua or death the right to bail is unconstitutional, because
according to the Constitution, “[A]ll persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law” (Section 13,
Article III of the Constitution.)
An accused’s right against self-incrimination is violated when he
is ordered to produce a sample of his handwriting to be used as
evidence that he is the author of a letter wherein he agreed to kill
the victim. ’06 – Q7 (1)
Ordering the accused to produce a sample of his handwriting to
be used as evidence that he is the author of a letter wherein he agreed
to kill the victim will violate his right against self-incrimination. Writing is
not a purely mechanical act, because it requires the application of
intelligence and attention. Producing a sample of his handwriting may
identify him as the writer of the letter (Beltran v. Samson, 53 Phil. 570
[1929].)
State whether bail is a matter of right or a matter of discretion in
the following cases:
1. The imposable penalty for the crime charged is reclu-
sion perpetua and the accused is a minor;
A minor charged with a crime punishable by reclusion perpetua is
entitled to bail as matter of right. Under Article 68 of the Revised Penal
Code, in case of conviction, the penalty would be one degree lower
than reclusion perpetua. This rules out reclusion perpetua (Bravo v.
Borja, 134 SCRA 366 [1985].)
2. The imposable penalty for the crime charged is life im-
prisonment and the accused is a minor;
Bail is a matter of discretion for a minor charged with an offense
punishable with life imprisonment, because Article 68 of the Revised
Penal Code is inapplicable and he is not entitled to privileged mitigat-
ing circumstance under it (People v. Lagasca, 148 SCRA 264 [1987].)
3. The accused has been convicted of homicide on a
charge of murder and sentenced to suffer an indetermi-
nate penalty from eight (8) years and one (1) day of pri-
!38
sion mayor, as minimum, to twelve (12) years and four
(4) months of reclusion temporal, as maximum. ‘05 – Q7
Bail is a matter of discretion for an accused convicted of homicide
on a charge of murder, because an appeal opens the whole case for
review. There is a possibility that he may be convicted of murder, which
is punishable with reclusion perpetua of death. His conviction shows
the evidence of his guilt is strong (Obosa v. Court of Appeals, 266
SCRA 281 [1997].)
Mariano was arrested by the NBI as a suspect in the shopping
mall bombings. Advised of his rights, Mariano asked for the as-
sistance of his relative, Atty. Santos. The NBI noticed that Atty.
Santos was inexperienced, incompetent and inattentive. Deeming
him unsuited to protect the rights of Mariano, the NBI dismissed
Atty. Santos. Appointed in his place was Atty. Barroso, a bar top-
notcher who was in the premises visiting a relative, Atty. Barroso
ably assisted Mariano when the latter gave a statement. However,
Mariano assailed the investigation claiming that he was deprived
of counsel of his own choice.
Was the NBI correct in dismissing Atty. Santos and appointing
Atty. Barroso in his stead? Is Mariano’s statement, made with the
assistance of Atty. Barroso, admissible in evidence? ’05 – Q8(1)
Since Atty. Santos was chosen by Mariano himself, the National
Bureau of Investigation had no authority to dismiss him (People v.
Jimenez, 204 SCRA 719 [1991].) If he was incompetent, the National
Bureau of Investigation should have stopped the investigation.
The statement of Mariano made with the assistance of Atty. Bar-
roso is not admissible in evidence if the person he visited is connected
with the National Bureau of Investigation. Atty. Barroso is not of Mari-
ano’s own choice (People v. Sahagun, 274 SCRA 206 [1997].)
Emilio had long suspected that Alvin, his employee, had been
passing trade secrets to his competitor, Randy, but he had no
proof. One day, Emilio broke open the desk of Alvin and discov-
ered a letter wherein Randy thanked Alvin for having passed on
him vital trade secrets of Emilio. Enclosed in the letter was a
check for P50,000 drawn against the account of Randy and
payable to Alvin. Emilio then dismissed Alvin from his employ-
ment. Alvin filed suit assailing his dismissal. Emilio’s proof are
the said letter and check which are objected to by Alvin as inad-
missible for having been obtained through an illegal search. Rule
on the admissibility of the letter and the check. ’05 – Q8(2)
The check is admissible in evidence against Alvin, because the
constitutional prohibition against unreasonable search and seizures is
a restraint upon the government and not upon private parties (Water-
ous Drug Corp. v. National Labor Relations Commission, 280 SCRA
735 [1997].)
However, the letter is inadmissible as evidence against Alvin,
because the constitutional provision declaring that the privacy of com-
munications and correspondence is inviolable is applicable to private
parties. The letter was seized without a lawful court order, as required
by Section 3(1), Article III of the Constitution (Zulueta v. Court of Ap-
peals, 253 SCRA 699 [1996].)
The STAR, a national daily newspaper, carried an exclusive report
stating that Senator XX received a house and lot located at YY
Street, Makati, in consideration for his vote cutting cigarette taxes
by 50%. The Senator sued the STA, its reporter, editor and pub-
lisher for libel, claiming the report was completely false and mali-
cious. According to the Senator, there is no YY Street in Makati,
and the tax cut was only 20%. He claimed P1 million pesos in
damages. The defendants denied “actual malice,” claiming privi-
leged communication and absolute freedom of the press to report
on public officials and matters of public concern. If there was any
error, the STAR said it would publish the correction promptly. Is
there any “actual malice” in STAR’s reportage? How is “actual
malice” defined? Are the defendants liable for damages? ’04 –
Q5a
Since Senator XX is a public person and the questioned imputa-
tion is direct against him in his public capacity, in this case actual mal-
ice means the statement was made with knowledge that it was false or
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with reckless disregard of whether it was false or not (Borjal v. Court of
Appeals, 301 SCRA 1 [1999].) Since there is no proof that the report
was published with knowledge that it is false or with reckless disregard
of whether it was false or not, the defendants are not liable for dam-
ages.
OZ lost five heads of cattle which he reported to the police as
stolen from his barn. He requested several neighbors, including
RR, for help in looking for the missing animals. After an extensive
search, the police found two heads in RR’s farm. RR could not
explain to the police how they got hidden in a remote area of his
farm. Insisting on his innocence, RR consulted a lawyer who told
him he has a right to be presumed innocent under the Bill of
Rights. But there is another presumption – of theft arising from
his unexplained possession of stolen cattle – under the penal law.
Are the two presumptions capable of reconciliation in this case?
If so, how can they be reconciled? If not, which would prevail? ’04
– Q5b
The two presumptions can be reconciled. The presumption of
innocence stands until the contrary is proved. It may be overcome by a
contrary presumption founded upon human experience. The presump-
tion that RR is the one who stole the cattle of OZ is logical, since he
was found in possession of the stolen cattle. RR can prove his inno-
cence by presenting evidence to rebut the presumption. The burden of
evidence is shifted to RR, because how he came into possession of
the cattle is peculiarly within his knowledge (Dizon-Pamintuan v. Peo-
ple, 234 SCRA 63 [1994].)
The City of San Rafael passed an ordinance authorizing the City
Mayor, assisted by the police, to remove all advertising signs
displayed or exposed to public view on the main city street, for
being offensive or otherwise a nuisance. AM, whose advertising
agency owns and rents many of the billboards ordered removed
by the City Mayor, claims that the City should pay for the de-
stroyed billboards at their current market value since the City has
appropriated them for the public purpose of beautification. The
Mayor refuses to pay, so AM is suing the City and the Mayor for
damages arising from the taking of his property without due
process not just compensation. Will AM’s suit prosper? ’04 – Q9b
The suit of AM will not prosper. The removal of the billboards is
not an exercise of eminent domain but of police power (Churchill v.
Rafferty, 32 Phil. 580 [1915].) The abatement of a nuisance in the ex-
ercise of police power does not constitute taking of property and does
not entitle the owner of the property involved to compensation (Associ-
ation of Small Landowners in the Philippines, Inc. v. Secretary of Agrar-
ian Reform, 175 SCRA 343 [1989].)
Is the concept of “people power” recognized by the 1987 Consti-
tution? ’04 – Q1b; ’00 – Q9a
“People power” is recognized in the Constitution.
Section 4, Article III of the 1987 Constitution guarantees the right
of the people to peaceably assemble and petition the government for
redress of grievances.
Section 32, Article VI of the Constitution requires Congress to
pass a law allowing people to directly propose and enact laws through
initiative and to approve or reject any law or part of it passed by Con-
gress or a local legislative body.
Section 16, Article XIII of the Constitution provides that the right of
the people and their organizations to participate at all levels of social,
political, and economic decision-making shall not be abridged and that
the State shall, by law, facilitate the establishment of adequate consul-
tation mechanisms.
Section 2, Article XVII of the Constitution provides that subject to
the enactment of an implementing law, the people may directly pro-
pose amendments to the Constitution through initiative.
Children who are members of a religious sect have been expelled
from their respective public schools for refusing, on account of
their religious beliefs, to take part in the flag ceremony which
includes playing a band or singing the national anthem, saluting
the Philippine flag and reciting the patriotic pledge. The students
and their parents assail the expulsion on the ground that the
!39
school authorities have acted in violation of their right to free
public education, freedom of speech, and religious freedom and
worship. Decide. ’03 – Q3; ’97 – Q12
The students cannot be expelled from school. As held in Ebrali-
nag v. Division Superintendent of Schools of Cebu, 219 SCRA 256
[1993], to compel students to take part in the flag ceremony when it is
against their religious beliefs will violate their religious freedom. Free-
dom of religion cannot be impaired except upon the showing of a clear
and present danger of a substantive evil which the State a right to
prevent. The refusal of the students to participate in the flag ceremony
does not pose a clear and present danger.
Their expulsion also violates the duty of the State under Section
1, Article XIV of the Constitution to protect and promote the right of all
citizens to quality education and make such education accessible to
all.
The municipal council of Guagua, Pampanga passed an ordi-
nance penalizing any person or entity engaged in the business of
selling tickets or other public exhibitions, games or performance
which would charge children between 7 and 12 years of age the
full price of admission tickets instead of only one-half thereof.
Would you hold the ordinance a valid exercise of legislative pow-
er by the municipality? ’03 – Q12
The ordinance is void. As held in Balacuit v. Court of First In-
stance of Agusan del Norte, 163 SCRA 182 [1988], the ordinance is
unreasonable. It deprives the sellers of the tickets of their property
without due process. A ticket is a property right and may be sold for
such price as the owner can obtain. There is nothing pernicious in
charging children the same price as adults.
A passenger bus conductor found a man’s handbag left in the
bus. When the conductor opened the bad, he found inside a call-
ing card with the owner’s name (Dante Galang) and address, a
few hundred peso bills, and a small plastic bag containing a white
powdery substance. He brought the powdery substance to the
NBI for laboratory examination and it was determined to be
shabu, a prohibited drug. Dante was subsequently traced and
found and brought to the NBI Officer where he admitted owner-
ship of the handbag and its contents. In the course of the interro-
gation by NBI agents, and without the presence and assistance of
counsel, Dante was made to sign a receipt of the plastic bag and
its shabu contents. Dante was charged with illegal possession of
prohibited drugs and was convicted. On appeal, he contends that
–
(a) The plastic bag and its content are inadmissible in evi-
dence being the product of an illegal search and
seizure; and
(b) The receipt he signed is also inadmissible as his rights
under custodial investigation were not observed.
Decide the case with reasons. ’02 – Q8
The plastic bag and its contents are admissible in evidence, since
it was not the National Bureau of Investigation but the bus conductor
who opened the bag and brought it to the National Bureau of Investiga-
tion. As held in People v. Marti, 193 SCRA 57 [1991], the constitutional
right against unreasonable search and seizure is a restraint upon the
government. It does not apply so as to require exclusion of evidence
which came into possession of the Government through a search
made by a private citizen.
The receipt which Dante signed without the assistance of counsel
is not admissible in evidence. As held in People v. Castro, 274 SCRA
115 [1997], since the receipt is a document admitting the offense
charged, Dante should have been assisted by counsel as required by
Section 11, Article III of the Constitution.
A Tamaraw FX driven by Asiong Cascasero, who was drunk, side-
swiped a pedestrian along EDSA in Makati City. The public prose-
cutor filed two separate informations against Cascasero, the first
for reckless imprudence resulting in physical injuries under the
RPC, and the second for violation of an ordinance of Makati City
prohibiting and penalizing driving under the influence of liquor.
Cascasero was arraigned, tried and convicted for reckless impru-
 The Sigma Rho Fraternity
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dence resulting in physical injuries under the RPC. With regard to
the second case (i.e., violation of the city ordinance), upon ar-
raignment, he filed a motion to quash the information invoking his
right against double jeopardy. He contends that, under Section 21,
Article III of the Constitution, if an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act. He argued that the
two criminal charges against him stemmed from the same act
allegedly under the influence of liquor which caused the accident.
Was there double jeopardy? ’02 – Q9
Yes, there is double jeopardy. Under the second sentence of Sec-
tion 21, Article III of the Constitution, if an act is punished by a law and
an ordinance, conviction of acquittal under either shall constitute a bar
to another prosecution for the same act. The reckless imprudence
which resulted in physical injuries arose from the same act of driving
under the influence of liquor. In Yap v. Lutero, G.R. No. L-12669, April
30, 1959, the Supreme Court held that an accused who was acquitted
of driving recklessly in violation of an ordinance could not be prosecut-
ed for damage to property through reckless imprudence because the
two charges were based on the same act. In People v. Relova, 148
SCRA 292 [1987], it was held that when there is identity in the act pun-
ished by a law and an ordinance, conviction or acquittal under either
shall bar prosecution under the other.
Ten public school teachers of Caloocan City left their classrooms
to join a strike, which lasted for a month, to ask for teachers’ ben-
efits. The DECS charged them administratively, for which reason
they were required to answer and formally investigated by a
committee composed of the Division Superintendent of Schools
as Chairman, the Division Supervisor as member, and a teacher,
as another member. On the basis of the evidence adduced at the
formal investigation which amply established their guilt, the Di-
rector rendered a decision meting out the penalty of removal from
office. The decision was affirmed by the DECS Secretary and the
CSC. On appeal, they reiterated the arguments they raised before
the administrative bodies, namely:
(a) Their strike was an exercise of their constitutional right
to peaceful assembly and to petition the government for
redress;
(b) They were deprived of due process of law as the Inves-
tigating Committee was improperly constituted because
it did not include a teacher in representation of the
teachers’ organization as required by the Magna Carta
for Public School Teachers (Sec. 9, R.A. No. 4670.)
How should these issues be resolved? ’02 – Q10
According to De la Cruz v. Court of Appeals, 305 SCRA 303
[1999], the argument of teachers that they were merely exercising their
constitutional right to peaceful assembly and to petition the govern-
ment for redress of grievance cannot be sustained, because such
rights must be exercised within reasonable limits. When such rights
were exercised on regular school days instead of during the free time
of the teachers, the teachers committed acts prejudicial to the best
interest of the service.
The teachers were deprived of due process of law. Under Section
9 of the Magna Carta for Public School Teachers, one of the members
of the committee must be a teacher who is a representative of the
local, or in its absence, any existing provincial of national organization
of teachers. According to Fabella v. Court of Appeals, 283 SCRA 256
[1997], to be considered the authorized representative of such organi-
zation, the teacher must be chosen by the organization itself and not
by the Secretary of Education, Culture and Sports. Since in administra-
tive proceedings, due process requires that the tribunal be vested with
jurisdiction and be constituted as to afford a person charged adminis-
tratively a reasonable guarantee of impartiality, if the teacher who is a
member of the committed was not appointed in accordance with the
law, any proceeding before it is tainted with deprivation of procedural
due process.
Is an alien entitled to the right against illegal search and seizures
and against illegal arrests? ’01 – Q4b
!40
Aliens are entitled to the right against illegal searches and
seizures and illegal arrests. As applied in People v. Chua Ho San, 307
SCRA 432 [1999], these rights are available to all persons, including
aliens.
Rafael, Carlos and Joseph were accused of murder before the
RTC of Manila. Accused Joseph turned state witness against the
other co-accused, and was accordingly discharged from the in-
formation. Among the evidence presented by the prosecution was
an extrajudicial confession made by Joseph during the custodial
investigation, implicating that the other co-accused who, together
with him, committed the crime. The extrajudicial confession was
executed without the assistance of counsel. Rule on whether or
not said extrajudicial confession is admissible in evidence or not.
’01 – Q9
According to People v. Balisteros, 237 SCRA 499 [1994], the
confession is admissible. Under Section 12, Article III of the Constitu-
tion, the confession is inadmissible only against the one who con-
fessed. Only the one whose rights were violated can raise the objec-
tion as his right is personal.
Erning was charged with homicide before the RTC of Valenzuela.
He was arraigned. Due to numerous postponements of the
scheduled hearings at the instance of the prosecution, particular-
ly based on the ground of the unavailability of prosecution wit-
nesses who could not be found or located, the criminal case was
pending trial for seven years. Upon motion of accused Erning
who invoked his right to speedy trial, the trial court dismissed the
same. Eventually, the prosecution witnesses surfaced, and a crim-
inal case, involving the same incident was filed anew against Ern-
ing. Accused Erning moved for the dismissal of the case on the
ground of double jeopardy. The prosecution objected, submitting
the reason that it was not able to present the said witness earlier
because the latter went into hiding out of fear. Resolve the mo-
tion. ’01 – Q10; ’97 – Q2
The motion should be granted. The dismissal of the first case for
failure of the witness to appear terminated the first jeopardy. As held in
Caes v. Intermediate Appellate Court, 179 SCRA 54 (1989), the dis-
missal of a criminal case predicated on the right of the accused to a
speedy trial amounts to an acquittal for failure of the prosecution to
prove his guilt and bars his subsequent prosecution for the same of-
fense.
The place to be searched, as described in the warrant, cannot be
amplified or modified by the peace officers’ own personal knowl-
edge of the premises or the evidence which they adduced in sup-
port of their application for a warrant. ’01 – Q11
The contention of the accused Ernani Pelet is valid. As held in
People v. Court of Appeals, 291 SCRA 400 [1993], if the place
searched is different from that stated in the search warrant, the evi-
dence is inadmissible. The policeman cannot modify the place to be
searched as set out in the search warrant.
The issue is whether or not an extension telephone is among the
prohibited devices in Section 1 of the R,A, No. 4200, such that its
use to overhear a private conversation would constitute unlawful
interception of communications between the two parties using a
telephone line. ’01 – Q12
The tape-recorded conversation is not admissible in evidence. As
held in Salcedo-Ortañez v. Court of Appeals, 235 SCRA 111 [1994],
Republic Act No. 4200 makes the tape-recording of a telephone con-
versation done without the authorization of all the parties to conversa-
tion, inadmissible in evidence. In addition, the taping of the conversa-
tion violated the guarantee of privacy of communications enunciated in
Section 3, Article III of the Constitution.
Validity of administrative order issued by the General Manager of
the PPA to the effect that all existing regular appointments to har-
bour pilot positions shall remain valid only up to December 31 of
the current year and that henceforth all appointments to harbour
pilot positions shall be only for a term of one year from date of
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effectivity, subject to yearly renewal or cancellation by the PPA
after the conduct of a rigid evaluation of performance. Was there,
or was there no violation of the harbour pilots’ right to exercise
their profession and their right to due process of law? ’01 – Q13;
’00 – Q3
The right of the harbor pilots to due process was violated. As held
in Corona v. United Harbor Pilots Association of the Philippines, 283
SCRA 31 [1997], pilotage as a profession is a property right protected
by the guarantee of due process. The pre-evaluation cancellation of
the licenses every year is unreasonable and violated their right to sub-
stantive due process. The renewal is dependent after the licenses
have been cancelled.
The issuance of the administrative order also violated procedural
due process, since no prior public hearing was conducted. Under Sec-
tion 9, Chapter II, Book VII of the Administrative Code of 1987, as far
as practicable, before adopting the proposed rules, an administrative
agency should publish or circulate notices of the proposed rules and
afford interested parties the opportunity to submit their views; and in
the fixing of rates, no rule shall be valid unless the proposed rates shall
have been published in a newspaper of general circulation at least two
weeks before the first hearing on them. As held in Commissioner of
Internal Revenue v. Court of Appeals, 261 SCRA 236 [1996], when a
regulation is issued under the quasi-legislative authority of an adminis-
trative agency, the requirements of notice, hearing and publication
must be observed.
A municipal ordinance is police power measure and prevails over
a restriction contained in the title to the property. ’01 – Q18
If I were the judge, I would dismiss the case. As held in Ortigas
and Company Limited Partnership v. Feati Bank and Trust Company,
94 SCRA 633 [1979], the zoning ordinance is a valid exercise of police
power and prevails over a contractual stipulation restricting the use of
the lot to residential purposes.
Whether or not a DECS order which states that: “A student shall
be allowed only three (3) chances to take the NMAT. After three (3)
successive failures, a student shall not be allowed to take the
NMAT for the fourth time.” is constitutional. ’00 – Q4
As held in Department of Education, Culture and Sports v. San
Diego, 180 SCRA 533 [1989], the rule is a valid exercise of police
power to ensure that those admitted to the medical profession are
qualified. The arguments of Cruz are not meritorious. The right to quali-
ty education and academic freedom are not absolute. Under Section
5(3), Article XIV of the Constitution, the right to choose a profession is
subject to fair, reasonable and equitable admission, and academic
requirements. The rule does not violate equal protection. There is a
substantial distinction between medical students and other students.
Unlike other professions, the medical profession directly affects the
lives of people.
State the constitutional provisions reflecting the State policy on
transparency in matters of public interest. What is the purpose of
said policy? ’00 – Q5
The following are the constitutional provisions reflecting the State
policy on transparency in matters of public interest:
1. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure
of all its transactions involving public interest (Section 28,
Article II);
2. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and
to documents, and papers pertaining to official acts, transac-
tions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded to
the citizen, subject to such limitations as may be provided by
law (Section 7, Article III);
3. The records and books of accounts of the Congress shall be
preserved and open to the public in accordance with law,
and such books shall be audited by the Commission on Audit
which shall publish annually an itemized list of amounts paid
!41
to and expenses incurred for each member (Section 20,
Article VI);
4. The Office of the Ombudsman shall have the following pow-
ers, functions and duties:
(6) Publicize matters covered by its investigations when
circumstances so warrant and with due prudence (Section
12, Article XI);
5. A public officer or employee shall, upon assumption of of-
fice, and as often as thereafter may be required by law,
submit a declaration under oath of his assets, liabilities and
net worth. In the case of the President, the Vice President,
the Members of the cabinet, the Congress, the Supreme
Court, the Constitutional Commissions and other constitu-
tional offices, and officers of the armed forces with general or
flag rank, the declaration shall be disclosed to the public in
the manner provided by law (Section 17, Article XI);
6. Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public (Section
21, Article XII).
As explained in Valmonte v. Belmonte, 170 SCRA 256 [1989], the
purpose of the policy is to protect the people from abuse of govern-
ment power. If access to information of public concern is denied, the
postulate “public office is a public trust” would be mere empty words.
Madlangbayan is the owner of a 500 square-meter lot which the
birthplace of the founder of a religious sect who admittedly
played an important role in Philippine history. The National Histor-
ical Commission (NHC) passed a resolution declaring it a national
landmark and, on its recommendation, the lot was subjected to
expropriation proceedings. This was opposed by Madlangbayan
on the following grounds: (a) that the lot is not a vast tract; (b)
that those benefitted by the expropriation would only be the
members of the religious sect of its founder; and (c) that the NHC
has not initiated the expropriation of birthplaces of other more
deserving historical personalities. Resolve the opposition raised
by Madlangbayan. ’00 – Q8
The arguments of Madlangbayan are not meritorious. According
to Manosca v. Court of Appeals, 252 SCRA 412 [1996], the power of
eminent domain is not confined to expropriation of vast tracts of the
land. The expropriation of the lot to preserve it as the birthplace of the
founder of the religious sect because of his role in Philippine history
and culture is for a public purpose, because public use is no longer
restricted to the traditional concept. The fact that the expropriation will
benefit the members of the religious sect is merely incidental.
Also, the fact that other birthplaces have not been expropriated is
likewise not a valid basis for opposing the expropriation. As held in
J.M. Tuason and Company Inc. v. Land Tenure Administration, 31
SCRA 413 [1970], the expropriating authority is not required to the
policy of “all or none.”
Extra-judicial commission of an accused is not admissible if the
only participation of the counsel assigned to him was his mere
presence and signature on the statement. Even prior to the 1987
Constitution, the Supreme Court had already laid down strict
rules on the waiver of rights during custodial investigation. ’00 –
Q11a
The confession of Ramos is not admissible, since the counsel
assigned to him did not advise him of his rights. The fact that his con-
fession was taken before the effectivity of the 1987 Constitutions is of
no moment. Even prior to the effectivity of the 1987 Constitution, the
Supreme Court already laid down strict rules on waiver of the rights
during investigation in the case of People v. Galit, 135 SCRA 465
[1985].
Evidence of the accused’s apparel, his height and weight, his
photographs, fingerprints comparison, and the results of the
paraffin test, which were taken when he was taken into police
custody after a valid warrantless arrest, is admissible in evidence
and does not violate his right against self-incrimination. ’00 –
Q11b
The objection of Borja is not tenable. As held in People v. Paynor,
261 SCRA 615 [1996], the rights guaranteed by Section 12, Article III
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of the Constitution applies only against testimonial evidence. An ac-
cused may be compelled to be photographed or measured, his gar-
ments may be removed, and his body may be examined.
Are employees in the public sector allowed to form unions? To
strike?
Can the teachers claim that their right to peaceably assemble and
petition for redress of grievances has been curtailed when the
DECS Secretary imposed on them preventive suspension when
they staged mass actions in front of the DECS office? ’00 – Q12
Section 8, Article III of the Constitution allows employees in the
public sector to form unions. However, they cannot go on strike. As
explained in Social Security System Employees Association v. Court of
Appeals, 175 SCRA 686 [1989], the terms and conditions are fixed by
law. Employees in the public sector cannot strike to secure conces-
sions from their employer.
The teachers cannot claim that their right to peaceably assemble
and petition the government for redress of grievances has been cur-
tailed. As held in Bangalisan v. Court of Appeals, 276 SCRA 619
[1997], they can exercise this right without stoppage of classes.
What are the instances when warrantless searches may be effect-
ed? ’00 – Q14b
A warrantless search may be effected in the following cases:
(1) Search incidental to a lawful arrest;
(2) Searches of prohibited articles in Plain View;
(3) Search of a moving vehicle;
(4) Consented search
(5) Enforcement of customs law;
(6) Stop and frisk;
(7) Exigent and emergency circumstances; and
(8) Visual search at checkpoints.
Charged by Francisco with libel, Pablo was arraigned on January
3, 2000. Pre-trial was dispensed with and continuous trial was set
for March 7, 8, and 9, 2000. On the first setting, the prosecution
moved for its postponement and cancellation of the other settings
because it principal and probably only witness , the private com-
plainant Francisco, suddenly had to go abroad to fulfil a profes-
sional commitment. The judge instead dismissed the case for
failure to prosecution.
1. Would the grant of the motion for postponement have
violated the accused’s right to speedy trial?
The grant of the motion for postponement would not have violated
the right of the accused to speedy trial. As held in People v. Leviste,
255 SCRA 238 [1996], since the motion for postponement was the first
one requested, the need for the offended party to attend to a profes-
sional commitment is a valid reason, no substantial right of the ac-
cused would be prejudiced, and the prosecution should be afforded a
fair opportunity to prosecute the case.
2. Would the reversal of the trial court’s assailed dismissal
of the case place the accused in double jeopardy? ’00 –
Q15
Since the postponement of the case would not violate the right of
the accused to speedy trial, the precipitate dismissal of the case is
void. The reversal of the dismissal will not place the accused in double
jeopardy.
What is Academic Freedom? Discuss the extent of Academic
Freedom enjoyed by institutions of higher learning. ’99 – Q2a
According to Reyes v. Court of Appeals, 194 SCRA 402 [1991],
academic freedom is the freedom of a faculty member to pursue his
studies in his particular specialty and thereafter to make known the
result of his endeavors without fear that retribution would be visited on
him in the event that his conclusions are found distasteful or objection-
able by the powers that be, whether in the political, economic, or acad-
emic establishments.
!42
In Garcia v. The Faculty Admission Committee, Loyola School of
Theology, 68 SCRA 277 [1975], it was held that the academic freedom
of an institution includes the freedom to determine who may teach,
what may be taught, how it shall be taught, and who may be admitted
to study. Because of academic freedom, an institution of higher learn-
ing can refuse to re-enroll a student who is academically deficient or
who has violated the rules of discipline. Academic freedom grants insti-
tutions of higher learning the discretion to formulate rules for the grant-
ing of honors. Likewise, because of academic freedom, an institution of
higher learning can close a school.
Discuss the right of every accused against double jeopardy. ’99 –
Q7a
According to Melo v. People, 85 Phil. 766, the rule of double jeop-
ardy means that when a person was charged with an offense and the
case was terminated by acquittal or conviction without his consent, he
cannot again be charged with the same identical offense.
What are the requisites of double jeopardy? ’99 – Q7b
As held in Cuison v. Court of Appeals, 289 SCRA 159 [1998], for a
claim for double jeopardy to prosper, the following requisites must
concur: (1) a first jeopardy has attached; (2) the first jeopardy was
validly terminated; and (3) the second is for the same offense. A first
jeopardy attaches:
(1) Upon a valid complaint or information;
(2) Before a competent court;
(3) After arraignment;
(4) A valid entry of plea’ and
(5) The dismissal or termination of the case was without the
express consent of the accused.
May the accused claim a violation against his right against double
jeopardy when he was acquitted of consented abduction and
subsequently a case for qualified seduction was filed against
him? ’99 – Q7c
Geralde cannot invoke double jeopardy. According to Perez v.
Court of Appeals, 168 SCRA 236, there is no identity between con-
sented abduction and qualified seduction. Consented abduction re-
quires that the taking away of the offended party after solicitation or
cajolery from the offender, and the taking away of the offender must be
with lewd designs. On the other hand, qualified seduction requires that
the crime be committed by abuse of authority, confidence or relation-
ship and the offender has sexual relations with the woman.
The delay in filing the second case does not constitute pardon,
according to Article 344 of the Revised Penal Code, to be valid, the
pardon of the offender must be expressly given.
Give examples of acts of the state which infringe the due process
clause in its substantive and procedural aspects. ’99 – Q8a
A law violates substantive due process when it is unreasonable or
unduly oppressive. For example, P.D. No. 1717, which cancelled all the
mortgages and liens of a debtor, was considered unconstitutional for
being oppressive. Likewise, as stated in Ermita-Malate Motel and Mo-
tel Operators Association v. City Mayor of Manila, 20 SCRA 849 [1967],
a law which is so vague so that men of common intelligence must
guess its meaning and differ as to its application violates substantive
due process. As held in Tañada v. Tuvera, 146 SCRA 446 [1986], due
process requires that the law be published.
In State Prosecutor v. Muro, 236 SCRA 505 [1994], it was held
that the dismissal of a case without the benefit of a hearing and without
any notice to the prosecution violated due process. Likewise, as held in
People v. Court of Appeals, 262 SCRA 452, the lack of impartiality of
the judge who will decide a case violates procedural due process.
No denial of due process if the decision was rendered on the ba-
sis of evidence contained in the record and disclosed to the par-
ties affected. ’99 – Q8b
The Police Commission is not bound by the findings of the City
Fiscal. In Mangubat v. De Castro, 163 SCRA 608, it was held that the
Police Commission is not prohibited from making its own findings.
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Likewise, the protestation of lack of due process is not well-grounded,
since the hearings before the Municipal Board and the City Fiscal of-
fered Gatdula the chance to be heard. There is no denial of due
process if the decision was rendered on the basis of evidence con-
tained in the record and disclosed to the parties affected.
Given the multiple meetings held among bank officials, the
lawyers and Torre regarding the charges of abusive conduct and
mismanagement against Torre, is it correct for Torre to say that he
was not given an opportunity to be heard? ’99 – Q8c
Torre is correct in saying that he was not given the chance to be
heard. The meetings in the nature of consultations and conferences
cannot be considered valid substitutes for the proper observance of
notice and hearing.
Suppose Congress passed a law to implement the Constitutional
principle that public office is a public trust, by providing as fol-
lows:
“No employee of the Civil Service shall be excused from
attending and testifying or from producing books, records,
correspondence, documents or other evidence in any ad-
ministrative investigation concerning the office in which
he is employed on the ground that his testimony of the
evidence required of him may tend to incriminate him or
subject him to a penalty or forfeiture; but his testimony or
any evidence produced against him in criminal prosecu-
tion based on the transaction, matter or thing concerning
which is compelled, after invoking his privilege against
self-incrimination, to testify or produce evidence. Provid-
ed, however, that such individual so testifying shall not be
exempt from prosecution and punishment for perjury
committed in so testifying nor shall he be exempt from
demotion or removal from office. Any employee who re-
fuses to testify or produce any documents under this Act
shall be dismissed from the service.”
Suppose further, that Ong, a member of the PRC, is required
to answer questions in an investigation regarding a LEAKAGE in
a medical examination.
1. Can Ong refuse to testify to answer questions on the
ground that he would incriminate himself? ’98 – Q5(1)
No. Ong cannot refuse to answer the question on the ground that
he would incriminate himself, since the law grants him immunity and
prohibits the use against him in a criminal prosecution of the testimony
of evidence produced against him. As stated by the United States
Supreme Court in Brown v. Walker, 161 U.S. 591, 597, what the consti-
tutional prohibition against self-incrimination seeks to prevent is the
conviction of the witness on the basis of the testimony elicited form
him. The rule is satisfied when he is granted immunity.
2. Suppose he refuses to answer, and for that reason, is
dismissed from the service, can he plausibly argue that
the CSC has inferred his guilt from his refusal to answer
in violation of the Constitution? ’98 – Q5(2)
No. Ong cannot argue that the Civil Service Commission inferred
his guilt from his refusal to answer. He was not dismissed because of
his involvement in the leakage in the medical examination but for his
refusal to answer. This is a violation of the law. He could be compelled
to answer the question on pain of being dismissed in case of this re-
fusal, because he was granted immunity.
In Lefkowitz v. Turley, 414 U.S. 70, 84, the United States
Supreme Court said:
“Furthermore, the accommodation between the interest of the
State and the Fifth Amendment requires that the State have
means at its disposal to secure testimony if immunity is sup-
plied and testimony is still refused. This is recognized by the
power of courts to compel testimony, after a grant of immunity,
by use of civil contempt and coerced imprisonment (Shilitani v.
United States, 384 U.S. 364 [1966].) Also, given adequate
immunity, the State may plainly insist that employees either
answer questions under oath about the performance of their
job of suffer loss of employment.”
!43
3. Suppose on the other hand, he answers the question
and on the basis of his answers, he is found guilty and
is dismissed. Can he plausibly assert that his dismissal
is based on coerced confession? ’98 – Q5(3)
Yes. Ong can argue that his dismissal was based on coerced
confession. In Garrity v. New Jersey, 385 U.S. 493, 500, the United
States Supreme Court held:
“We now hold the protection of the individual under the Four-
teenth Amendment against coerced statements prohibits the
use in subsequent criminal proceedings of statements obtained
under threat of removal from office, and that is extends to all,
whether they are policemen of other members of the body
politic.”
The police had suspicions that Juan Samson, member of the sub-
versive New Proletarian Army, was using the mail for propaganda
purposes in gaining new adherents to its cause. The Chief of Po-
lice of Bantolan, Lanao del Sur ordered the Postmaster of the
town to intercept and open all mail addressed to and coming from
Juan in the interest of the national security. Was the order of the
Chief of Police valid? ’98 – Q7
No, the order of the Chief of Police is not valid, because there is
no law which authorizes him to order the Postmaster to open the let-
ters addressed to and coming from Juan Samson. An official in the
Executive Department cannot interfere with the privacy of correspon-
dence and communication in the absence of a law authorizing him to
do so or a lawful order of the court.
Section 3(1), Article III of the Constitution provides:
“The privacy of communications and correspondence shall be
inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.”
Juan Casanova contracted Hansen’s disease (leprosy) with open
lesions. A law requires that lepers be isolated upon petition of the
City Health Officer. The wife of Juan wrote a letter to the City
Health Officer to have her formerly philandering husband con-
fined in some isolated leprosarium. Juan challenged the constitu-
tionality of the law as violating his liberty of abode. Will the suit
prosper? ’98 – Q8
No, the suit will not prosper.
Section 6, Article III of the Constitution provides:
“The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful
order of the court.”
The liberty of abode is subject to the police power of the State.
Requiring the segregation of lepers is a valid exercise of police power.
In Lorenzo v. Director of Health, 50 Phil. 595, 598, the Supreme Court
held:
“Judicial notice will be taken of the fact that leprosy is common-
ly believed to be an infectious disease tending to cause one
afflicted with it to be shunned and excluded from society, and
that compulsory segregation of lepers as a means of prevent-
ing the spread of disease is supported by high scientific author-
ity.”
A religious organization has a weekly television program. The
program presents and propagates its religious doctrines, and
compares their practices with those of other religions. As the
MTRCB found as offensive several episodes of the programs
which attacked other religions, the MTRCB required the organiza-
tion to submit its tapes for review prior to airing. The religious
organization brought the case to court on the ground that the
action of the MTRCB suppresses freedom of speech and inter-
fered with its right to free exercise of religion. Decide. ‘98 – Q15;
’12 – Q10b
The religious organizations cannot invoke freedom of speech and
freedom of religion on the grounds for refusing to submit the tapes to
the Movie and Television Review and Classification Board for review
prior to airing. When the religious organization started presenting its
program over television, it went into the realm of action. The right to act
on one’s religion is not absolute and is subject to police power for the
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protection of the general welfare. Hence, the tapes may be required to
be reviewed prior to airing.
In Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529, 544
[1996], the Supreme Court held:
“We this reject petitioner’s postulate that its religious program is
per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the
bosom of religious belief. Television is a medium that reaches
even the eyes and ears of children. The Court reiterates the
rule that the exercise of religious freedom can be regulated by
the State when it will bring about the clear and present danger
of some substantive evil which the State is duty bound to pre-
vent, i.e. serious detriment to the more overriding interest of
public health, public morals, or public welfare.”
However, the Movie and Television Review and Classification
Board cannot ban the tapes on the ground that they attacked other
religions. In Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529, 547
[1996], the Supreme Court held:
“Even a side-glance at Section 3 of P.D. No. 1986 will reveal
that it is not among the grounds to justify an order prohibiting
the broadcast of petitioner’s television program.”
Moreover, the broadcasts do not give rise to a clear and present
danger of a substantive evil. In the case of Iglesia ni Cristo v. Court of
Appeals, 259 SCRA 529, 549 [1996], the Supreme Court held:
“Prior restraint on speech, including religious speech, cannot
be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the reality al-
ready on the ground.”
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 were ordered charged
against the President’s discretionary fund. Upon post-audit of the
vouchers therefor, the COA refused approval thereof claiming that
the expenditures were in the violation of the Constitution. Was the
COA correct in disallowing the vouchers in questions? ’97 – Q4
Yes, the Commission on Audit was correct in disallowing the ex-
penditures. 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 lep-
rosarium. The sending of the priest to minister to the spiritual needs of
overseas contract workers does not fall within the scope of any of the
exceptions.
A, while on board a passenger jeepney one night, was held up by
a group of three teenagers who forcibly divested her of her per-
sonal belongings. Afterwards, the trio jumped off the passenger
jeep and fled. B, the jeep 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 present 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 prelimi-
nary 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 con-
finement 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? ’97 – Q10
The arguments of both accused are untenable. As held in People
v. 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 v. Lamsing, 248 SCRA 471, the right to counsel
does not extend to police line-ups, because they are not part of custo-
dial investigation. However, according to People v. Macan, 238 SCRA
306, after the start of the custodial investigation, if the accused was not
assisted by counsel, any identification of the accused in a police line-
up is inadmissible.
!44
At the trial of a rape case where the victim-complainant was a
well-known personality while the accused was a popular movie
star, a TV station was allowed by the trial judge to televise the
entire proceedings like the O.J. Simpson trial. The accused ob-
jected to the TV coverage and petitioned the Supreme Court to
prohibit the said coverage. As the Supreme Court, how would you
rule on the petition? ’96 – Q2(1)
The Supreme Court should grant the petition. In its Resolution
dated October 22, 1991, the Supreme Court prohibited live radio and
television coverage of court proceedings to protect the right of the
parties to due process, to prevent distraction of the participants in the
proceedings, and in the last analysis to avoid a miscarriage of justice.
[In Re: Request Radio-TV Coverage of the Trial in the Sandigan-
bayan of the Plunder Cases Against the Former President Joseph E.
Estrada, 360 SCRA 24 (2001), the Supreme Court held that when the
constitutional guarantees of the freedom of the press and the right to
public information, on the one hand, and the fundamental rights of the
accused, on the other hand, along with the power of a court to control
its proceedings in ensuring a fair and impartial trial, when these tights
race against one another, jurisprudence tells us that the right of the
accused must be prevail. Due process guarantees the accused a pre-
sumption of innocence until the contrary is proved. A public trial is not
to be equated with a “publicized trial,: one characterized by pervasive
adverse publicity that violates the accused’s constitutional right to due
process. To allow the live television coverage of Mr. Estrada’s trial in
the Sandiganbayan will violate his right to equal protection of the law,
to due process and to a fair and impartial hearing.
In Petition for Radio and Television Coverage of the Multiple Mur-
der Cases Against Maguindanao Governor Ampatuan, 652 SCRA 1
(2011), the Supreme Court held that the indication of “serious risks”
posed by live media coverage to the accused’s right to due process
has left a blow to the exercise of press freedom and the right to public
information. In this day and age, it is about time to craft a win-win situa-
tion that shall not compromise rights in the criminal administration of
justice, sacrifice press freedom and allied rights, and interfere with the
integrity, dignity and solemnity of judicial proceedings. Technology
tends to provide the only solution to break the inherent limitations of
the courtroom, to satisfy the imperative of a transparent, open and
public trial. Law and technology can work to the advantage and fur-
therance of the various rights herein involved, within the contours of
defined guidelines.]
The military commander-in-charge of the operations against rebel
groups directed the inhabitants of the island which would be the
target of attack of government forces to evacuate the area and
offered the residents temporary military hamlet. Can the military
commander force the residents to transfer their places of abode
without a court order? ’96 – Q2(2)
No, the military commander cannot compel the residents to trans-
fer their place of abode without a court order. Under Section 6, Article
III of the Constitution, a lawful order of the court is required before the
liberty of abode and of changing the same can be impaired.
Accused must be assisted by counsel during the actual question-
ing and the belated assistance of counsel before he signed the
extra-judicial confession does not cure the defect. ’96 – Q3(1)
No, the statements of A cannot be presented in court as his con-
fession. He was not assisted by counsel during the actual questioning.
There was no showing that the lawyer who belatedly conferred with
him fully explained to him the nature and circumstances of his confes-
sion. In People v. Compil, 244 SCRA 135, the Supreme Court held that
the accused must be assisted by counsel during the actual questioning
and the belated assistance of counsel before he signed the extra-judi-
cial confession does not cure the defect.
On the 1st day of the trial of a rape-murder case where the victim
was a popular TV star, over a hundred of her fans rallied at the
entrance of the courthouse, each carrying a placard demanding
the conviction of the accused and the imposition of the death
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penalty on him. The rally was peaceful and did not disturb the
proceedings of the case.
1. Can the trial court order the dispersal of the rallyists
under pain of being punished for contempt, if they fail to
do so?
Yes, the trial court can order the dispersal of the rally under pain
of being cited in contempt. The purpose of the rally is to attempt to
influence the administration of justice. As stated in People v. Flores,
239 SCRA 83, any conduct by any party which tends to directly or
indirectly impeded, obstruct or degrade the administration of justice is
subject to the contempt powers of the court.
2. If instead of a rally, the fans of the victim wrote letters to
the newspaper editors demanding the conviction of the
accused, can the trial court punish them for contempt?
’96 – Q3(2)
No, the trial court cannot punish for contempt the fans of the vic-
tim who wrote letters to the newspaper editors asking for the conviction
of the accused. Since the letters were not addressed to the judge and
the publication of the letters occurred outside the court, the fans cannot
be punished in the absence of a clear and present danger to the ad-
ministration of justice. In Cabansag v. Fernandez, 102 Phil. 152 [1957],
it was held that a party who wrote to the Presidential Complaints and
Action Committee to complain about the delay in the disposition of his
case could not be punished for contempt in the absence of a clear and
present danger to the fair administration of justice.
ADMINISTRATIVE LAW
While Congress was not in session, the President appointed An-
tero as Secretary of the Department of Tourism (DOT), Benito as
Commissioner of the Bureau of Immigration (BI), Clodualdo as
Chairman of the Civil Service Commission (CSC), Dexter as
Chairman of the Commission on Human Rights (CH.R), and Em-
manuel as Philippine Ambassador to Cameroon, The following
day, all the appointees took their oath before the President, and
commenced to perform the functions of their respective offices.
[a] Characterize the appointments, whether permanent or
temporary; and whether regular or interim, with reasons. (2.5%)
[b] A civil society group, the Volunteers Against Misguided
Politics (VAMP), files suit, contesting the legality of the acts of the
appointees and claiming that the appointees should not have
entered into the performance of the functions of their respective
offices, because their appointments had not yet been confirmed
by the Commission on Appointments. Is this claim of VAMP cor-
rect? Why or why not? (2.5%) ’16 - Q13
[a]
1. The appointment of Antero as Secretary of Tourism is ad
interim, because it is subject to confirmation of the Commission on
Appointments and was made while Congress was not in session. He
can start performing his duties upon his acceptance, because it is
permanent and cannot be withdrawn after its acceptance (Matibag v.
Benipayo, 380 SCRA 49 [20021).
2. The appointment of Benito as Commissioner of the Bureau
of Immigration is regular and permanent. It is not required to be con-
firmed by the Commission on Appointments. He can start performing
his duties
upon acceptance of the appointment (Section 16, Article VII of the
Constitution).
3. The appointment of Oodualdo as Chairman of the Civil Ser-
vice Commission is ad interim, because it is subject to confirmation by
the Commission on Appointments and was made while Congress was
!45
not in session. He can start performing his duties upon his acceptance
of the appointment, because it is permanent and cannot be withdrawn.
4. The appointment of Dexter as Chairman of the Commission
on Human Rights is regular and permanent upon his acceptance. It is
not required to be confirmed by the Commission on Appointments. He
can start performing his duties upon his acceptance (Bautista v. Salon-
ga, 172 SCRA 16011989!).
5. The appointment of Emmanuel as Ambassador to Cameroon
is ad interim, because it is subject to confirmation by the Commission
on Appointment (Section 16, Article VII of the Constitution).
(b) The claim of VAMP is not correct. The Commission of Investigation
and the Commission on Human Rights can immediately start perform-
ing their functions upon acceptance since they are not required to be
confirmed. The Secretary of the Department of Tourism and the Chair-
man of the Civil Service Commission, can immediately start performing
their duties upon acceptance, since their ad interim appointment is
permanent.
The Secretary of the Department of Environment and Natural Re-
sources (DENR) issued Memorandum Circular No. 123-15 pre-
scribing the administrative requirements for the conversion of a
timber license agreement (TLA) into an Integrated Forestry Man-
agement Agreement (IFMA). ABC Corporation, a holder of a TLA
which is about to expire, 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%) - ‘15 - Q10
The motion to dismiss should be denied. The doctrine of exhaustion of
administrative remedies applies only to judicial review of decisions of
administrative agencies in the exercise of their quasi-judicial power. It
has no application to their exercise of rule-making power. (Holy Spirit
Homeowners Association, Inc. v. Defensor, 497 SCRA 581 [2006]).
Congress passed a law, R.A. No. 15005, creating an Administra-
tive Board principally tasked with the supervision and regulation
of legal education. The Board was attached to the Department of
Education. It was empowered, among others to prescribe mini-
mum standards for law admission and minimum qualifications of
faculty members, the basic curricula for the course of study
aligned to the requirements for admission to the Bar, law practice
and social consciousness, as well as to establish a law practice
internship as a requirement for taking the Bar which a law student
shall undergo anytime during the law course, and to adopt a sys-
tem of continuing legal education. Professor Boombastick, a
long-time law practitioner and lecturer in several prestigious law
schools, assails the constitutionality of the law, arguing that it
encroached on the prerogatives of the Supreme Court to promul-
gate rules relative to admission to the practice of law, the Inte-
grated Bar, and legal assistance to the underprivileged.
If you were Professor Boombastick’s understudy, how may you
help him develop clear, concise and cogent arguments in support
of his position based on the present Constitution and the deci-
sions of the Supreme Court on judicial independence and fiscal
autonomy? (4%) ‘14 - Q30
The statutory authority granted to the Administrative Board to promul-
gate rules and regulations cannot encroach upon the exclusive authori-
ty of the Supreme Court to regulate the admission to the practice of
law (Section 5 (5), Article VIII of the Constitution).
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Is the provision granting the court the authority to impose a
Thus, the Administrative Board cannot prescribe additional standards penalty of imprisonment in its discretion under Section 32 of the
for admission to the practice of law, adopt a course of study which is R.A. No. 4679 (The Magna Carta for Public School Teachers) con-
stitutional? ’05 – Q6(2)
inconsistent with the requirements of the Supreme Court, and impose
additional requirements to take the bar examinations (Philippine The provision granting the court the authority to impose a penalty
Lawyer’s Association v. Angara, G.R. No. L-12426, February 16, 1959, of imprisonment in its discretion is unconstitutional. Neither a minimum
105 Phil. 173). Since Congress has no power to repeal, alter or sup- nor a maximum deviation was set by the legislature. The courts are
plement the Rules of Court, it cannot delegate such power to the Ad- given wide latitude to fix the term of the imprisonment without any suf-
ministrative Board. ficient standard. This power is essentially legislative (People v. Dacuy-
cuy, 173 SCRA 90 [1989].)
Effect of a Memorandum Circular which was published in a news-
State with reason(s) which of the following is a government
paper of general circulation but a copy thereof was never filed
agency or a government instrumentality:
with the Office of the National Register of the UP Law Center. ’09 –
(a) Department of Public Works and Highways;
Q15b
(b) Bangko Sentral ng Pilipinas;
(c) Philippine Ports Authority;
In accordance with Chapter 2, Book VII of the Administrative
(d) Land Transportation Authority; and
Code of 1987, Memorandum Circular No. 98-17 must be filed with the
(e) Land Bank of the Philippines. ’05 – Q7(2)
University of the Philippines Law Center. It cannot be enforced until it
has been filed with the University of the Philippines Law Center (Pilip-
An agency of the government refers to any of the various units of
inas Shell Petroleum Corp. v. Commissioner of Internal Revenue, 541
the government, including department, bureau, office, instrumentality,
SCRA 316 [2007].)
or government-owned or controlled corporation, or a local government
or a distinct unit therein (Section 2(4), Introductory Provisions, Adminis-
Quasi-judicial or agency; Definition. ’06 – Q5(4)
trative Code of 1987; Mactan Cebu v. Marcos, 261 SCRA 667 [1996].)
An instrumentality of the government refers to any agency of the
A quasi-judicial body is an administrative agency which performs
national government, not integrated within the department framework,
adjudicative functions. Although it is authorized by law to try and de-
vested with special functions or jurisdiction by law, endowed with some
cide cases, it is not bound strictly by the technical rules of evidence
if not all corporate powers, administering special funds, and enjoying
and procedure. However, it must observe the requirements of due
operational autonomy, usually a charter. This term includes regulatory
process.
agencies, chartered institutions, and government-owned or controlled
A quasi-judicial body has also been defined as an organ of gov-
corporation (Section 3(1), Introductory Provisions, Administrative Code
ernment other than a court and other than the legislature which affects
of 1987; Mactan Cebu v. Marcos, 261 SCRA 667 [1996].)
the rights of private parties through either adjudication or rule-making
(Presidential Anti-Dollar Salting Task Force v. Court of Appeals, 171
The Department of Public Works and Highways is an agency of
SCRA 348 [1989]; EPZA v. CHR, 208 SCRA 125 [1992]; Cariño v.
the government, because it is a department.
CHR, 205 SCRA 483 [1991].)
The Bangko Sentral ng Pilipinas is a government instrumentality,
Concept of Human Rights; Does the demolition and removal of
because it is vested with the special function of being the central mon-
structures put up by vendors and squatters involve violations of
etary authority, and enjoys operational autonomy through its charter
human rights within the scope of the CHR’s jurisdiction?
(Section 1, Republic Act No. 7653.)
Does the CHR have contempt power? ’05 –Q4(1)(a) & Q4(1)(c); ’01
– Q6; ’97 – Q8
The Philippine Ports Authority is a government instrumentality,
because it is merely attached to the Department of Transportation, it is
There is no constitutional or statutory definition of human rights.
vested with the special function of regulating ports, and it is endowed
Human rights are the basic rights which inhere in man by virtue of his
with all corporate powers through its charter (Sections 4(a) and 6(a)(2),
humanity. The demolition of the structures does not involve a violation
Presidential Decree No. 857.)
of human rights. The structures were illegally constructed, impeded the
flow of traffic, and pose a danger to life and limb (Simon v. Commission
The Land Transportation Office is an agency of the government,
on Human Rights, 229 SCRA 117 [1994].)
because it is an office under the Department of Transportation and
Communication (Section 4(a), Republic Act No. 4136.)
The Commission on Human Rights cannot cite the Mayor for
contempt. The order to resist is void, because no provision in the Con-
The Land Bank of the Philippines is a government instrumentality,
stitution or any law confers on the Commission on Human Rights to
because it is vested with the special function of financing agrarian
issue temporary restraining orders or writ of preliminary injunction. The
reform, it is endowed with all corporate powers, and it enjoys autonomy
Commission on Human Rights has no judicial power or adjudicative
through its charter (Section 74, Agrarian Land Reform Code.)
power. Its powers are merely investigatory (Export Processing Zone
Authority v. Commission on Human Rights, 208 SCRA 125 [1992].)
CTD, a Commissioner of the NLRC, sports a No. 10 car plate. A
The Commission on Human Rights has the power to cite a person
disgruntled litigant filed a complaint against him for violation of
in contempt only in violations of its operation guidelines and rules of
R.A. No. 3019 before the Ombudsman. CTD now seeks to enjoin
procedure essential to carry out its investigatorial powers which it is
the Ombudsman in a petition for prohibition, alleging that he
constitutionally authorized to adopt (Simon v. Commission on Human
could be investigated only by the Supreme Court under its power
Rights, 229 SCRA 117 [1994].)
of supervision granted in the Constitution. He contends that un-
der the law creating the NLRC, he has the rank of a Justice of the
The two accepted tests to determine whether or not there is a
Court of Appeals, and entitled to the corresponding privileges.
valid delegation of legislative power are the Completeness Test
Hence, the OMB has no jurisdiction over the complaint against
and the Sufficient Standard Test. Explain each. ’05 – Q6(1)
him. Should CTD’s petition be granted or dismissed? ’04 – Q2b
The Completeness Test means that the law must set forth the
The petition should be dismissed. Section 21 of the Ombudsman
policy to be carried out by the delegate.
Act vests the Office of the Ombudsman with disciplinary authority over
The Sufficient Standard Test means that the limits to which the
all elective and appointive officials of the government, except officials
delegate must conform in the performance of his functions are deter-
who may be removed only by impeachment, Members of Congress,
minate or determinable (Rodrigo v. Sandiganbayan, 309 SCRA 661
and the Judiciary. While CTD has the rank of a Justice of the Court of
[1999].)
Appeals, he does not belong to the Judiciary but to the Executive De-
partment. This simply means that he has the same compensation and

!46
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privileges as a Justice of the Court of Appeals. If the Supreme Court
were to investigate CTD, it would be performing a non-judicial function.
This will violate the principle of separation of powers (Noblejas v. Tee-
hankee, 23 SCRA 405 [1968].)
Director WOW was charged of graft and corrupt practices by the
Ombudsman and, pending the completion of the investigation, he
was suspended from office for six months.
Aggrieved, WOW petitioned the Court of Appeals to annul the
preventive suspension order on the ground that the Ombudsman
could only recommend but not impose the suspension. Moreover,
according to WOW, the suspension was imposed without any
notice or hearing in violation of due process. Is the petitioner’s
contention meritorious?
For his part, the Ombudsman moved to dismiss WOW’s petition.
According to the Ombudsman, the evidence of WOW is strong
and petitioners failed to exhaust administrative remedies. WOW
admitted he filed no motion for reconsideration, but only because
the order suspending him was immediately executor. Should the
motion to dismiss be granted or not? ’04 – Q6
The contention of Director WOW is not meritorious. The suspen-
sion meted out to him is preventive and not punitive. Section 24 of R.A.
No. 6770 grants the Ombudsman the power to impose suspension up
to six (6) months. Preventive suspension may be imposed without any
notice or hearing. It is merely a preliminary step in an administrative
investigation and is not the final determination of the guilt of the officer
concerned (Garcia v. Mojica, 314 SCRA 207 [1999].)
The motion to dismiss should be denied. Since the suspension of
Director WOW was immediately executor, he would have suffered
irreparable injury had he tried to exhaust administrative remedies be-
fore filing a petition in court (University of the Philippines Board of Re-
gents v. Rasul, 200 SCRA 685 [1991].) Besides, the question involved
is purely legal (Azarcon v. Bunagan, 399 SCRA 365 [2003].)
Whether or not the Commission of Audit, in the exercise of its
power to audit, can disallow the payment of back wages of illegal-
ly dismissed employees by the Provincial Government of Agusan
del Sur which has been decreed pursuant to a final decision of
the Civil Service Commission. ’04 – Q9a
The refusal of the Province of ADS to pay the full backwages of
their former employees who were illegally dismissed by the previous
governor is not justified. The Commission on audit cannot make a
ruling that it is the former governor who should be personally liable,
since the former governor was not given the opportunity to be heard. In
addition, the Commission on Audit cannot set aside a final decision of
the Civil Service Commission. The payment of backwages to illegally
dismissed employees is not an irregular, unnecessary, excessive, ex-
travagant or unconscionable expenditure (Uy v. Commission on Audit,
328 SCRA 607 [2000].)
A group of losing litigants in a case decided by the Supreme
Court filed a complaint before the Ombudsman charging the Jus-
tices with knowingly rendering an unjust decision in utter viola-
tion of the penal laws of the land. Can the Ombudsman validly
take cognizance of the case? ’04 – Q2
No, the Ombudsman cannot entertain the complaint. As state in
the case of In re: Laureta, 148 SCRA 382 [1987], pursuant to the prin-
ciple of separation of powers, the correctness of the decisions of the
Supreme Court as final arbiter of all justiciable disputes is conclusive
upon all other departments of the government. The Ombudsman has
no power to review the decisions of the Supreme Court by entertaining
a complaint against the Justices of the Supreme Court for knowingly
rendering an unjust decision.
Validity of a law authorizing a Department Secretary to promul-
gate rules and regulations, which declares that the violation of the
implementing rules and regulations so issued would be punish-
able as a crime and authorized the Department Secretary to pre-
scribe the penalty for such violation. ’02 – Q17
!47
The rules and regulations promulgated by the Secretary of Hu-
man Habitat cannot provide that the penalties for their violation will be
the same as the penalties for the violation of the law. As held in United
States v. Barrias, 11 Phil. 327 [1908], the fixing of the penalty for crimi-
nal offenses involves the exercise of legislative power and cannot be
delegated. The law itself must prescribe the penalty.
What is the effect of the re-election of a local elective official on
his petition before the Supreme Court questioning his removal
from the same elective office during previous term? ’00 – Q6
His election to the same position has rendered the pending ad-
ministrative case against him moot. As explained in Aguinaldo v. San-
tos, 212 SCRA 768 [1992], a local elective official cannot be removed
from office for misconduct committed during his previous term, be-
cause each term is separate and the people by re-electing him are
deemed to have forgiven his conduct.
Explain the doctrine of exhaustion of administrative remedies. ’00
– Q13a
The doctrine of administrative remedies means that when an
adequate remedy is available within the Executive Department, a liti-
gant must first exhaust this remedy before he can resort to the courts.
The purpose of the doctrine is to enable the administrative agencies to
correct themselves if they have committed an error (Rosales v. Court of
Appeals, 165 SCRA 344 [1988].)
What are the exceptions to the application of the doctrine of ex-
haustion of administrative remedies? ’00 – Q13b
The following are the exceptions to the application of the doctrine
of administrative remedies:
(1) Purely legal questions (Castro v. Secretary [2001]);
(2) Steps to be taken are merely matters of form (Pascual v.
Provincial Board [1959]);
(3) Administrative remedy is not exclusive but merely cumulative
or concurrent to a judicial remedy (Pascual v. Provincial
Board [1959]);
(4) Validity and urgency of judicial action or intervention (Paat v.
CA [1997]);
(5) No other plain, speedy, adequate remedy in the ordinary
course of law (Paat v. CA [1997]; Information Technology
Found’n v. COMELEC [2004]);
(6) Resort to exhaustion will only be oppressive and patently
unreasonable (Paat v. CA [1997]; Cipriano v. Marcelino
[1972]);
(7) Where the administrative remedy is only permissive or vol-
untary and not a pre-requisite to the institution of judicial
proceedings (Corpuz v. Cuaderno [1962]);
(8) Application of the doctrine will only cause great and ir-
reparable damage which cannot be prevented except by
taking the appropriate court action (Paat v. CA [1997]; Cipri-
ano v. Marcelino [1972]);
(9) When it involves the rule-making or quasi-legislative func-
tions of an administrative agency (Smart v. NTC [2003]);
(10) The administrative agency is in estoppels (Republic v.
Sandiganbayan [1996]);
(11) Doctrine of qualified political agency;
(12) Subject of the controversy is private land in land case pro-
ceedings (Paat v. CA [1997]);
(13) Blatant violation of due process (Paat v. CA [1997]; Pagara
v. CA);
(14) When there is unreasonable delay or official inaction (Re-
public v. Sandiganbayan [1996]);
(15) Administrative action is patently illegal amounting to lack or
excess of jurisdiction (Paat v. CA [1997]);
(16) Resort to administrative remedy will amount to nullification
of a claim (DAR v. Apex Investment [2003]; Paat v. CA
[1997]);
(17) No administrative review provided for by law (Estrada v. CA
[2004]);
(18) Issue of exhaustion of administrative remedies rendered
moot (Estrada v. CA [2004]);
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(19) In quo warranto proceedings (Corpuz v. Cuaderno [1962]);
and
(20) Law expressly provides for a different review procedure
(Samahang Magbubukid v. CA [1999]).
Are government-owned or controlled corporations within the
scope and meaning of the “Government of the Philippines”? ’97 –
Q3
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 the 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 subdi-
visions or other forms of local government.
Government-owned or controlled corporations are within the
scope and meaning of the Government of the Philippines if they are
performing governmental of political functions.
Distinguish the doctrine of primary jurisdiction from the doctrine
of exhaustion of administrative remedies. ’96 – Q11(1)
The doctrine of primary jurisdiction and the doctrine of exhaustion
of administrative remedies both deal with the proper relationships be-
tween courts and administrative agencies. The doctrine of exhaustion
of administrative remedies applies where a claim is cognizable in the
first instance by an administrative agency alone. Judicial interference is
withheld until the administrative process has been completed.
As stated in Industrial Enterprises, Inc. v. Court of Appeals, 184
SCRA 426 [1990], the doctrine of primary jurisdiction applies where a
case is within the concurrent jurisdiction of the court and an administra-
tive agency but the determination of the case requires the technical
expertise of the administrative agency. In such a case, although the
matter is within the jurisdiction of the court, it must yield to the jurisdic-
tion of the administrative agency.
Does the failure to exhaust administrative remedies before filing a
case in court, oust said court of jurisdiction to hear the case? ’96
– Q11 (2)
No, the failure to exhaust administrative remedies before filing a case
in court does not oust the court of jurisdiction to hear the case. As held
in Rosario v. Court of Appeals, 211 SCRA 384, the failure to exhaust
administrative remedies does not affect the jurisdiction of the court but
results in the lack of cause of action, because a condition precedent
that must be satisfied before an action can be filed, was not fulfilled.
LOCAL GOVERNMENT
A law converted the component city of Malumanay, Laguna into a
highly urbanized city. The Local Government Code (LGC) pro-
vides that the conversion “shall take effect only after it is ap-
proved by the majority of votes cast in a plebiscite to be held in
the political units directly affected.”
Before the COMELEC, Mayor Xenon of Malumanay City insists
that only the registered voters of the city should vote in the
plebiscite because the city is the only political unit directly affect-
ed by the conversion. Governor Yuri asserts that all the registered
voters of the entire province of Laguna should participate in the
plebiscite, because when the LGC speaks of the “qualified voters
therein,” it means ail the voters of all the political units affected
by such conversion, and that includes all the voters of the entire
province. He argues that the income, population and area of La-
guna will reduce. Who, between Mayor Xenon and Governor Yuri,
is correct? Explain your answer. (5%) ’16 – Q3
!48
Governor Yuri is correct. All the registered voters of the Province of
Laguna should be included in the plebiscite. The conversion of the City
of Malumanay into a highly urbanized city will adversely affect the
Province of Laguna and its residents. The territory of the Province of
Laguna will be reduced. Its share in the internal revenue allotment will
be reduced, because the population and land area are included as
basis for determining its share. Once the City of Malumanay becomes
a highly urbanized city, the Province of Laguna will no longer share in
the taxes collected by the City of Malumanay. The City of Malumanay
will be under the supervision of the President instead of the Province of
Laguna. Decisions of the City of Malumanay in administrative cases
involving barangay officials will no longer be appealable to the Sang-
guniang Panlalawigan. The registered voters of the City of Malumanay
will no longer be entitled to vote for provincial officials. To limit the
plebiscite to the voters of the City of Maluraanay would nullify the prin-
ciple of majority rule (Untali v. Commission on Elections, 723 SCRA
170 [2014]).
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
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 mea-
sures 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 proclama-
tion, the governor called upon the members of the Philippine Na-
tional Police, with the assistance of the Armed Forces of the
Philippines, to set up checkpoints and chokepoints, conduct gen-
eral searches and seizures including arrests, and other actions
necessary to ensure public safety. Was the action of the pro-
vincial governor proper? Explain? (4%) ‘15 - Q20
The action of the Provincial Governor is not valid. It is only the Presi-
dent who is authorized to exercise emergency powers under Section
23, Article VI of the Constitution and to call out the Armed Forces of the
Philippines under Section 1, Article VII of the Constitution. Section 465
of the Local Government Code does not sanction his actions. It refers
to calamities and disasters. Looting is not a calamity or disaster. The
power under Article 465 of the Local Government Code to call upon
national law enforcement agencies to suppress lawless violence is not
applicable. The Armed Forces of the Philippines is not a law enforce-
ment agency. (Kulayan v. Tan, 675 SCRA 482 [2012]).
From an existing province, Wideland, Congress created a new
province, Hundred Isles, consisting of several islands, with an
aggregate area of 500 square kilometres. The law creating Hun-
dred Isles was duly approved in a plebiscite called for that pur-
pose. Juan, a taxpayer and a resident of Wideland, assailed the
creation of Hundred Isles claiming that it did not comply with the
area requirement as set out in the Local Government Code, i.e.,
an area of at least 2,000 square kilometres. The proponents justi-
fied the creation, however, pointing out that the Rules and Regu-
lations Implementing the Local Government Code states that “the
land area requirement shall not apply where the proposed prov-
ince is composed of one (1) or more islands.” accordingly, since
the new province consists of several islands, the area require-
ment need not be satisfied.
How tenable is the position of the proponents? (4%) ‘14 - Q28
 The Sigma Rho Fraternity
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The position of the proponents is tenable. The Supreme Court has
clarified that, when a province is not composed of one or more islands,
its creation need not comply with the 2,000 square kilometre contigu-
ous territory requirement under the provision of the Local Government
Code. Article 9 (2) of the Implementing Rules and Regulations of the
Local Government Code provided the exemption. Sections 442 and
450 of the Local Government Code exempted municipalities and com-
ponent cities from the area requirement if they consist of one or more
islands. While there is no similar provision for provinces, there is no
reason why the exemption should not apply to them. There is a greater
likelihood that an island or group of islands will form part of the area of
a province (Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648
SCRA 400).
A valid and definite offer to buy a property is a pre-requisite to
expropriation initiated by a local government unit (Sec. 19, LGC).
’10 – Q13a
Re-classification of land by a local government unit is done
through a resolution but through an ordinance. ’10 – Q13b
The statement that a local government unit may reclassify land
through a resolution is false. Under Section 2 of the Local Government
Code, the enactment of an ordinance is required (Department of Agrar-
ian Reform v. Polo Coconut Plantation Company, Inc., 564 SCRA 78
[2008].)
Boundary Disputes between and among municipalities in the
same province; Where to file. ’10 – Q13c
The statement that boundary disputes between and among mu-
nicipalities in the same province may be filed immediately with the
Regional Trial Court is false. Under Section 118 of the Local Govern-
ment Code, they should be referred to the sangguniang panlalawigan
(Municipality of Sta. Fe v. Municipality of Artao, 533 SCRA 586 [2007].)
Metropolitan Manila Development Authority is not authorized to
confiscate a driver’s license in the enforcement of traffic regula-
tions. ‘10 – Q13d
The statement that the Metropolitan Manila Development Authori-
ty (MMDA) is authorized to confiscate a driver’s license in the en-
forcement of traffic regulations is false. Since Republic Act No. 7924
does not grant the MMDA the authority to enact ordinances, the grant
to it by Section 5(f) of R.A. No. 7924 of the power to confiscate drivers’
licenses without need of any other law is an unauthorized exercise of
police power (Metropolitan Manila Development Authority v. Garin, 456
SCRA 176 [2005].)
Authority of city government to issue a cease and desist order to
stop the operations of an industrial waste processing plant on the
ground that it emits an obnoxious odor. ’10 – Q14
The city government has no power to stop the operations of the
plant. Since its operations is not a nuisance per se, the city govern-
ment cannot abate it extrajudicially. A suit must be filed in court (AC
Enterprises, Inc. v. Frabelle Properties Corp., 506 SCRA 625 [2006].)
De facto municipal corporation; Definition. ’10 – Q20b
A de facto municipal corporation is one so defectively created as
not to be a de jure corporation but is nevertheless the result of a bona
fide attempt to incorporate under existing statutory authority, couple
with the exercise of corporate powers, and recognized by the courts as
such on the grounds of public policy in all proceedings except by a
direct attack by the state questioning its corporate existence (Angeles,
Restatement of the Law on Local Governments, p. 23.)
Municipal corporation by estoppel; Definition. ’10 – Q20c
A municipal corporation by estoppel is a corporation which is
defectively formed as not to be a de facto corporation but is considered
!49
a corporation in relation to someone who dealt with it and acquiesced
in its exercise of its corporate functions or entered into a contract with it
(Martin, Public Corporations, 1985 ed., p. 20.)
Constitutionality of a Sangguniang Panglungsod Ordinance re-
quiring all disco pub owners to have all their hospitality girls test-
ed for HIV. ’10 – Q21
The ordinance is a valid exercise of police power. The right to
privacy yields to certain paramount rights of the public and defers to
the exercise of police power. The ordinance is not prohibiting the disco
pub owners and the hospitality girls from pursuing their calling or busi-
ness but is merely regulating it (Social Justice Society v. Dangerous
Drugs Board, 570 SCRA 410 [2008].) The ordinance is a valid exercise
of police power, because its purpose is to safeguard public health (Bel-
tran v. Secretary of Health, 476 SCRA 168 [2005].)
Recall election; Succession; Eligibility of losing candidate to run
for the same office; Propriety of resignation of incumbent official
instead of running in the recall election. ’10 - Q22
The candidate who received the highest number of votes will
succeed Governor Diy. (Section 72, Local Government Code.)
Governor Diy can run again as governor. He did not fully serve his
third term, because he lost in the recall election. His third term should
not be included in computing the three-term limit (Lonzanida v. Com-
mission on Elections, 311 SCRA 602 [1999].)
Governor Diy cannot refuse to run in the recall election. He is
automatically considered as a duly registered candidate. (Sec. 71,
LGC). He is not allowed to resign. (Sec. 73, LGC.)
Expropriation of parcel of land by Sangguniang bayan for a free-
dom park notwithstanding an existence of smaller freedom park
in the municipality; When can Sangguniang Panlalawigan de-
clared invalid an ordinance made by Sangguniang Bayan. ’09 –
Q3; ’05 – Q10(2)(b)
The disapproval of the ordinance is not correct.
Under Section 56(c) of the Local Government Code, the Sanggu-
niang Bayan of Leyte can declare the ordinance invalid only if it is be-
yond the power of the Sangguniang Bayan of Bulalakaw. In the instant
case, the ordinance is well within the power of the Sangguniang
Bayan. The disapproval of the ordinance by the Sangguniang Pan-
lalawigan of Leyte was outside of its authority having been done on a
matter pertaining to the wisdom of the ordinance which pertains to the
Sangguniang Bayan (Moday v. Court of Appeals, 268 SCRA 586
[1997].)
Liability of municipality 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. ’09 – Q4
The motion to dismiss should be denied. Under Sec. 24 of the
Local Government Code and Article 2189 of the Civil Code, the munic-
ipality of Pinatukdao is liable for damages arising from injuries to per-
son by reason of negligence of local government units or local offices
of the defective condition of the municipal hall under their control and
supervision.
Effect of an adverse decision in an election protest which de-
clared a candidate to have lost in the election during his second
term, but promulgated only after full serving such term, in run-
ning for the same elective position after the expiration of his third
term. ’08 – Q9a
Abdul may no longer run because he has served three full terms.
The decision regarding his second term is of no moment because he
has already fully served the term. Moreover, such decision did not oust
him from his third term. (Ong v. Alegre, G.R. No. 163295, 23 January
2006; Rivera III v. Morales, G.R. No. 167591, 9 May 2007.)
Whether or not the candidate’s political party can validly nomi-
nate his wife as substitute candidate in case the COMELEC dis-
qualifies him and denies due course to or cancels his certificate
of candidacy in view of a false material representation. ’08 – Q9b
 The Sigma Rho Fraternity
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In case the COMELEC disqualifies him, his wife could be nomi-
nated on her own right. She would not be a substitute because Abdul is
not entitled to a substitute as the grounds for substitution is exclusive –
death, withdrawal of disqualification (Ong v. Alegre, G.R. No. 163295,
23 January 2006; Rivera III v. Morales, G.R. No. 167591, 9 May 2007.)
Who succeeds in case the governor dies, vice-governor succeeds
him by operation of law, the highest ranking member of the Sang-
guniang Panlalawigan was elevated as Vice-Governor. ’08 – Q11
In a Sanggunian, the vacancy is fulfilled by appointment by the
President, through the Executive Secretary, of the nominee of the polit-
ical party to which the decedent belongs.
Mayor appointed his wife as City Treasurer among 3 employees
considered for the position. His wife has been an Assistant City
Treasurer for 10 years even before she married the Mayor; Propri-
ety thereof. ’08 – Q12
Section 48 of the Civil Service Law and Section 79 of the Local
Government Code prohibits appointments of relatives within the fourth
degree of consanguinity or affinity. The Civil Service Commission
should declare Amelia not qualified for the position, even if she is oth-
erwise qualified (Debulgado v. CSC, G.R. No. 111471, 26 September
1994; People v. Sandiganbayan, G.R. No. 164185, 23 July 2008.)
Besides this, appointment of a Treasurer is by the Secretary of
Finance (Sec. 470, Local Government Code.)
Constitutionality of a provision in the General Appropriations Act
which provides that the Internal Revenue Allocation be released
only if the province meets certain conditions as determined by an
Oversight Council created by the President; Standing of district
representative in case the provincial governor does not file the
case. ’07 – Q8
The requirement is void. The Constitution provided that the inter-
nal revenue allotment of the local government units must be automati-
cally released to them (Section 6, Article X of the Constitution.) Hence,
the Province of Bataan cannot be required to perform any act before it
can receive its internal revenue allotment (Province of Batangas v.
Romulo, 429 SCRA 736 [2004].)
It is the Governor of the Province of Bataan who should file the
case to compel DBM to release the funds. However, if the Governor
does not file the case because he is a party-mate of the President, the
Representative of Bataan may be allowed to file the case. The issue
involved is of transcendental importance, and the Representative,
being a taxpayer and voter in Bataan, has the requisite standing to
institute the action (Francisco v. House of Representatives, 415 SCRA
44 [2003].)
To give much needed help to the Province of Aurora which was
devastated by typhoons and torrential rains, the President de-
clared it in a “state of calamity.” Give at least four (4) legal effects
of such declaration. ’05 – Q1b
The proclamation of a state of calamity by the President will have
the following legal effects:
1. The local government units in the Province of Aurora may
enact a supplemental budget for the purchase of supplies
and materials or the payment of services to prevent danger
to or loss of life or property (Section 321, Local Government
Code.);
2. The five (5) per cent of the estimated revenue from regular
sources required to be appropriated in the budgets of local
government units for unforeseen expenditures may be used
in the Province of Aurora (Section 324(d), Local Government
Code.);
3. Science and technological personnel of the government in
the Province of Aurora shall be paid hazard allowance (Sec-
tion 7(c), Republic Act No. 8439.);
4. Public Health workers in the Province of Aurora shall be paid
hazard allowance (Section 21, Republic Act No. 7305.);
5. The prices of basic necessities in the Province of Aurora
shall automatically be frozen at their prevailing levels or
!50
place under automatic price control (Section 6(1), Republic
Act No. 7581 entitled as The Price Act.);
6. A crime committed in the Province of Aurora will be consid-
ered aggravated (Article 14(7), Revised Penal Code.)
(The last two (2) answers to this case are more appropriate for
coverage in other subjects.)
To be qualified for the office to which a local official has been
elected, when at the latest should he be:
(a) A Filipino citizen?
(b) A resident of the locality? ’05 – Q9(1)
To be qualified for the office to which a local official has been
elected, it is sufficient that he is a Filipino citizen at the time of his
proclamation and at the start of his term. Philippine citizenship is re-
quired for holding an elective public office to ensure that no person
owing allegiance to another country shall govern our people and a unit
of the Philippine territory. An official begins to discharge his functions
only upon his proclamation and on the day his term of office begins
(Frivaldo v. Commission on Elections, 257 SCRA 727 [1996].)
To be qualified for the office to which a local official has been
elected, he must be a resident of the locality for at least one year im-
mediately before the election (Section 39(a), Local Government Code.)
Manuel was elected Mayor of the Municipality of Tuba in the elec-
tions of 1992, 1995 and 1998. He fully served his first two terms,
and during his third term, the Municipality of Tuba was converted
into the component City of Tuba. The said charter provided for a
hold-over and so without interregnum, Manuel went to serve as
the Mayor of the City of Tuba. In the 2001 elections, Manuel filed
his certificate of candidacy for City Mayor. He disclosed, though,
that he had already served for three (3) consecutive terms as
elected Mayor when Tuba was still a municipality. He also stated
in this certificate of candidacy that he is running for the position
of Mayor for the first time now that Tuba is a city. Reyes, an ad-
versary, ran against Manuel and petitioned that he be disqualified
because he had already served for three consecutive terms as
Mayor. The petition was not timely acted upon, and Manuel was
proclaimed the winner with 20,000 votes over the 10,000 votes
received by Reyes as the only other candidate. It was only after
Manuel took his oath and assumed office that the COMELEC ruled
that he was disqualified for having ran and served for three con-
secutive terms.
1. As lawyer of Manuel, present the possible arguments to
prevent his disqualification and removal.
As lawyer of Manuel, I shall argue that when the municipality was
converted to a city, it became a different juridical personality. Hence,
when he ran for city mayor, he was not running for the same office as
that of municipal mayor.
2. How would you rule on whether or not Manuel is eligible
to run as Mayor of the newly-created City of Tuba imme-
diately after having already served for three (3) consecu-
tive terms as Mayor of the Municipality of Tuba?
Manuel is not eligible to run as mayor of the City of Tuba. While it
acquired a new corporate existence separate and distinct from the of
the municipality, this does not mean that for the purpose of applying
the constitutional provision on term limitations, the office of the munici-
pal mayor should be considered as different from the office of the city
mayor. The framers of the Constitution intended to avoid the evil of a
single person accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in power. To allow Manuel to
vie for the position of city mayor after having served for three consecu-
tive terms as a municipal mayor will defeat the intent of the framers of
the Constitution (Latasa v. Commission on Elections, 417 SCRA 601
[2003].)
3. Assuming that Manuel is not eligible candidate, rebut
Reyes’ claim that he should be proclaimed as winner
having received the next highest number of votes. ’05 –
Q9(2)
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The fact the Manuel is ineligible does not entitled Reyes, who
garnered the second highest number of votes, to be proclaimed elect-
ed. He was not the choice of the people (Latasa v. Commission on
Elections, 417 SCRA 601 [2003].)
There was a boundary dispute between Dueñas, a municipality,
and Paasi, an independent component city, both of the same
province. State how the two local government units should settle
their boundary dispute. ’05 – Q10(1)
Since Passi is an independent component city, while Dueñas is a
municipality, the procedure in Section 18 of the Local Government
Code does not apply to them. Since there is no law providing for the
jurisdiction of any court or quasi-judicial agency over the settlement of
the boundary dispute, the Regional Trial Court has jurisdiction to adju-
dicate it. Under Section 19(6) of the Judiciary Reorganization Act, the
Regional Trial Court has exclusive original jurisdiction in all cases not
within the exclusive jurisdiction of any court or quasi-judicial agency
(Municipality of Kananga v. Madrona, 402 SCRA 330 [2003].)
The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur
passed Resolution No. 1 authorizing its Mayor to initiate a petition
for the expropriation of a lot owned by Christina as site for its
municipal sports center. This was approved by the Mayor. How-
ever, the Sangguniang Panlalawigan of Ilocos Sur disapproved
the Resolution as there might still be other available lots in Santa
for a sports center. Nonetheless, the Municipality of Santa,
through its Mayor, filed a complaint for eminent domain. Christina
opposed this on the following grounds: (a) the Municipality of
Santa has no power to expropriate; and (b) the Municipality of
Santa has other and better lots for the purpose. Resolve the case
with reasons. ’05 – Q10(2)
The Municipality of Santa has the power to expropriate. Section
19 of the Local Government Code grants all local government units the
power of eminent domain. However, Section 19 of the Local Govern-
ment Code requires an ordinance, not a resolution, for the exercise of
the power of eminent domain (Heirs of Alberto Suguitan v. City of Man-
daluyong, 328 SCRA 137 [2000].)
If there are other lots that are better and more appropriate for the
municipal sports center, the lot owned by Christina should not be ex-
propriated. Its choice is arbitrary (Municipality of Meycauayan v. Inter-
mediate Appellate Court, 157 SCRA 640 [1988].)
MADAKO is a municipality composed of 80 barangays, 30 West of
Madako River and 50 East thereof. The 30 Western barangays,
feeling left out of economic initiatives, wish to constitute them-
selves into a new separate town to be called Masigla.
1. Granting that Masigla’s proponents succeed to secure a
law in their favor, would a plebiscite be necessary or
not? If it is necessary, who should vote or participate or
vote in the plebiscite?
A plebiscite is necessary, because this is required for the creation
of a new municipality (Section 10, Article X of the Constitution.)
The voters of both Madako and Masigla should participate in the
plebiscite, because both are directly affected by the creation of
Masigla. The territory of Madako will be reduced (Tan v. Commission
on Elections, 142 SCRA 727 [1986].)
2. Suppose that one year after Masigla was constituted as
a municipality, the law creating it is voided because of
defects. Would that invalidate the acts of the municipali-
ty and/or its municipal officers? ’04 – Q7
Although the municipality cannot be created as a de facto corpo-
ration, because there is no valid law under which it was created, the
acts of the municipality and of its officers will not be invalidated, be-
cause the existence of the law creating it is an operative fact before it
was declared unconstitutional. Hence, the previous acts of the munici-
pality and its officers should be given effect as a matter of fairness and
justice (Municipality of Malabang v. Benito, 27 SCRA 533 [1969].)
!51
An aggrieved resident of the City of Manila filed mandamus pro-
ceedings against the city mayor and the city engineer to compel
these officials to remove the market stalls from certain city steers
which they had designated as flea markets. Portions of the said
city streets were leased or licensed by the respondent officials to
market stallholders by virtue of a city ordinance. Decide the dis-
pute. ’03 – Q11; ’97 – Q9
The petition should be granted. In accordance with
Macasiano v. Diokno, 212 SCRA 464 [1992], since public streets are
properties for public use and are outside the commerce of man, the
City Mayor and the City Engineer cannot lease portions of the city
streets to market stallholders.
Can a Barangay Assembly exercise any police power? ’03 – Q13a
No, the Barangay Assembly cannot exercise any police
power. Under Section 398 of the Local Government Code, it can only
recommend to the Sangguniang Barangay the adoption of measures
for the welfare of the barangay and decide on the adoption of an initia-
tive.
Can the Liga ng mga Barangay exercise legislative powers? ’03 –
Q13b
The Liga ng Mga Barangay cannot exercise legislative powers. As
state in Bito-Onon v. Fernandez, 350 SCRA 732 [2001], it is not a local
government unit and its primary purpose is to determine representation
of the liga in the sanggunian; to ventilate, articulate, and crystallize
issues affecting barangay government administration; and to secure
solutions for them through proper and legal means.
Suppose A, a municipal mayor, went on a sick leave to undergo
medical treatment for a period of four (4) months. During that
time:
1. Will B, the Municipal Vice-Mayor, be performing execu-
tive functions? Why?
Since the Municipal Mayor is temporarily incapacitated to perform
his duties, the Municipal Vice-Mayor shall exercise his powers and
perform his duties and functions. The Municipal Vice-Mayor will be
performing executive functions, because the functions of the Municipal
Mayor are Executive.
2. Will B at the same time be also performing legislative
functions as presiding officer of the Sangguniang
Bayan? ’02 – Q14
The Municipal Vice-Mayor cannot continue as presiding officer of
the Sangguniang Bayan while he is acting as Municipal Mayor. In ac-
cordance with Gamboa v. Aguirre, 310 SCRA 867 [1999], under the
Local Government Code, the Municipal Vice-Mayor was deprived of
the power to preside over the Sangguniang Bayan and is no longer a
member of it. The temporary vacancy in the office of the Municipal
Mayor creates a corresponding vacancy in the Office of the Municipal
Vice-Mayor when he acts as Municipal Mayor. This constitutes inability
on his part to preside over the sessions of the Sangguniang Bayan.
A vacancy occurred in the Sangguniang Bayan of a municipality
when X, a member, died. X did not belong to any political party. To
fill up the vacancy, the provincial governor appointed A upon the
recommendation of the Sangguniang Panlalawigan. On the other
hand, for the same vacancy, the municipal mayor appointed B
upon the recommendation of the Sangguniang Bayan. Which of
these appointments is valid? ’02 – Q15
As held in Fariñas v. Barba, 256 SCRA 396 [1996], neither of the
appointments is valid. Under Section 45 of the Local Government
Code, in case of permanent vacancy in the Sangguniang Bayan creat-
ed by the cessation in office of member who does not belong to any
political party, the Governor shall appoint a qualified person recom-
mended by the Sangguniang Bayan. Since A was not recommended
by the Sangguniang Bayan, his appointment by the Governor is not
valid. Since B was not appointed by the Governor but by the Municipal
Mayor, his appointment is also not valid.
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Suppose the people of province want to recall the provincial gov-
ernor before the end of his three-year term of office.
1. On what grounds can the provincial governor be re-
called?
In accordance with Section 69 of the Local Government Code, the
Governor can be recalled for loss of confidence.
2. How will the recall be initiated?
Under Section 70 of the Local Government Code, the Recall of
any elective provincial, city, municipal or barangay official shall be
commenced by a petition of a registered voter in the local government
unit concerned and supported by the registered voters in the local
government unit concerned during the election in which the local offi-
cial sought to be recalled was elected subject to the following percent-
age requirements:
1. At least twenty-five percent (25%) in the case of local gov-
ernment units with a voting population of not more than
twenty thousand (20,000);
2. At least twenty percent (20%) in the case of local govern-
ment units with a voting population of at least twenty thou-
sand (20,000) but not more than seventy-five thousand
(75,000): Provided, That in no case shall the required peti-
tioners be less than five thousand (5,000);
3. At least fifteen percent (15%) in the case of local govern-
ment nits with a voting population of at least seventy-five
thousand (75,000) but not more than three hundred thou-
sand (300,000): Provided, however, That in no case shall the
required number of petitioners be less than fifteen thousand
(15,000); and
At least ten percent (10%) in the case of local government units
with a voting population of over three hundred thousand (300,000):
Provided, however, That in no case shall the required petitioners be
less than forty-five thousand (45,000).
3. When will the recall of an elective local official be con-
sidered effective? ’02 – Q16
According to Section 72 of the Local Government Code, the recall
of an elective official shall take effect upon the election and proclama-
tion of the candidate receiving the highest number of votes.
In the May 1992 elections, Manuel Manalo and Segundo Parate
were elected as Mayor and Vice-Mayor respectively. Upon the
death of Manalo as incumbent municipal mayor, Vice-Mayor
Parate succeeded as mayor and served the remaining portion of
the term of office. Segundo Parate ran in the 1995 and 1998 elec-
tions as mayor and fully served each term. In the May 2001 elec-
tion, Segundo Parate filed his certificate of candidacy for the
same position of mayor, but his rival mayoralty candidate sought
his disqualification alleging violation of the three-term limited for
local effective officials provided for in the Constitution and in the
Local Government Code. Decide whether the disqualification case
will prosper or not. ’01 – Q19
The disqualification case should be dismissed. As held in Borja v.
Commission on Elections, 295 SCRA 157 [1996], in computing the
three-term limitation imposed upon elective local officials, only the term
for which he was elected to should be considered. The term which he
served as a result of succession should not be included. It is not
enough that official has served three consecutive terms. He must have
been elected to the same position three consecutive terms.
Define devolution with respect to local government units. Under
the Local Government Code, name the persons who are disquali-
fied from running from any elective position. ’99 – Q5(a)(1)
Section 17(e) of the Local Government Code defines devolution
as the act by which the National Government confers power and au-
thority upon the various local government units to perform specific
functions and responsibilities.
!52
Under the Local Government Code, name the persons who are
disqualified from running from any elective position. ’99 – Q5(a)(2)
Under Section 40 of the Local Government Code, the following
are disqualified from running for any local elective position:
a) Those sentenced by final judgement for an offense involving
moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving
sentence;
b) Those removed from office as a result of an administrative
case;
c) Those convicted by final judgment for violating the oath of
allegiance to the Republic of the Philippines;
d) Those with dual citizenship;
e) Fugitives from justice in criminal of non-political cases here
or abroad;
f) Permanents residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail the
same right after the effectivity of the Local Government
Code; and
g) The insane or feeble-minded.
Under the Constitution, what are the three main sources of rev-
enue of local government units? ’99 – Q5b
The following are the main sources of revenues of local govern-
ment units under the Constitution:
1) Taxes, fees and charges (Section 5, Article X);
2) Share in the national taxes (Section 6, Article X);
3) Share in the proceeds of the utilization and development of
the national wealth within their areas (Section 7, Article X.)
What body or bodies are vested by law with the authority to settle
disputes involving: 1. Two or more towns within the same prov-
ince; and 2. Two or more highly urbanized cities. ’99 – Q5c
Under Section 118(b) of the Local Government Code, boundary
disputes between two or more municipalities within the same province
shall be settled by the Sangguniang Panlalawigan concerned.
Under Section 118(d) of the Local Government Code, boundary
disputes involving two or more highly urbanized cities shall be settled
by the Sangguniang Panlungsod of the parties.
On May 17, 1988, the position of Provincial Budget Officer of
Province X became vacant. Pedro Castahon, governor of the
province, pursuant to Sec. 1 of E.O. No. 112, submitted the names
of three nominees for the aforementioned position to the DBM,
one of whom was Marta Mahonhon. A month later, Pedro informed
DBM that Marta had assumed the office of PBO and requested
that she be extended the appropriate appointment. The DBM Sec-
retary appointed Josefa Kalayon instead. Pedro protested the
appointment of Josefa insisting that it is he who had the right to
choose the PBO by submitting the names of his three nominees
and Josefa was not one of them. The DBM countered that none of
the governor’s nominees have the necessary qualifications for
the position. Specifically, Marta lacked the five-year budgeting
experience. Hence, the DBM was left with no alternative but to
name one who possesses all the requisite qualifications in the
person of Josefa. It cited Section 6 of the DBM Local Budget Cir-
cular No. 31 which states “the DBM reserves the right to fill up
any existing vacancy where none of the nominees of the local
chief executive meet the prescribed requirements.”
Was the DBM’s appointment valid?
What can you say regarding the above-quoted Section 6 of the
DBM Local Budget Circular No. 31? ’99 – Q5d
Under Section 1 of Executive Order No. 112, the Provincial Bud-
get Officer must be recommended by the Governor. Since Josefa was
not recommended by the Governor, her appointment is not valid. As
held in San Juan v. Civil Service Commission, 196 SCRA 69 [1991], if
the person recommended by the Governor is not qualified, what the
Secretary of Budget and Management should do is to ask him to rec-
ommend someone who is eligible.
 The Sigma Rho Fraternity
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DBM Local Budget Circular No. 31 is not valid, since it is inconsis-
tent with Executive Order No. 112, which requires that the appointee
for Provincial Budget Officer be recommended by the Governor. (Under
the Local Government Code, it is now the local chief executive who is
empowered to appoint the budget officer.
The Province of X required the National Development Company to
pay real estate taxes on the land being occupied by NDC and the
latter argued that since it is a government-owned and controlled
corporation, its properties are exempt from real estate taxes. If
you were the judge, how would you decide the case? ’99 – Q6c
In National Development Company v. Cebu City, 215 SCRA 382
[1992], the Supreme Court held that the National Development Com-
pany was not liable for real estate tax on the property belonging to the
government which it occupies. However, Section 234 of the Local
Government Code subsequently withdrew the exemption from real
property taxes of government-owned or controlled corporations. If I
were the Judge, I would hold the National Development Company
liable for real estate taxes.
The City of Pasig initiated expropriation proceedings of 1-hectare
lot which is part of a 10-hectare parcel of land devoted to the
growing of vegetables. The purpose of the expropriation is to use
the land as a relocation site for 200 families squatting along the
Pasig River.
1. Can the owner of the property oppose the expropriation
on the ground that only 200 of the more than 10,000
squatter families in Pasig City will benefit from the ex-
propriation?
No, the owner of the property cannot oppose the expropriation on
the ground that only 200 out of more than 10,000 squatter families in
Pasig City will benefit the expropriation. As held in Philippine Colum-
ban Association v. Panis, 228 SCRA 668, the acquisition of private
property for socialized housing is for public use and the fact that only a
few and not everyone will benefit from the expropriation does not de-
tract from the nature of the public use.
2. Can the DAR require the City of Pasig to first secure
authority from said Department before converting the
use of the land from agricultural to housing? ’96 – Q4(2)
No, the Department of Agrarian Reform cannot require Pasig City
to first secure authority from is before converting the use of the land
from agricultural to residential. According to Province of Camarines Sur
v. Court of Appeals, 222 SCRA 173 [1993], there is no provision in the
Comprehensive Agrarian Reform Law which subjects the expropriation
of agricultural lands by local government units to the control of the
Department of Agrarian Reform and to require approval from the De-
partment of Agrarian Reform who will determine whether or not the
expropriation is for a public use.
How does the local legislative assembly override the veto by the
local chief executive of an ordinance? ’96 – Q12(1)
Under Sections 54(a) and 55(c) of the Local Government Code,
the local legislative assembly can override the veto of the local chief
executive by two-thirds (2/3) of all its members.
On what grounds can a local chief executive veto an ordinance?
’96 – Q12(2)
Under Section 55(a) of the Local Government Code, the local
chief executive may veto an ordinance on the ground that it is ultra
vires or prejudicial to the public welfare.
How can an ordinance vetoed by a local chief executive become a
law without it being overridden by the local legislative assembly?
’96 – Q12(3)
Pursuant to Section 55(a) of the Local Government Code, an
ordinance vetoed by the local chief executive shall be deemed ap-
proved if he does not communicate his veto to the local legislative
assembly within fifteen (15) days in the case of a province and ten (10)
!53
days in case of a city or municipality. Likewise, if the veto by the local
executive has been overridden by the local legislative assembly, a
second veto will be void. Under Section 55(c) of the Local Government
Code, the local chief executive may veto an ordinance only once.
A and B were the only candidates for mayor of Bigaa, Bulacan in
the May 1995 local elections. A obtained 10,000 votes as against
3,000 votes for B. In the same election, X got the highest number
of votes among the candidates for the Sangguniang Bayan of the
same town. A died the day before his proclamation.
1. Who should the Board of Canvassers proclaim as elect-
ed mayor, A, B or X?
In accordance with Benito v. Commission on Elections, 235 SCRA
436, it is A who should be proclaimed winner, because he was the one
who obtained the highest number of votes for the position of mayor, but
a notation should be made that he died for the purpose of applying the
rules on succession to office. B cannot be proclaimed, because the
death of the candidate who obtained the highest number of votes does
not entitle the candidate who obtained the next highest number of
votes to be proclaimed the winner, since he was not the choice of the
electorate. X is not entitled to be proclaimed as mayor, because he ran
for the Sangguniang Bayan.
2. Who is entitled to discharge the functions of the office
of the mayor, B or X? ’96 – Q13(1)
Neither B nor X is entitled to discharge the functions of the office
of mayor. B is not entitled to discharge the office of mayor, since he
was defeated in the election. X is not entitled to discharge the office of
mayor. Under Section 44 of the Local Government Code, it is the vice
mayor who should succeed in case of permanent vacancy in the office
of the mayor. It is only when the position of vice mayor is also vacant
that the member of the Sangguniang Bayan who obtained the highest
number of votes will succeed to the office of mayor.
PUBLIC OFFICERS
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 consid-
ered 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 Profes-
sor 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? ‘15 - Q3
Although Professor Masipag is correct in saying that “he can not be
accused of receiving double compensation” as he would not actually
be receiving additional or double compensation, it is submitted that he
may nevertheless not be allowed to accept the position of Executive
Assistant of the Court of Appeals during his incumbency as a regular
employee of the University of the Philippines, as the former would be
an incompatible office not allowed to be concurrently held by him under
the provisions of Article IX-B, Section 7 of the Constitution, the second
paragraph of which specifies that “unless otherwise allowed by law or
by the primary functions of his position, no appointive official shall hold
any other office in the Government.”
Senator Fleur De Lis is charged with plunder before the Sandi-
ganbayan. 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 Plun-
der Law. According to the prosecution, the suspension should
last until the termination of the case. Senator Lis vigorously op-
poses the motion contending that only the Senate can discipline
 The Sigma Rho Fraternity
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Bar Questions and Answers
its members and that to allow his suspension by the Court would
violate the principle of separation of powers. Is Senator Lis’s con-
tention tenable? Explain. (4%) ‘15 - Q7
The contention of Senator Fleur de Lis is not tenable. The suspension
contemplated in Subsection 3, Section 16, Article VI of the Constitution
erring member. The suspension imposed under Section 5 of the Plun-
der Law is not a penalty but a preventive measure. The doctrine of
separation of powers cannot be deemed to have excluded Members of
Congress from the application of the Plunder Law. The law itself does
not exclude Members of Congress from its coverage. The Sandigan-
bayan did not err in issuing the preventive suspension order. (Santiago
v. Sandiganbayan, 756 SCRA 636 [2001]).
The President appointed Dexter I. Ty as Chairperson of the COM-
ELEC 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 govern-
ment for thirty (30) years. The President then appointed Commis-
sioner Marikit as COMELEC Chairperson. The Commission on
Appointments confirmed her appointment. The appointment pa-
pers 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 as-
serting that the appointment of Marikit as COMELEC Chairperson
is unconstitutional for the following reasons: (1) The appointment
of Marikit as COMELEC Chairperson constituted a reappointment
which is proscribed by Section 1 (2), Article IX of the 1987 Consti-
tution; and (2) likewise contravenes the aforementioned constitu-
tional provision. Will the constitutional challenge succeed? Ex-
plain. (4%) ‘15 - Q15
(1) The argument of Matalino that the appointment of Commis-
sioner Marikit as Chairman constituted a reappointment,
which is prohibited as Chairman, Commissioner Marikit had
not yet fully served his term. What the Constitution prohibits
was his reappointment as Commissioner after serving his
seven-year term. His appointment as Chairman was a pro-
motional appointment and was not covered by the prohibition
against reappointment.
(2) The limitation of the term of Commissioner Marikit as Chair-
man until the expiration of the original term of her office as
Commissioner on June 2, 2021 is valid until 2018, that is, the
unexpired portion of the last Chairman’s term but invalid if
until 2021 as it exceeds the limitation. It is in accordance
with the principle that the promotional appointment is al-
lowed provided that the aggregate period of the term of the
appointee will not exceed seven years and that the rotational
scheme of staggering the terms of the commission member-
ship is maintained. (Funa v. Villar, 670 SCRA 579 [2012]).
The President appoints Emilio Melchor as Chairperson of the Civil
Service Commission. Upon confirmation of Melchor’s appoint-
ment, 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), particu-
larly Section 14, Chapter 3, Title 1-A, Book V. This provision
!54
reads: “The chairman of the 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 constitu-
tional 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%) ‘15 - Q22
The Chairperson Emilio Melchor’s holding ex-officio of the other offices
under the Executive Order mentioned in the problem would constitute
a clear violation of the special prohibition in Section 2 of Article IX-A of
the Constitution, which strictly provides that he shall, during his tenure,
not hold any other office or employment. Said constitutional provision
does not make any distinction among the offices he may not hold, or as
to whether or not the functions attached to said offices would be pri-
marily related to his duties as Chairperson of the Civil Service Com-
mission and therefore may be held in an ex-officio capacity.
The GSIS, PHILHEALTH, ECC and HDMF are vested by their respec-
tive charters with various powers and functions to carry out the pur-
poses for which they were created. While powers and functions asso-
ciated with appointments, compensation and benefits affect the career
development, employment status, rights, privileges, and welfare of
government officials and employees, the GSIS, PHILHEALTH, ECC
and HDMF are also tasked to perform other corporate powers and
functions that are not personnel-related. All of these powers and func-
tions, whether personnel-related or not, are carried out and exercised
by the respective Boards of the GSIS, PHILHEALTH, ECC and HDMF.
Hence, when the CSC Chairman sits as a member of the governing
Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions which are not anymore derived from his
position as CSC Chairman, such as imposing interest on unpaid or
unremitted contributions, issuing guidelines for the accreditation of
health care providers, or approving restructuring proposals in the pay-
ment of unpaid loan authorizations.
The CSC Chairman’s designation as member of the governing Boards
of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per
diem, a form of additional compensation that is disallowed by the con-
cept of an ex officio position by virtue of its clear contravention of the
proscription set by Section 2, Article IX-A of the 1987 Constitution. This
situation goes against the principle behind an ex officio position, and
must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices,
Melchor’s designation as member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF impairs the independence of the
CSC. Under Section 17, Article VII of the Constitution, the President
exercises control over all government offices in the Executive Branch.
An office that is legally not under the control of the President is not part
of the Executive Branch. (Funa v. The Chairman, Civil Service Com-
mission, G.R. No. November 25, 2014 11, 2010, 612 SCRA 308).
The one-year-bar rule in impeachment proceedings is to be reck-
oned from the time the (1%)‘14 - Q26
(A) First impeachment complaint is filed
(B) Impeachment complaint is referred to the Committee on
Justice
(C) House of Representatives vote on the impeachment
complaint
 The Sigma Rho Fraternity
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Bar Questions and Answers
(D) House of Representatives endorses the Articles of Im-
peachment to the Senate
(B) Impeachment complaint is referred to the Committee on
Justice
As a leading member of the Lapiang Mandirigma, in the House of
Representatives, you were tasked to initiate the moves to im-
peach the President because he entered into an executive agree-
ment with the US Ambassador for the use of the Subic Naval Base
by the US Navy, for free, i.e., without need to pay rent or any kind
of fees as a show of goodwill to the U.S. because of the continu-
ing harmonious RP-US relations.
Cite at least two (2) grounds for impeachment and explain with
you chose them. (6%) ‘13 - Q5
The President can be impeached culpable violation of the Constitution
and betrayal of public trust. The Supreme Court has already ruled that
the provision in Article XVII, Section 25 of the Constitution requires a
treaty even for the mere temporary presence of foreign troops in the
Philippines (Bayan v. Zamora, G.R. No. 138570. October 10,2000, 342
SCRA 499). The President cannot claim, therefore, that he acted in
good faith. (Report of the Special Committee in the Impeachment of
President Quirino, Congressional Record of the House of Representa-
tives, Vol. IV, p. 1553). Betrayal of public trust includes violation of the
oath of the Office of the President (Record of the Constitutional Com-
mission, Vol. II, p. 272). In his oath of office, the President swore to
preserve and defend the Constitution (Article VII, Section V of the 1987
Constitution).
ALTERNATIVE ANSWER:
 The following are the grounds for impeachment:
The President can be impeached for culpable violation of the Constitu-
tion and graft and corruption (Article XI, Section 2). By entering into
executive agreement, the President violated Section 3(e) of the Anti-
Graft and Corrupt Practices Act because of the undue injury to the
Republic of the Philippines.
In her interview before the Judicial and Bar Council (JBC), Com-
missioner Annie Amorsolo of the National Labor and Relations
Commission (NLRC) claims that she should be given credit for
judicial service because as NLRC Commissioner, she has the
rank of a Justice of the Court of Appeals; she adjudicates cases
that are applicable to the Court of Appeals; she is assigned car
plate no. 10; and she is, by law, entitled to the rank, benefits and
privileges of a Court of Appeals Justice.
If you were a member of the JBC, would you give credit to this
explanation? (6%) ‘13 - Q11
No, I will not give credence to the explanation of Commis-
sioner Annie Amorsolo. Her ranking merely means that she has the
same salary and benefits as a Justice of the Court of Appeals. Howev-
er, she is not actually a Justice of the Court of Appeals. The National
Labor is not a court. She does not perform judicial functions (Noblejas
v. Teehankee, G.R. No. L-28790, April 29, 1968, 23 SCRA 405.
A verified impeachment complaint was filed by two hundred (200)
Members of the House of Representatives against Madam Chief
Justice Blue. The complaint was immediately transmitted to the
Senate for trial.
a) Madam Chief Justice Blue challenges such immediate
transmittal to the Senate because the verified complaint
!55
was 1) not included in the order of business of the
House, 2) was not referred to the House Committee on
Justice for hearing and consideration for sufficiency in
form and substance, and 3) was not submitted to the
House Plenary for consideration as enumerated in Para-
graph (2); Section 3, Article XI of the 1987 Constitution.
Decide with reason. (5%); ‘12 - Q2a
Since the verified complaint was filed by 200 Members of the House of
Representatives and they constituted at least one third of its Members,
it need not undergo the procedure in Paragraph 2, Section 3, Article XI
of the Constitution. The verified complaint constitutes the Articles of
impeachment, and trial by the Senate should proceed forthwith. (Sec-
tion 3(4), Article XI of the Constitution.)
b) What is the purpose of Impeachment? Does conviction
prevent further prosecution and punishment? Explain.
(3%); ‘12 - Q2b
The purpose of impeachment is not to punish but only to remove a
public officer to secure the people against gross political misde-
meanors. (Bernas, The 1987 Constitution of the Philippines, A Com-
mentary, 2009 ed., p. 1150.)
Conviction does not prevent further prosecution and punishment. The
person convicted is subject to-prosecution and punishment according
to low. (Section 3(7), Article XI of the Constitution.)
c) Enumerate the grounds for impeachment. Is graft and
corruption a ground for impeachment? (2%) ‘12 - Q2c
1. Culpable violation of the Constitution,
2. Treason;
3. Bribery;
4. Graft and corruption;
5. Other high crimes; and,
6. Betrayal of public trust
Judge Red is the Executive Judge of Green City. Red is known to
have corrupt tendencies and has a reputation widely among prac-
ticing lawyers for accepting bribes. Ombudsman Grey, wishing to
“clean up" the government from errant public officials, initiated
an investigation on the alleged irregularities in the performance of
duties of Judge Red.
a) Judge Red refused to recognize the authority of the
Office of the Ombudsman over him because according
to him, any administrative action against him or any
court official or employee falls under the exclusive ju-
risdiction of the Supreme Court. Decide with reasons.
(5%); ‘12 - Q5a
Since the complaint refers to the performance of the duties of Judge
Red, Ombudsman Grey should not act on it and should refer it to the
Supreme Court. His investigation will encroach upon the exclusive
power of administrative supervision of the Supreme Court over all
courts. (Maceda vs. Vasquez, 221 SCRA 464.]
b) Does the Ombudsman have authority to conduct inves-
tigation over crimes or offenses committed by public
officials that are NOT in connection or related at all to
the official’s discharge of his duties and functions? Ex-
plain (3%); ‘12 - Q5b
 The Sigma Rho Fraternity
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The Ombudsman can investigate crimes or offenses committed by
public officers which are not connected with the performance of their
duties. Under Section 13(1), Article XI of the Constitution, the Om-
budsman can investigate any act or omission of a public official which
is illegal. (Deloso vs Domingo, 191 SCRA 545.)
c) Who are required by the Constitution to submit a decla-
ration under oath of his asset, liabilities, and net worth?
(2%). ‘12 - Q5c
All public officers and employees are required to submit a declaration
under oath. of their assets, liabilities and net worth. (Section 17, Article
XI of the Constitution.)
Necessity that for one to be declared a declared a de facto officer,
the office must be validly created. ‘10 – Q15a
The statement that a person who occupies an office that is defec-
tively created is a de facto officer is FALSE. For him to be a de facto
officer, the office must be validly created (Tuanda v. Sandiganbayan,
249 SCRA 342 [1995].)
Rule on nepotism applies to designations made in favor of a rela-
tive of the authority making the designation. ’10 – Q15b
The statement that the rule on nepotism does not apply to desig-
nations made in favor of a relative is false. Designation accomplishes
the same purpose as appointment (Laurel v. Civil Service Commission,
203 SCRA 195 [1991].)
A discretionary duty of a public officer is may be delegated. ’10 –
Q15c
The statement that a discretionary duty of a public office can nev-
er be delegated is FALSE. It can be delegated if the delegation is au-
thorized (Mechem, A Treatise on the Law on Public Offices and Offi-
cers, p. 368.)
Acquisition of Civil Service eligibility during tenure of a temporary
appointee does not automatically translate to a permanent ap-
pointment. ’10 – Q15d
The statement that the acquisition of civil service eligibility does
not automatically translate to a permanent appointment is true. A new
appointment is necessary (Province of Camarines Sur v. Court of Ap-
peals, 246 SCRA 281 [1995].)
Principle of Holdover. ’10 - Q20e
The principle of holdover means that in the absence of an express
or implied constitutional or statutory provision to the contrary, an officer
is entitled to hold his office until his successor is appointed or chosen
and has been qualified (Topacio Nueno v. Angeles, 76 Phil. 12 [1946].)
Career Ambassador who accepted an ad interim appointment as
Cabinet Member but was not bypassed by COA and was not re-
appointed cannot re-assume his position as career Ambassador.
’10 – Q23
The career Ambassador cannot re-assume his position as career
Ambassador. His ad interim appointment as Cabinet Member was a
permanent appointment (Summers v. Ozaeta, 81 Phil. 754 [1948].) He
abandoned his position as Ambassador when he accepted his ap-
pointment as Cabinet Member because as Cabinet Member, he could
not hold any other office during his tenure (Section 13, Article VII, Con-
stitution.)
Disciplinary authority a proper party in seeking the review of CA
decision exonerating employee from administrative liability. ’09 –
Q10a
!56
The Secretary of Education is not the proper party to seek a re-
view of the decision of the Court of Appeals, because he is the one
who heard the case and imposed the penalty. Being the disciplinary
authority, the Secretary of Education should be impartial and should
not actively participate in prosecuting Maximino (National Appellate
Board of the National Police Commission v. Mamauag, 466 SCRA 624
[2005].)
[However, please note that in the case of Civil Service Commis-
sion v. Dacoycoy, 306 SCRA 425 [1999], the Supreme Court said that
Civil Service Commission may appeal the decision of the Court of Ap-
peals exonerating a public official from charges thereof. The Civil Ser-
vice Commission, as an aggrieved party, may appeal the decision of
the Court of Appeals to the Supreme Court. By this ruling, the Supreme
Court expressly abandoned and overruled extant jurisprudence that
"the phrase 'party adversely affected by the decision' refers to the gov-
ernment 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" or "when the respondent is exonerated of the
charges, there is no occasion for appeal."
In Geronga v. Varela, 546 SCRA 429 [2008], the Supreme Court
ruled, citing Dacoycoy, that a judgment of exoneration in an adminis-
trative case is appealable, and that the CSC, as the agency mandated
by the Constitution to preserve and safeguard the integrity of our civil
service system, and/or the appointing authority, such as a mayor
who exercises the power to discipline or remove an erring employee,
qualifies as parties adversely affected by the judgment who can file an
appeal.
The rationale for this is explained in the concurring opinion of
Associate Justice now Chief Justice Reynato S. Puno in Civil Service
Commission v. Dacoycoy: “In truth, the doctrine barring appeal is not
categorically sanctioned by the Civil Service Law. For what the law
declares as "final" are decisions of heads of agencies involving sus-
pension for not more than thirty (30) days or fine in an amount not
exceeding thirty (30) days salary . . . . It is thus non sequitur to contend
that since some decisions exonerating public officials from minor of-
fenses can not be appealed, ergo, even a decision acquitting a gov-
ernment official from a major offense like nepotism cannot also be
appealed.”
The Court concluded that the exoneration of petitioner under CSC
Resolution No. 990717 may be subject to a motion for reconsideration
by respondent who, as the appointing and disciplining authority, is a
real party in interest. The CSC acted within the rubric of Civil Service
Commission v. Dacoycoy in allowing said motion for reconsideration.]
Recovery of back salaries during time of preventive suspension
and dismissal pending appeal. ’09-Q10b; ’01 – Q15
Maximino cannot recover back salaries during his preventive
suspension. The law does not provide for it. Section 52 of the Civil
Service Law, the provision for payment of salaries during the pendency
of the investigation has been deleted. During the preventive suspen-
sion, he was not yet out of service. The preventive suspension was not
a penalty. It imposition was lawful, since it was authorize by law.
However, he is entitled to back wages from the time of his dis-
missal until his reinstatement. The enforcement of dismissal pending
appeal was punitive, and he was exonerated. Otherwise, this would be
tantamount to punishing him after exoneration from the charge which
caused his dismissal (Gloria v. Court of Appeals, 306 SCRA 287
[1999].)
A de facto officer is, by right, entitled to receive salaries and
emoluments attached to the public office he holds. ’09 – Q11b
De facto officers are entitled to emoluments attached to the office
for actual services rendered (Civil Service Liberties Union v. Executive
Secretary, 194 SCRA 317 [1991].)
Decisions of the Ombudsman imposing penalties in administra-
tive cases are not merely recommendatory. ’09 – Q11d
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Under Section 15(3) of the Ombudsman Act, the Ombudsman
has the power to ensure compliance with the imposition of penalty on
public officers if it finds him at fault by virtue of its disciplinary authority
(Office of the Ombudsman v. Madriaga, 503 SCRA 631 [2006].)
In March 2001, while Congress was adjourned, the President ap-
pointed Santos as Chairman of COMELEC. Santos immediately
took his oath and assumed office. While his appointment was
promptly submitted to the Commission on Appointments (COA)
for confirmation, it was not acted upon and Congress again ad-
journed. In June 2001, the President extended a second ad interim
appointment to Santos for the same position with the same term,
and this appointment was against submitted to the COA for con-
firmation. Santos took his oath anew and performed the functions
of his office. Reyes, a political rival, questioned the validity of
Santos’ appointment.
1. Does Santos’ assumption of office on the basis of the ad
interim appointment issued by the President amount to
a temporary appointment which is prohibited by Section
1(2), Article IX-C of the Constitution?
The assumption of office by Santos on the basis of the ad interim
appointment issued by the President does not amount to a temporary
appointment. An ad interim appointment is a permanent appointment,
because it takes effect immediately and can no longer be withdrawn by
the President once the appointee has qualified into office (Section 16,
second paragraph, Article VII of the Constitution; Matibag v. Benipayo,
380 SCRA 49 [2002].)
2. Assuming the legality of the first ad interim appointment
and assumption of office by Santos, were his second ad
interim appointment and subsequent assumption of
office to the same position violations of the prohibition
on reappointment under Section 1(2), Article IX-C of the
Constitution? ’05 – Q4
The second ad interim appointment of Santos does not violate the
prohibition against reappointment under Section 1(2), Article IX-C of
the Constitution. The prohibition does not apply to a by-passed ad
interim appointment, because it has not been finally disapproved by
the Commission on Appointments (Matibag v. Benipayo, 380 SCRA 49
[2002].) The prohibition against reappointment in the Constitution pre-
supposes the end of the term. After the end of the term, he cannot be
reappointed.
Ricardo was elected Dean of the College of the Education in a
State University for a term of five (5) years unless sooner termi-
nated. Many were not pleased with his performance. To appease
those critical of him, the President created a new position that of
Special Assistant to the President with the rank of Dean, without
reduction in salary, and appointed Ricardo to said position in the
interest of the service. Contemporaneously, the University ap-
pointed Santos as Acting Dean in place of Ricardo.
1. Does the phrase “unless sooner terminated” mean that
the position of Ricardo is terminable at will?
The phrase “unless sooner terminated” does not mean that the
position of Ricardo is terminable at will. His election was for a fixed
terms of five years. The phrase cannot be interpreted to mean that
Ricardo can be dismissed at will, as it would run contrary to his securi-
ty of tenure.
2. Was Ricardo removed from his position as Dean of the
College of Education or merely transferred to the posi-
tion of Special Assistant to the President? ’05 – Q5(2)
Ricardo was removed as Dean of the College of Education. The
transfer was a removal, because it was done to take him away from his
position as Dean, the position of Assistant to the President was created
for him, and the appointment with the rank of Dean is meaningless,
because he is without a college (Sta. Maria v. Lopez, 31 SCRA 637
[1970].)
JAR faces a dilemma: should he accept a Cabinet appointment
now or run later for Senator? Having succeeded in law practice as
!57
well as prospered in private businesses where he and his wife
have substantial investments, he now contemplates public ser-
vice but without losing the flexibility to engage in corporate af-
fairs or participate in profession activities within ethical bounds.
Taking into account the prohibitions and inhibitions of public
office whether as Senator or Secretary, he turns to you to resolve
his dilemma. What is your advice? ’04 – Q3a
I shall advise JAR to run for Senator. As Senator, he can retain his
investments in his business, although he must make a full disclosure of
his business and financial interests and notify the Senate of a potential
conflict of interest if he authors a bill (Section 12, Article VI of the Con-
stitution.) He can continue practicing law, but he cannot personally
appear as counsel before any court of justice, the Electoral Tribunals,
or quasi-judicial and other administrative bodies (Section 14, Article VI
of the Constitution.)
As member of the Cabinet, JAR cannot directly or indirectly prac-
tice law or participate in any business. He will have to divest himself of
his investment in business (Section 13, Article VII of the Constitution.)
In fact, the Constitutional prohibition imposed on members of the Cabi-
net covers both public and private office or employment (Civil Liberties
Union v. Executive Secretary, 194 SCRA 417 [19910.)
AVE ran for Congressman of QU province. However, his opponent
BART, was the one proclaimed and seated as the winner of the
election by the COMELEC. AVE seasonably filed a protest before
the HRET. After two years, HRET reversed the COMELEC’s deci-
sion and AVE was proclaimed finally as the duly elected Con-
gressman. Thus, he had only one year to serve in Congress.
1. Can AVE collect salaries and allowances he had re-
ceived as Congressman?
AVE cannot collect salaries and allowances from the government
for the first two years of his term, because in the meanwhile BART
collected the salaries and allowances. BART was a de facto officer
while he was in possession of the office. To allow AVE to collect the
salaries and allowances will result in making the government pay a
second time (Mechem, A Treatise on the Law of Public Offices and
Public Officers [1890], pp. 222-223.)
2. Should BART refund the government for the salaries
and allowances he had received as Congressman?
BART is not required to refund to the government the salaries and
allowances he received. As a de facto officer, he is entitled to the
salaries and allowances because he rendered services during his in-
cumbency (Rodriguez v. Tan, 91 Phil. 724 [1952].)
3. What will happen to the bills that BART alone authored
and were approved by the House of Representatives
while he was seated as Congressman? ‘04 – Q10b
The bills which BART alone authored and were approved by the
House of Representatives are valid because he was a de facto officer
during his incumbency. The acts of a de fact officer are valid insofar as
the public is concerned (People v. Garcia, 313 SCRA 270 [1999].)
What is the nature of an “acting appointment” to a government
office? Does such appointment give the appointee the right to
claim that the appointment will, in time, ripen into a permanent
one? ’03 – Q5
According to Sevilla v. Court of Appeals, 209 SCRA 637 [1992],
an acting appointment is merely temporary. As held in Marohombsar v.
Alonto, 194 SCRA 390 [1991], a temporary appointment cannot be-
come a permanent appointment unless a new appointment which is
permanent is made. This holds true unless the acting appointment was
made because of a temporary vacancy. In such case, the temporary
appointee holds office until the assumption of office by the permanent
appointee.
The President abolished the Office of the Presidential Spokesman
in Malacañang Palace and a long-standing bureau under the
DILG. The employees of both offices assailed the action of the
President for being an encroachment of legislative powers and
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thereby void. Was the contention of the employees correct? ’03 –
Q5
The contention of the employees is not correct. As held in Buklod
ng Kawaning EIIB v. Zamora, 360 SCRA 718 [2001], Section 31, Book
III of the Administrative Code of 1987 has delegated to the President
continuing authority to reorganize the administrative structure of the
Office of the President to achieve simplicity, economy and efficiency.
Since this includes the power to abolish offices, the President can
abolish the Office of the Presidential Spokesman, provided it is done in
good faith.
The President can also abolish the Bureau in the Department of
Interior and Local Governments, provided it is done in good faith be-
cause the President has been granted continuing authority to reorga-
nize the administrative structure of the National Government to effect
economy and promote efficiency, and the powers include the abolition
of government offices (Presidential Decree No. 1416, as amended by
Presidential Decree No. 1772; Larin v. Executive Secretary, 280 SCRA
713 [1997].)
A corporation, a holder of a certificate of registration issued by
the SEC, is owned and controlled by the Republic of the Philip-
pines. The CSC, in a memorandum-order, directs the corporation
to comply with CSC Rules in the appointment of all of its officers
and employees. The memorandum-order is being assailed by the
corporation, as well as by its officers and employees, before the
court. How should the case be resolved? ’03 – Q7; ’99 – Q9c
The memorandum-order of the Civil Service Commission should
be declared void. As held in Gamogamo v. PNOC Shipping Transport
Corp., 381 SCRA 742 [2002], under Section 2(1), Article IX-B of the
Constitution, government-owned or controlled corporations under the
Corporation Code are not covered by the Civil Service Law but by the
Labor Code, because only government-owned or controlled corpora-
tions with original charters are covered by the Civil Service.
Suppose a public officer has committed a violation of Section 3(b)
and (c) of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019,
as amended), by receiving monetary and other material consider-
ations for contracts entered into by him in behalf of the govern-
ment and in connection with other transactions, as a result of
which he amassed illegally acquired wealth.
1. Does the criminal offense committed prescribe?
A violation of Section 3(b) and (c) of the Anti-Graft and Corrupt
Practices Act prescribes. As held in Presidential Ad-Hoc Fact-Finding
Committee on Behest Loans v. Desierto, 317 SCRA 272 [1999], Sec-
tion 15, Article XI of the Constitution does not apply to criminal cases
for violation of the Anti-Graft and Corrupt Practices Act.
2. Does the right of the government to recover the illegally
acquired wealth prescribe? ’02 – Q12
Section 15, Article XI of the Constitution provides that the right of
the State to recover properties unlawfully acquired by public officials or
employees, or from them or from their nominees or transferees, shall
not be barred by prescription.
Alcantara was appointed as member of the Sangguniang Bayan
being the president-elect of the Association of Barangay Councils
(ABC) for the Municipality of San Andres, Catanduanes. While
serving as such, he was designated in a temporary capacity as
member of the Sangguniang Panlalawigan of the Province of
Catanduanes. As a result of which he resigned as member of the
Sangguniang Bayan. His designation as member of the Sanggu-
niang Panlalawigan was declared void by the Supreme Court
hence, he wrote the Sangguniang Bayan of San Andres express-
ing his desire to reassume his position as sectoral representative
therein, but the latter issued a resolution declaring that he had no
legal basis to resume office. Can Alcantara reassume office as
member of the Sangguniang Bayan or has he lost it because of
resignation or abandonment? ’00 – Q7
Alcantara cannot reassume office as member of the Sangguniang
Bayan. As held in Sangguniang Bayan ng San Andres, Catanduanes v.
!58
Court of Appeals, 284 SCRA 276 [1998], Alcantara should be deemed
to have abandoned his position as member of the Sangguniang Bayan.
His intention to abandon his position is shown by his failure to perform
his functions as member of the Sangguniang Bayan, his failure to col-
lect the salary for the position, his failure to object to the appointment
of his replacement, and his failure to initiate any act to reassume his
post after the reorganization of the Sangguniang Bayan was voided.
Alcantara effected his intention by his letter of resignation, his
assumption of office as member of the Sangguniang Panlalawigan, his
discharge of his duties as its member, and his receipt of the salary for
such post.
In the elections of May 1992, Cruz and Santos were candidates for
the office of Municipal Mayor, the term of which was to expire on
June 30, 1995. The Municipal Board of Canvassers proclaimed
Cruz as the duly elected Mayor based on its finding Cruz won by a
margin of 20 votes. Santos filed an election protest before the
RTC which decided that it was Santos who had the plurality of 30
votes and proclaimed him the winner. On the motion made, the
RTC granted execution pending the appeal of Cruz to the COM-
ELEC and on this basis, Santos assumed office and served as
Municipal Mayor. In time, the COMELEC reversed the ruling of the
RTC and instead ruled that Cruz won by a margin of 40 votes and
proclaimed him the duly elected Municipal Mayor.
It is now beyond June 30, 1995. Can Cruz still hold office for the
portion of the term he failed to serve?
Was Santos a usurper and should he pay back that he has re-
ceived while holding the office as Municipal Mayor? ’00 – Q16
As held in Malaluan v. Commission on Elections, 254 SCRA 397
[1996], Cruz can no longer hold office for the portion of the term he
failed to serve since his term has expired.
Santos was not a usurper. He was a de facto officer, since he had
a color of election to the office of Municipal Mayor by virtue of the deci-
sion in the election protest. Hence, he is entitled to the emoluments of
the office.
What are the six categories of officials who are subject to the
appointing power of the President? Name the category or cate-
gories of officials whose appointments need confirmation by the
Commission on Appointments. ’99 – Q1a
Under Section 16, Article VII of the Constitution, the six categories
of officials who are subject to the appointing power of the President are
the following:
a. Head of executive departments;
b. Ambassadors, other public ministers and consuls;
c. Officers of the armed forces from the rank of colonel or naval
captain;
d. Other officers whose appointments are vested in him by the
Constitution;
e. All other officers whose appointments are not otherwise
provided by law; and
f. Those whom he may be authorized by law to appoint (Cruz,
Philippine Political Law, 1998 ed., pp. 204-205.)
According to Sarmiento v. Mison, 156 SCRA 549 [1987], the only
officers whose officers need confirmation by the Commission on Ap-
pointments are the head of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces from
the rank of colonel or naval captain, and other officials whose appoint-
ments are vested in the President by the Constitution.
What is the meaning and guarantee of security of tenure? ’99 –
Q9a
According to Palmera v. Civil Service Commission, 235 SCRA 87,
security of tenure means that no officer or employee in the Civil Ser-
vice shall be suspended or dismissed except for cause as provided by
law and after due process.
What characterizes the career service and what are included in
the career service? ’99 – Q9b
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According to Section 7, Chapter 2, Title I, Book V of the Adminis-
trative Code of 1987, the career service is characterized by (1) en-
trance based on merit and fitness to be determined as far as practica-
ble by competitive examination or based on highly technical qualifica-
tions; (2) opportunity for advancement to higher career positions; and
(3) security of tenure.
The career service includes:
(1) Open career positions for appointment to which prior qualifi-
cations in an appropriate examination is required;
(2) Closed career positions which are scientific or highly techni-
cal in nature;
(3) Positions in the career executive service;
(4) Career officers other than those in the career executive ser-
vice, who are appointed by the President;
(5) Commissioned officers and enlisted men of the Armed
Forces;
(6) Personnel of government-owned or controlled corporations,
whether performing governmental or proprietary functions,
who do not fall under the non-career service; and
(7) Permanent labourers, whether skilled, semi-skilled or un-
skilled.
A month before a forthcoming election, “A” one of the incumbent
Commissioners of the COMELEC, 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 COM-
ELEC, the President who was not running for any office, appoint-
ed Commissioner C of the COA, who was not a lawyer but a pub-
lic accountant by profession, ad interim Commissioner to suc-
ceed Commissioners 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 n favor of Commissioner C and designating Justice
D acting Commissioner of the COMELEC? ’97 – Q7
No. The President was wrong in extending an ad interim appoint-
ment in favor of Commissioner C. In Summers v. Ozaeta, 81 Phil. 754
[1948], it was held that an ad interim appointment is a permanent ap-
pointment. Under Section 15, Article VII of the Constitution, within two
(2) months immediately before the next presidential elections and up to
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.
Can the Secretary of Finance be elected Chairman of the Board of
Directors of the San Miguel Corporation? ’96 – Q7(2)
No, the Secretary of Finance cannot be elected Chairman of the
Board of Directors of the San Miguel Corporation. Under Section 13,
Article VII of the Constitution, members of the Cabinet cannot hold any
other office or employment during their tenure unless it is otherwise
provided in the Constitution. They shall not also during said tenure
participate in any business or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Govern-
ment or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations and their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their office.
“A”, an associate justice of the Supreme Court reaches the age of
70 on July 1, 1996. There was a case calendared for deliberation
on that day where the vote of A was crucial. Can A hold over the
position and participate in the deliberation of the case on July 1,
1996? ’96 – Q9(1)
No, A cannot hold over his position as Associate Justice of the
Supreme Court. Under Section 11, Section VIII of the Constitution,
Members of the Supreme Court hold office until they reach the age of
seventy (70) years of age or become incapacitated to discharge their
duties. Constitutional officers whose terms are fixed by the Constitution
have no right to hold over their positions until their successors shall
!59
have been appointed and qualified unless otherwise provided in the
Constitution (Mechem, Treaties on the Law of Public Offices and Offi-
cers, p. 258.)
“A’, an employee of National Treasurer, retired on January 10,
1996. Before she could collect her retirement benefits, the Nation-
al Treasurer discovered that A had been negligent in the encash-
ment of falsified treasury warrants. It appears, however, that A
had received all money and property clearances from the National
Treasurer before her retirement. Can the National Treasurer with-
hold the retirement of “A” pending determination of her negli-
gence in the encashment of the falsified treasury warrants? ’96 –
Q9(2)
In accordance with Tantuico v. Domingo, 230 SCRA 391 and Cruz
v. Tantuico, 166 SCRA 670, the National Treasurer cannot withhold the
benefits of the retirement benefits of A pending determination of her
liability for negligence in the encashment of the falsified treasury war-
rants, because her retirement benefits are exempt from execution.
An administrative complaint for violation of R.A. No. 3019 against
X was filed with the Ombudsman. Immediately after taking cog-
nizance of the case and the affidavits submitted to him, the Om-
budsman ordered the preventive suspension of X pending prelim-
inary investigation. X questioned the suspension order, contend-
ing that the Ombudsman can only prevent suspend preventively
subordinate employees in this own office. Is X correct? ’96 –
Q10(2)
No, X is not correct. As held in Buenaseda v. Flavier, 226 SCRA 645
[1993], under Section 24 of R.A. No. 6770, the Ombudsman can place
under preventive suspension any officer under his disciplinary authority
pending an investigation. The moment a complaint is filed with the
Ombudsman, the respondent is under his authority. Congress intended
to empower the Ombudsman to suspend all officers, even if they are
employed in other offices in the Government. The words “subordinate”
and his “in his bureau” does not appear in the grant of such power to
the Ombudsman.
ELECTION LAW
Sec. 17, Art. VI of the Constitution establishes an Electoral Tri-
bunal for each of the Houses of Congress, and makes each Elec-
toral Tribunal "the sole judge of all contests relating to the elec-
tion, returns, and qualifications of their respective Members." On
the other hand, Sec. 2(1), C (Commission on Elections), Art. IX or
the Constitution grants to the COMELEC the power to enforce and
administer all laws and regulations "relative to the conduct of an
election, plebiscite, initiative, referendum, and recall."
Considering that there is no concurrence of jurisdiction between
the Electoral Tribunals and the COMELEC, state when the juris-
diction of the Electoral Tribunals begins, and the COMELEC's
jurisdiction ends. Explain your answer. (4%) ’17—Q11
To be considered a Member of the House of Representatives, there
must be a concurrence of the following requisites: (1) a valid proclama-
tion, (2) a proper oath, and (3) assumption of office (Reyes v. COM-
ELEC, G.R. No. 207264, October 22, 2013, 699 SCRA 522). Once a
winning candidate has been proclaimed and taken his oath, and as-
sumed office as a Member of the House of Representatives, the juris-
diction of the Commission on Elections over the election contest ends,
and the jurisdiction of the House of Representatives Electoral Tribunal
begins (Vinzons-Chato v. COMELEC, G.R. No. 172131, April2, 2007).
Sec. 8, Article X of the 1987 Constitution provides that no elective
official shall serve for more than three (3) consecutive terms. Rule
and explain briefly the reason if the official is prohibited to run for
another term in each of the following situations: (a) if the official
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is a Vice-Mayor who assumed the position of Mayor for the unex-
pired term under the Local Government Code; (b) if the officials
has served for three consecutive terms and did not seek a 4th
term but who won in a recall election.; (c) if the position of Mayor
of a town is abolished due to conversion of the town to a city; (d)
if the official is preventively suspended during his term but was
exonerated; and (e) if the official proclaimed as winner and as-
sumes office but loses in an election protest. (5%) ’16 – Q18
a) In computing the three term limit, only the term for which the
local official was elected should be considered. The second sentence
of
Section 8, Article X of the Constitution states that the voluntary renun-
ciation shall not be considered as interruption of the continuity of the
service for the full term for which he was elected (Borja v. Commission
on Elections, 295 SCRA 157 [1998]).
b) A mayor who served three consecutive terms and did not
seek a fourth term but ran and won in the recall election can serve,
because the recall election was not an immediate reelection (Socrates
v. Commission on Elections, 391 SCRA 547 [2002]).
c) If a municipality in which a mayor served for three consecu-
tive terms was converted to a city, he cannot run as city mayor in the
first election. For purposes of applying the three term limit, the office of
the municipal mayor should not be considered as different from that of
the city mayor (Latasa v. Commission on Election, 417 SCRA 601
[2003]).
d) The temporary inability' of an elective official to exercise his
functions due to preventive suspension is not an interruption of his
term, because it did not involve loss of title to the office (Aldovino, Jr. v.
Commission on Elections, 609 SCRA 234 [2009]).
e) If a candidate was proclaimed for three consecutive terms
but did not serve it in full because of loss in an election protest he is
not disqualified (Lonzanida v. Commission on Elections, 311 SCRA 602
[1999]).
(1) 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 Elec-
tion Code for material misrepresentation as before Bai
filed her COC, she had already been convicted of a
crime involving moral turpitude. Hence, she is disquali-
fied 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 fol-
lowed 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. Maa-
gap asked the Department of Interior and Local Gov-
ernment 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. (5%) ‘15 - Q16(1)
Pasyo Maagap would be entitled to occupy the position of Mayor upon
the disqualification of Gandang Bai on the basis of the Petition to deny
due course or cancel her certificate of candidacy under the provisions
of Section 78 of the Omnibus Election Code.
!60
The rule is that “(a)n ineligible candidate who receives the highest
number of votes is a wrongful winner. By express legal mandate, he
could not even have been a candidate in the first place, but by the
virtue of the lack of material time or any other intervening circum-
stance, his ineligibility might not have been passed upon prior to elec-
tion date. Consequently, he may have had the opportunity to hold him-
self out the electorate as a legitimate and duly qualified candidate.
However, notwithstanding the outcome of the elections, his ineligibility
as a candidate remains unchanged. Ineligibility does not only pertain to
hold public office. The number of ballots cast in his favor cannot cure
the defect of failure to qualify with the substantive legal requirements of
eligibility to run for public office.” (Maquiling v. Commission on Elec-
tions, G.R. No. 195649, April 16, 2013).
Accordingly, Gandang Bai “being a non-candidate, the votes cast in his
favor should not have been counted.” This leaves Pasyo Maagap as
“the qualified candidate who obtained the highest number of votes.
Therefore, the rule on succession under the Local Government Code
will not apply.” (Maquiling v. Commission on Elections, G.R. No.
195649, April 16, 2013).
(2) How do you differentiate the petition filed under Section
68 from the petition filed under Section 78, both of the
Omnibus Election Code? (3%) - ‘15 Q16 (2)
In addition to the rule cited above that a certificate of candidacy which
is denied or cancelled under Section 78 of the Omnibus Election Code
would make said certificate of candidacy void ab initio (which would
preclude the application of the rules on succession for purposes of
replacing him upon his disqualification because, up to that point of his
disqualification, he shall be considered merely as a de facto officer),
unlike in the case of disqualification under Section 68 of the Omnibus
Election Code, which would give rise to the de jure officership of the
disqualified candidate up to his point of disqualification, the other basic
distinctions between petitions for the disqualification of candidates and
petitions to reject or cancel certificates of candidacy are as follows -
Under Section 68 of the Omnibus Election Code, a candidate may be
disqualified if he commits any of the permanent resident of or an immi-
grant to a foreign country. On the other hand, under Section 78 of the
same law, a certificate of candidacy may be denied due course or can-
celled if found to be containing material representations which are false
and deliberately made. These would include misrepresentations as to
age, residence, citizenship or non- possession of natural-born status,
registration as a voter, and eligibility, as when one, although precluded
from running for a fourth term because of the three-term limit rule,
claims to be nonetheless qualified, or when one claims to be eligible
despite his disqualification on the basis of an accessory penalty im-
posed upon him in connection with his conviction in a criminal case.
A petition for disqualification under Section 68 may be filed at any time
after the last day for filing of the certificates of candidacy but not later
than the candidate’s proclamation should he win in the elections, while
a petition to deny due course to or cancel a certificate of candidacy
under Section 78 must be filed within five days prior to the last day for
filing of certificates of candidacy, but not later than twenty-five days
from the time of the filing of the certificate of candidacy.
While a person who is disqualified under Section 68 is merely prohibit-
ed to continue as a candidate, the person whose certificate is can-
celled or denied due course under Section 78 is not treated as a can-
didate at all. Thus, a candidate disqualified under Section 68 may be
validly substituted but only by an official candidate of his registered or
accredited party.
 The Sigma Rho Fraternity
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Beauty was proclaimed as the winning candidate for the position
of Representative in the House of Representatives three (3) days
after the elections in May. She then immediately took her oath of
office. However, there was a pending disqualification case against
her, which case was eventually decided by the COMELEC against
her 10 days after, the election. Since she has already been pro-
claimed, she ignored that decision and did not bother appealing
it. The COMELEC then declared in the first week of June that its
decision holding that Beauty was not validly elected had become
final. Beauty then went to the Supreme Court questioning the
jurisdiction of the COMELEC claiming that since she had already
been proclaimed and had taken her oath of office, such election
body had no more right to come up with a decision that the juris-
diction had already been transferred to the House of Representa-
tives Electoral Tribunal. How defensible is the argument of Beau-
ty? (4%) ‘14 - Q4
The House of Representatives Electoral Tribunal has acquired exclu-
sive jurisdiction over the case of Beauty, since she has already been
proclaimed. The proclamation of the winning candidate is the operative
fact that triggers the exclusive jurisdiction of the House of Representa-
tive Electoral Tribunal over election contests relating to the election,
returns and qualifications of the winning candidate. The proclamation
divests the Commission on Elections of jurisdiction over the question of
disqualifications pending before it at the time of the proclamation. Any
case pertaining to questions over the qualifications of a winning candi-
date should be raised before the House of Representative Electoral
Tribunal (Limkaichong v. Commission on Elections, G.R. Nos. 178831-
32, July 30, 2009, 883 SCRA 1); Jalosjos, Jr. v. Commission on Elec-
tions, G.R. No. 192474, June 26, 2012, 674 SCRA 530).
ALTERNATIVE ANSWER:
The argument of Beauty is untenable. For the House of Representa-
tives Electoral Tribunal to acquire jurisdiction over the disqualification
case, she must be a Member of the House of Representatives. Al-
though she had been proclaimed and had taken her oath of office, she
had not yet assumed office. The term of office of the Members of the
House of Representatives begins at noon of the thirtieth day of June
next following their election (Reyes v. Commission on Elections, G.R.
No. 207364, October 22, 2013, 699 SCRA 822).
Rosebud is a natural-born Filipino woman who got married to
Rockcold, a citizen of State Frozem. By virtue of the laws of
Frozen, any person who marries its citizens would automatically
be deemed its own citizen. After ten years of marriage, Rosebud,
who has split her time between the Philippines and Frozen, de-
cided to run for Congress. Her opponent sought her disqualifica-
tion, however, claiming that she is no longer a natural-born citi-
zen. In any event, she could not seek elective position since she
never renounced her foreign citizenship pursuant to the Citizen-
ship Retention and Reacquisition Act (R.A. No. 9225).
Is Rosebud disqualified to run by reason of citizenship? (4%) ‘14 -
Q25
Rosebud remained a natural born Filipino citizen even if under the laws
of the Frozen, she became a citizen of it because of her marriage to
Rockcold. Under Section 4, Article IV of the Constitution, she retained
her Philippine citizenship.
Rosebud cannot seek elective office. Under Section 5(2) of Republic
Act No. 9225, even those who retained their Philippine citizenship by
birth and acquired foreign citizenship by virtue of marriage to a foreign
spouse are required to renounce their foreign citizenship (Sobejana-
!61
Condon v. Commission on Elections, G.R. No. 198742, August 10,
2012, 678 SCRA 267).
ALTERNATIVE ANSWER:
No, Rosebud is not disqualified. She became a dual citizen, not on the
basis of the provisions of Republic Act No. 9225, but by reason of the
automatic operation of the citizenship laws of State Frozen, of which
her husband, Rockcold, was a citizen. The requirement regarding the
renunciation of her foreign citizenship under that law cannot therefore
be made to apply to her.
It does not appear that she ever renounced her natural-born Filipino
citizenship upon her marriage to Rockcold. Accordingly, she cannot be
considered as ever having lost it. She is therefore not disqualified to
run for Congress by reason of citizenship.
Mr. Yellow and Mr. Orange were the leading candidates in the vice-
presidential elections. After the elections, Yellow emerged as the
winner by a slim margin of 100,000 votes; Undaunted, Orange
filed a protest with the Presidential Electoral Tribunal (PET). After
due consideration of the facts and the issues, the PET ruled that
Orange was the real winner of the elections and ordered his im-
mediate proclamation.
a) Aggrieved, Yellow filed with the Supreme Court a Peti-
tion for Certiorari challenging the decision of the PET
alleging grave abuse of discretion. Does the Supreme
Court have jurisdiction? Explain (3%); ‘12 - Q4a
The Supreme Court has no jurisdiction over the petition. The Presiden-
tial Electoral Tribunal is not simply an agency to which the Members of
the Senate Court were assigned. It is not separate from the Supreme
Court. (Macalintal vs. Presidential Electoral Tribunal, 631 SCRA 239.)
b) Would the answer in (a) be the same if Yellow and Or-
ange were contending for a senatorial slot and it was the
Senate Electoral Tribunal (SET) who issued the chal-
lenged ruling? (3%); ‘12 - Q4b
The Supreme Court would have jurisdiction if it were the Senate Elec-
toral Tribunal who issued the challenged ruling. The Supreme Court
can review its decision if it acted with grave abuse of discretion. (Lerias
vs. House of Representatives Electoral Tribunal, 202 SCRA 808.)
c) What is the composition of the PET? (2%); ‘12 - Q4c
The Presidential Electoral Tribunal is composed of the Chief Justice
and the Associate Justices of the Supreme Court sitting en banc. (Sec-
tion 4, Article VII of the Constitution.)
Mayor Pink is eyeing re-election in the next mayoralty race. It was
common knowledge in the town that Mayor Pink will run for re-
election in the coming elections. The deadline for filing of Certifi-
cate of Candidacy (CoC) is on March 23 and the campaign period
commences the following day. One month before the deadline,
Pink has yet to file her CoC, but she has been going around town
giving away sacks of rice with the words “Mahal Tayo ni Mayor
Pink” printed on them, holding public gatherings and speaking
about how good the town is doing, giving away pink t-shirt with
“Kay Mayor Pink Ako” printed on them.
a) Mr. Green is the political opponent of Mayor Pink. in
April, noticing that Mayor Pink had gained advantage
over him because of her activities before the campaign
 The Sigma Rho Fraternity
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Bar Questions and Answers
period, he filed a petition to disqualify Mayor Pink for
engaging in an election campaign outside the designat-
ed period:
1) Which is correct body to rule on the matter?
Comelec en banc, or Comelec division? An-
swer with reasons. (2%); ‘12 - Q7a1
It is the Commission on Elections en banc which should decide the
petition. Since it involves the exercise of the administrative powers of
the Commission on Elections, Section 3, Article IX-C of the Constitu-
tion is not applicable. (Baytan vs. Commission on Elections, 3.96
SCRA 703.)
2) Rule on the petition. (5%). ‘12 - Q7a2
The petition should be denied. Under Section 80 of the Omnibus Elec-
tion Code, to be liable for premature campaigning, he must be a candi-
date. Unless he filed his certificate of candidacy, he is not a candidate.
(Lanot vs Commission on Elections, 507 MIRA 114.)
b) Distinguish briefly between Quo Warranto in elective
office and Quo Warranto in appointive office. (3%). ‘12 -
Q7b
 quo warranto case. Since it is within its jurisdiction to decide the ques-
In quo warranto in elective office, the issue is the ineligibility of the
elected candidate. (Section 3(e], Rule 1, Rules of Procedure in Elec-
tion Cases.) If he is ineligible, the candidate who got the second high-
est number of votes ‘cannot be proclaimed elected. (Sinsuat vs. Com-
mission on Elections, 492 SCR-A 264.) A voter may file a petition for
quo warranto against and elected candidate. The petition should be
filed within ten days after the proclamation of the elected candidate.
In quo warranto in appointive office, the issue is the legality of the ap-
pointment. The court will decide who between the parties has the legal
title to the office. (Nachura, Outline Reviewer in Political Law, p. 5157.)
It is the Solicitor General, a public prosecutor, or a person claiming to
be entitled to the public office can file a petition for quo warranto
against an appointive official. (Sections 2 and 5, Rule 66 of the Rules
of Court.) The petition should be filed within one year after the cause of
action accrued. (Section 11, Rule 66 of the Rules of Court.)
A political party which is supported by any foreign government
cannot be registered with the Commission on Elections. ’10- Q16
KABAKA and Rudy are not qualified as a party list and as nomi-
nee, respectively, since KABAKA is receiving a subsidy from the Dutch
Foreign Ministry. Under Section 2(5), Article IX-C of the Constitution, a
political party cannot be registered with the Commission on Elections.
Effect of presidential pardon of a violation of a COMELEC gun
ban on eligibility to run for an elective position. ‘10 – Q17
Mayor Galicia can run again for an elective office but not immedi-
ately. Under Section 40 of the Local Government Code, he cannot run
for an elective office within two (2) years after serving of sentence.
Under Section 12 of the Omnibus Election Code, he can run again for
an elective national office after the expiration of five (5) years from his
service of sentence.
However, the pardon granted to him is not valid. The offense in-
volved a violation of the Omnibus Election Code and the pardon was
granted without the favourable recommendation of the Commission on
Elections (Section 5, Article IX-C of the Constitution.)
Remedies on non-fulfilment of one-year residency and citizenship
requirements for district representatives. ’09 – Q2a
!62
I will file a petition to cancel the certificate of candidacy of Gabriel
in the Commission on Elections because of the false material repre-
sentation that his is qualified to run for congressman (Section 78 of the
Omnibus Election Code; Fermin v. Commission on Elections, 574
SCRA 787 [2008].) The question of the disqualification of Gabriel can-
not be raised before the House of Representative Electoral Tribunal
because he is not yet a member of the House of Representatives
(Aquino v. Commission on Elections, 248 SCRA 400 [1995].)
During pendency of petition for cancellation of certificate of can-
didacy but before election day; Propriety of withdrawal of COC
and substitution; Who can substitute. ’09 – Q2b
If Gabriel withdraws, he may be substituted by candidate nomi-
nated by his political party. Section 77 of the Omnibus Election Code
states: “If after the last day for the filing of the certificates of candidacy,
an official candidate of a registered or accredited political party dies,
withdraws or is disqualified for any cause, only a person belonging to,
and certified by, the same political party may file a certificate of candi-
dacy to replace the candidate who died, withdrew or was disqualified.”
Available remedy after dismissal of petition for cancellation for
certificate of candidacy and candidate has been proclaimed. ’09 –
Q2c
The question of citizenship and residence of Gabriel can be ques-
tioned in the House of Representatives Electoral Tribunal by filing a
tion of the qualification of Gabriel, the decision of the Commission on
Elections does not constitute res judicata (Jalandoni v. Crespo, HRET
Case No. 01-020, Mar. 6, 2003). Once a candidate for member of the
House of representatives has been proclaimed, the House of Repre-
sentatives Electoral Tribunal acquires jurisdiction over election con-
tests relating to his qualifications (Guerrero v. Commission on Elec-
tions, 336 SCRA 458 [2000].)
Decision of District Board of Canvassers dismissing a case pray-
ing for the exclusion of certificate of canvass in a congressional
election on the ground that it was manufactured cannot be ap-
pealed to the COMELEC. ’08 – Q10
Sec. 15 of R.A. No. 7166 (The Synchronized Election Law of
1991) states that for purposes of the members of the House of Repre-
sentatives, no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody and appreci-
ation of election returns or certificates of canvass. In the instant case,
the claims of MP related to pre-proclamation controversies which can-
not be raised in congressional elections. MP cannot appeal the rulings.
Difference between an election protest from an action for quo
warranto. ’06 - Q5(3); ’01 – Q17
An election protest is an action filed by a defeated candidate on
the grounds of frauds or irregularities in the casting and counting of
ballots or in the preparation of the returns. It raises the question of who
actually obtained the plurality of votes and is entitled to hold office.
On the other hand, a petition for quo warrranto is a petition filed
by any registered voter in the constituency of the winning candidate to
unseat him on the ground of his disloyalty or ineligibility. It does not
result in installing the petitioner in his place (Dumayas v. Commission
on Elections, 357 SCRA 358 [2001].)
In the municipality mayoralty elections in 1980, the candidate who
obtained the highest number of votes was subsequently declared
to be disqualified as a candidate and so ineligible for the office to
which he was elected. Would this fact entitle the competing can-
didate who obtained the second highest number of votes to be
proclaimed the winner of the elective office? ’03 – Q8
According to Trinidad v. Commission on Election, 315 SCRA 175
[1999], if the candidate who obtained the highest number of votes is
disqualified, the candidate who obtained the second highest number of
votes cannot be proclaimed the winner. Since he was not the choice of
the people, he cannot claim any right to the office.
 The Sigma Rho Fraternity
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May the COMELEC prohibit the posting of decals and stickers on
“mobile” places, public or private, such as on a private vehicle,
and limit their location only to the authorized posting areas that
the COMELEC itself fixes? ’03 – Q9
According to Adiong v. Commission of Elections, 207 SCRA 712
[1992], the prohibition is unconstitutional. It curtails the freedom of
expression of individuals who wish to express their reference for a
candidate by posting decals and stickers on their cars and to convince
others to agree with them. It is also overbroad, because it encompass-
es private property and constitutes deprivation of property without due
process of law. Ownership of property includes the right to use. The
prohibition is censorship, which cannot be justified.
Pedro Reyes is an incumbent Vice-Mayor of Quezon City. He in-
tends to run in the regular elections for the position of City Mayor
of Quezon City.
1. Would Pedro Reyes have to give his position as Vice-
Mayor?
An elected official is not deemed to have resigned from his office
upon the filing of his certificate of candidacy for the same or any other
elected office or position. In fine, an elected official may run for another
position without forfeiting his seat (Section 13 of Republic Act No.
9369.)
2. If Pedro Reyes were, instead an incumbent Congress-
man of Quezon City, would your answer be the same?
’03 – Q10; ’02 – Q13b
The answer is the same if Pedro Reyes, because Section 13 of
R.A. No. 9369 covers both elective national and local officials.
M is the Secretary of the Department of Finance. He is also an ex-
officio member of the Monetary Board of the Bangko Sentral ng
Pilipinas from which he receives additional compensation for
every Board meeting attended. N, a taxpayer, filed suit in court to
declare Secretary M’s membership in the Monetary Board and his
receipt of additional compensation illegal and in violation of the
Constitution. N invoked Section 13, Article VII of the Constitution
which provides that the President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in the Constitution, hold any other office or
employment during their tenure. N also cited Section 8, IX-B of
the Constitution which provides that no elective or appointive
public officer or employee shall receive additional, double, or
indirect compensation, unless specifically authorized by law. If
you were the judge, decide the following:
1. The issue regarding the holding of multiple positions.
If I were the judge, I would uphold the validity of the designation of
Secretary M as ex officio member of the Monetary Board. As stated in
Civil Liberties Union v. Executive Secretary, 194 SCRA 317 [1991], the
prohibition against the holding of multiple positions by Cabinet Mem-
bers in Section 13, Article VII of the Constitution does not apply to
positions occupied in an ex officio capacity as provided for by law and
as required by the primary functions of their office.
2. The issue on the payment of additional or double com-
pensation. ’02 – Q6
If I were the judge, I would rule that Secretary M cannot receive
any additional compensation. As state in Civil Liberties Union v. Execu-
tive Secretary, 194 SCRA 317 [1991], a Cabinet Member holding an
ex-officio position has no right to receive additional compensation, for
his services in that position are already paid for by the compensation
attached to his principal office.
X was elected provincial governor for a term of three years. He
was subsequently appointed by the President serving at her plea-
sure, as concurrent Presidential Assistant for Political Affairs in
the Office of the President without additional compensation. Is X’s
appointment valid? ’02 – Q7
!63
The appointment of X is not valid, because the position of Presi-
dential Assistant for Political Affairs is a public office. Section 7, Article
IX-B of the Constitution provides that no elective official shall be eligi-
ble for appointment of designation in any capacity to any public office
or position during his tenure. As held in Flores v. Drilon, 223 SCRA 568
[1993], since an elective official is ineligible for an appointive position,
his appointment is not valid.
A, a City Legal Officer, filed a certificate of candidacy for the posi-
tion of City Mayor in the May 14, 2001 elections. Was A ipso facto
resigned and, if so, effective on what date? ’02 – Q13a
Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office
or position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy (Quinto v. Com-
mission on Elections, 613 SCRA 385 [2010].)
Let us suppose that Congress enacted a law which amended the
Omnibus Election Code (particularly Sections 138, 139, 142, 143)
by vesting in the COMELEC the jurisdiction over inclusion and
exclusion cases filed by voters, instead of in the courts (MTC,
then RTC.) Is the law valid or not, and why? ’01 – Q2
The law granting the Commission on Elections jurisdiction over
inclusion and exclusion cases is unconstitutional. Under Section 2(3),
Article IX-C of the Constitution, the Commission on Elections cannot
decide the right to vote, which refers to the inclusion and exclusion of
voters. Under Section 2(6), Article IX-C of the Constitution, it can only
file petitions in court for inclusion or exclusion of voters.
In an election protest involving the position of Governor of the
Province of Laguna between “A”, the protestee, and “B”, the
protestant, the 1st Division of the COMELEC rendered a decision
upholding B’s protest. Can “A” file a petition for certiorari with the
Supreme Court under Rule 65 of the Rules of Court, from the de-
cision of the COMELEC 1st Division? ’01 – Q16
“A” cannot file a petition for certiorari with the Supreme Court. As
held in Mastura v. Commission on Elections, 285 SCRA 493 [1998], the
Supreme Court cannot review the decisions and resolutions of the a
Division of the Commission on Elections. “A” should first file a motion
for reconsideration with the Commission on Elections en banc.
Discuss the merits and demerits of the multi-party system. ’99 –
Q14
A multi-party system provides voters with a greater choice of can-
didates, ideas, and platforms instead of limiting their choice to two
parties, whose ideas may be sterile. It also leaves room for deserving
candidates who are not acceptable to those who control the two domi-
nant parties to seek public office.
On the other hand, a multi-party system may make it difficult to
obtain a stable and workable majority, since no party will get a majority.
Likewise, the opposition will be weakened if there are several minority
parties.
How are pre-proclamation controversies initiated, heard and re-
solved? ’97 – Q17a
Questions affecting the composition or proceedings of the Board
of Canvassers (BOC) may be initiated in the Board of Canvassers
(BOC) or directly with the Commission on Elections (COMELEC).
Questions involving the elections returns and the certificates of can-
vass shall be brought in the first instance before the Board of Can-
vassers (BOC) only (Section 17, R.A. No. 7166.)
The Board of Canvassers should rule on the objections summarily
(Section 20, R.A. No. 7166.)
Any party adversely affected may appeal to the Commission on
Elections (Section 20, R.A. No. 7166.)
The decision of the Commission on Elections may be brought to
the Supreme Court on certiorari by the aggrieved party (Section 7,
Article IX-A of the Constitution.)
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All pre-proclamation controversies pending before the Commis-
sion on Elections shall be deemed terminated at the beginning of the
term of the office involved and the rulings of the Board of Canvassers
(BOC) are deemed affirmed, without prejudice to the filing of an elec-
tion protest. However, the proceedings may continue when on the
basis of the evidence presented so far, the Commission on Elections or
the Supreme Court determines that the petition appears to be meritori-
ous (Section 16, R.A. No. 7166.)
How are election protests initiated, heard and resolved? ’97 –
Q17b; ’96 – Q14(1)
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 proclamation (Miro v. Commission on Elec-
tions, 121 SCRA 466.)
The following have jurisdiction over election contests:
1. Barangay officials – Inferior Courts (Metropolitan Trial Court,
Municipal Circuit Trial Court, or Municipal Trial Court)
2. Municipal officials – Regional Trial Courts;
3. Regional, provincial, and city officials – Commission on Elec-
tions [Section 2(2), Article 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 inferior courts in election contests involving
barangay officials and of the Regional Trial Court in election contests
involving municipal officials are appealable to the Commission on Elec-
tions [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 v. Commission on Elections, 199
SCRA 178.)
The decision of the Commission on Elections involving regional,
provincial and city officials may be brought to the Supreme Court on
certiorari [Section 7, Article IX-A and Section 2(2) of the Constitution].
The decisions of the Senate Electoral Tribunal and of the House
of Representatives may be elevated to the Supreme Court on certiorari
if there was grave abuse of discretion (Lazatin v. Commission on Elec-
tions, 168 SCRA 391.)
Give the issues that can be properly raised and brought in a pre-
proclamation contest. ’96 – Q14(2)
According to Section 243 of the Omnibus Election Code, the fol-
lowing issues can be properly raised:
a) The composition or proceedings of the Board of Canvassers
(BOC) are illegal;
b) The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in same returns or in other authentic
copies;
c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured
or not authentic;
d) Substitute or fraudulent returns in controverted polling places
were canvassed, the results of which materially affected the
standing of the aggrieved candidate or candidates; and
e) Manifest errors in the Certificate of Canvass or Election Re-
turns (Sec. 15, R.A. No. 7166; Chavez v. COMELEC)
However, according to Section 15 of the Synchronized Election Law
(R.A. No. 7166), no pre-proclamation cases shall be allowed on mat-
ters relating to the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificate of canvass with
respect to the positions of President, Vice-President, Senator and
Member of the House of Representatives. No pre-proclamation cases
are allowed in the case of barangay elections.
!64
PUBLIC INTERNATIONAL LAW
General Principles
(a) What is the right of legation, and how is it undertaken between
states? Explain your answer. (2%)
(b) Under this right, may a country like Malaysia insist that the
Philippines established a consulate in Sabah to look after the
welfare of the Filipino migrants in the area? Explain your answer.
(2%) ’17—Q5
(a) The right of legation is the right accorded to a State to be repre-
sented by an ambassador or diplomatic agent in another State; (Co-
quia and Defensor-Santiago, International Law and World Organiza-
tions, p. 289).
(b) Malaysia cannot insist that the Philippines establish a consulate in
Sabah. Article 2 of the Diplomatic Convention provides: “(t)he estab-
lishment of diplomatic mission takes place by mutual consent.” A State
may conduct its diplomatic relations with another State without estab-
lishing a diplomatic mission (Magallona, Fundaments of Public In-
ternational Law, p. 91)
President Black of the Republic of Pasensya (RP) had a telephone
conversation with President Blue of the People's Republic of
Conquerors (PRC). ln that conversation, both leaders agreed that
they will both pull-out all their vessels, civilian or otherwise, sea
crafts and other ships from the hotly disputed Kalmado Shoal
area within eight (8) days in order to de-escalate the situation.
After eight days, all RP ships and vessels have left the area. How-
ever, several military and civilian ships carrying the PRC flag re-
mained in the area and began construction of a dock that could
provide fuel and other supplies to vessels passing by.
a) Assuming that President Black and President Blue both
had full capacity to represent their states and negotiate
with each other under their respective systems of gov-
ernment, and further assuming that both leaders ac-
knowledge the existence of the conversation, is the ver-
bal agreement via telephone binding under international
law? Explain (5%); ‘12 - Q6a
The verbal agreement by telephone is binding between the parties on
the basis of customary international law. (In the 1992 dispute between
Denmark and Finland about the construction of a bridge was settled by
a telephone conversation between the Danish and Finnish Prime Min-
isters. In return for payment by Denmark, Finland agreed to discontin-
ue the case it filed. [Aust, Modern Treaty Law and Practice, p. 7].
c) What are the sources of International Law? (2%); ‘12 -
Q6c
The following are the sources of international law:
1. International conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
2. International custom, as evidence of a general practice ac-
cepted as law;
3. The general principles of law recognized by civilized nations;
d) What is opinio juris in International Law? (1%). ‘12 - Q6d
To establish customary international law, two elements must concur:
general state practice and opinio juris sire necessitatis. State practice
 The Sigma Rho Fraternity
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refers to the continuous repetition of the same or similar kind of acts or
norms by states. Opinio juris requires that the state practice or norm be
carried out in such a way as to be evidence of the belief that it is oblig-
atory by the existence or rule of law requiring it. (Bayan Muna vs. Ro-
mulo, 641 SCRA 244.)
Opinio juris sive necessitates / opinion juris; Definition. ’08 – Q1a
Opinio juris sive necessitates means the common belief among
states and actors that a certain practice is obligatory. This is the sub-
jective or psychological requirement of customary law that makes
states practice a binding rule of customary international law.
Differences between “hard law” and “soft law” under international
law. ’08 – Q1b
“Soft law” has reference to international agreements not covered
by treaties and therefore not covered by the Vienna Convention. They
are sometimes referred to as “non-treaty agreements” or emerging law.
In addition, “soft law” refers to administrative rules which guide the
practice of states in relation to international organizations (Pharmaceu-
tical Health Care Association v. Duque, G.R. No. 173034, 9 October
2007.)
Primary Sources and Subsidiary sources of international law. ’03
– Q15; ’12 – Q6c
Under Article 38 of the Statute of the International Court of Jus-
tice, the primary sources of international law are the following:
1. International conventions, e.g., Vienna , Convention on the
Law of Treaties.
2. International customs, e.g., cabotage, the prohibition against
slavery, and the prohibition against torture.
3. General principles of law recognized by civilized nations,
e.g., prescription, res judicata, and due process.
The subsidiary sources of international law are judicial decisions
subject to the provisions of Article 59, e.g., the decision in the Anglo-
Norwegian Fisheries Case and Nicaragua v. United States, and teach-
ings of the most highly qualified publicists of various nations, e.g., Hu-
man Rights in International Law by Lauterpacht and International Law
by Oppenheim-Lauterpacht.
What do you understand by the “Doctrine of Incorporation” in
Constitutional Law? ’97 – Q1
The doctrine of incorporation means that the rules of international
law from part of the law of the land and no legislative action is required
to make them applicable to a country. The Philippines follows this doc-
trine, 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.
Definition of some concepts in international law. ’91 – Q15
(a) Reprisal is a coercive measure short of war, directed by a
state against another, in retaliation for acts of the latter and as
means of obtaining reparation or satisfaction for such acts.
Reprisal involves retaliatory acts which by themselves would be
illegal. For example, for violation of a treaty by a state, the ag-
grieved state seizes on the high seas the ships of the offending
state.
(b) Retorsion is a legal but deliberately unfriendly act directed by
a state against another in retaliation for unfriendly though legal act
to compel that state to alter its unfriendly conduct. An example of
retorsion is banning exports to the offending state.
(c) The declaratory theory of recognition is a theory according to
which recognition of a state is merely an acknowledgment of the
fact of its existence. In other words, the recognized state already
exists and can exist even without such recognition. For example,
when other countries recognized Bangladesh, Bangladesh exist-
ed as a state without such recognition.
(d) Recognition of belligerency is the formal acknowledgment by
a third party of the existence of a state of war between the central
government and a portion of that state. Belligerency exists when a
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sizeable portion of the territory of a state is under the effective
control of an insurgent community which is seeking to establish a
separate government and the insurgents are in de facto control of
a portion of the territory and population, have a political organiza-
tion, are able to maintain such control, and conduct themselves
according to the laws of war. For example, Great Britain recog-
nized a state of belligerency in the United States during the Civil
War.
(e) Continental shelf of a coastal state comprises the sea-bed
and subsoil of the submarine areas that extend beyond its territor-
ial sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of two
hundred (200) nautical miles from the baselines from which the
breadth of the territorial sea is measured where the outer edge of
the continental shelf does not extend up to that distance.
(f) Exequatur is an authorization from the receiving state admit-
ting the head of a consular post to the exercise of his functions.
For example, if the Philippines appoints a consul general in New
York, he cannot start performing his functions unless the Presi-
dent of the United States issues an exequatur to him
(g) The principle of double criminality is the rule in extradition
which states that for a request to be honored the crime for which
extradition is requested must be crime in both the requesting state
and the state to which the fugitive has fled. For example, since
murder is a crime both in the Philippines and Canada, under the
Treaty of Extradition between the Philippines and Canada, the
Philippines can request Canada to extradite a Filipino who has
fled to Canada.
(h) Protective personality principle is the principle by which the
state exercise jurisdiction over the acts of an alien even if commit-
ted outside its territory, if such acts are adverse to the interests of
the nationals of that state.
(i) Innocent passage means the right of continuous and expedi-
tious navigation of a foreign ship through the territorial sea of a
state for the purpose of traversing that sea without entering the
internal waters or calling at a roadstead or fort facility outside
internal waters, or proceedings to or from internal waters or call at
such roadstead or port facility. The passage is innocent as long as
it is not prejudicial to the peace, good order or security of the
coastal state.
Jus cogens is a peremptory norm of general international law accepted
and recognized by the international community as a whole as a norm
from which no derogation is permitted and which can be modified only
by a subsequent norm of international law having the same character.
An example is the prohibition against the use of force.
Treaties
State A and State B, two sovereign states, enter into a I0-year
mutual defense treaty. After five years, Stale A finds that the more
progressive State B did not go to the aid of State A when it was
threatened by its strong neighbor State C. State B reasoned that it
had to be prudent and deliberate in reacting to State C because of
their existing trade treaties.
(a) May State A now unilaterally withdraw from its mutual defense
treaty woth State B? Explain your answer. (2.5%)
(b) What is the difference between the principles of pacta sunt
servanda and rebus sic stantibus in international law? (2.5%)
(c) Are the principles of pacta sunt servanda and rebus sic stan-
tibus relevant in the treaty relations between State A and State B?
What about in the treaty relations between State Band State C?
Explain your answer. (2.5%) ’17– Q3
(a) State A may unilaterally withdraw from the mutual defense treaty.
State B committed a material breach of the treaty by failing to come to
the aid of State A (Art. 60 (i) of the Vienna Convention on the Law of
Treaties; Kolb, The Law of Treaties, p. 220; Aust, Modern Treaty Law
and Practice, pp. 236-237).
(b) Pacta sunt servanda means that every treaty in force is binding
upon the States who are parties to it, and States must perform their
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obligation in good faith (Deutsche Bank AG Manila Branch v. Commis-
sioner of Internal Revenue, G.R. No. 188550, August 19, 2013, 704
SCRA 216).
Rebus sic stantibus means that a fundamental change of circum-
stances, which occurred with regard to those existing at the time of the
conclusion of a treaty and which was not foreseen by the parties may
not be invoked for withdrawing from a treaty unless their existence
constituted an essential basis of the consent of the parties and their
effect is to radically transform the extent of the obligations still to be
performed (Article 62 of the Vienna Convention on the Law of
Treaties).
(c) Yes. Pacta sunt servanda was what bound State A and State B to
comply with their obligations under their mutual defense treaty, despite
the existing trade agreements between State Band State C. Article 62
of the Vienna Convention on the Law of Treaties, which enunciates the
doctrine of rebus sic stantibus, on the other hand, can be invoked by
State B as the reason why it did not comply with its mutual defense
treaty— a treaty is concluded with the implied condition that it is in-
tended to be binding only as long as there is no vital change in the
circumstances. To State B, compliance with the treaty would jeopardize
its vital trade development. Because of this unforeseen change of cir-
cumstances combined with State B’s non-compliance with its obliga-
tions under the treaty in good faith, State A may now opt to unilaterally
withdraw from the treaty.
The Philippines entered into an international agreement with
members of the international community creating the In-
ternational Economic Organization (1EO) which will serve as a
forum to address economic issues between States, create stan-
dards, encourage greater volume of trade between its members,
and settle economic disputes. After the Philippine President
signed the agreement, the Philippine Senate demanded that the
international agreement be submitted to it for its ratification. The
President refused, arguing that it is an executive agreement that
merely created an international organization and it dwells mainly
on addressing economic issues among States. is the international
agreement creating the 1EO a treaty or an executive agreement?
Explain. (5%) ’16 – Q10
The agreement creating the International Economic Organization
(IEO) is an executive agreement and not a treaty.
In Section 21, Article VII is the only provision of the Constitution which
defines a “treaty or international agreement” as valid and effective law
by reason of concurrence of the Senate.
However, it is the intendment of the Constitution that such “treaty
or international agreement” does not include executive agreement
which therefore is excluded from the Senate’s authority of concurrence
over treaties.
This constitutional intent is expressed in the proceedings of the
Constitutional Commission in its awareness that at the time the power
of the President to conclude executive agreement was clearly recog-
nized by at least decisions of the Supreme Court establishing the prin-
ciple that the President’s power includes conclusion of executive
agreements which are valid without need of Senate concurrence.
Hence, logically the Treaty Clause in Section 21, Article VII is to be
interpreted as excluding executive agreement (Commissioner v. East-
ern Sea Trading, 3 SCRA 351 [1961]; USA FFE Veterans Association v.
Treasurer, 105 Phil. 1030 [1959]).
Moreover, as the Supreme Court has pointed out in Pimentel v.
Office of the Executive Secretary (462 SCRA 622, [2005]) the Presi-
dent has the sole power to ratify treaties. The Senate may be able to
exercise its authority of concurrence only if the President transmits the
instrument of ratification by which he accepts the terms agreed on by
his diplomatic negotiators of the proposed treaty in question, together
with the text of the proposed treaty, with the request addressed to the
!66
Senate President to ratify such proposed treaty as requested by the
President.
It is only on the basis of the authority of the President to ratify treaties
that the Senate may act in concurrence under the Treaty clause of the
Constitution.
The Philippines and the Republic of Kroi Sha established diplo-
matic relations and immediately their respective Presidents
signed the following: (1) Executive Agreement allowing the Re-
public 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 com-
plement, 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 Ex-
ecutive Agreements and demanded that the Executive Agree-
ments be submitted to the Senate for ratification pursuant to the
Philippine Constitution. Is Senator Maagap Correct? Explain. (4%)
‘15 - Q1
The Executive Agreement allowing the Republic of Kroi Sha to estab-
lish its embassy and consular offices within Metro Manila is valid with-
out need of submitting it to the Senate in its ratification. (Commission
of Customs v. Eastern Sea Trading, 35 SCRA 345 [1961]).
The Executive Agreement with the Republic of Kroi Sha allowing it to
bring to the Philippines its military complement, warships and arma-
ments from time to time for training exercises with the Philippine mili-
tary forces must be submitted to the Senate for concurrence in its rati-
fication. Under Section 25, Article XVIII of the Constitution a treaty duly
concurred in by the Senate is required even for the temporary pres-
ence of foreign troops. (Bayan v. Zamora, 342 SCRA 449 [2000]).
President Black of the Republic of Pasensya (RP) had a telephone
conversation with President Blue of the People's Republic of
Conquerors (PRC). ln that conversation, both leaders agreed that
they will both pull-out all their vessels, civilian or otherwise, sea
crafts and other ships from the hotly disputed Kalmado Shoal
area within eight (8) days in order to de-escalate the situation.
After eight days, all RP ships and vessels have left the area. How-
ever, several military and civilian ships carrying the PRC flag re-
mained in the area and began construction of a dock that could
provide fuel and other supplies to vessels passing by.
a) Assuming [that the verbal agreement via telephone is
binding under international law], does that agreement
constitute a Treaty under the 1969 Vienna Convention on
the Law on Treaties? (2%); ‘12 - Q6b
The verbal agreement does not constitute a treaty under the Vienna
Convention on the Law of Treaties. Article 3 requires that for an in-
ternational agreement to be a treaty, it must be in written form.
Diplomatic negotiations are privileged communications and nego-
tiation details cannot be disclosed notwithstanding the constitu-
tional right of the people to information on matters of public con-
cern. ’09 – Q14a
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The petition of KMM must be denied. Diplomatic negotiations are
privileged in order to encourage a frank exchange of exploratory ideas
between the parties by shielding the negotiations from public view
(Akbayan Citizens Action Party v. Aquino, 558 SCRA 468 [2008].)
The public has access to information pertaining to contract en-
tered into the Government in its proprietary or commercial capac-
ity. ’09 – Q14b
KMM is entitled to have access to information to government
contracts entered into by the Government in the exercise of its propri-
etary of commercial capacity. The right to information under the Consti-
tution does not exclude contracts of public interest and are not privi-
leged (Section 7, Article III of the Constitution; Valmonte v. Belmonte,
170 SCRA 256 [1989].)
Instances wherein a treaty may violate international law. ’08 – Q2
Treaties may contain provisions that depart from general rules of
international law provided that the provisions do not violate jus cogens
norms, which refer to peremptory norms that no nation may ignore
them or attempt to contract out of them through treaties. For example,
the prohibitions on the use of force, genocide and participating in a
slave trade are regarded as jus cogens. When a treaty is in conflict
with a jus cogens rule, the treaty is deemed void. When a treaty is in
conflict with the other rules of international law, the treaty amounts to a
waiver of rights that prevents the parties from raising legal claims
against each other over these rules.
The President alone, without the concurrence of the Senate, can-
not abrogate a treaty. ’08 – Q3
The President should be overruled. She cannot abrogate a treaty
alone even if the other State, a party to a treaty, agrees to the abroga-
tion. If the legislative branch ratifies a treaty by 2/3 vote pursuant to
Section 21, Article VII of the Constitution, it must also do when the
President abrogates it. She cannot motu propio abrogate the treaty.
However, since there is no firm jurisprudence on this subject, the
view has also been expressed that termination comes under the power
of the President to recognize states, owing to the pre-eminence of the
executive in matters involving foreign relations.
International Court of Justice; Location; Membership. Term of
Office; Incumbent President; Nationality of Incumbent President.
’06 – Q9(1) - 9(5)
The seat of the International Court of Justice is in The Hague,
Netherlands (Articles 23(1) and (2) and 28, ICJ Statute.)
The International Court of Justice has fifteen members (Article 5,
International Court of Justice Statute.)
The term of members of the International Court of Justice is nine
years. (Article 13(1), Statute of the International Court of Justice.)
How did the International Court of Justice acquire jurisdiction
over the complaint filed by the United States against Iran alleging
that the latter is detaining American diplomats in violation of in-
ternational law. ’06 – Q9(6)
The International Court of Justice acquired jurisdiction over the
United States and Iran by virtue of the compromissory clause in the
Treaty of Amity, Economic Relations and Consular Rights between
them and the Optional Protocols to the Vienna Convention on Diplo-
matic Relations and the Vienna Convention on Consular Relations, of
which the United States and Iran are both parties.
Another Suggested Answer:
The ICJ can acquire jurisdiction over parties only with their con-
sent. In the case of Iran and the United States, that consent may be
expressed in three (3) ways:
(a) Compromise, in which states voluntarily submit to ICJ juris-
diction in relation to a specific dispute;
(b) Compulsory jurisdiction under the Optional Clause, in which
a State may in advance declare that it will be subject to ICJ
jurisdiction in future disputes subject to reservation; and
!67
(c) Compromissory clauses in multilateral treaties, wherein
States-Parties to a treaty undertake to resolve all disputes
arising under that treaty through the ICJ.
In the U.S. v. Iran dispute (1980), the U.S. invoked, and the ICJ
applied, the compromissory clause under the Convention on the Pro-
tection Diplomatic Personnel.
In case of irreconcilable conflict between a provision of a treaty
and a provision of the Constitution, the provision of the Constitu-
tion should prevail. ’04 – Q10a
In case of conflict between a provision of a treaty and a provision
of the Constitution, the provision of the Constitution should prevail.
Section 5(2)(a), Article VIII of the Constitution authorizes the nullifica-
tion of a treaty when it conflicts with the Constitution (Gonzales v.
Hechanova, 9 SCRA 230 [1963].)
A country’s Constitution prevails over international law but in-
ternational law prevails over municipal law. ’03 – Q16
International law and municipal law are supreme in their own
respective fields. Neither has hegemony over the other (Brownlie,
Principles of Public International Law, 4th ed., p. 157.) Under Article II,
Section II of the 1987 Constitution, the generally accepted principles of
international law form part of the law of the land. Since they are merely
have the force of law, if it is Philippine courts that will decide the case,
they will uphold the Constitution. If it is an international tribunal that will
decide the case, it will uphold international law. As held by the Perma-
nent International Court of Justice in the case of the Polish Nationals in
Danzig, a State cannot invoke its own Constitution to evade obligations
incumbent upon it under international law.
An executive agreement was executed between the Philippines
and a neigboring State. The Senate of the Philippines took it upon
itself to procure a certified copy of the Executive Agreement and,
after deliberating on it, declared, by a unanimous vote that the
agreement was both unwise and against the best interest of the
country. Is the Executive Agreement binding (a) from the stand-
point of Philippine law and (b) from the standpoint of international
law? ’03 – Q20
From the standpoint of Philippine law, the Executive Agreement is
binding. According to Commissioner of Customs v. Eastern Sea Trad-
ing, 3 SCRA 351 [1961], the President can enter into an Executive
Agreement without the necessity of concurrence by the Senate.
The Executive Agreement is also binding from the standpoint of
international law. As held in Bayan v. Zamora, 342 SCRA 449 [2000], in
international law executive agreements are equally binding as treaties
upon the States who are parties to them. Additionally, under Article 2(1)
(a) of the Vienna Convention on the Law of Treaties, whatever may be
the designation of a written agreement between States, whether it is
indicated as a Treaty, Convention or Executive Agreement, is not legal-
ly significant. Still it is considered a treaty and governed by the in-
ternational law of treaties.
Constitutionality of the membership of the Philippines in the WTO
on the ground that it will unduly limit, restrict and impair Philip-
pine sovereignty and also means that Congress could not pass
legislation that will be good for our national interest and general
welfare if such legislation will not conform to the WTO agree-
ments. ’00 – Q10
According to Tañada v. Angara, 272 SCRA 18 [1997], the sover-
eignty of the Philippines is subject to restriction by its membership in
the family of nations and the limitations imposed by treaty limitations.
Section 2, Article II of the Constitution adopts the generally accepted
principles of international law as part of the law of the land. One of
such principles is pacta sunt servanda. The Constitution did not envi-
sion a hermit-like isolation of the country from the rest of the world.
Under the executive agreement entered into between the Philip-
pines and the other members of the ASEAN, the other members
will send each a battalion-size unit of their respective military
exercise in the Subic Bay area. A group of concerned citizens
sought to enjoin the entry of foreign troops as violative of the
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1987 Constitution that prohibited the stationing of foreign troops
and the use by them, of local facilities. ’96 – Q4(1)
As a judge, I shall dismiss the case. What Section 25, Article XVIII
of the Constitution prohibits, in the absence of a treaty, is the stationing
of troops in the Philippines. It does not include the temporary presence
in the Philippines of foreign troops for the purpose of the combined
military exercise. Besides, the holding of the combined military exer-
cise is connected with defense, which is a sovereign function. In ac-
cordance with the ruling in Baer v. Tizon, 57 SCRA 1 [1974], the filing
of an action interfering with the defense of the State amounts to a suit
against the State without its consent.
Can the House of Representatives take active part in the conduct
of foreign relations, particularly in entering into treaties and in-
ternational agreements? ’96 – Q7(5)
No, the House of Representatives cannot take active part in the
conduct of foreign relations, particularly in entering into treaties and
international agreements. As held in United States v. Curtiss-Wright
Export Corp., 299 U.S. 304 [1936], the President alone is the represen-
tative of the nation in the conduct of foreign affairs. Although the Sen-
ate has the power to concur in treaties, the President along negotiates
treaties and Congress is powerless to intrude into this. However, if the
matter involves a treaty or an executive agreement, the House of Rep-
resentatives may pass a resolution expressing its views on the matter.
The President of the Philippines authorized the Secretary of Pub-
lic Works and Highways to negotiate a loan agreement with the
German Government for the construction of a dam. The Senate,
by resolution, asked the agreement be submitted to it for ratifica-
tion. The Secretary of Foreign Affairs advised the Secretary of
Public Works and Highways not to comply with the request of the
Senate.
What is the role of the Senate in the conduct of foreign affairs
under the Constitution? ’94 – Q13(1)
The Senate plays a role in the conduct of foreign affairs, because
of the requirement of Section 21, Article VII of the Constitution that to
be valid and effective, a treaty or international agreement must be
concurred in by at least two-thirds (2/3) of all the Members of the Sen-
ate.
Is the President bound to submit the agreement to the Senate for
ratification? ’94 – Q13(1)
No, the President is not bound to submit the agreement to the
Senate for ratification. Under Section 20, Article VII of the Constitution,
only the prior concurrence of the Monetary Board is required for the
President to contract foreign loans on behalf of the Republic of the
Philippines.
Section 4, Article XVIII of the Constitution provides: “All existing
treaties of international agreements which have not been ratified shall
not be renewed or extended without the concurrence of at least two
thirds of all the Members of the Senate.”
An executive agreement is about to be signed with the Japanese
Government with the Philippine Government about former’s offer
of substantial assistance to finance a program that will promote
women’s rights, child welfare, nutrition and family health care.
The agreement includes a clause whereby the Philippine Gov-
ernment acknowledges that any liability to the “comfort women”
or their descendants are deemed covered by the reparations
agreements signed and implemented immediately after the Sec-
ond World War. Is the agreement valid? ’92 – Q14
The agreement is valid. The comfort women and their descen-
dants cannot assert individual claims against Japan. As stated in Davis
& Moore v. Regan, 453 U.S. 654, the sovereign authority of a State to
settle claims of its nationals against foreign countries has repeatedly
been recognized. This may be made without the consent of the nation-
als or even without consultation with them. Since the continued amity
between a State and other countries may require a satisfactory com-
promise of mutual claims, the necessary power to make such com-
!68
promises has been recognized. The settlement of such claims may be
made by executive agreement.
Whether or not the President may negotiate for a modification or
extension of the military bases agreement regardless of the “no
nukes” provision in the 1987 Constitution. ’88 – Q22
No. The Constitution provides that if foreign military bases, troops
or facilities are to be allowed after the expiration of the Philippine-
American Military Bases Agreement in 1991, it must be “under a treaty
duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national refer-
endum.” (Section 25, Article XVIII of the Constitution). A mere agree-
ment, therefore, not a treaty, without the concurrence of the Senate will
not be valid (Section VII, Sec. 21; Section 4, Article XVIII of the Consti-
tution).
With respect to the provision allowing nuclear weapons within the
bases, the Constitution appears to ban such weapons within Philippine
territory. It declares as a state policy that “the Philippines, consistent
with the national interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory.” (Section 8, Article II). However, the
deliberations of the Constitutional Commission would seem to indicate
that this provision of the Constitution is “not something absolute nor
100% without exception.” It may therefore be that circumstances may
justify a provision on nuclear weapons.
The President enters into an agreement with the Americans for an
extension for another five (5) years of their stay at their military
bases in the Philippines, in consideration of financial assistance.
In return, the President agreed to allow American nuclear vessels
to stay for shot visits at Subic, and in case of military need, to
store weapons at Subic or Clark Field. Under the agreement, a
vital military need comes when the sealanes from the Persian Gulf
to the Pacific are threatened by hostile military forces. How could
an NGO legally prevent the agreement entered into by the Presi-
dent and the U.S. government from going into effect? ’88 – Q23
If the Agreement is not in the form of a treaty, it is not likely to be
submitted to the Senate for ratification as required by Section 21, Arti-
cle VII. It may not, therefore, be opposed in that branch of government.
Nor is judicial review feasible at this stage because there is no justicia-
ble controversy. While Section 1. Par. 2, Article VIII of the Constitution
states that judicial power includes the duty of the court of justice 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 of
instrumentality of the government,” it is clear that this provision does
not do away with the political question doctrine. It was inserted in the
Constitution to prevent courts from making use of the doctrine to avoid
what otherwise are justiciable controversies, albeit involving the Execu-
tive Branch of the government during the martial law period. On the
other hand, at this stage, no justiciable controversy can be framed to
justify judicial review. I would, therefore, advice the Nuclear Free
Philippine Coalition to resort to the media to launch a campaign
against the Agreement.
The Philippines entered in to a Treaty of Friendship, Comity and
Commerce with Indonesia with the following provisions: (1) the
nationals of each contracting State admitted to the practice of law
in said State, to practice law without taking the bar examinations
in the other contracting State; and (2) the nationals of each con-
tracting State to engage in retail trade business in the territory of
the other contracting State. Is the treaty valid? ’87 – Q9
Section 14, Article XII of the Constitution provides that the prac-
tice of law in the Philippines shall be limited to Filipino citizens, save in
cases prescribed by law. Here the treaty has the force of law.
Section 10, Article XII of the Constitution provides that Congress
shall reserve to citizens of the Philippines or to corporations or associ-
ations at least 60% of the capital of which is owned by such citizens
certain areas of investment. There can be no question as to the validity
of the Nationalization of Retail Trade Law, the constitutionality of which
was sustained in Ichong v. Hernandez, 101 Phil. 1155 [1957] even in
the absence of a similar express grant of power to Congress under the
1935 Constitution. Although Congress can repeal or amend such law, it
may not be amended by a treaty in view of Section 22, Article XII which
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declares acts which circumvent or negate any provisions of Article XII
to be inimical to the national interest and subject offenders to the crimi-
nal and civil sanctions. For then the Retail Trade Nationalization Law
becomes part of Article XII, having been passed pursuant to the man-
date in Section 10.
However, it may also be plausibly argued that a treaty may amend a
prior law and the treaty of friendship, comity and commerce with In-
donesia may be deemed to have created an exception in the National-
ization of Retail Trade Law in favor of Indonesian citizens.
The United Nations and International Court of Justice
Jurisdiction of the International Criminal Court and the In-
ternational Court of Justice; Distinction. ’10 – Q2
The jurisdiction of the International Court of Justice pertains to
international responsibility in the concept of civil liability, while that of
the International Criminal Court pertains to criminal liability.
While States are the subject of law in international responsibility
under the International Court of Justice, the criminal liability within the
jurisdiction of the International Court of Justice, the criminal liability
within the jurisdiction of the International Criminal Court pertains to
individual persons [Article 34(i) of the Statute of the International Court
of Justice; Articles 25 and 27 of the Statute of the International Criminal
Court].
Validity of the defense that under the 1951 San Francisco Peace
Agreement which stated that all injured states, including the
Philippines, received war reparations and, in return, waived all
claims against Japan arising from the war. ’07 – Q4b
The defense is not valid. Under the preamble of the San Francis-
co Treaty, Japan undertook to conform to the protection and obser-
vance of human rights. The San Francisco Treaty must yield to the
United Nations Charter, which provides for respect of human rights.
Article 103 of the United Nations Charter provides that the obligations
of the member-States prevail over any other international agreement.
The waiver in Article 14(a) of the San Francisco Treaty is qualified by
Article 14(b), which stated that Japan had no resources presently suffi-
cient to make complete reparation for all such damages and sufferings
to meet its other obligations. Thus, the waiver was operative only while
Japan had inadequate resources.
[However in Vinuya v. Executive Secretary, 619 SCRA 533
[2010], the Supreme Court said that:
The conduct of the foreign relations of our government is commit-
ted by the Constitution to the executive and the legislative – “the politi-
cal” – departments of the government, and the propriety of what may
be done in the exercise of political power is not subject to judicial in-
quiry or decision.
The question whether the Philippine government should espouse
the claims of its nationals against a foreign government is a foreign
relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches. In this
case, the Executive Departments has already decided that it is to the
best interest of the country to waive all claims of its nationals for repa-
rations against Japan in the Treaty of Peace of 1951.
The U.S. Supreme Court held that “[t]he President is the sole
organ of the nation in its external relations, and its sole representative
with foreign relations. The Executive Department has determined that
taking up petitioners’ cause would be inimical to our country’s foreign
policy interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region.
Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government are “sources of fic-
tion” between the two sovereigns. To resolve these difficulties, nations
have often entered into agreements settling the claims of their respec-
tive nationals. As on treatise writer puts it, international agreements
settling claims by nationals of one state against the government of the
other “are established international practice reflecting traditional in-
ternational theory.”
!69
In the international sphere, traditionally, the only means available
for individuals to bring a claim within the international legal system has
been when the individual is able to persuade the government to bring a
claim on the individual’s behalf. The State is the sole judge to decide
whether its protection will be granted, to what extent is granted and
when it will cease. Because of states’ reluctance to directly prosecute
claims against another state, recent developments support the modern
trend to empower individuals to directly participate in suits against
perpetrators of international crimes.]
What are the so-called Mandates and Trust Territories? Does the
United Nations exercise sovereignty over these territories? If so,
how is this jurisdiction exercised? ’03 – Q17
The Mandates were the overseas possessions of the defeated
states of Germany and Turkey which were placed by the League of
Nations under the administration of mandatories to promote their de-
velopment and ultimate independence. (Harris, Cases and Materials
on International Law, 5th ed., p. 131.) When the United Nations re-
placed the League of Nations, the system of Mandates was replaced
by the System of Trust Territories. The United Nations exercised
Trustee Powers, who exercised the powers of sovereignty subject to
supervision by and accountability to the United Nations (Oppenheim-
Lauterpacht, International Law, Vol. I, 7th ed., pp. 213-214.) (Since
there are no more Trust Territories, this is just a matter of historical
interest.)
Limitations (2) on the jurisdiction of the International Court of
Justice under its Statute. ’99 – Q10b
The following are the limitations on the jurisdiction of the In-
ternational Court of Justice under its Statute:
1. Only states may be parties in cases before it. (Article 34)
2. The consent of the parties is needed for the court to acquire
jurisdiction over a case. (Article 36)
The sovereignty over certain islands is disputed between State A
and State B. These two states agreed to submit their disputes to
the ICJ. 1) Does the ICJ have jurisdiction to take cognizance of
the case; 2) Who shall represent the parties before the Court; 3)
What language shall be used in the pleadings and oral argument;
4) In case State A, the petitioner, fails to appear at the oral argu-
ment, can State B, the respondent, move the for the dismissal of
the petition. ’94 – Q20
The International Court of Justice has jurisdiction over the case;
because the parties have jointly submitted the case to it and have this
indicated their consent to its jurisdiction.
Parties to a case may appoint agents to appear before the In-
ternational Court of Justice in their behalf, and these agents need not
be their own nationals. However, under Article 16 of the Statute of the
International Court of Justice, no member of the court may appear as
agent in any case.
Under Article 39 of the Statute of the International Court of Jus-
tice, the official languages of the court are English and French. In the
absence of an agreement, each party may use the language it prefers.
At the request of any party, the court may authorize a party to use a
language other than English or French.
Under Article 53 of the Statute of the International Court of Jus-
tice, whenever one of the parties does not appear before the court or
fails to defend its case, the other party may ask the court to decide in
favor of its claim. However, the court must, before doing so, satisfy
itself if it has jurisdiction and that the claim is well founded in fact and
law.
State X invades and conquers State Y. The UN Security Council
declares the invasion and conquest illegal and orders an in-
ternational embargo against State X. Subsequently, the Same UN
body adopts a resolution calling for an enforcement action
against State X under Chapter VII of the UN Charter. State Z, an
UN member, religiously complies with the embargo but refuses to
take part in the enforcement action, sending a medical mission
instead of fighting troops to the troubled are. (a) Did State Z vio-
late its obligations under the UN Charter; (b) If so, what sanctions
may be taken against it; (c) If not, why not. ’91 – Q14
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No, State Z did not violate its obligations under the United Nations
Charter. It complied with the resolution calling for enforcement action
against State X, because it sent a medical team.
No sanctions may be taken against State Z, because it did not
violate its obligations under the United Nations Charter.
Compliance with the resolution calling for the enforcement action
against State X does not necessarily call for the sending of fighting
troops. Under Article 43 of the United Nations Charter, compliance with
the call for enforcement action against State X has to be made in ac-
cordance with a special agreement with the Security Council and such
agreement shall govern the numbers and types of forces, their degree
of readiness and general locations, and the nature of the facilities and
assistance to be supplied by members of the United Nations.
State Sovereignty
Concept of association under international law. ’10 – Q27
An association is formed when two states of unequal power vol-
untarily establish durable links. The associate delegates certain re-
sponsibilities to the other, the principal, while maintaining its status as
a state. It is an association between sovereigns. The associated state
agreement has usually been used as a transitional device of former
colonies on their way to full independence (Province of North Cotabato
v. Government of the Republic of the Philippines Peace Panel of An-
cestral Domain, 568 SCRA 402 [2008].)
Association, under international law, is a formal agreement be-
tween a non-self-governing territory and an independent State which
internal self-government, but the independent state is responsible for
foreign relations and defense.
For an association to be lawful, it must comply with the general
conditions prescribed in UN General Assembly Resolution 1541(XV) of
14 December 1960: (1) the population must consent to the association;
and (2) the association must promote the development and well-being
of the dependent state (the non-self-governing territory). Association is
subject to UN approval.
State sovereignty as defined in International Law. ’06 – Q10(1)
Sovereignty signifies the right to exercise functions of a State in
regard to a portion of the globe to the exclusion of the any other State.
It is the principle of exclusive competence of a State in regard to its
own territory (The Island of Las Palmas Case, 2 Report of International
Arbitration Awards 839 [1928].)
State sovereignty is not absolute. ’06 – Q10(2)
State sovereignty is not absolute. It is the subject of limitations by
membership in the family of nations and limitations imposed by treaty
stipulations (Tañada v. Angara, 272 SCRA 18 [1997].)
Principle of auto-limitation. ’06 – Q10(3)
The principle of auto-limitation means that a State may by its
express or implied consent submits to a restriction of its sovereign
rights. There may thus be a curtailment of what otherwise is power
plenary in character (Reagan v. Commissioner of Internal Revenue, 30
SCRA 968 [1969]; Tañada v. Angara, 272 SCRA 18 [1997].)
Relationship between reciprocity and principle of auto-limitation.
’06 – Q10(4)
By reciprocity, States grants to one another rights or concessions,
in exchange for identical or comparable duties, thus acquiring a right
as an extension of its sovereignty and at the same accepting an obliga-
tion as a limitation to its sovereign will, hence, a complementation of
reciprocity and auto-limitation.
!70
What is the basis of the Philippines’ claim to a part of the Spratly
Islands? ’00 – Q19a
The basis of the Philippine claim is effective occupation of a terri-
tory not subject to the sovereignty of another state. The Japanese
forces occupied the Spratly Island group during the Second World War.
However, under the San Francisco Peace Treaty of 1951, Japan for-
mally renounced all right and claim to the Spratlys. The San Francisco
Treaty or any other international agreement, however, did no designate
any beneficiary state following the Japanese renunciation of right.
Subsequently, the Spratlys became terra nullius and was occupied by
the Philippines in the title of sovereignty. Philippine sovereignty was
displayed by open and public occupation of a number of islands by
stationing of military forces, by organizing a local government unit, and
by awarding petroleum drilling rights, among other political and admin-
istrative acts. In 1978, it confirmed is sovereign title by the promulga-
tion of Presidential Decree No. 1596, which the declared the Kalayaan
Island Group part of Philippine territory.
The Republic of China (Taiwan), in its bid to develop a hydrogen
bomb and defend itself against threats of invasion from the Peo-
ple’s Republic of China, conducted a series of nuclear weapons
tests in its own atmosphere. The tests resulted in radioactive
fallouts which contaminated the rivers in and around Aparri and
other bodies of waters within the territorial jurisdiction of the
Philippines. Can the Philippines complain against the Republic of
China for violation of its sovereignty? ’89 – Q19
In the Trial Smelter Arbitration between the United States and
Canada, the Arbitral Tribunal held that air pollution from Canada should
be enjoined, because sovereignty includes the right against any en-
croachment which might prejudice the natural use of the territory and
free movement of its inhabitants.
Since the nuclear tests conducted by the Republic of China re-
sulted in radioactive fallouts which contaminated the rivers and other
bodies of water within the Philippines, the Republic of China violated
the sovereignty of the Philippines.
Yes, the Philippines can complain against the Republic of China
for violation of its sovereignty. Article 194 of the Convention on the Law
of the Sea requires states to take all necessary measures necessary to
ensure that activities under their jurisdiction or control are so conduct-
ed as not to cause damage by pollution to other States and their envi-
ronment. Principle 21 of the United Nations Conference on Human
Environment imposes upon states the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the
environment of other States.
Distinguish the constitutive theory and the declaratory theory
concerning recognition of states. ’04 – Q2(4)
According to the constitutive theory, recognition is the last indis-
pensable element that converts the state being recognized into an
international person.
According to the declaratory theory, recognition is merely acknowl-
edged of the pre-existing fact that the state being recognized is an
international person (Cruz, International Law, 2003 ed., p. 80.)
State Recognition
Distinguish the Wilson doctrine and the Estrada doctrine regard-
ing recognition of governments. ’04 – Q2(5)
Under the Wilson doctrine, recognition shall not be extended to
any government established by revolution or internal violence until the
freely elected representatives of the people have organized a constitu-
tional government.
Under the Estrada doctrine, the Mexican government declared
that it would, as it saw fit, continue or terminate its diplomatic relations
with any country in which a political upheaval had taken place and in
so doing it would not pronounce judgment on the right of the foreign
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state to accept, maintain or replace its government (Cruz, International
Law, 2003 ed., pp. 85-86.)
(In view of recent developments, the Wilson doctrine and the
Estrada doctrine are no longer in the mainstream of public international
law.)
Distinguish between de facto recognition and de jure recognition
of states. ’98 – Q12
The following are the distinctions between de facto recognition
and de jure recognition of a government:
De facto recognition is provisional; de jure recognition is relatively
permanent.
De facto recognition does not vest title in the government to its
properties abroad; de jure recognition does
De facto recognition is limited to certain juridical relations; de jure
recognition brings about full diplomatic relations (Cruz, International
Law, 1996 ed., p. 83.)
Use of Force and the Right of a State to Self-Defense
Acts of terrorism of a private group cannot be a justification for
an act of “self-defense” under international law. ’09 – Q13a
The Philippine action cannot be justified as self-defense. Self-
defense is an act of State by reason of an armed attack by another
State. The acts of terrorism in this case were acts of a private group
and cannot be attributed to Asyaland, which does not support the
Emerald Brigade. Article 51 of the Charter of the United Nations has no
applicability, because self-defense in Article 51 contemplates a re-
sponse to a legitimate armed attack by a State against another State.
The attack by the Emerald Brigade is an attack by a private group
without authority or as organ of Asyaland.
The fact that the commando team did not take territory nor inter-
fered in the political process of Asyaland is not an excuse against
the violation of Article 2.4 of the UN Charter which prohibits “the
threat or use of force against the territorial integrity or political
independence of any State.” ’09 – Q13b
The contention of Asyaland is correct. The Philippines violated
Section 2(4) of the Charter of the United Nations, which prohibits
States from the threat or use of force against the territorial integrity of
any State.
Acts of terrorism committed against Filipino citizens where their
citizenship was a factor in the commission of the crime although
committed outside the territorial limits of the Philippines; Where
to file. ’09 – Q13c
The terrorist should be tried in the Philippines. Section 58 of R.A.
No. 9372, the Human Security Act provides for its extraterritorial appli-
cation to individual persons who, although outside the territorial limits
of the Philippines, commit an act of terrorism directly against Filipino
citizens where their citizenship was a factor in the commission of the
crime.
Not too long ago, “allied forces”, led by American and British
armed forces, invaded Iraq to “liberate the Iraqis and destroy
weapons of mass destruction.” The Security Council of the United
Nations failed to reach a consensus on whether to support the
“war of liberation.” Can the action taken by the allied forces find
justification in International Law? ’03 – Q14
The United States and its allied forces cannot justify the invasion
of Iraq on the basis of self-defense under Article 51 of the UN Charter
as the allied forces did not launch military operations and did not occu-
py Iraq on the claim that their actions was in response to an armed
attack by Iraq, and there was no necessity for anticipatory self-defense
which may be justified under customary international law. Neither can
!71
they justify their invasion on the ground that Article 42 of the Charter of
the United Nations permits the use of force against a State if it is sanc-
tioned by the Security Council. Resolution 1441, which gave Iraq a
final opportunity to disarm or face serious consequences, did not au-
thorize the use of armed force.
Alternative Answer:
In International Law, the action taken by the allied forces cannot
find justification. It is covered by the prohibition against the use of force
prescribed by the United Nations Charter and it does not fall under any
of the exceptions to that prohibition.
The UN Charter in Article 2(4) prohibits the use of force in the
relations of states by providing that all members of the UN “shall refrain
in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any
manner inconsistent with the purposes of the United Nations.” This
mandate does not outlaw war; it encompasses all threats of and acts of
force or violence short of war.
As thus provided, the prohibition is addressed to all UN members.
However, it is now recognized as a fundamental principle in customary
international law and, as such, is binding on all members of the in-
ternational community.
The action taken by the allied forces cannot be justified under any
of the three (3) exceptions to the prohibition against the use of force
which the UN Charter allows. These are: (1) inherent right of individual
or collective self-defense under Article 51; (2) enforcement measures
involving the use of armed forces by the UN Security Council under
Article 42; and (3) enforcement measure by regional arrangement
under Article 53, as authorized by the Security Council. The allied
forces did not launch military operations and did not occupy Iraq on the
claim that their actions was in response to an armed attack by Iraq, of
which there was none.
Moreover, the action of the allied forces was taken in defiance or
disregard of the Security Council Resolution No. 1441 which set up “an
enhanced inspection regime with the aim of bringing to full and verified
completion of the disarmament process”, giving Iraq “a final opportunity
to comply with its disarmament obligations.” This resolution was in the
process of implementation; so was Iraq’s compliance with such disar-
mament obligations.
Based on the facts surrounding the 9/11 bombing. What action or
actions can Country Y legally take against Ali Baba and Country X
to stop the terrorist activities of Ali Baba and dissuade Country X
from harbouring and giving protection to the terrorist organiza-
tion? ’02 – Q19
Country Y may exercise the right of self-defense, as provided
under Article 51 of the UN Charter “until the Security Council has taken
measures necessary to maintain international peace and security.”
Self-defense enables Country Y to use force against Country X as well
as against the Ali Baba organization.
It may also bring the matter to the Security Council which may
authorize sanctions against Country X, including the measure invoking
the use of force. Under Article 42 of the UN Charter, Country Y may
use force against Country X as well as against Ali Baba organization
by authority of the UN Security Council.
At the Nuremberg trial of the Nazi war criminals at the end of
World War II, the defense argued on behalf of the German defen-
dants that although a nation could not wage aggressive war with-
out transgressing international law, it could use war as an instru-
ment of self-defense, and that the nation itself must be the sole
judge of whether its actions were in self-defense. How would you
meet the argument if you were a member of the Tribunal trying the
case? ’98 – Q14
No rule of international law gives a state resorting to war allegedly
in self-defense the right to determine with a legally conclusive effect
the legality of such action.
The Judgment of the Nuremberg International Military Tribunal
rejected the defense of the Nazi war criminals:
“But whether action taken under the claim of self-defense was
in fact aggressive or defensive must ultimately be subject to
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investigation and adjudication if international law is ever to be
enforced.”
The State of Nova, controlled by an authoritarian government, had
unfriendly relations with its neighboring state, Ameria. Bresia,
another neighboring state, had been shipping arms and ammuni-
tions to Nova for use in attacking Ameria. To forestall an attack,
Ameria placed floating mines on the territorial waters surrounding
Nova. Ameria supported a group of rebels organized to overthrow
the government of Nova and to replace it with a friendly govern-
ment. Nova decided to file a case against Ameria in the In-
ternational Court of Justice. (1) On what grounds may Nova’s
cause of action against Ameria be based? (2) On what grounds
may Ameria move to dismiss the case with the ICJ? (3) Decide the
case. ’94 – Q19
If Nova and Ameria are members of the United Nations, Nova can
premise its cause of action on a violation of Article 2(4) of the United
Nations Charter, which requires members to refrain from the threat or
use of force against the territorial integrity or political independence of
any state. If either or both Nova or Ameria are not members of the
United Nations, Nova may premise its cause of action on a violation of
the non-use of forces principle in customary international law which
exists parallel to Article 2(4) of the United Nations Charter.
In the Case Concerning Military and Paramilitary Activities in and
Against Nicaragua (1986 ICJ Rep. 14), the International Court of Jus-
tice considered the planting of mines within the territorial water of an-
other as a violation of Article 2(4) of the United Nations Charter. IF the
support provided by Ameria to the rebels go beyond the mere giving of
monetary or psychological support but consists in the provision of arms
and training, the acts of Ameria can be considered as indirect aggres-
sion amounting to another violation of Article 2(4).
In addition, even if the provision of support is not enough to con-
sider the act a violation of the non-use of force principle, this is a viola-
tion of the principle of non-intervention in customary international law.
Aggression is the use of armed force by a state against the sov-
ereignty, territorial integrity or political independence of another state or
in any manner inconsistent with the United Nations Charter.
By virtue of the principle of sovereign immunity, no sovereign
state can be made a party to a proceeding before the International
Court of Justice unless it has given its consent. If Ameria has not ac-
cepted the jurisdiction of the International Court of Justice, Ameria can
invoke the defense of lack of jurisdiction. Even if Ameria has accepted
the jurisdiction of the court but the acceptance is limited and the limita-
tion applies to the case, it may invoke such limitation, its consent as a
bar to the assumption of jurisdiction.
If jurisdiction has been accepted, Ameria can invoke the principle
of anticipatory seld-defense, recognized under customary international
law, because Nova is planning to launch an attack against Ameria by
using the arms it bought from Bresia.
If jurisdiction over Ameria is established, the case should be de-
cide in favor of Nova, because Ameria violated the principle against the
use of force and the principle of non-intervention. The defense of antic-
ipatory seld-defense cannot be sustained, because there is no showing
that if Ameria were to wait for Nova to strike first it would not be able to
retaliate.
However, if jurisdiction over Ameria is not established, the case
should be decided in favor of Ameria because of the principle of sov-
ereign immunity.
The Charter of the United Nations prohibits not only recourse to
war but also resort to the use of force or threat. In the ardent to
maintain peace, the Charter obliges members to settle their in-
ternational disputes by peaceful means and to refrain in their
international relations from the threat or use of force. The same
Charter, however, recognizing perhaps the realities of in-
ternational relations, allows the use of force in exceptional occa-
sions. Please state two occasions when the use of armed forces
is allowed by the U.N. Charter. ’88 – Q19(1)
Under Article 42 of the UN Charter, should the Security Council
consider that pacific methods of settling disputes are inadequate, it
may take such action by air, sea, or land forces as may be necessary
!72
to maintain or restore international peace and security. Such action
may include demonstrations, blockade, and other operations by air,
sea, or land forces of members of the UN.
Under Article 51, member states also have the inherent right of collec-
tive self-defense if an armed attack occurs against a member state,
until the Security Council has taken measures necessary to maintain
international peace and security.
Nationality, Citizenship and Statelessness
Who are stateless persons under International Law? What are the
consequences of statelessness? Is a stateless person entirely
without right, protection or recourse under the Law of Nations?
What measures, if any, has International Law taken to prevent
statelessness? ’95 – Q2
Stateless persons are those who are not considered as nationals
by any State under the operation of its laws.
The consequences of statelessness are the following:
(a) No State can intervene or complain in behalf of a stateless
person for an international delinquency committed by anoth-
er State in inflicting injury upon him.
(b) He cannot be expelled by the State if he is lawfully in its
territory except on grounds of national security or public
order.
(c) He cannot avail himself of the protection and benefits of
citizenship like securing for himself a passport or visa and
personal documents.
No. Under the Convention in Relation to the Status of Stateless
Persons, the Contracting States agree to accord to stateless persons
within their territories treatment at least favourable as that accorded to
their nationals with respect to freedom of religion, access to courts,
rationing of products in short supply, elementary education, public relief
and assistance, labor legislation and social security. They also agreed
to accord to them treatment not less favourable than that accorded to
aliens generally in the same circumstances. The Convention also pro-
vides for the issuance of identity papers and travel documents to state-
less persons.
In the Convention of the Conflict of Nationality of Laws of 1930, the
Contracting States agreed to accord nationality to persons born in their
territory who would otherwise be stateless. The Convention on the
Reduction of Statelessness of 1961 provides that if the law of the con-
tracting States results in the loss of nationality as a consequence of
marriage or termination of marriage, such loss must be conditional
upon possession or acquisition of another nationality.
Diplomatic Law and Sovereign Immunity
Ambassador Gaylor is State Juvenus’ diplomatic representative
to State hinterlands. During one of his vacations, Ambassador
Gaylor decided to experience for himself the sights and sounds of
State Paradise, a country known for its beauty and other attrac-
tions. While in State Paradise, Ambassador Gaylor was caught in
the company of children under suspicious circumstances. He was
arrested for violation of the strict anti-pedophilia statute of State
Paradise. He claims that he is immune from arrest and incarcera-
tion by virtue of his diplomatic immunity.
Does the claim of Ambassador Gaylor hold water? (4%) ‘14 - Q29
Ambassador Gaylor cannot invoke his diplomatic immunity. In accor-
dance with Paragraph 1, Article 31 of the Vienna Convention of Diplo-
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matic Relations, since State Paradise is not his receiving state, he
does not enjoy diplomatic immunity within its territory. Under Paragraph
1, Article 40 of the Vienna Convention of Diplomatic Relations, he can-
not be accorded diplomatic immunity in State Paradise, because he is
not passing through it to take up or return to his post or to return to
State Juvenus.
The ambassador of the Republic of Kafiristan referred to you for
handling, the case of the Embassy’s Maintenance Agreement with
CBM, a private domestic company engaged in maintenance work.
The Agreement binds CBM, for a defined fee, to maintain the Em-
bassy’s elevators, air-conditioning units and electrical facilities.
Section 10 of the Agreement provides that the Agreement shall be
governed by Philippine laws and that any legal action shall be
brought before the proper court of Makati. Kafiristan terminated
the Agreement because CBM allegedly did not comply with their
agree maintenance standards.
CBM contested the termination and filed a complaint against
Kafiristan before the Regional Trial Court of Makati. The Ambas-
sador wants you to file a motion to dismiss on the ground of state
immunity from suit and oppose the position under Section 10 of
the Agreement, Kafiristan expressly waives its immunity from
suit.
Under these facts, can the Embassy successfully invoke immuni-
ty from suit? (6%) ‘13 - Q10
Yes, the Embassy can invoke immunity from suit. Section 10 of the
Maintenance Agreement is not necessarily a waiver of sovereign im-
munity from suit. It was meant to apply in case the Republic of Kafiris-
tan elects to sue in the local courts or waives its immunity by a subse-
quent act. The establishment of a diplomatic mission is a sovereign
function. This encompasses its maintenance and upkeep. The Mainte-
nance Agreement was in pursuit of a sovereign activity (Republic of
Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003,405 SCRA 126).
Philippine courts have jurisdiction over a crime committed by a
private American citizen inside the U.S. embassy. ’09 – Q12a
William is not correct. The premises occupied by the United
States Embassy do not constitute territory of the United States but of
the Philippines. Crimes committed within them are subject to the terri-
torial jurisdiction of the Philippines. Since William had no diplomatic
immunity, the Philippines can prosecute him if it acquired jurisdiction
over him (Reagan v. Commissioner of Internal Revenue, 30 SCRA 968
[1969].)
The surviving Filipina “comfort women” cannot sue the Japanese
government for damages before Philippine courts. ’07 – Q4c
The Filipina “comfort women” cannot sue Japan for damages
because a foreign State may not be sued before Philippines as a con-
sequence of the principles of independence and equality of States
(Republic of Indonesia v. Vinzon, 405 SCRA 126 [2003].)
Italy, through its Ambassador, entered in to a contract with Abad
for the maintenance and repair of specified equipment at its Em-
bassy and Ambassador’s Residence, such as air conditioning
units, generator sets, electrical facilities, water heaters, and water
motor pumps. It was stipulated that the agreement shall be effec-
tive for a period of four years and automatically renewed unless
cancelled. Further, it provided that any suit arising from the con-
tract shall be filed with the proper courts in the City of Manila.
Claiming that the Maintenance Contract was unilaterally, base-
lessly and arbitrarily terminated, Abad sued the State of Italy and
its Ambassador before a court in the City of Manila. Among the
defenses raised were “sovereign immunity” and “diplomatic im-
munity.” (a) As counsel of Abad, refute the defenses of “sovereign
!73
immunity” and “diplomatic immunity” raised by the State of Italy
and its Ambassador. (b) At any rate, what should be the court’s
ruling on the said defenses? ’05 – Q3(1)
As counsel of Abad, I shall argue that the contract is not a sov-
ereign function and that the stipulation that any suit arising under the
contract shall be filed in the proper courts of the City of Manila is a
waiver of the sovereign y from suit of Italy. I shall also argue that the
ambassador does not enjoy diplomatic immunity, because the suit
relates to a commercial activity.
The court should reject the defenses. Since the establishment of
a diplomatic mission requires the maintenance and upkeep of the em-
bassy and the residence of the ambassador, Italy was acting in pursuit
of a sovereign activity when it entered into the contract. The provision
in the contract regarding venue of lawsuits is not necessarily a waiver
of sovereign immunity from suit. It should be interpreted to apply only
where Italy elects to sue in the Philippine courts or waives its immunity
by a subsequent act. The contract does not involve a commercial activ-
ity of the ambassador, because it is connected with his official functions
(Republic of Indonesia v. Vinzon, 405 SCRA 126 (2003).]
Adams and Baker are American citizens residing in the Philip-
pines. Adams befriended Baker and became a frequent visitor at
his house. One day, Adams arrived with 30 members of the PNP,
armed with a Search Warrant authorizing the search of Baker’s
house and the premises for dangerous drugs being trafficked to
the US. The search purportedly yielded positive results, and Bak-
er was charged with Violation of the Dangerous Drugs Act. Adams
was the prosecution’s principal witness. However, for failure to
prove his guilt beyond reasonable doubt, Baker was acquitted.
Baker then sued Adams for damages for filing trumped up
charges against him. Among the defenses raised by Adams is that
he has diplomatic immunity, conformably with the Vienna Con-
vention on Diplomatic Relations. He presented Diplomatic Notes
from the American Embassy stating that he is an agent of the US
Drug Enforcement Agency tasked with “conducting surveillance
operations” on suspected drug dealers in the Philippines believed
to be the source of prohibited drugs being shipped to the US. It
was also stated that after having ascertained the target, Adams
would then inform the Philippine narcotic agents to make the
actual arrest.
1. As counsel for plaintiff Baker, argue why his complaint
should not be dismissed on the ground of defendant
Adam’s diplomatic immunity from suit.
As counsel for Baker, I shall argue that Baker has no diplomatic
immunity, because he is not performing diplomatic functions.
2. As counsel of defendant Adams, argue for the dismissal
of the complaint. ’05 – Q3(2)
As counsel of Adams, I shall argue that since he was acting within
his assigned functions with the consent of the Philippines, the suit
against him is a suit against the United States and is barred by state
immunity from suit (Minucher v. Court of Appeals, 397 SCRA 244
[2003].)
MBC, an alien businessman filed a suit against policemen and YZ,
an attaché of XX Embassy, for damages because of malicious
prosecution. MBC alleged that YZ concocted false and malicious
charges that he was engaged in drug trafficking whereupon nar-
cotics policemen conducted a “buy-bust” operation and without
warrant arrested him, searched his house, and seized him money
and jewellery, then detained and tortured him in violation of his
civil and human rights as well as causing him, his family and
business serious damages amounting to two million pesos. MBC
added that the trial court acquitted him of the drug charges. As-
sailing the court’s jurisdiction, YZ now moves to dismiss the
complaint, on the ground that (1) he is an embassy officer entitled
to diplomatic immunity; and that (2) the suit is really a suit against
his home state without its consent. He presents diplomatic notes
from XX Embassy certifying that he is an accredited embassy
officer recognized by the Philippine government. He performs
official duties, he says, on a mission to conduct surveillance on
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drug exporters and then inform local police officers who make the
actual arrest of suspects. Are the two grounds cited by YZ to dis-
miss the suit tenable? ’04 – Q8a
The claim of diplomatic immunity of YZ is not tenable, because he
does not possess an acknowledged diplomatic title and is not perform-
ing duties of a diplomatic nature. However, the suit against him is a suit
against XX without its consent. YZ was acting as an agent of XX and
was performing his official functions when he conducted surveillance
on drug exporters and informed the local police officers who arrested
MBC. He was performing such duties with the consent of the Philippine
government, therefore, the suit against YZ is a suit against XX without
its consent (Republic of Indonesia v. Vinzon, 405 SCRA 126 (2003).]
A group of high-ranking officials and rank-and-file employees
stationed in a foreign embassy in Manila were arrested outside
embassy grounds and detained at Camp Crame on suspicion that
they were actively collaborating with “terrorists” out to overthrow
or destabilize the Philippine Government. The Foreign Ambas-
sador sought their immediate release, claiming that the detained
embassy officials and employees enjoyed diplomatic immunity. If
invited to express your legal opinion on the matter, what advice
would you give? ’03 – Q18
I shall advice that the high-ranking officials and rank-and-file em-
ployees be released because of their diplomatic immunity. Article 29 of
the Vienna Convention on Diplomatic Relations provides:
“The persons of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention.”
Under Article 37 of the Vienna Convention on Diplomatic Rela-
tions, members of the administrative and technical staff of the diplo-
matic mission, shall, if they are not nationals of or permanent residents
in the receiving State, enjoy the privileges and immunities specified in
Article 29.
Under Article 9 of the Vienna Convention on Diplomatic Relations,
the remedy is to declare the high-ranking officials and rank-and-file
employees personae non gratae and ask them to leave.
Dr. Velen, an official of the World Health Organization (WHO) as-
signed in the Philippines, arrived at the Ninoy Aquino In-
ternational Airport with his personal effects contained in twelve
crates as unaccompanied baggage. As such, his personal effects
were allowed free entry from duties and taxes, and were directly
stored at Arshaine Corporation’s warehouse at Makati, pending
Dr. Velen’s relocation to his permanent quarters. At the instance
of police authorities, the RTC of Makati issued a warrant for the
search and seizure of Dr. Velen’s personal effects in view of an
alleged violation of the Tariff and Custom’s Code. According to
the police, the crates contained contraband items. Upon protest
of WHO officials, the Secretary of Foreign Affairs formally advised
the RTC as to Dr. Velen’s immunity. The Solicitor General likewise
joined Dr. Velen’s plea of immunity and motion to quash the
search warrant. The RTC denied the motion. Is the denial of the
motion to quash proper? ’01 – Q20
The denial of the motion is improper. As held in World Health
Organization v. Aquino, 48 SCRA 242 [1972], as an official of the World
Health Organization, Dr. Velen enjoyed diplomatic immunity and this
included exemption from duties and taxes. Since diplomatic immunity
involves a political question, where a plea of diplomatic immunity is
recognized and affirmed by the Executive Department, it is the duty of
the court to accept the claim of immunity.
A foreign ambassador to the Philippines leased a vacation house
in Tagaytay for his personal use. For some reason, he failed to
pay rentals for more than one year. The lessor filed an action for
the recovery of his property in court.
1. Can the foreign ambassador invoke his diplomatic im-
munity to resist the lessor’s action?
No, the foreign ambassador cannot invoke his diplomatic immuni-
ty to resist the action, since he is not using the house in Tagaytay for
the purposes of his mission but merely for vacation. Under Article 3(1)
(a) of the Vienna Convention on Diplomatic Relations, a diplomatic
agent has no immunity in case of a real action relating to private im-
!74
movable property situated in the territory of the receiving State unless
he holds it on behalf of the sending State for purposes of the mission.
2. The lessor gets hold of evidence that the ambassador is
about to return to him home country. Can the lessor ask
the court to stop the ambassador’s departure from the
Philippines? ’00 – Q20; ’90 – Q5(1) and Q5(3)
No, the lessor cannot ask the court to stop the departure of the
ambassador from the Philippines. Under Article 29 of the Vienna Con-
vention, a diplomatic agent shall not be liable to any form of arrest or
detention.
3. Can the lessor ask for the attachment of the furniture
and other personal properties of the ambassador after
getting hold of evidence that the ambassador is about to
leave the country? ’90 – Q5(2)
No. E cannot ask for the attachment of the personal properties of
the Ambassador. Articles 30 and 31 of the Vienna Convention on
Diplomatic Relations provide that the papers, correspondence and the
property of diplomatic agents shall be inviolable. Therefore, a writ of
attachment cannot be issued against his furniture and any personal
properties.
Moreover, on the assumption that the Kingdom of Nepal grants
similar protection to Philippine diplomatic agents, Section 4 of Republic
Act No. 75 provides that any writ or process issued by any court in the
Philippines for the attachment of the goods or chattels of the ambas-
sador of a foreign State to the Philippines shall be void.
What is the doctrine of Sovereign immunity in International Law?
’98 – Q13
By the doctrine of sovereign immunity, s State, its agents and the
property are immune from the judicial process of another State, except
with its consent. Thus, immunity may be waived and a State may per-
mit itself to be sued in the courts of another State.
Sovereign immunity had developed into two schools of thought,
namely, absolute immunity and restrictive immunity. By absolute im-
munity, all acts of a State are covered or protected by immunity. On
the other hand, restrictive immunity makes a distinction between gov-
ernmental or sovereign acts (acta jure imperii) and non-governmental,
proprietary or commercial acts (acta jure gestiones.) Only the first cat-
egory of acts is covered by sovereign immunity.
The Philippines adheres to the restrictive immunity of school of
thought.
An information was filed against X, a Secretary and Consul in the
American Embassy, for a violation of BP 22 in the MTC 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 enjoy-
ing diplomatic immunity from criminal prosecution in the Philip-
pines. If you were the Judge, how would you resolve the motion
to dismiss? ’97 – Q19
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 Rela-
tions, a consular officer is not immune from the criminal jurisdiction of
the receiving state. In Schneckenburger v. Moran, 63 Phil. 249, it was
held that a consul is not exempt from criminal prosecution in the coun-
try where he is assigned.
However, as secretary in the American Embassy, X enjoys diplo-
matic immunity from criminal prosecution. As secretary, he is a diplo-
matic 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.
The Republic of Balau (formerly Palau Islands) opened and oper-
ated in Manila an office engaged in trading Balau products with
Philippine products. In one transition, the local buyer complained
that the Balau goods delivered to him were substandard and sued
the Republic of Balau, before the RTC of Pasig, for damages.
1. How can the Republic of Balau invoke its sovereign
immunity?
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The Republic of Balau can invoke its sovereign immunity by filing
a motion to dismiss in accordance with Section 1(a) on the ground that
the court has no jurisdiction over its person.
According to Holy See v. Rosario, 238 SCRA 524 (1994), in Pub-
lic International Law, when a State wishes to plead sovereign immunity
in a foreign court, it requests the Foreign Office of the State where it is
being sued to convey to the court that he is entitled to immunity. In the
Philippines, the practice is for the foreign government to first secure an
executive endorsement of its claim of sovereign immunity. In some
cases, the defense of sovereign immunity is submitted directly to the
local court by the foreign government through counsel by filing a mo-
tion to dismiss on the ground that the court has no jurisdiction over its
person.
2. Will such defense of sovereign immunity prosper? ’96 –
Q6(2)
No, the defense of sovereign immunity will not proper. The sale of
Balau products is a contract involving commercial activity. In United
States v. Ruiz, 136 SCRA 487 (1985) and United States v. Guinto, 182
SCRA 644 (1990), it was stated that a foreign State cannot invoke
immunity from suit if it enters into a commercial contract. The Philip-
pines adheres to restrictive sovereign immunity.
Discuss the differences, if any, in the privileges or immunities of
diplomatic envoys and consular officers from civil or criminal
jurisdiction of the receiving state. ’95 – Q3(1)
Under Article 31 of the Vienna Convention on Diplomatic Rela-
tions, a diplomatic agent shall enjoy immunity from the criminal jurisdic-
tion of the receiving State. He shall also enjoy immunity from its civil
and administrative jurisdiction except in the case of:
(a) A real action relating to private immovable property situated
in the territory of the receiving State, unless he holds it on
behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic
agent is invoked as executor, administrator, heir or legatee
as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State out-
side his official functions.
On the other hand, under Article 41 of the Vienna Convention on
Consular Relations, a consular officer does not enjoy immunity from
the criminal jurisdiction of the receiving State. Under Article 43 of the
Vienna Convention on Consular Relations, consular officers are not
amenable to the jurisdiction of the judicial or administrative authorities
of the receiving state in respect to act performed in the exercise of
consular functions. However, this does not apply in respect of a civil
action either:
(a) Arising out of a contract concluded by the consular officer in
which he did not contract expressly or impliedly as an agent
of the sending State; or
(b) By a third party for damage arising from an accident caused
by a vehicle, vessel or aircraft.
A consul of a South American country stationed in Manila was
charged with serious physical injuries.
1. May he claim immunity from jurisdiction of the local
court?
No, he may not claim immunity from the jurisdiction of the local
court. Under Article 41 of the Vienna Convention of Consular Rela-
tions, consuls do not enjoy immunity from the criminal jurisdiction of
the receiving State. He is not liable to arrest or detention pending trial
unless the offense was committed against his father, mother, child,
ascendant, descendant or spouse. Consuls are not liable to arrest and
detention pending trial except in the case of a grave crime and pur-
suant to a decision by the competent judicial authority. The crime of
physical injuries is not a grave crime unless it is committed against any
of the above-mentioned persons (Schneckenburger v. Moran, 63 Phil.
249.)
2. Suppose after he was charged, he was appointed as his
country’s ambassador to the Philippines. Can his newly-
!75
gained diplomatic status be a ground for dismissal of
his criminal case? ’95 – Q3(2) and Q3(3)
Yes, the case should be dismissed. Under Article 40 of the Vienna
Convention on Diplomatic Relations, if a diplomatic agent is in the
territory of a third State, which has granted him a passport visa if such
visa was necessary, while proceeding to take up his post, the third
State shall accord him inviolability and such other immunities as may
be required to ensure his transit.
A contract for the supply of 500,000 pairs of combat boots for the
Indonesian Army was awarded to Marikina Shoe Corp., a Philip-
pine corporation. Marikina Shoe was able to deliver only 200,000
pairs but only received payment for 100,000 pairs. The Indonesian
Ministry of the Army promised to pay the other 100,000 pairs al-
ready delivered as soon as the remaining 300,000 pairs of combat
boots are delivered which shall be paid for at the same time.
Marikina shoe failed to deliver any more combat boots. Hence, the
Republic of Indonesia filed an action against Marikina Shoe for
specific performance and damages before the RTC of Pasig. In its
Answer, Marikina Shoe sets up a counterclaim for US$ 3 million
representing the payment for the 100,000 pairs of combat boots
already delivered but unpaid. Indonesia moved to dismiss the
counterclaim, asserting that it is entitled to sovereign immunity
from suit. The trial court denied the motion to dismiss and issued
two writs of garnishment upon Indonesian Government funds
deposited in PNB and Far East Bank. Indonesia went to the Court
of Appeals for certiorari under Rule 65. How would the Court of
Appeals decide the case? ’91 – Q13
The Court of Appeals should dismiss the petition insofar as it
seeks to annul the order denying the motion of the Government of
Indonesia to dismiss the counterclaim. The counterclaim in this case is
a compulsory counterclaim since it arises from the same contract in-
volved in the complaint. As such, it must be set up otherwise it will be
barred. Above all, as held in Froilan v. Pan Oriental Shipping Co., 95
Phil. 905 (1954), by filing a complaint, the State of Indonesia waived its
immunity from suit. It is not right that it can sue in the courts but cannot
be sued. The defendant therefore acquires the right to set up a com-
pulsory counterclaim against it.
However, the Court of Appeals should grant the petition for the
Indonesian government insofar as it sought to annul the garnishments
of the funds of Indonesia which were deposited in the PNB and Far
East Bank. Consent to jurisdiction of a foreign court does not include
waiver of the separate immunity from execution (Brownlie, Principles of
Public International Law, 4th ed., p. 344.) Thus in Dexter v. Carpenter v.
Jarnvagsstyrelsen, 43 F.2d 705, it was held the consent to be sued
does not give consent to the attachment of the property of a sovereign
government.
International Criminal Law
A. Ambassador Robert of State Alpha committed a very serious
crime while he headed his foreign mission in the Philippines. Is
he subject to arrest by Philippine authorities? Explain your an-
swer. (3%)
B. Extradition is the process pursuant to a treaty between two
State parties for the surrender by the requested State to the cus-
tody of the requesting State of a fugitive criminal residing in the
former. However, extradition depends on the application of two
principles--- the principle of specialty and the dual criminality
principle. Explain these principles. (4%)
C. The President signs an agreement with his counterpart in an-
other country involving reciprocity in the treatment of each coun-
try's nationals residing in the other's territory. However, he does
not submit the agreement to the Senate for concurrence. Sec. 21,
Art. VII of the Constitution provides that no treaty or international
agreement shall be valid and effective without such concurrence.
Is the agreement signed by the President effective despite the
lack of Senate concurrence? Explain your answer. (4%) ’17— Q9
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A. In accordance with the Convention on the Protection and Punish-
ment of Crimes Against International Protected Persons Including
Diplomatic Agents, the Philippines has the obligation to either extradite
or prosecute Ambassador Robert of State Alpha (Magallona, Funda-
ments of Public International Law, P. 68).
B. The principle of specialty means that the State requesting extradi-
tion from another State is required to specify the crime as provided in
the extradition treaty for which the fugitive or the accused is to be ex-
tradited and to be tried only for the offense specified in the extradition
treaty (Magallona, Fundamentals of Public International Law, p. 572).
The principle of dual criminality requires that the crime for which extra-
dition is sought must be recognized as a crime by both the requiring
State and the State to which the fugitives or the accused has fled (Ma-
gallona, Fundamentals of Public International Law, p. 578).
C. The agreement signed by the President is effective even if the Sen-
ate dill not concur in it. The agreement is in the nature of an executive
agreement and need not be submitted to the Senate for concurrence in
its ratification (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444,
January 12. 2016,779 SCRA 241).
Genocide; propriety of passing an amnesty law to cover those
involved in mass killings of indigenous groups groups. ’10 – Q1
The proposed amnesty is contrary to international law. The mass
killings of individual members of indigenous groups constitute genocide
under Article II(a), Convention for the Prevention and Punishment of
the Crime of Genocide. The proposed amnesty law is against in-
ternational law because it is incompatible with, or in violation of the
international obligation under Article IV of this Convention that “Per-
sons committing genocide… shall be punished, whether they are con-
stitutionally responsible ruler, public officials of private individuals.”
“The Contracting Parties confirm that genocide, whether commit-
ted in time of peace or in time of war, is a crime under international law
which they undertake to prevent and to punish.”
What is “Genocide,” and what is the foremost example thereof in
recent history? ’88 – Q19(2)
According to Article 6 of the ICC Statute and Section 5(a) of R.A.
No. 9851, genocide involves “any of the following acts committed with
intent to destroy in whole or in part, a national, ethnical, racial or reli-
gious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life calculat-
ed to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another group.”
The foremost example of genocide is the Holocaust (1933-1945)
where about 6 million Jews (two-thirds of the Jewish population of
Europe before World War II) were exterminated by the Nazis. Along
with the Jews, another 9 to 10 million people (Gypsies and Slavs) were
massacred. Examples in recent history are the genocide committed by
the Serbs against Bosnian Muslims in the Bosnian War and the mas-
sacre of an estimated 500,000 to 800,000 Tutsis by the Hutus in
Rwanda.
Space Law
What is outer-space? Who or which can exercise jurisdiction over
astronauts while in outer space? ’03 – Q19
There are several schools of thought regarding the determination
of outer space, such as the limit of air flight, the height of atmospheric
space, infinity, the lowest altitude of an artificial satellite, and the alti-
!76
tude approximating aerodynamic lift. Another school of thought pro-
ceeds to the law of the sea. It proposes that a State should exercise
full sovereignty up to the height to which an aircraft can ascend. Non-
militant flight instruments should be allowed over a second area, a
contiguous zone of 300 miles. Over that should be outer space. The
boundary between airspace and outer space has not yet been defined
(Harris, Cases and Materials on International Law, 5th ed., pp. 251-253.
Article 8 of the Treaty on the Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies, a State on whose registry an object
launched into outer space retains jurisdiction over the astronauts while
they are in outer space.
United Nations Convention on Law of the Sea (UNCLOS) and In-
ternational Maritime Law
The USS Liberty, a warship of the United States (U.S.). entered
Philippine archipelagic waters on its way to Australia. Because of
the negligence of the naval officials on board, the vessel ran
aground off the island of Palawan, damaging coral reefs and other
marine resources in the area. Officials of Palawan filed a suit for
damages against the naval officials for their negligence, and
against the U.S., based on Articles 30 and 31 of the United Na-
tions Convention on the Law of the Sea (UNCLOS). Article 31 pro-
vides that the Flag State shall bear international responsibility for
any loss or damage to the Coastal State resulting from noncom-
pliance by a warship with the laws and regulations of the coastal
State concerning passage through the territorial sea. The U.S.
Government raised the defenses that;
[a] The Philippine courts cannot exercise jurisdiction over anoth-
er sovereign State, including its warship and naval officials.
(2.5%)
[b] The United. States is not a signatory to UNCLOS and thus
cannot be bound by its provisions. (2.5%)
Rule on the validity of the defenses raised by the U.S'., with rea-
sons.
[a] The Philippine courts cannot exercise jurisdiction over anoth-
er sovereign State,, including its warship and naval officials.
(2.5%)
[b] The United States is not a signatory to UNCLOS and thus can-
not be bound by its provisions. (2.5%)
Rule on the validity of the defenses raised by the U.S., with rea-
sons. ’16 – Q11
The defenses raised by the U.S. Government are not valid.
[a] This defense relies on sovereign immunity from suit as advanced by
the U.S. Government. But the suit filed by the Officials of Palawan
draws its strength from Article 30 and 31 of the UN Convention on the
Law of the Sea (UNCLOS).
However, the U.S. defense is defeated by the UNCLOS through the
application of Article 32 which provides:
“With such exceptions as are contained in sub-section A and in Articles
30 and 31. nothing in this Convention affects the immunities of war-
ships and other government ships operated for non-commercial pur-
poses, [emphasis added]”
In reality the supreme relevance of Article 32 quoted above is actual-
ized by quoting an existing U.S. government document sourced from
Dispatch Supplement, Law of the Sea Convention: Letters of Transmit-
tal and Submittal and Commentary, as follows:
“Article 32 provides, in effect that the only rules in the Convention
derogating from the immunities of warships and government ships
operated for non-government purposes are those found in Articles
17-26, 30 and 31 (February 1995, Vol. 6, Supplement No. 1 p. 12.).
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[b] The U.S. Government turns to the defense that it is not bound by
the UNCLOS for the reason that it is not a State Party or a signatory.
However, to be bound by the principle, it does not have to be a party to
a treaty or convention. If it has the normative status of a customary
norm of international law, it is binding on all states. This appears to be
the holding of the principle of immunity of warship in question, as up-
held by the U.S. Government in the document cited above (Ibid at p.
17) it states from the UNCLOS, thus:
The Convention protects and strengthens the key principle of sov-
ereign immunity for warships...Although not a new concept, sovereign
immunity is a principle or of vital importance to the United States. The
Convention provides for a universally recognized formulation of this
principle...
Article 32 provides that, with such exceptions as are contained in sub-
section A and in Articles 30 and 31... nothing in the Convention affects
the immunities of warships...
[a] Define the archipelagic doctrine of national territory, state its
rationale: and explain how it is implemented through the straight
baseline method. (2.5%)
[b] Section 2 of RA 9522 declared the Kalayaan Island Group (KIG)
and Scarborough Shoal as "Regimes of Islands." Professor Aga-
ton contends that since the law did not enclose said islands, then
the Philippines lost its sovereignty and jurisdiction over them. Is
his contention correct? Explain. (2.5%) ’16 – Q18
[a] By the term “archipelagic doctrine of national territory’1 is
meant that the islands and waters of the Philippine archipelago are
unified in sovereignty, together with “all the territories over which the
Philippines has sovereignty or jurisdiction.”
This archipelagic doctrine, so described under Article I of the Constitu-
tion, draws its rationale from the status of the whole archipelago in
sovereignty by which under Part IV of the UNCLOS the Philippines is
defined as an Archipelagic State in Article 46, thus:
a) “archipelagic state” means a State constituted wholly by one
or more archipelagos and may include other islands;
b) “archipelago” means a group of islands including parts of
islands interconnecting waters and other natural features which
arc so closely interrelated that such islands waters and other
natural features form an intrinsic geographic, economic and
political entity, or which historically have been regarded as such.
As an archipelagic state, the national territory is implemented by draw-
ing its “straight archipelagic baselines” pursuant to Article 47 of the
UNCLOS which prescribes among its main elements, as follows:
1. By “joining the outermost points of the outermost islands and
drying reefs of the archipelago”, including the main islands and an area
in which the ratio of the area of the water to the land, including atolls, is
between 1 to 1 and 9 to 1.
2. Mainly, the length of such baselines “shall not exceed 100
nautical lines...”
3. “The drawing of such baselines shall not depart to any ap-
preciable extent from the general configuration of the archipelago.”
[b] The contention Prof. Agaton is not correct at all.
“Regime of islands” is a concept provided in Article 121 of the UNC-
LOS. If is a definition of the island as “a naturally formed area of land,
surrounded by water which is above water at high tide.”
On the other hand, this provision, is differentiated from “rocks” which
cannot sustain human habitation of their own.
The importance of the difference between a natural island and rock is
that an island is provided with territorial sea, exclusive economic zone
and continental shelf, whereas rocks have no exclusive economic zone
and continental shelf.
This is the difference by which RA 9522 introduced into the KIG and
separately Panatag or Scarborough Shoal is an island.
!77
“Regime of Islands”, has no relevance to acquisition or loss of sover-
eignty. RA 9522 has the effect of possibly dividing the area in question
into island and rocks, apparently to make clear for each the maritime
zones involved in the definition of island or of rocks.
(1) A bill was introduced in the House of Representatives in
order to implement faithfully the provisions of the Unit-
ed 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 Philip-
pine internal waters and territorial sea. Do you agree or
not with the said objection? Explain. (3%) ‘15 - Q2(1)
The vast expanse of internal waters described by the Constitution as
separation the islands of the Philippine Archipelago, without regard to
breadth or dimension is part of state territory and is subject to state
sovereignty. It is not open to international navigation except with the
express consent of the coastal state.
On the other hand, the UNCLOS transforms constitutional internal
waters into archipelagic waters which under Article 52 “ships of all
States enjoy the right of innocent passage,” on the part of archipelagic
states such as the Philippines.
As to territorial sea, the expanse of the Philippine territorial sea ex-
tends by 200 nautical miles up to the International Treaty Limits (ITL)
surrounding the Philippines Archipelago as drawn pursuant to Article III
of the Treaty of Paris of 10 December 1898 and as constitutionalized
under Article I of the 1935 Constitution.
Under the UNCLOS, such expanse of territorial sea collapse and the
IRL as boundaries of the Philippines disappeared and under UNCLOS
the new boundaries are drawn by the outer limit of the baseline. Thus,
sovereignty indicated by the ITL also collapsed.
ALTERNATIVE ANSWER:
The Objection of Congressman Pat Rio Tek is not valid. The UNCLOS
has nothing to do with the acquisition or loss of territory. It is a multilat-
eral treaty regulating sea use rights and maritime zones, contiguous
zones, exclusive economic zones and continental shelves. Whether
referred to as internal waters or archipelagic waters, the Philippines
exercises sovereignty over the body of water lying landward of the
baselines. (Magallona v. Ermita, 655 SCRA 476 [2011]).
ANOTHER ALTERNATIVE ANSWER:
I do not agree.
“The UNCLOS is a product of international negotiation that seeks to
balance state sovereignty (mare clausum) and the principle of freedom
of the high seas (mare liberum). The freedom to use the world’s marine
waters is one of the oldest customary principles of international law.
The UNCLOS gives to the coastal State sovereign rights in varying
degrees over the different zones of the sea which are: 1) internal wa-
ters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone
and 5) the high seas. It also give coastal States more or less jurisdic-
tion over foreign vessels depending on where the vessel is located.
Insofar as the internal waters and territorial sea is concerned, the
Coastal State exercises sovereignty, subject to the UNCLOS and other
rules of international law. Such sovereignty extends to the air space
over the territorial sea as well as to its bed and subsoil.” (Arigo v. Swift,
G. R. No. 206510, Sept. 16, 2014). UNCLOS III does not define the
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internal and territorial waters of states but merely “prescribes the wa-
ter-land ratio, length, and contour of baselines of archipelagic States
like the Philippines.”
“UNCLOS III has nothing to do with the acquisition (or loss) of territory.”
It is a multilateral treaty regulating, among others, sea-use rights over
maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zones [24 nautical miles from the baselines],
exclusive economic zones [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.”
“UNCLOS III and its ancillary baselines laws play no role in the acquisi-
tion, enlargement or, as petitioners claim, diminution of territory. Under
traditional international law typology, States acquire (or conversely,
lose) territory through occupation, accretion, cession and prescription,
not by executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty’s terms to delimit
maritime zones and continental shelves. Territorial claims to land fea-
tures are outside UNCLOS III, and are instead governed by the rules
on general international law.” (Magallona v. Ermita, 655 SCRA 476
[2011]).
(2) Describe the following maritime regimes under UNCLOS
(4%) ‘15 - Q2(2)
(a) Territorial sea
(b) Contiguous zone
(c) Exclusive economic zone
(d) Continental shelf
(a) The territorial sea is 12 nautical miles from the baselines. An
archipelagic state may draw straight archipelagic baselines
joining the outermost islands and drying reefs of the ar-
chipelago, but the drawing of the baselines should not depart
to any appreciable extent from the general configuration of
the archipelago save for 3 percent of the total number of the
baselines. (Magallona vs. Ermita, 655 SCRA 476 [2011]).
(b) The contiguous zone is a zone contiguous to the territorial
sea. The maximum limit is 24 nautical miles from the base-
lines of the territorial sea. It confers functional jurisdiction to
prevent infringements of customs, fiscal, immigration and
sanitary regulations. (Crawford, Brownlie’s Principle of Public
International Law, 8th ed., pp. 265-268).
(c) The economic zone extends no farther that 200 nautical
miles from the baselines of the territorial sea. The coastal
state has sovereign rights for the purpose of exploiting, con-
serving and managing the natural resources of the waters
superajacent to the sea-bed and its sub-soil, and economic
exploitation and exploration, such as the production of ener-
gy. (Crawford, Brownlie’s Principle of Public International
Law, 8th ed., p. 276).
(d) The continental shelf gives the coastal state rights to explore
and exploit the resources of the shelf by operation of law.
(Crawford, Brownlie’s Principle of Public International Law,
8th ed., p. 276).
In a petition filed with the Supreme Court, Anak Ti Ilocos, an as-
sociation of Ilocano professionals argued that Republic Act No.
7711 discarded the definition of the Philippine territory under the
Treaty of Paris and in related treaties; excluded the Kalayaan Is-
lands and the Scarborough Shoals from the Philippine Archipel-
agic baselines; and converted internal waters into archipelagic
waters.
!78
Is the petition meritorious? (6%) ‘13 - Q6
No, the petition is not meritorious. The United Nations Convention on
the Law of the Sea has nothing to do with the acquisition or loss of
territory. It merely regulates sea-use rights over maritime zones, con-
tiguous zones, exclusive economic zones, and continental shelves
which it delimits. The Kalayaan Islands and the Scarborough Shoals
are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago. A straight baseline loped around them from
the nearest baseline will violate Article 47(3) and Article 47(2) of the
United Nations Convention on the Law of the Sea III. Whether the
bodies of water lying landward of the baselines of the Philippines are
internal waters or archipelagic waters, the Philippines retains jurisdic-
tion over them (Magallona v. Ermita, G.R. No. 187167, July 16,2011,
655 SCRA 476).
Under the archipelago doctrine, the waters around, between, and
connecting the islands of the archipelago form part of the internal
waters of the archipelagic state. ’09 – Q1b
Under Article I of the Constitution, the water around, between and
connecting the islands of the Philippines form part of its internal wa-
ters. Under Article 49(1) of the U.N. Convention on the Law of the Sea
(UNCLOS), these waters do not form part of the territorial sea but are
described as archipelagic waters.
[However, in Magallona v. Ermita, 655 SCRA 476 [2011] , the
Court said that baselines laws such as R.A. No. 9552 are enacted by
UNCLOS III States parties to map-out specific basepoints along their
costs from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measures to breadth of the mar-
itime zones and continental shelf. Baselines laws are nothing but statu-
tory mechanisms for UNCLOS III States parties to delimit with preci-
sion the extent of their maritime zones and continental shelves. The
enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in R.A. No. 9552, allows
an internationally-recognized delimitation of the breadth of the Philip-
pines’ maritime zones and continental shelf.]
Enumerate the rights of the coastal state in the exclusive eco-
nomic zone (EEZ). ’05 – Q1c; ’00 – 19b
The exclusive economic zone (EEZ) under Convention on the
Law of the Sea is an area beyond and adjacent to the territorial sea,
which shall not extend beyond two-hundred (200) nautical miles from
which the territorial sea is measured.
The following are the rights of the coastal state in the exclusive
economic zone:
1. Sovereign rights for the purpose of exploring and exploiting,
conserving and managing the living and non-living resources
in the superjacent waters of the sea-bed and the resources
of the sea-bed and subsoil;
2. Sovereign rights with respect to the other activities for the
economic exploitation and exploration of the zone or EEZ,
such as production of energy from water, currents and
winds;
3. Jurisdictional rights with respect to establishment and use of
artificial islands;
4. Jurisdictional right as to protection and preservation of the
marine environment;
5. Jurisdictional right over marine scientific research; and
6. Other rights and duties provided for in the Law of the Sea
Convention.)
These treaty obligations form part of Philippine Law, the Philip-
pines being a signatory to the UNCLOS.
Distinguish between territorial sea and the internal waters of the
Philippines. ’04 – Q2a(1)
Territorial sea is an adjacent belt of sea with a breadth of twelve
(12) nautical miles measured from the baselines of a state and over
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which the state has sovereignty (Articles 2 and 3 of the Convention on
the Law of the Sea.) Ships of all states enjoy the right of innocent pas-
sage through the territorial sea (Article 12 of the Convention on the
Law of the Sea.)
Under Section 1, Article I of the 1987 Constitution, the internal
waters of the Philippines consist of the waters around, between and
connecting the islands of the Philippine Archipelago, regardless of their
breadth and dimensions, including the water in bays, rivers and lakes.
No right of innocent passage for foreign vessels exist in the case of
internal waters (Harris, Cases and Materials on International Law, 5th
ed., 1998, p. 407.)
Internal waters are the waters on the landward side of baselines
from which the breadth of the territorial sea is calculated (Brownlie,
Principles of Public International Law, 4th ed., 1990, p. 120.)
Distinguish the contiguous zone and the exclusive economic
zone. ’04 – Q2a(2)
Contiguous zone is a zone contiguous to the territorial sea and
extends up to twelve (12) nautical miles from the territorial sea and
over which the coastal state may exercise control necessary to prevent
infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea (Article 33 of the Con-
vention on the Law of the Sea.)
The exclusive economic zone is a zone extending up to two-hun-
dred (200) nautical miles from the baselines of a state over which the
coastal state has sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether
living or non-living, of the waters superjacent to the seabed and of the
seabed and subsoil, and with regard, to other activities for the econom-
ic exploitation and exploration of the zone. (Articles 56 and 57 of the
Convention on the Law of the Sea.)
Distinguish between the flag state and the flag of convenience.
’04 – Q2a(3)
Flag state means a ship has the nationality of the flag state it flies,
but there must be a genuine link between the state and the ship (Arti-
cle 91 of the Convention on the Law of the Sea.)
Flag of convenience refers to a state with which a vessel is regis-
tered for various reasons such as low or non-existent taxation or low
operating costs although the ship has no genuine link with that state
(Harris, Cases and Materials on International Law, 5th ed., p. 425.)
En route to the tuna fishing grounds in the Pacific Ocean, a ves-
sel registered in Country TW entered the Balintang Channel north
of Babuyan Island and with special hooks and nets dragged up
red corals near Batanes. By international convention, certain
corals are protected species. Just before the vessel reached the
high seas, the Coast Guard patrol intercepted the vessel and
seized its cargo including tuna. The master of the vessel and the
owner of the cargo protested, claiming the rights of transit pas-
sage and innocent passage, and sought recovery of the cargo
and the release of the ship. Is the claim meritorious or not? ’04 –
Q2b
The claim of innocent passage is not meritorious. While the ves-
sel has the right of innocent passage, it should not commit a violation
of any international convention. The vessel did not merely navigate
through the territorial sea; it also dragged red corals in violation of the
international convention which protected red corals. This is prejudicial
to the good order of the red Philippines (Article 19(2) of the Convention
on the Law of the Sea.)
State Epsilon, during peace time, has allowed foreign ships inno-
cent passage through Mantranas Straight, a straight within Ep-
silon’s territorial sea which has been been used by foreign ships
for international navigation. Such passage enabled the said ships
to traverse the straight between one part of the high seas to an-
other. On June 7, 1997, a warship of State Beta passed through
the above-named straight. Instead of passing through continu-
ously and expeditiously, the ship delayed its passage to render
assistance to a ship of State Gamma which was distressed with
no one nearby to assist. When confronted by Epsilon about the
delay, Beta explained that the delay was due to force majeure in
!79
conformity with the provision of Article 18(2) of the 1982 Conven-
tion on the Law of the Sea (UNCLOS). Seven months later, Epsilon
suspended the right of innocent passage of warships through
Mantranas Strait without giving any reason therefor. Subsequent-
ly, another warship of Beta passed through the said strait, and
was fired upon by Epsilon’s coastal battery. Beta protested the
aforesaid act of Epsilon drawing attention to the existing custom-
ary international law that the regime of innocent passage (even of
transit) is non-suspendable. Epsilon countered that Mantranas
strait is not a necessary route, there being another suitable alter-
native route. Resolve the aforementioned controversy. ’99 – 10c
Assuming that Epsilon and Beta are parties to the UNCLOS, the
controversy may be resolved as follows:
Under the UNCLOS, warships enjoy a right of innocent passage.
It appearing that the portion of Epsilon’s territorial sea in question is a
strait used for international navigation, Epsilon has no right under in-
ternational law to suspend the right of innocent passage. Article 45(2)
of the UNCLOS is clear in providing that there shall be no suspension
of innocent passage through straits used for international navigation.
On the assumption that the straits in question is not used for in-
ternational navigation, still the suspension of innocent passage by
Epsilon cannot be effective because suspension of required to be duly
published before it can take effect. There being no publication prior to
the suspension of innocent passage by Beta’s warship, Epsilon’s act
acquires no validity.
Moreover, Epsilon’s suspension of innocent passage may not be
valid for the reason that there is no showing that it is essential for the
protection of its security. The actuation of Beta’s warship in resorting to
delayed passage is for cause recognized by the UNCLOS as excus-
able, i.e., for the purpose of rendering assistance to persons or ship in
distress, as provided in Article 18(2) of the UNCLOS. Hence, Beta’s
warship complied with the international law norms on right of innocent
passage.
In the desire to improve the fishing methods of the fishermen, the
Bureau of Fisheries, with the approval of the President entered
into a memorandum of agreement to allow Thai fishermen to fish
within 200 miles from the Philippine sea coasts on the condition
that Filipino fishermen be allowed to use Thai fishing equipment
and vessels and to learn modern technology in fishing and can-
ning.
1. Is the agreement valid?
No, the President cannot authorize the Bureau of Fisheries to
enter into a memorandum of agreement allowing Thai fishermen to fish
within the exclusive economic zone of the Philippines, because the
Constitution reserves to Filipino citizens the use and enjoyment of the
exclusive economic zone.
Section 2, Article XIII of the Constitution provides:
“The State shall protect the nation’s marine part in its archipel-
agic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment to Filipino citizens.”
Section 7, Article XIII of the Constitution provides:
“The State shall protect the rights of subsistence fishermen,
especially of local communities, to the preferential use of the
communal marine and fishing resources, both inland and fore-
shore. It shall provide support to such fishermen through ap-
propriate technology and research, adequate financial, produc-
tion, and marketing assistance, and other services. The State
shall also extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a
just share from their labor in the utilization of marine and fishing
resources.
2. Suppose the agreement is for a joint venture on the
same area with a Thai oil corporation for the exploration
and exploitation of minerals with the Thai corporation
providing technical and financial assistance. Is the
agreement valid? ’94 – Q11
The President can enter into a memorandum of agreement with a
Thai oil corporation involving technical and financial assistance for the
exploration and exploitation of minerals, but there should be no joint
venture. Section 2, Article XII of the Constitution authorizes the Presi-
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dent to enter into agreements with foreign-owned corporations involv-
ing technical or financial assistance for the exploration, development
and utilization of minerals. However, the same provision states the joint
venture for the exploration, development and utilization of natural re-
source may be undertaken only with Filipino citizens, or corporations or
associations at least sixty percent of whose capital is owned by a Fil-
ipino citizen.
[Note: In La Bugal-B'Laan Tribal Association v. Ramos, G.R. No.
127882, December 1, 2004 (On Reconsideration) and February 1,
2005, the Court said the State can enter into service contracts with
foreign-owned corporations. However, it is subject to the strict limita-
tions in the last two paragraphs of Section 2, Article XII of the Constitu-
tion. Financial and technical agreements are a form of a service con-
tract. Such service contracts may be entered only with respect to min-
erals, petroleum and mineral oils. The grant of such service contracts
is subject to several safeguards, among them: (1) that the service con-
tract be crafted in accordance with a general law setting standard or
uniform terms, conditions and requirements; (2) the President be the
signatory for the government; and (3) the President report the execut-
ed agreement to Congress within thirty (30) days.]
What do you understand by the archipelagic doctrine? Is this
reflected in the 1987 Constitution? ’89 - Q20
The archipelagic doctrine emphasizes the unity of land and wa-
ters by defining an archipelago either as a group of islands surrounded
by waters or a body of waters studded with islands. For this purpose, it
requires that baselines be drawn by connecting the appropriate points
of the outermost islands to encircle the islands within the archipelago.
The waters on the landward side of the baselines regardless of breadth
or dimensions are merely internal waters.
Yes, the archipelagic doctrine is reflected in the 1987 Constitution.
Article I, Section 1 provides that the national territory of the Philippines
includes the Philippine archipelago, with all the islands and waters
embraced therein; and the waters around, between, and connecting
the islands of the archipelago, regardless of their breadth and dimen-
sions, form part of the internal waters of the Philippines.
International Human Rights Law
Alienmae is a foreign tourist. She was asked certain question in
regard to a complaint that was filed against her by someone who
claimed to have been defrauded by her. Alienmae answered all the
question asked, except in regard to some matters in which she
invoked her right against self-incrimination. When she was
pressed to elucidate, she said that the questions being asked
might tend to elicit incriminating answer insofar as her home
state is concerned.
Could Alienmae invoke the right against self-incrimination if the
fear of incrimination is in regard to her foreign law? (4%) ‘14 - Q24
Alienmae can invoke her right against self-incrimination even if it is in
regard to her foreign law, if her home state is a party to the In-
ternational Covenant on Civil and Political Rights. Article 14 (3) (g) of
the said Covenant provides:
In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guaran-
tees, in full equality:
(g) Not to be compelled to testify against himself or to con-
fess guilt
Freedom from torture is a non-derogable right both during peace-
time and in a situation of armed conflict. ’10 – Q11
!80
Freedom from torture is non-derogable during peacetime and in a
situation of armed conflict. Under Article 4 of the International
Covenant on Civil and Political Rights, the State Parties may take
measures in derogation of their obligations under this Covenant in time
of public emergency. But this derogation clause does not apply to pro-
hibition against torture, pursuant to Article 4(2) of the Covenant.
Hence, no derogation may be made in regard to torture.
Philippines in breach of international law in a case in which a city
mayor issues an E.O. prohibiting all hospitals operated by the city
from prescribing the use of artificial methods of contraception.
’07 – Q2b
The acts of the City Mayor may be attributed to the Philippines
under the principle of state responsibility. Article 26 of the International
Covenant on Civil and Political Rights requires that Philippine law shall
prohibit any discrimination and shall guaranteed to all persons equal
and effective protection against discrimination on any ground such as
social origin, birth or other status. The Executive Order of the City
Mayor discriminates against poor women.
Multilateral conventions on Human Rights adopted under the
direct auspices of the United Nations. ’99 – Q10a
The following are multilateral conventions on Human Rights
adopted under the direct auspices of the United Nations:
1. International Convention on Civil and Political Rights (IC-
CPR);
2. Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW);
3. Convention on the Rights of the Child (CRC);
4. Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT);
5. International Convention on the Elimination of All Forms of
Racial Discrimination (CERD);
6. Convention on the Prevention and Punishment of the Crime
of Genocide; and
7. International Convention on Economic, Social and Cultural
Rights (ICESR).
Distinguish civil rights from political rights and give an example
of each. ’96 – Q1(1)
The term “civil rights” refers to the rights secured by the constitu-
tion of any state or country to all its inhabitants and not connected with
the organization or administration of the government (Black, Handbook
of American Constitutional Law, 4th ed., p. 526.)
Political rights consist in the power to participate, directly or indi-
rectly, in the management of the government. Thus, civil rights have no
relation to the establishment, management or support of the govern-
ment (Anthony v. Burrow, 129 F. 783.)
Civil Rights defines the relations of individuals amongst them-
selves while political rights defines the relations of individuals vis-a-vis
the state.
Civil rights extend protection to all inhabitants of a state, while
Political Rights merely its citizens.
Examples of civil rights are the rights involuntary servitude, reli-
gious freedom, the guarantee against unreasonable searches and
seizures, liberty of abode, the prohibition against imprisonment for
debt, the right to travel, equal protection, due process, the right to mar-
ry, right to return to this country and right to education.
Examples of political rights are right of suffrage, the right of as-
sembly, and the right to petition for redress of grievances.
What are the relations of civil and political rights to human
rights? ’96 – Q1(2)
Human rights are broader in scope than civil and political rights.
They also include social, economic, and cultural rights. Human rights
inhere in persons from the fact of their humanity. Every man possesses
them everywhere at all times simply because he is a human being. On
the other hand, some civil and political rights are not natural rights.
They exist because they are protected by a constitution or granted by
law. For example, the liberty to enter into contracts is not a human right
but is a civil right.
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Walang Sugat, a vigilante group composed of private business-
men and civic leaders previously victimized by the Nationalist
Patriotic Amy (NPA) rebel group, was implicated in the torture and
kidnapping of Dr. Mengele, a known NPA sympathizer.
1. Under public international law, what rules properly ap-
ply? What liabilities, if any arise, thereunder if Walang
Sugat’s involvement is confirmed?
On the assumption that Dr. Mengele is a foreigner, his torture
violates the International Covenant on Civil and Political Rights, to
which the Philippines has acceded. Article 7 of the Covenant on Civil
and Political Rights provides: “No one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment.”
In accordance with Article 2 of the Covenant on Civil and Political
Rights, it is the obligation of the Philippines to ensure that Dr. Mengele
has an effective remedy, that he shall have his right to such a remedy
determined by competent authority, and to ensure the enforcement of
such remedy when granted.
2. Does the Commission on Human Rights have the power
to investigate and adjudicate the matter? ’92 – Q15
Under Section 18, Article XIII of the Constitution, the Commission on
Human Rights has the power to investigate all forms of human rights
violations involving civil and political rights and to monitor the compli-
ance by government with international treaty obligations on human
rights. As held in Cariño v. Commission on Human Rights, 204 SCRA
483, the Commission on Human Rights has no power to decide cases
involving violations of civil and political rights. It can only investigate
them and then refer the matter to the appropriate government agency.
Law of War and International Humanitarian Law
Basic principle or norm of international humanitarian law that was
violated by the Japanese military in the treatment of the “comfort
women.” ‘07 – Q4a
The treatment of “comfort women” by the Japanese military vio-
lated Article XXVII of the Geneva Convention (IV), which provides that:
“Women shall be especially protected against any attack on their hon-
our, in particular against rape, enforced prostitution, or any form of
indecent assault.”
The Japanese military also violated Article II of the Geneva Con-
vention (IV), which prohibits outrages upon personal dignity, in particu-
lar humiliating and degrading treatment.
Reden, Jolan and Any, Filipino tourists were in Bosnia-Herzegov-
ina when hostilities erupted between the Serbs and the Moslems.
Penniless and caught in the crossfire, Reden, Jolan and Andy,
being retired generals, offered their services to the Moslems for a
handsome salary, which offer was accepted. When the Serbian
National Guard approached Sarajevo, the Muslim civilian popula-
tion spontaneously took up arms to resist the invading troops.
Not finding time to organize, the Moslems wore armbands and
customs of war. The three Filipinos fought side by side with the
Moslems. The Serbs prevailed resulting in the capture of Reden,
Jolan and Andy, and part of the civilian fighting force.
1. Are Reden, Jolan and Andy considered combatants thus
entitled to treatment as prisoners of war?
Reden, Jolan and Andy are not combatants and are not entitled to
treatment as prisoners of war, because they are mercenaries. Article
47 of the Protocol I to the Geneva Conventions of 1949 provides:
“A Mercenary shall not have the right to be a combatant or a
prisoner of war.”
Pursuant to Article 47 of Protocol I of the Geneva Conventions of
1949, Reden, Jolan and Andy are mercenaries, because they were
recruited to fight in an armed conflict, they in fact took direct part in the
hostilities essentially by the desire for private gain and in fact was
promised a handsome salary by the Moslems, they were neither na-
tionals of the a party to the conflict nor residents of territory controlled
!81
by a party to the conflict, they are not members of the armed forces of
a party to the conflict, and they were not sent by a state which is not a
party to the conflict on official duty as members of the armed forces.
2. Are the captured civilians likewise prisoners of war? ’93
– Q3
The captured civilians are prisoners of war. Under Article 4 of the
Geneva Convention relative to the Treatment of Prisoners of War,
inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously take up arms and resist the invading forces,
without having time to form themselves into regular armed forces, pro-
vided they carry arms openly and respect the laws and customs of war,
are considered prisoners of war if they fall in the power of the enemy.
Neutrality
Switzerland and Australia are outstanding examples of neutral-
ized states.
1. What are the characteristics of a neutralized state?
Whether simple or composite, a State is said to be neutralized
where its independence and integrity are guaranteed by an in-
ternational convention on the condition that such State obligates itself
never to take up arms against any other State, except for self-defense,
or enter into such international obligations as would indirectly involve it
in war. A state seeks neutralization where it is weak and does not wish
to take an active part in international politics. The power that guarantee
its neutralization may be motivated either by balance of power consid-
erations or by the desire to make the weak state a buffer between
territories of the great powers (J. SALONGA & P. YAP, PUBLIC IN-
TERNATIONAL LAW 76 [1966].)
2. Is neutrality synonymous with neutralization? If not,
distinguish one from the other. ’88 – Q20
Firstly, neutrality obtains only during war, whereas neutralization is a
condition that applies in peace or in war. Secondly, neutralization is a
status created by means of treaty, whereas neutrality is a status creat-
ed under international law, by means of a stand on the part of a state
not to side with any of the parties at war. Thirdly, neutrality is brought
by a unilateral declaration by the neutral State, while neutralization
cannot be effected by a unilateral act, but must be recognized by other
States (J. SALONGA & P. YAP, PUBLIC INTERNATIONAL LAW 76
[1966].)
Law of State Responsibility and Treatment of Aliens
State Responsbility; Remedies. ’10 – Q3
There is no state responsibility state responsibility on the part of
Thailand. The wrongful act in question is an act private individuals and
not of an organ of government or a state official. Hence, it is not at-
tributable to Thailand as its wrongful act for the purpose of state re-
sponsibility.
The appropriate remedy available to the family of A is to seek
diplomatic protection from Great Britain to press a claim for reparation
(Brownlie, Principles of International Law, 7th ed., pp. 460 and
477-478). However, in order that the claim will be allowable, the family
of A must first exhaust the legal remedies available in Thailand (Brown-
lie, Principle of Public International Law, 7th ed., p. 492.)
Retorsion; explained. ’10 – Q4
A state which resorts to retorsion in international law should apply
proportionate response within appreciable limit. Retorsion is merely
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retaliation for discourteous, unkind or unfriendly acts by acts of the
same or similar kind (Oppenheim’s International Law, Vol. II, 7th ed., p.
134.)
In a raid conducted by rebels in a Cambodian town, an American
businessman who has been a long-time resident of the place was
caught by the rebels and robbed of his cash and other valuable
personal belongings. Within minutes, two truckloads of govern-
ment troops arrived prompting the rebels to withdraw. Before
fleeing, they shot the American causing him physical injuries.
Government troops immediately launched pursuit operations and
killed several rebels. No cash or other valuable property taken
from the American businessman was recovered. In an action for
indemnity filed by the US Government in behalf of the business-
man for injuries and losses in cash and property, the Cambodian
government contended that under International Law it was not
responsible for the acts of the rebels.
1. Is the contention of the Cambodian government cor-
rect?
Yes, the contention of the Cambodian Government is correct.
Unless it clearly appears that the government has failed to use prompt-
ly and with appropriate force its constituted authority, it cannot be held
responsible for the acts of the rebels, for the rebels are not its agents
and their acts were done without its volition. In this case, government
troopers immediately pursued the rebels and killed several of them.
2. Suppose the rebellion is successful and a new govern-
ment gains control of the entire State replacing the law-
ful government that was toppled, may the new govern-
ment be held responsible for the injuries or losses suf-
fered by the American businessman. ’95 – Q8
The new government may be held responsible if it succeeds in over-
throwing the government. Victorious rebel movements are responsible
for the illegal acts of their forces during the course of the rebellion The
acts of the rebels are imputable to them when they assumed as duly
constituted authorities of the state.
The Right of Jurisdiction
Extradition of a Filipino computer expert based in Manila who
invented a virus which caused damage worldwide including the
United States; Whether or not the Philippines is under obligation
to extradite him in the absence of an anti-hacker law; What if the
extradition request was made after the Philippines adopted anti-
hacker legislation. ’07 – Q3
If there was no anti-hacker law in the Philippines when the United
States requested the extradition of Lawrence, the Philippines is under
no obligation to extradite him. Under the principle of double criminality,
extradition is available only when the act is an offense in both countries
(Cruz, International Law and World Organizations, 2005 ed., p. 342.)
Double criminality is intended to ensure each state that it can rely on
reciprocal treatment and that no state will use its processes to surren-
der a person for conduct which it does not characterize as criminal
(Bassiouni, International Extradition, 4th ed., p. 467.)
If the extradition request was made after the Philippines adopted
anti-hacker legislation, the Philippines will under obligation to extradite
Lawrence. The requirement of double criminality is satisfied even if the
act was not criminal in the requested state at the time of its occurrence
if it was criminal at the time the request was made (Bassiouni, In-
ternational Extradition, 4th ed., p. 469.)
A police officer of the WPD applied for a search warrant in the
RTC of Manila for violation of Section 11 of R.A. No. 9165 for the
search and seizure of heroin in the cabin of the Captain of the
MSS Seastar, a foreign-registered vessel which was moored at the
South Harbor of Manila, its port of destination. The RTC found
probable cause for the issuance of the search warrant; neverthe-
less, it denied the application on the ground that Philippine courts
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have no criminal jurisdiction over violations of R.A. No. 9165
committed on foreign-registered vessels found in Philippine wa-
ters. Is the ruling of the trial court correct? ‘05 – Q2(1)
The ruling of the court is not correct. The court has jurisdiction
over the offense, although it was committed on board a foreign-regis-
tered vessel found in Philippine waters, because the Philippines is its
terminal destination (United States v. Ah Sing, 36 Phil. 978 [1917].)
(This question is more appropriate in Criminal Law.)
The Philippines and Australia entered into a Treaty of Extradition
concurred in the by the Philippines on September 10, 1990. Both
governments have notified each other that the requirements for
the entry of the Treaty have been complied with. It took effect in
1990. The Australian government is requesting to extradite its
citizen, Gibson, who was committed in his country the indictable
offense of Obtaining Property by Deception in 1985. The said of-
fense is among those enumerated as extraditable in the Treaty.
For his defense, Gibson asserts that the retroactive application of
the extradition treaty amounts to an ex post facto law. Rule on
Gibson’s contention. ’05 – Q2b; ’96 – Q6(1)(b)
The contention of Gibson is not tenable. The prohibition in Section
22, Article III of the Constitution refers to ex post facto laws. The
retroactive application of the Treaty of Extradition (between the Philip-
pines and Australia) did not violate the prohibition against ex post facto
laws, because the Treaty is neither a piece of criminal legislation for a
criminal procedural statute. It merely provided for the extradition of
persons wanted for offenses at the time the treaty was ratified (Wright
v. Court of Appeals, 235 SCRA 341 [1994].)
John is a former President of Republic X, bent on regaining power
which he lost to President Harry in an Election. Fully convinced
that he was cheated, he set out to destabilize the government of
President Harry by means of a series of protest actions. His plan
was to weaken the government and, when the situation became
ripe for a take-over, to assassinate President Harry. William, on
the other hand, is a believer in human rights and a former follower
of President Harry. Noting the systematic acts of harassment
committed by government agents against farmers protesting the
seizure of their lands, labourers complaining of low wages, and
students seeking free tuition, William organized groups which
held peaceful rallies in from of the Presidential Palace to express
their grievances. On the eve of the assassination attempt, John’s
men were caught by the members of the Presidential Security
Group. President Harry went on air threatening to prosecute plot-
ters and dissidents of his administration. The next day, the gov-
ernment charged John with assassination attempt and William
with inciting to sedition. John fled to Republic A. William, who
was in Republic B attending a lecture on democracy, was advised
by his friends to stay in Republic B. Both Republic A and Republic
B have conventional extradition treaties with Republic X.
If Republic X requests the extradition of John and William, can
Republic A deny the request? ’02 – Q18
Republic A can refuse to extradite John because his offense is a
political offense. John was plotting to take over the government and
the plan of John to assassinate President of such plan. However, if the
extradition treaty contains an attentat clause, Republic A can extradite
John because under the attentant clause, the taking of the life or at-
tempt against the life of a head of state or that of the members of fami-
ly does not constitute a political offense and is therefore extraditable.
Republic A may or can refuse the request of extradition of William
because he is not in its territory and this it is not in the position to de-
liver him to Republic X.
Even if William were in the territorial jurisdiction of Republic A, he
may not be extradited because inciting to sedition, of which he is
charged, constitutes a political offense. It is a standard provision of
extradition treaties, such as the one between Republic A and Republic
X, that political offenses are not extraditable.
The Extradition Treaty between France and the Philippines is
silent as to its applicability with respect to crimes committed prior
to its effectivity. Can France demand the extradition of A, a French
 The Sigma Rho Fraternity
Bar Operations 2018
Bar Questions and Answers
national residing in the Philippines, for an offense committed in
France prior to the effectivity of the treaty? ’96 – Q6(2)(a)

Yes, France can ask for the extradition of A for an offense commit-
ted in France before the effectivity of the Extradition Treaty between
France and the Philippines.
In Cleugh v. Strakosh, 109 F.2d 330, it was held that an extradi-
tion treaty applies to crimes committed before its effectivity unless the
extradition treaty expressly exempts them. As Whiteman points out,
extradition does not define crimes but merely provides a means by
which a State may obtain punishment of persons charged with or con-
victed of having committed a crime who fled the jurisdiction of the State
whose law has been violated. It is therefore immaterial whether at the
time of the commission of the crime for which extradition is sought, no
treaty was in existence. If at the time extradition is requested, there is
in force between the requesting and the requested States a treaty
covering the offense which the request is based, the treaty is applica-
ble (Whiteman, Digest of International Law, Vol. 6, pp. 753-754.)

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