Bar Q & A, Constitutional Law, Political Law

Bar Exam 2016 Suggested Answers in Political Law

BY: The UP LAW COMPLEX

I.

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 blatantly 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%)

SUGGESTED ANSWER

No, the defense of Paulyn is not valid. When she was invited for questioning 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 Ill 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, G.R. No. 108494, September 20, 1994, 236 SCRA 565).

II.

Sec. 11, Art. Xll of the Constitution, provides: “No franchise, certificate 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%)

SUGGESTED ANSWER

The term “capital” mentioned in Section 11, Article XII of the Constitution 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, G.R. 176579, June 28, 2011, 652 SCRA 690).

III.

A law converted the component city of Malumanay, Laguna into a highly urbanized city. The Local Government Code (LGC) provides that the conversion “shall take effect only after it is approved 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 affected 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 all 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 Laguna will reduce. Who, between Mayor Xenon and Governor Yuri, is correct? Explain your answer. (5%)

SUGGESTED ANSWER

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 Sangguniang 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 Malumanay would nullify the principle of majority rule (Umali v. Commission on Elections, G.R. No. 203974. April 22, 2014,723 SCRA 170).

IV.

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 relating to the cleanup, rehabilitation and protection of Manila Bay. The complaint alleges that the continued neglect by defendants 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 assert that the students/petitioners who are minors

do not have locus standi to file the action, is the assertion 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 compliance 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 President. Is this contention correct? Why or why not? (2.5%)

SUGGESTED ANSWER

(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 16, Article ll 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. Factoran, G.R. No. 101083, July 30, 1993, 224 SCRA 792).

(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 adjudicative 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 Development Authority v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48, February 15, 2011, 643 SCRA 90).

V.

Section 8 of P.D. No. 910, entitled “Creating an Energy Development Board, defining its powers and functions, providing funds therefor and for other purposes,” provides that: “All fees, revenues 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 President” 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%)

SUGGESTED ANSWER

(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, G.R. No. 168056, October 18, 2005, 469 SCRA 1). 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 running 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 implemented (Abakada Guro Party List v. Ermita, G.R. No. 168056, October 18, 2005, 469 SCRA 1).

(B) 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 discretion 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., G.R. No. 208566, November 19, 2013, 710 SCRA 1).

The assailed provision does not fail under the principle of ejusdem generis. First, the phrase “energy resource development and exploitation programs and projects of the government states a singular and general class. Second, it exhausts the class it represents (Belgica v Ochoa, Jr., G.R. No. 208566, November 19, 2013, 710 SCRA 1).

VI.

Pornographic materials in the form of tabloids, magazines and other printed materials, proliferate and are being sold openly in the streets of Masaya City. The city Mayor organized a task force which confiscated these materials. He then ordered that the materials be burned in public. Dominador, publisher of the magazine, “Plaything”, filed a suit, raising the following constitutional issues: (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%)

SUGGESTED ANSWER

(a) 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. There was no lawful arrest (Pita v. Court of Appeals, G.R. No. 80806, October 5, 1989, 178 SCRA 362).

(b) The argument of Dominador that pornographic materials are

protected by the constitutional right to freedom of expression is erroneous. Obscenity is not protected expression (Fernando v. Court of Appeals, G.R. No. 159751, December 6, 2006, 510 SCRA 351). Section 2 of Presidential Decree No. 969 requires the forfeiture and destruction of pornographic materials (Nograles v. People, G.R. No. 191080, November 21, 2011, 660 SCRA 475).

VII.

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 vehicle 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 conduct 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 reasons.

SUGGESTED ANSWER

(A) 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, G.R. No. 104961, October 7, 1994, 237 SCRA 424). The “stop and frisk rule” applies when a police officer observes suspicious 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 protective search of outer clothing for weapons (Luz v. People, G.R. No. 197788, February 29, 2012, 667 SCRA 421),

(B) 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, G.R. No. 197788, February 29, 2012, 667 SCRA 421).

VIII.

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 husbands 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%)

Rule on the validity of the grounds raised by Conrado, with reasons.

SUGGESTED ANSWER

(A) The law does not violate the equal protection clause. It is based on substantial distinctions. The unequal power relationship between 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. Drilon, G.R. No. 179267, June 25, 2013, 699 SCRA 352).

(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 all laws and ordinances and to maintain public order (Garcia v. Drilon, G.R. No. 179267, June 25, 2013,599 SCRA 352).

IX

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 Baldomero. The court granted the expropriation, fixed the amount of just compensation, and installed the Government in full possession 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) If the Government paid full compensation but after two years it abandoned its plan to build an airport on the property, can Baldomero compel the Government to re-sell the property back to him? Explain your answer. (2.5%)

SUGGESTED ANSWER

(A) If the government does not pay Baldomero the just compensation

immediately, he cannot demand the return of the property to him. Instead, legal interest should be paid from the time of taking of the property until actual payment in full (Republic v. Court of Appeals, G.R. No. 146587, July 2, 2002, 383 SCRA 611).

(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, 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., G.R. No. 176625, February 25, 2010, 613 SCRA 618). If the just compensation was not paid within 5 years from finality of judgment, the owner is entitled to recover the property (Republic v. Lim, G.R. No. 161656, June 29, 2005, 462 SCRA 265).

X.

The Philippines entered into an international agreement with members of the international community creating the International Economic Organization (IEO) which will serve as a forum to address economic issues between States, create standards, 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 IEO a treaty or an executive agreement? Explain. (5%)

SUGGESTED ANSWER

The agreement creating the International Economic Organization (IEC) is an executive agreement and not a treaty. In Section 21, Article VIl 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 recognized by at least decisions of the Supreme Court establishing the principle 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 of Customs v. Eastern Sea Trading, G.R. No. L-14279, October 31, 1961, 3 SCRA 351; USAFFE Veterans Association v. Treasurer, G.R. No. L-10500, June 30, 1959, 105 Phil. 1030).

Moreover, as the Supreme Court has pointed out in Pimentel v. Office of the Executive Secretary (G.R. No. 158088, July 6, 2005, 462 SCRA 622), the President 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 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.

XI.

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 Nations Convention on the Law of the Sea (UNCLOS). Article 31 provides that the Flag State shall bear international responsibility for any loss or damage to the Coastal State resulting from noncompliance 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 another 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 reasons.

SUGGESTED ANSWER

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 warships and other government ships operated for non-commercial purposes. (emphasis added]”

In reality the supreme relevance of Article 32 quoted above is actualized by quoting an existing U.S. government document sourced from Dispatch Supplement, Law of the Sea Convention: Letters of Transmittal 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).

(8) 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 upheld 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 sovereign immunity for war-ships…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 subsection A and in Articles 30 and 31… nothing in the Convention affects the immunities of warships…

XII.

Paragraphs c, d and f of Section 36 of Republic Act No. 9165 provide:

“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;

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 unconstitutional 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%)

SUGGESTED ANSWER

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 a 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, G.R. Nos. 157870, 158633 & 161658, November 3, 2008, 570 SCRA 410).

XIII

While Congress was not in session, the President appointed Antero as Secretary of the Department of Tourism (DOT), Benito as Commissioner the Bureau of Immigration (BI), Clodualdo as Chairman of the Civil Service Commission (CSC), Dexter as Chairman of the Commission on Human Rights (CHR), and Emmanuel 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 correct? Why or why not? (2.5%)

SUGGESTED ANSWER

(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, G.R. No. 149036, April 2. 2002, 380 SCRA 49).

  1. The appointment of Benito as Commissioner of the Bureau of

Immigration is regular and permanent. It is not required to be confirmed by the Commission on Appointments. He can start performing his duties upon acceptance of the appointment (Section 16, Article Vll of the Constitution).

  1. The appointment of Clodualdo as Chairman of the Civil Service Commission is ad interim, because it is subject to confirmation by the Commission on Appointments and was made while Congress was not in session. He can start performing his duties upon his acceptance of the appointment, because it is permanent and cannot be withdrawn.
  1. 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. Salonga, G.R. No. 86439, April 13, 1989, 172 SCRA 160).
  1. 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 Vll of the Constitution).

(B) The claim of VAMP is not correct. The Commissioner of the Bureau of Immigration and the Chairman of the Commission on Human Rights can immediately start performing their functions upon acceptance since they are not required to be confirmed. The Secretary of the Department of Tourism and the Chairman of the Civil Service Commission, can immediately start performing their duties upon acceptance, since their ad interim appointment is permanent.

XIV.

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, 21 years of age, Robert, 16, and Marie, 14, who were all worn in the U.S.-returned to the Philippines on June 1, 2015, informed that he could reacquire Philippine citizenship without losing his American citizenship, Onofre went home to the Philippines and took the oath of allegiance prescribed under R.A. No. 9225. On October 28, 2015, he filed Certificate of Candidacy to run in the May 9, 2016 elections 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 benefit 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 Candidacy against Onofre. What grounds can he raise in his Petition to support it? Explain your answer. (2.5%)

SUGGESTED ANSWER

(A) The reacquisition of Philippine citizenship by Onofre did not automatically 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 automatically become a Filipino citizen.

Robert, who is 16 years old, and Marie, who is 14 years old, also became Filipino citizens. The unmarried children below eighteen (18) years of age, of those who reacquire Philippine citizenship are also deemed citizens of the Philippines (Section 4 of Republic Act No. 9225).

(B) 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.

XV

Congress passed a bill appropriating P100-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 ceremonials 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 Il of the Constitution that “no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof,” how will you resolve the challenge? Explain. (5%)

SUGGESTED ANSWER

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 religious sects. The temporary use of public property for religious purposes without discrimination does not violate the Constitution (Ignacio v. De la Cruz, No. L-6858, May 31, 1956, 99 Phil. 346; 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[1947]).

NOTE: It is recommended that both answers be accepted as correct and be given full credit.

XVI

Jojo filed a criminal complaint against Art for theft of a backpack worth P150.00 with the Office of the City Prosecutory of Manila. The crime is punishable with arresto mayor to prision correccional in its minimum period, or not to exceed 4 years and 2 months. The case was assigned to Prosecutor Tristan and he applied Sec. 8(a) of Rule 112 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 (1) 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 complaint shall state the address of the respondent and shall be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents to establish probable cause. X X X” Since Sec. 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 112 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 112. Explain. (5%)

SUGGESTED ANSWER

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 merely procedural. It may be dispensed with without violating the right of the accused to due process (Bustos v. Lucero, G.R. No. 2068, October 20, 1948, 81 Phil. 640 (1948]).

XVII

(A) Define the archipelagic doctrine of national territory, state its ratio nale; 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 Agaton 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%)

SUGGESTED ANSWER

(A) By the term “archipelagic doctrine of national territory” 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 1 of the Constitution, 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:

  1. 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 are 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 drawing 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 appreciable 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 UNCLOS. It 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. “Regime of Islands”, has no relevance to acquisition or loss of sovereignty. 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.

XVIII

Sec. 8, Article X of the 1987 Constitution provides that no elective official chall 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 is a Vice-Mayor who assumed the position of Mayor for the unexpired 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 assumes office but loses in an election protest. (5%)

SUGGESTED ANSWER

  1. 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 renunciation 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, G.R. No. 133495, September 3, 1998, 295 SCRA 157).
  1. 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, G.R. Nos. 154512, 154683, 155083-84, November 12, 2002, 391 SCRA 547).
  1. c) If a municipality in which a mayor served for three consecutive terms was converted to a city, he cannot run as city mayor in the first 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, G.R. No. 154829, December 10, 2003, 417 SCRA 601).
  2. 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, G.R. No. 184836, December 23, 2009, 609 SCRA 234).
  3. 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, G.R. No. 135150, July 28, 1999, 311 SCRA 602).

XIX

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 allows members of the congregation who have been abandoned by their respective spouses to enter marital relations under a “Declaration of Pleading Faithfulness.” Having made such Declaration, she argues that she cannot be charged with committing immoral 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%)

SUGGESTED ANSWER

(A) Amelia is not administratively liable. There is no compelling state interest that justifies inhibiting the free exercise of religious beliefs. The means used by the government to achieve its legitimate objective is not the least intrusive means (Estrada v. Escritor, AM No. P-02-1651, June 22, 2006, 492 SCRA 1).

(B) Benevolent neutrality means that with respect to governmental actions, accommodation of religion may be permitted to allow individuals and groups to exercise their religion without hindrance. What is sought is not a declaration of unconstitutionality of the law but an exemption from its application (Estrada v. Escritor, AM No. P-02-1651, June 22, 2006, 492 SCRA 1).

XX

Under Sec. 5, Article VIII of the Constitution, the Supreme Court shall have the power to “promulgate rules concerning the protection and enforce. ment of constitutional rights, pleading, practice and procedure in all courts xxx.” 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 provision 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 power of the Supreme Court under Sec. 5, Article VIII. He argues that plea-bargaining is procedural in nature and is within the exclusive constitutional power of the Court. Is Patricio correct? Explain your answer. (5%)

SUGGESTED ANSWER

Patricio is not correct. Defining the penalty for a criminal offense involves the exercise of legislative power (People v. Dacuycuy, G.R. No. L-45127, May 5,1989, 173 SCRA 90). 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).

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