Bar Q & A

2015 Bar Exam Suggested Answers in Political Law by the UP Law Complex

I.

The Philippines and the Republic of Kroi Sha established diplomatic relations and immediately their respective Presidents signed the following: – (1) Executive Agreement allowing the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila; and (2) Executive Agreement allowing the Republic of Kroi Sha to bring to the Philippines.its : military complement, warships, and armaments from time to time for a period not exceeding one month for the purpose of training exercises with the Philippine military forces and exempting from Philippine criminal jurisdiction acts committed in the line of duty by foreign military personnel, and from paying custom duties on all the goods brought by said foreign forces into Philippine territory in connection with the holding of the activities authorized under the said Executive Agreement.

Senator Maagap questioned the constitutionality of the said Executive : Agreements and demanded that the Executive Agreements be submitted to the Senate for ratification pursuant to the Philippine Constitution. Is Senator Maagap correct? Explain. (4%)

SUGGESTED ANSWER

The Executive Agreement allowing the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila is valid without need of submitting it to the Senate for ratification, Executive Agreements are not treaties and are valid without the need of concurrence by the Senate in its ratification (Commission of Customs v. Eastern Sea Trading, G.R. No. L-14279, October 31, 1961, 35 SCRA 345).

The Executive Agreement with the Republic of Kroi Sha allowing it to bring to the Philippines its military complement, warships and armaments from time to time for training exercises with the Philippine military forces : must be submitted to the Senate for concurrence in its ratification. Under Section 25, Article XVIll of the Constitution, a treaty düly concurred in by the Senate is required even for the temporary presence of foreign troops (Bayan.v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449).

II.

(A) A bill was introduced in the House of Representatives in order to

implement faithfully the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which the Philippines is a signatory. Congressman Pat Rio Tek questioned the constitutionality of the bill on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution defining the Philippine internal waters and territorial sea. Do you agree or not with the said objection? Explain. (3%)

(B) Describe the following maritime regimes under UNCLOS (4%)

(a) Territorial sea

(b). Contiguous.zone

(c) Exclusive economic zone

(d) Continental shelf

.

SUGGESTED ANSWER

(A) The vast expanse of internal waters described by the Constitution as separating 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 extends by 200 nautical miles up to the International Treaty Limits  (ITL) surrounding the Philippines Archipelago as drawn pursuant to Article Ill of the Treaty of Paris of 10 December 1898 and as constitutionalized under Article l of the 1935 Constitution.

Under the UNCLOS, such expanse of territorial sea collapsed and the IRL as boundaries of the Philippines disappeared, and under the UNCLOS; the new boundaries are drawn by the outer limit of the new territorial seas of not exceeding 12 nautical miles from the baseline. Thus, sovereignty indicated by the ITL also collapsed.

ALTERNATIVE ANSWER

(A) 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 multi-‘. läteral treaty regulating sea use rights and maritime zones, contiguous .zones, exclusive economic zones, and continental shelves. Whether referred to as internal waters or archipelagic wafers, the Philippines exercises sovereignty over the body of water lying landward of the baselines. (Magallona v. Ermita, G.R. No.187167, August 16, 2011, 655 SCRA 476).

ANOTHER ALTERNATIVE ANSWER

(A) 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 waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high.seas. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located. Insofar as the internal waters and territorial sea is concerned, the Coasta! 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, September 16, 2014).

UNCLOS III does not define the internal and territorial waters of states but merely “prescribes the water-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 zone [24 nautical miles from the baselines), exclusive economic zone [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 acquisition, 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 features are outside UNCLOS III, and are instead governed by the rules on general international law” (Magallona v. Ermita, G.R. No. 187167, August 16, 2011, 655 SCRA 476).

(B)

(a) The territorial Sea is 12 nautical miles from the baselines. An

archipelagic state may draw straight archipelagic baselines joining the outerrnost islands and drying reefs of the archipelago; but the drawing of the baselines should not depart to any appréciable extent from the general configuration of the archipelago šave for 3 percent of the total number of the baselines (Magallona v. Ermita, G.R. No. 187167, August 16, 2017, 655 SCRA 476).

(b) The contiguous zone is a zone contiguous to the territorial sea.

The maximum limit is 24 nautical miles from the baselines 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 than 200 nautical miles from the baselines of the territorial sea. The coastal state has sovereign rights for the purpose of exploiting, conserving and managing the natural resources of the waters superjacent to the sea-bed and its sub-soil, and economic exploitation and exploration, such as the production of energy, (Crawford, Brownlie’s Principles 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 Principles of Public International Law, 8th ed., p. 276).

III

Professor Masipag who holds a plantilla or regular item in the University of the Philippines (UP) is appointed as an Executive Assistant in the Court of Appeals (CA). The professor is considered only on leave of absence in Up while he reports for work at the CA which shall pay him the salary of the Executive Assistant. The appointment to the CA position was questioned, but Professor Masipag countered that he will not collect the salary for both positions; hence, he can not be accused of receiving double compensation. Is the argument of the professor valid?

SUGGESTED ANSWER

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.”

IV

When is a facial challenge to the constitutionality of a law on the ground of violation of the Bill of Rights traditionally allowed? Explain your answer.(3%)

SUGGESTED ANSWER

“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 assemble, 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 modification 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 demand able and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government” (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA 146).

V.

BD Telecommunications, Inc. (BDTI), a Filipino-owned corporation, sold. its 1,000 common shares of stock in the Philippine Telecommunications Company (PTC), a public utility, to Australian Telecommunications (AT), another stockholder of the PTC which also owns 1,000 common shares. A Filipino stockholder of PTC questions the sale on the ground that it will increase the common shares of AT, a foreign company, to more than 40% of the capital (stock) of PTC in violation of the 40% limitation of foreign ownership of a public utility.

AT argues that the sale does not violate the 60-40 ownership requirement in favor of Filipino citizens decreed in Section II, Article XII of the .1987 Constitution because Filipinos still own 70% of the capital of the PTC. AT points to the fact that it owns only 2,000 common voting shares and 1,000 non-voting preferred shares while Filipino stockholders own 1,000 common shares and 6,000 preferred shares, therefore, Filipino stockholders still own a majority of the outstanding capital stock of the corporation, and both classes of shares have a par value of Php 20.00 per share. Decide. (5%)

SUGGESTED ANSWER

“The application of the Grandfather Rule is justified by the circumstances of the case to determine the nationality of petitioners… the use of the Grandfather Rule as a “supplement” to the Control Test is not proscribed by the Constitution…” “The Grandfather Rule, standing alone, should not be used to determine 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 complies with the 60-40 Filipino to foreign equity requirement can be considered a Filipino corporation if there is 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 corporation 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 subject or investee corporation, a resort to the Grandfather Rule is necessary if doubt exists as to the locus of the “beneficial ownership” and “control” (Narra Nickel Mining and Development Corporation v. Redmont 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 shareholders but in foreign stakeholders. As provided in DOJ Opinion No. 165; Series of 1984, which applied the pertinent provisions of the Anti-Dummy Law in relation to the minimum Filipino equity requirement in the Constitution, “significant indicators of the dummy status” have been recognized in view of reports “that some Filipino investors or businessmen are being utilized or Care] allowing themselves to be used as dummies by foreign investors” specifically in joint ventures for national resource exploitation. These indicators are:

“1. That the foreign investors provide practically all the funds

for the joint investment undertaken by these Filipino businessmen and their foreign partner;

“2. That the foreign investors undertake to provide practically all the technological support for the 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 28, 2015).

(Note: This question should have been asked in Mercantile Law. I respectfully ask that answers featuring the foregoing discussion should be accepted as correct).

VI

(A) Distinguish the President’s authority to declare a state of rebellion from the authority to proclaim a state of national emergency. (2%)

(B) What are the limitations, if any, to the pardoning power of the  President? (3%)

SUGGESTED ANSWER

(A) 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 President 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 may be called upon to suppress it (Sanlakas V. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656).

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, G.R. No. 171396, May 3, 2006, 489 SCRA 162).

(B) The following are the limitations to the pardoning power of the

President:

(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 Constitution)

(4) The President cannot grant pardon, amnesty, parole or suspension 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 Constitution.)

(5) The President cannot pardon members and employees of the

Judiciary found guilty by the Supreme Court in administrative 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

(B) “The 1987 Constitution, specifically Section 19 of Article Vil and

Section 5 of Article IX-C, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of exec-. utive clemency, to wit:

“Section 19. 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 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 coming 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 convicted of législative contempt, as this would violate the doctrine of separation of powers, or of civil contempt since this would involve the benefit 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).

VII.

Senator Fleur De Lis is charged with plunder before the Sandiganbayan. After finding the existence of probable cause, the court issues a warrant for the Senator’s arrest. The prosecution files a motion to suspend the Senator relying on Section 5 of the Plunder Law. According to the prosecution, the suspension should last until the termination of the case. Senator Lis vigorously opposes the motion contending that only the Senate can discipline its members, and that to allow his suspension by the Court would violate the principle of separation of powers. Is Senator Lis’s contention tenable? Explain. (4%)

SUGGESTED ANSWER

The contention of Senator Fieur de Lis is not tenable. The suspension contemplated in Subsection 3, Section 16, Article VI of the Constitution. The suspension imposed under Section 5 of the Plunder 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 Sandiganbayan did not err in issuing the preventive suspension order (Santiago v. Sandiganbayan, G.R. No. 128055, April 18, 2001, 756 SCRA 636)

VIII

A law provides that the Secretaries of the Departments of Finance and Trade and Industry, the Governor of the Central Bank, the Director General of the National Economic Development Authority, and the Chairperson of the Philippine Overseas Construction Board shall sit as ex-officio members of the Board of Directors (BOD) of a government owned and controlled corporation (GOCC), The other four (4) members shall come from the private sector. The BOD issues a resolution to implement a new organizational structure, staffing pattern, a position classification system, and a new sět of qualification standards. After the implementation of the Resolution, Atty. Dipasupil questioned the legality of the Resolution alleging that the BOD has no authority to do so. The BOD claims otherwise arguing that the doctrine of qualified political agency applies to the case. It contends that since its agency is attached to the Department of Finance, whose head, the Secretary of Finance, is an alter ego of the President, the BOD’s acts were also the acts of the President. Is the invocation of the doctrinė by the BOD proper? Explain. (4%)

SUGGESTED ANSWER

The invocation of the qualified political agency doctrine is not correct. Although some members of the Board of Directors were cabinet members, 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, G.R. Nos. 168613, 185571, March 5, 2013,692 SCRA 359).

IX

Several senior officers of the Armed Forces of the Philippines received invitations from the Chairperson of the Senate Committees on National Defense and Security for them to appear as resource persons iri scheduled public hearings regarding a wide range of subjects. The invitations state , that these public hearings were triggered by the privilege speeches of the Senators that there was massive electoral fraud during the last national elections. The invitees Brigadier General Matapang and Lieutenant Coronel Makatuwiran, who were among those tasked to maintain peace and order during the last election, refused to attend because of an Executive Order banning all public officials enumerated in paragraph 3 thereof from appearing before either house of Congress without prior approval of the President to ensure adherence to the rule of executive privilege. Among those included in the enumeration are “senior officials of executive departments who, in the judgment of the department heads, are covered by executive privilege.” Several individuals and groups challenge the constitutionality of the subject Executive Order because it frustrates the power of the Congress to conduct inquiries in aid of legislation under Section 21, Article VI of the 1987 Constitution. Decide the case. (5%)

SUGGESTED ANSWER

Under Section 5, Article XVI of the Constitution, the President is commander-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 (Guidani v. Senga, G.R. No. 170165, August 15, 2006, 498 SCRA 671). 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, G.R. No. 169777, July 14, 2006, 488 SCRA 1).

X


The Secretary of the Department of Environment and Natural Resources (DENR), issued Memorandum Circular No. 123-15 prescribing the administrative requirements for the conversion of a Timber License Agreement (TLA) into an Integrated Forestry Management Agreement (IFMA). ABC Corporation, a holder of a TLA which is about to expire, claims that the conditions for conversion imposed by the said circular are unreasonable and arbitrary and a patent nullity because it violates the non-impairment clause under the Bill of Rights of the 1987 Constitution. ABC Corporation goes to court seeking the nullification of the subject circular. The DENR moves to dismiss the case on the ground that ABC Corporation has failed to exhaust administrative remedies which is fatal to its cause of action, If you were the judge; will you grant the motion? Explain: (4%)

SUGGESTED ANSWER

The motion 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, G.R. No. 163980, August 3, 2006, 497 SCRA 581).

XI

(A) What is the concept of expanded judicial review under the 1987

Constitution? (3%)

(B) Differentiate the rule-making power or the power of the Supreme Court to promulgate rules under Section 5, Article VIll of the 1987 Constitution, and judicial legislation. (2%)

SUGGESTED ANSWER

(A) Because of the expanded power of judicial review of the Supreme Court, the facial challenge to the constitutionality of laws is no longer limited to laws which violate freedom of speech but applies to all violations of fundamental rights under the Bill of Rights (Imbong y. Ochoa, Jr., G.R. No. 204819, April 8, 2014,721 SCRA 140).

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, G.R. No. 209287, July 1, 2014,728 SCRA 1).

ALTERNATIVE ANSWER

(A) 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.” (B) 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). Section 3(5), Article vill of Constitution granted the Supreme Court power to promulgate rules concerning the protection and enforcement of constitütional 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 Rules of Procedure for Environmental Cases.

XII

Discuss the evolution of the principle of jus sanguinis as basis of Filipino citizenship under the 1935, 1973, and 1987 Constitutions. (3%)

SUGGESTED ANSWER

Section 1, Article Ill 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 Ill 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 ill of the 1973 Constitution provided that a child born of a father or a mother who is a citizen of the Philippines is a Filipino citizen.

Section 2, Articie Ill of the 1973 Constitution provided that a child whose father or mother is a Filipino citizen is a Filipino citizen. Subsection 3, Section 1, Article IV of the 1987 Constitution provided that a child born before January 17, 1973, of Filipino mothers, who elected Philippine citi zenship upon reaching the age of majority under the 1973 Constitution is a natural-born Filipino citizen (Tecson v. Commission on Elections, G.R. No. 161434, March 3, 2004,424 SCRA 277).

(NOTE: The 1935 and the 1973 Constitutions are not included in the coverage of the examinations).

XIII

On August 15, 2015, Congresswoman Dina Tatalo filed and sponsored House Bill No. 5432, entitled “An Act Providing for the Apportionment of the Lone District of the City of Pangarap.” The bill eventually became a law, R.A. No. 1234. It mandated that the lone legislative district of the City of Pangarap would now consist of two (2) districts. For the 2016 elections, the voters of the City of Pangarap would be classified as belonging to either the first or second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress. as well as eight (8) members of the Sangguniang Panglungsod. R.A. No. 1234. apportioned the City’s barangays. The COMELEC thereafter promulgated Resolution No. 2170 implementing R.A. No. 1234. Piolo Cruz assails the COMELEC Resolution as unconstitutional. According to him, R.A. No. 1234 cannot be implemented without conducting a plebiscite because the apportionment under the law falls within the meaning of . creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the 1987 Constitution. Is the claim correct? Explain. (4%)

SUGGESTED ANSWER

The claim of Piolo Cruz is not correct. The Constitution does not require a plebiscite for the creation of a new legislative district by a legislative reapportionment. It is required only for the creation of new local government units (Bagabuyo v. Commission on Elections, G.R. No. 176970, December 8, 2008, 573 SCRA 290).

XIV

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 froin the payment of legal fees in the cases that it would file and/or prosecute in the courts of law. In two (2) cases that it filed, the City of Masuwerte was assessed legal fees by the clerk of court pursuant to Rule 141 (Legal Fees) of the Rules of Court. The City of Masuwerte questions the assessment, claiming that it is exempt from paying legal fees under Section 23 of its charter, is the claim of exemption tenable? Explain. (4%)

SUGGESTED ANSWER

The exemption from payment of legal fees is not valid. The rules promulgated by the Supreme Court for the payment of legal fees were in the exercise of its rule-making power and 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, A.M. No. 12-2-03-0, March 3, 2012, 668 SCRA 1).

XV

The President appointed Dexter I. Ty as Chairperson of the COMELEC on June 14, 2011 foraterm of seven (7) years pursuant to the 1987 Constitution.. His term of office started on June 2, 2017 to end on June 2, 2018. Subsequently, the President appointed Ms. Marikit as the third member of the COMELEC koraterm of seven (7) years starting June 2, 2014 until June 2, 2021. On June 2, 2015, Chairperson Ty retired optionally, after having served the government for thirty (30) years. The President then appointed Commissioner Marikit as COMELEC Chairperson. The Commission on Appointments confirmed her appointment. The appointment papers expressly indicate that Marikit will serve as COMELEC Chairperson “until the expiration of the original term of her office as COMELEC Commissioner oron June 2, 2021.” Matalino, a tax payer, files a petition for certiorari before the Supreme Court asserting that the appointment of Marikit as COMELEC Chairperson is unconstitutional for the following reasons: (1) The appoint ment of Marikit:as COMELEC Chairperson constituted a reappointment which is proscribed by Section 1 (2), Article IX of the 1987 Constitution; .and (2) the term of office expressly stated in the appointment papers of Marikit likewise contravenes the aforementioned constitutional provision. Will the constitutional challenge succeed? Explain. (4%)

SUGGESTED ANSWER

The argument of Matalino that the appointment of Commissioner Marikit as Chairman constituted a reappointment, which is prohib ited by the Constitution, is not tenable. When he was appointed 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 promotional appointment and was not covered by the prohibition against reappointment. (2) The limitation of the term of Commissioner Marikit as Chairman 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 a promotional appointment is allowed 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 membership is maintained (Funo v. Villar, G.R. No. 192791, April 24, 2012, 670 SCRA 579).

XVI

(A) Gandang Bai filed her certificate of candidacy (COC) for municipal mayor stating that she is eligible to run for the said position. Pasyo Maagap, who also filed his COC for the same position, filed a petition to deny due course or cancel Bai’s COC under Section 78 of the Omnibus Election Code for material misrepresentation as before Bai filed her COC, she had already been convicted of a crime involving moral turpitude. Hence, she is disqualified perpetually from holding any public office or from being elected to any public office. Before the election, the COMELEC cancelled Bai’s COC but her motion for reconsideration (MR) remained pending even after the election. Bai garnered the highest number of votes followed by Pasyo Maagap, who took his oath as Acting Mayor. Thereafter, the COMELEC denied Bai’s MR and declared her disqualified for running for Mayor. Pasyo Maagap asked the Department of interior and Local Government Secretary to be allowed to take his oath as permanent municipal mayor. This request was opposed by Vice Mayor Umaasa, invoking the rule on succession to the permanent vacancy in the Mayor’s office. Who between Pasyo Maagap and Vice Mayor Umaasa has the right to occupy the position of Mayor? Explain your answer. (5%)

(B) How do you differentiate the petition filed under Section 68 from the petition filed under Section 78, both of the Omnibus Election Code? (3%)

SUGGESTED ANSWER

(A) 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.

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 virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election date. Consequently, he may have had the opportunity to hold himself out to 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 his qualifications as a candidate but necessarily affects his right 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 Elections, 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).

(B) 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 certificate of candidacy are as follows – Under Section 68 of the Omnibus Election Code, a candidate may be disqualified if he commits any of the election offenses or “prohibited acts” specified therein, or if he is a permanent resident of or an immigrant 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 cancelled 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 imposed 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 certificate 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 certificate 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 prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate 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.

XVII

The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization of gay, bisexual, and transgender persons, filed for accreditation with the COMELEC to join the forthcoming pariy-list elections. The COMELEC denied the application for accreditation on the ground that GBTYA espouses immorality which offends religious dogmas. GBTYA challenges the denial of its application based on moral grounds because it violates its right to equal protection of the law.”

(A) What are the three (3) levels of test that are applied in equal protection cases? Explain. (3%)

(B) Which of the three (3) levels of test should be applied to the present case? Explain. (3%)

SUGGESTED ANSWER

(A) 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 impinges upon a fundamental right, the statute must fall unless the government can show that the classification serves a compelling governmental 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 justification must be genuine and must not depend on broad generalizations.

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.

(B) Classification on the basis of sexual orientation is a quasi-subject classification that prompts intermediate review. Gay and lesbian persons. 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 distinguish 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, G.R. No. 190582, April 8, 2010, 618 SCRA 32).

ALTERNATIVE ANSWER

(A) 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.

(B) It is submitted that the strict scrutiny test should be applied in this case because the challenged classification restricts the political process.

XVIII

Around 12:00 midnight, a team of police officers was on routine patrol in Barangay Makatarungan when it noticed an open delivery van neatly covered with banana leaves. Believing that the van was loaded with contraband, the team leader flagged down the vehicle which was driven by Hades. He inquired from Hades what was loaded on the van. Hades. just gave the police officer a blank stare and started to perspire profusely. The police officers then told Hades that they will look inside the vehicle. Hades did not make any reply. The police officers then lifted the banana leaves and saw several boxes. They opened the boxes and discovered several kilos of shabu inside. Hades was charged with illegal possession of illegal drugs. After due proceedings, he was convicted by the trial court. On appeal, the Court of Appeals affirmed his conviction. In his final bid for exoneration, Hades went to the Supreme Court clairring that his constitutional right against unreasonable searches and seizures was violated when the police officers searched his vehicle without a warrant; that the shabu confiscated from him is thus inadmissible in evidence; and that there being no evidence against him, he is entitled to an acquittal. For its part, the People of the Philippines maintains that the case of Hades involved a consented warrantless search which is legally recognized. The People adverts to the fact that Hades did not offer any protest when the. police officers asked him if they could look inside the vehicle. Thus, any evidence obtained in the course thereof is admissible in evidence.

Whose claim is correct? Explain. (5%)

SUGGESTED ANSWER

The warrantless search was illegal. There was no probable cause to search the van. The shabu was not immediately apparent. It was discovered only after they opened the boxes. The mere passive silence of Hades did not constitute consent to the warrantiess search (Caballes v. Court of Appeals, G.R. No. 163108, February 23, 2005, 373 SCRA 221).

XIX

Pursuant to its mandate to manage the orderly sale, disposition and privatization of the National Power Corporation’s (NPC) generation assets, real estate and other disposable assets, the Power Sector Assets and Liabilities Management (PSALM) started the bidding process for the privatization of Angat Hydro Electric Power Plant (AHEPP). After evaluation of the bids, K-Pop. Energy Corporation, a South Korean Company, was the highest bidder. Consequently, a notice of award was issued to K-Pop. The Citizens’ Party questioned the sale arguing that it violates the constitutional provisions on the appropriation and utilization of a natural resource which should be limited to Filipino citizens and corporations which are at least,60% Filipino-owned. The PSALM countered that only the hydroelectric facility is being sold and not the Angat Dam; and that the utilization of water by a hydroelectric power plant does not constitute appropriation of water from its natural source of water that enters the intake gate of the power plant which is an artificial structure. Whose claim is correct? Explain. (4%)

SUGGESTED ANSWER

The PSALM is correct. Foreign ownership of a hydroelectric power plant is not prohibited by the Constitution. The PSALM will retain ownership 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 ceases 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, G.R. No. 192088, October 9, 2012, 682 SCRA 602).

XX

Typhoon Bangis devastated the Province of Sinagtala. Roads and bridges were destroyed which impeded the entry of vehicles into the area. This caused food shortage resulting in massive looting of grocery stores and malls. There is power outage also in the area. For these reasons, the governor of the province declares a state of emergency in their province through Proclamation No. 1. He also invoked Section 465 of the Local Government Code of 1991 (R.A. No. 7160) which vests on the provincial governor the power to carry out emergency measures during man-made and natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to suppress disorder and lawless violence. In the same proclamation, the governor called upon the members of the Philippine National Police, with the assistance of the Armed Forces of the Philippines, to set up checkpoints and chokepoints, conduct general searches and seizures including arrests, and other actions necessary to ensure public safety. Was the action of the provincial governor proper? Explain. (4%)

SUGGESTED ANSWER

The action of the Provincial Governor is not valid. It is only the President 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 national law enforcement agency (Kulayan v. Tan, G.R. No. 187298, July 3, 2012, 675 SCRA 482).

XXI

The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major political party which has participated in every election since the enactment of the 1987 Constitution. It has fielded candidates mostly for legislative district elections. In fact, a number of its members were elected, and are actually serving, in the House of Representatives. In the coming 2016 elections, the PMP leadership intends to join the party-list system. Can PMP join the party-list system without violating the Constitution and Republic Act No. 7941? (4%)

SUGGESTED ANSWER

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, G.R. No. 203766, April 2, 2013,694 SCRA 477).

XXII

The President appoints Emilio Melchor as Chairperson of the Civil Service Commission. Upon confirmation of Melchor’s appointment, the President issues an executive order including him as Ex-Officio member of the Board of Trustees of the Government Service Insurance System (GSIS), Employees Compensation Commission (ECC), and the Board of Directors of the Philippine Health Insurance Corporation (PHILHEALTH). Allegedly, this is based on the Administrative Code of 1997 (E.O: No. 292), particularly Section 14, Chapter 3. Title I-A, Book V. This provision reads: “The chairman 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 constitutional prohibition on members of the Constitutional Commissions to hold any other office or employment during his tenure; and (2) it impairs the independence of the CSC. Will the petition prosper? Explain. (4%).

SUGGESTED ANSWER

(1) 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 primarily related to his duties as Chairperson of the Civil Service Commission and therefore may be held in an ex officio capacity.

The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with various powers and functions to carry out the purposes for which they were created. While powers and functions associated 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 functions, 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 payment of unpaid loan amortizations. The CSC Chairman’s designation as member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF entities him to receive per diem, a form of additional compensation that is disallowed by the concept 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.

(2) 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 Commission, G.R. No.191672, November 25, 2014, 612 SCRA 308).

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