Bar Q & A, Constitutional Law, Political Law

Political Law Bar Questions & Suggested Answers by the UP Law Center (1990-2005)

Jurisdiction over the GOCCs (2003)

No VII – A corporation, a holder of a certificate of registration issued by the Securities and Exchange Commission, is owned and controlled by the Republic of the Philippines. The Civil Service Commission (CSC), in a
memorandum-order, directs the corporation to comply with Civil Service Rules in the appointment of all of its officers and employees. The memorandum-order of the CSC is assailed by the corporation, as well as by its officers and employees, before the court. How should the case be resolved?
SUGGESTED ANSWER:
The memorandum-order of the Civil Service Commission should be declared void. As held in Gamogamo v. PNOC Shipping and Transit Corporation. 381 SCRA 742 (2002). under Article IX-B, Section 2(1) of the 1987 Constitution government-owned or controlled corporations organized under the Corporation Code are not covered by the Civil Service Law but by the Labor Code, because only government-owned or controlled corporations with original charters are covered by the Civil Service.

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Law of Public Officers; Next-in-Rank Rule (1994)
No. 15 Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacant position, the City Mayor appointed Jose Reyes, a civil engineer who formerly worked under Cruz but had been assigned to the Office of the Mayor for the past five years.
Vicente Estrada, the Assistant City Engineer filed a protest with the Civil Service Commission claiming that being the officer next in rank he should have been appointed as City Engineer.
1) Who has a better right to be appointed to the contested position?

SUGGESTED ANSWER:
1)  On the assumption that Jose Reyes possesses the minimum qualification
requirements prescribed by law for the position, the appointment extended to him is valid. Consequently, he has a better right than Vicente Estrada.
The claim of Estrada that being the officer next in rank he should have been appointed as City Engineer is not meritorious. It is a settled rule that the appointing authority is not limited to promotion in filling up vacancies but may choose to fill them by the appointment of persons with civil service eligibility appropriate to the position. Even if a vacancy were to be filled by promotion, the concept of “next in rank” does not import any mandatory requirement that the person next in rank must be appointed to the vacancy. What the civil service law provides is that if a vacancy is filled by promotion, the person holding the position next in rank thereto “shall be considered for promotion.” Espanol v. Civil Service Commission 206 SCRA 715,

ALTERNATIVE ANSWER;
Neither Jose Reyes nor Vicente Estrada has a better right to be appointed City Engineer. As held in Barrozo vs. Civil Service Commission, 198 SCRA 487, the appointing authority is not required to appoint the one next-in-rank to fill a vacancy. He is allowed to fill it also by the transfer of an employee who possesses civil service eligibility.

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Security of Tenure (Q5-2005)
(3) Ricardo was elected Dean of the College of Education in a State University for a term of five (5) years unless sooner terminated. Many were not pleased with his performance. To appease those critical of him, the President created a new position, that of Special Assistant to the President with the rank of Dean, without reduction in salary, and appointed Ricardo to said position in the interest of the service. Contemporaneously, the University President appointed Santos as Acting Dean in place of Ricardo. (5%)

(a)     Does the phrase “unless sooner terminated” mean that the position of Ricardo is terminable at will?

ALTERNATIVE ANSWER:
No, the term “unless sooner terminated” could not mean that his position is terminable at will. Security of tenure means that dismissal should only be for cause, as provided by law and not otherwise. (Palmera v. CSC, G.R. No. 110168, August 4, 1994)

ALTERNATIVE ANSWER:
No, his position is not terminable at will. Ricardo’s contract of employment has a fixed term of five years. It is not an appointment in an acting capacity or as officer-in-charge. A college dean appointed with a term cannot be separated without cause. Ricardo, with a definite term of employment, may not thus be
removed except for cause. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18,1970)

(b)     Was Ricardo removed from his position as Dean of the College of Education or merely transferred to the position of Special Assistant to the President? Explain.
SUGGESTED ANSWER:
Ricardo was removed from his position as dean. Having an appointment with a fixed term, he cannot, without his consent, be transferred before the end of his term. He cannot be asked to give up his post nor appointed as dean of another college, much less transferred to another position even if it be dignified with a dean’s rank. More than this, the transfer was a demotion because deanship in a university, being an academic position which requires learning, ability and scholarship, is more exalted than that of a special assistant who merely assists the President, as the title indicates. The special assistant does not make authoritative decisions unlike the dean who does so in his own name and responsibility. The position of dean is created by law, while the special assistant is not so provided by law; it was a creation of the university president. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18, 1970)

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Right to Assembly; Public Teachers (2000)
No XII – Public school teachers staged for days mass actions at the Department of Education, Culture and Sports to press for the immediate grant of their demand for additional pay. The
DECS Secretary issued to them a notice of the illegality of their unauthorized action, ordered them to immediately return to work, and warned them of imposable sanctions. They ignored this and continued with their mass action. The DECS Secretary issued orders for their preventive suspension without pay and charged the teachers with gross misconduct and gross neglect of duty for unauthorized abandonment of teaching posts and absences without leave. a) Are employees in the public sector allowed
to form unions? To strike? Why? (3%) b) The teachers claim that their right to
peaceably assemble and petition the
government for redress of grievances has
been curtailed.  Are they correct? Why?
(2%) SUGGESTED ANSWER: a) Section 8, Article III of the Constitution allows employees in the public sector to form unions. However, they cannot go on strike. As explained in Social Security System Employees Association v. Court of Appeals. 175 SCRA 686 [1989], the terms and conditions of their employment are fixed by law.  Employees in the public sector cannot strike to secure concessions from their employer.
b. The teachers cannot claim that their right to peaceably assemble and petition for the redress of grievances has been curtailed. According to Bangalisan v. Court of Appeals. 276 SCRA 619 (1997), they can exercise this right without stoppage of classes.

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Prohibition On Elective Officer to Hold Public Office (2002)
No VII. X was elected provincial governor for a term of three years. He was subsequently appointed by the President of the Philippines serving at her pleasure, as concurrent Presidential Assistant for Political Affairs in the Office of the President, without additional compensation.
Is X’s appointment valid? (5%)

SUGGESTED ANSWER:
The appointment of X is not valid, because the position of Presidential Assistant for Political Affairs is a public office. Article IX-B Section 7 of the Constitution provides that no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. As held in Flores
v. Drilon, 223 SCRA 568 (1993), since an elective official is ineligible for an appointive position, his appointment is not valid.

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Receiving of Indirect Compensation (1997)

No. 18; A, while an incumbent Governor of his province, was invited by the Government of Cambodia as its official guest. While there, the sovereign king awarded Governor A with a decoration of honor and gifted him with a gold ring of insignificant monetary value, both of which he accepted.
Was Governor A’s acceptance of the decoration and gift violative of the Constitution?

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

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Appointing Power; Limitations on Presidential Appointments (1997)
No. 7: A month before a forthcoming election, “A” one of the incumbent Commissioners of the COMELEC, died while in office and “B”, another Commissioner, suffered a severe stroke. In view of the proximity of the elections and to avoid paralyzation in the COMELEC, the President who was not running for any office, appointed Commissioner C of the Commission on Audit, who was not a lawyer but a certified public accountant by profession, ad interim Commissioner to succeed Commissioner A and designated by way of a temporary measure. Associate Justice D of the Court of Appeals as acting Associate Commissioner during the absence of Commissioner B.
Did the President do the right thing in extending such ad interim appointment in favor of Commissioner C and designating Justice D acting Commissioner of the COMELEC?

SUGGESTED ANSWER:
No. The President was wrong in extending an ad interim appointment in favor of Commissioner C. In Summers vs. Ozaeta, 81 Phil. 754, it was held that an ad interim appointment is a permanent appointment.

Under Section 15, Article VII of the Constitution, within two months immediately before the next presidential elections and up to the end of his term, the President cannot make permanent appointments. The designation of Justice D as acting Associate Commissioner is also invalid. Section 1(2). Article IX-C of the Constitution prohibits the designation of any Commissioner of the COMELEC in a temporary or acting capacity. Section 12, Article VIII of the Constitution prohibits the designation of any member of the Judiciary to any agency performing quasi-judicial or administrative functions.

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Appointing Powers; Ad Interim Appointments (Q4-2005)
(1) In     March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the COMELEC. Santos immediately took his oath and assumed office. While his appointment was promptly submitted to the Commission on Appointments for confirmation, it was not acted upon and Congress again adjourned. In June 2001, the President extended a second ad interim appointment to Santos for the same position with the same term, and this appointment was again submitted to the Commission on Appointments for confirmation. Santos took his oath anew and performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the validity of Santos’ appointment. Resolve the following issues: (5%)
(a) Does Santos’ assumption of office     on the basis of the ad interim appointments issued by the President amount to a temporary appointment which is prohibited by Section 1(2), Article IX-C of the Constitution?

ALTERNATIVE ANSWER:
No, Santos’ appointment does not amount to a temporary appointment. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next
adjournment of Congress. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

ALTERNATIVE ANSWER:
An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L­65439, November 13,1985)
(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos, were his second ad interim appointment and subsequent assumption of office to the same position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the Constitution?
SUGGESTED ANSWER:
No, the second ad interim appointment and subsequent assumption of office does not violate the Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution does not apply to by-passed ad interim appointments. It can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. The phrase “without reappointment” applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. To hold otherwise will lead to absurdities and negate the President’s power to make ad interim appointments. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

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Appointing Powers; Ad Interim Appointments (Q4-2005)
(1) In     March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the COMELEC. Santos immediately took his oath and assumed office. While his appointment was promptly submitted to the Commission on Appointments for confirmation, it was not acted upon and Congress again adjourned. In June 2001, the President extended a second ad interim appointment to Santos for the same position with the same term, and this appointment was again submitted to the Commission on Appointments for confirmation. Santos took his oath anew and performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the validity of Santos’ appointment. Resolve the following issues: (5%)
(a) Does Santos’ assumption of office     on the basis of the ad interim appointments issued by the President amount to a temporary appointment which is prohibited by Section 1(2), Article IX-C of the Constitution?

ALTERNATIVE ANSWER:
No, Santos’ appointment does not amount to a temporary appointment. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next
adjournment of Congress. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

ALTERNATIVE ANSWER:
An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L­65439, November 13,1985)

(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos, were his second ad interim appointment and subsequent assumption of office to the same position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the Constitution?

SUGGESTED ANSWER:
No, the second ad interim appointment and subsequent assumption of office does not violate the Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution does not apply to by-passed ad interim appointments. It can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. The phrase “without reappointment” applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. To hold otherwise will lead to absurdities and negate the President’s power to make ad interim appointments. (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

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Prohibition Against Multiple Positions & Additional Compensation (2002)
No VI. M is the Secretary of the Department of Finance. He is also an ex-officio member of the Monetary Board of the Bangko Sentral ng Pilipinas from which he receives an additional compensation for every Board meeting attended.
N, a taxpayer, filed a suit in court to declare Secretary M’s membership in the Monetary Board and his receipt of additional compensation illegal and in violation of the Constitution. N invoked Article VII, Section 13 of the Constitution which provides that the President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. N also cited Article IX-B, Section 8 of the Constitution, which provides that no elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law. If you were the judge, how would you decide the following:
a) the issue regarding the holding of multiple positions? (3%) b) the issue on the payment of additional or double compensation?(2%) Explain your answers fully.

SUGGESTED ANSWER:

(a)  If I were the judge, I would uphold the validity of the designation of Secretary M as ex officio member of the Monetary Board, As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991), the prohibition against the holding of multiple positions by Cabinet Members in Article VII, Section 13 of the Constitution does not apply to positions occupied in an ex officio capacity as provided by law and as required by the primary functions of their office.

(b) If I were the Judge, I would rule that Secretary M cannot receive any additional compensation. As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991), a Cabinet Member holding an ex-officio position has no right to receive additional compensation, for his services in that position are already paid for by the compensation attached to his principal office.

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GOCCs Without Original Charter vs. GOCCs With Original Charter (1998)
No II.– The Constitution distinguishes between two types of owned and/or controlled corporations: those with original charters and those which are subsidiaries of such corporations. In which of the following rule/rules is such a distinction made? Consider each of the following items and explain briefly your answer, citing pertinent provisions of the Constitution.
The rule prohibiting the appointment to certain government positions, of the spouse and relatives of the President within the fourth degree of consanguinity or affinity. [2%]
The rule making it incompatible for members of Congress to hold offices or employment in the government. [2%]
The rule prohibiting members of the Constitutional Commissions, during their tenure, to be financially interested in any contract with or any franchise or privilege granted by the government, [2%]
The rule providing for post audit by the COA of certain government agencies. [2%]
The rule requiring Congress to provide for the standardization of compensation of government officials and employees. [2%]

SUGGESTED ANSWER:

Section 13. Article VII of the Constitution, which prohibits the President from appointing his spouse and relatives within the fourth degree of consanguinity or affinity does not distinguish between government corporations with original charters and their subsidiaries, because the prohibition applies to both.
Section 13, Article VII of the Constitution, which prohibits Members of Congress from holding any other office during their term without forfeiting their seat, does not distinguish between government corporations with original charters and their subsidiaries, because the prohibition applies to both.
Section 2, Article IX-A of the Constitution, which prohibits Members of the Constitutional Commissions from being financially interested in any contract with or any franchise or privilege granted by the Government, does not distinguish between government corporations with original charters and their subsidiaries, because the prohibition applies to both.
Section 2(1), Article IX-D of the Constitution which provides for post audit by the Commission on audit of government corporations, does not distinguish between government corporations with original charters and their subsidiaries, because the provision applies to both.
Section 5, Article IX-B of the Constitution, which provides for the standardization of the

compensation of government officials and employees, distinguishes between government corporations and their subsidiaries, for the provision applies only to government corporations with original charters.

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ARTICLE IX Commission on Audit COA; Jurisdiction (2001)

No VIII – The Philippine National Bank was then one of the leading government-owned banks and it was under the audit jurisdiction of the Commission on Audit (COA). A few years ago, it was privatized.
What is the effect, if any, of the privatization of PNB on the audit Jurisdiction of the COA? (5%)

SUGGESTED ANSWER:
In accordance with the ruling in Philippine Airlines vs. Commission on Audit, 245 SCRA 39,(1995), since the Philippine National Bank is no longer owned by the Government, the Commission on Audit no longer has jurisdiction to audit it as an institution. Under Section 2(2), Article IX-D of the Constitution, it is government-owned or controlled corporations and their subsidiaries which are subject to audit by the Commission on Audit. However, in accordance with Section 2(1), Article IX-D of the Constitution, the Commission on Audit can audit the Philippine National Bank with respect to its accounts because the Government still has equity in it.

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Requisites; Contracts Involving LGU (1991)
The Municipality of Sibonga, Cebu, wishes to enter into a contract involving expenditure of public funds. What are the legal requisites therefor?
SUGGESTED ANSWER:
The following are the legal requisites for the validity of a contract to be entered into by the Municipality of Sibonga, which involves the expenditure of public funds:

(1) The contract must be within the power of the municipality;

(2) The contract must be entered into by the proper officer, i.e., the mayor, upon resolution of the Sangguniang Bayan pursuant to Section 142 of the Local Government Code;

(3) In accordance with Sec. 606 of the Revised Administrative Code, there must be an appropriation of the public funds; and in accordance with Sec. 607, there must be a

certificate of availability of funds issued by the municipal treasurer; and
(4) The contract must conform with the formal requisites of written contracts prescribed by law.

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Eminent Domain; Indirect Public Benefit (1990)

No. 2: The City of Cebu passed an ordinance proclaiming the expropriation of a ten (10) hectare property of C Company, which property is already a developed commercial center. The City proposed to operate the commercial center in order to finance a housing project for city employees in the vacant portion of the said property. The ordinance fixed the price of the land and the value of the improvements to be paid C Company on the basis of the prevailing land value and cost of construction.
(1)     As counsel for C Company, give two constitutional objections to the validity of the ordinance.
(2)     As the judge, rule on the said objections.
SUGGESTED ANSWER:

(1) As counsel for C Company, I will argue that the taking of the property is not for a public use and that the ordinance cannot fix the compensation to be paid C Company, because this is a judicial question that is for the courts to decide.

(2) As judge, I will sustain the contention that the taking of the property of C Company to operate the commercial center established within it to finance a housing project for city employees is not for a public use but for a private purpose. As the Court indicated in a dictum in Manotok. v. National Housing Authority, 150 SCRA 89, that the expropriation of a commercial center so that the profits derived from its operation can be used for housing projects is a taking for a private purpose.

I will also sustain the contention that the ordinance, even though it fixes the compensation for the land on the basis of the prevailing land value cannot really displace judicial determination of the price for the simple reason that many factors, some of them supervening, cannot possibly be considered by the legislature at the time of enacting the ordinance. There is greater reason for nullifying the use of the cost of construction in the ordinance as basis for compensation for the improvements. The fair market value of the improvements may not be equal to the cost of construction. The original cost of construction may be lower than the fair market value, since the cost of construction at the time of expropriation may have increased.

ALTERNATIVE ANSWER:
The taking of the commercial center is justified by the concept of indirect public benefit since its operation is intended for the development of the vacant portion for socialized housing, which is clearly a public purpose.

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Eminent Domain; Power to Exercise (2005)

(10-2) The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution No. 1 authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina as site for its municipal sports center. This was approved by the Mayor. However, the Sangguniang Panlalawigan of Ilocos Sur disapproved the Resolution as there might still
be other available lots in Santa for a sports center.
Nonetheless, the Municipality of Santa, through its Mayor, filed a complaint for eminent domain. Christina opposed this on the following grounds:
the Municipality of Santa has no power to expropriate;
Resolution No. 1 has been voided since the Sangguniang Panlalawigan disapproved it for being arbitrary; and
the Municipality of Santa has other and

better lots for that purpose. Resolve the case with reasons. (5%)

SUGGESTED ANSWERS:
a)     Under Section 19 of R.A. No. 7160, the power of eminent domain is explicitly granted to the municipality, but must be exercised through an ordinance rather than through a resolution. (Municipality ofParanaque v. V.M. Realty Corp., G.R. No. 127820, July 20, 1998)

  1. b)     The Sangguniang Panlalawigan of Ilocos Sur was without the authority to disapprove Resolution No. 1 as the municipality clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution. The only ground upon which a provincial board may declare any municipal resolution, ordinance or order invalid is when such resolution, ordinance or order is beyond the powers conferred upon the council or president making the same. Such is not the situation in this case. (Moday v. Court of Appeals, G.R. No. 107916, February 20, 1997)
  2. c)     The question of whether there is genuine necessity for the expropriation of Christina’s lot or whether the municipality has other and better lots for the purpose is a matter that will have to be resolved by the Court upon presentation of evidence by the parties to the case.********************************
    Ordinance; Use & Lease of Properties; Public Use (1997)

No. 9: Due to over-crowding in the public market in Paco, Manila, the City Council passed an ordinance allowing the lease to vendors of parts of the streets where the public market is located, provided that the lessees pay to the city government a fee of P50 per square meter of the area occupied by the lessees. The residents in the area complained to the Mayor that the lease of the public streets would cause serious traffic problems to them. The Mayor cancelled the lease and ordered the removal of the stalls constructed on the streets. Was the act of the Mayor legal?

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

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Recall (2002)

No XVI. Suppose the people of a province want to recall the provincial governor before the end of his three-year term of office,
A. On what ground or grounds can the provincial governor be recalled? (1%)
B.      How will the recall be initiated? (2%)
C. When will the recall of an elective local official be considered effective? {2%}

SUGGESTED ANSWER:
In accordance with Section 69 of the Local Government Code, the Governor can be recalled for LOSS OF CONFIDENCE.
Under Section 70 of the Local Government Code, the recall may be initiated by a resolution adopted by a majority of all the members of the preparatory recall assembly, which consists of all the mayors, the vice-mayors, and the sangguniang members of the municipalities and component cities, or by a written petition signed by at least twenty-five per cent (25%) of the total number of registered voters in the province.

According to Section 72 of the Local Government Code, the recall of an elective local official shall take effect upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall.

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Ordinance; Validity; Utilization & Development; National Wealth (1991)

No. 5; The province of Palawan passes an ordinance requiring all owners/operators of fishing vessels that fish in waters surrounding the province to invest ten percent (10%) of their net profits from operations therein in any enterprise located in Palawan.
NARCO Fishing Corp., a Filipino corporation with head office in Navotas, Metro Manila, challenges the ordinance as unconstitutional. Decide the case.

SUGGESTED ANSWER:
The ordinance is invalid. The ordinance was apparently enacted pursuant to Article X, Sec. 7 of the Constitution, which entitles local governments to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas. However, this should be made pursuant to law. A law is needed to implement this provision and a local government cannot constitute itself unto a law. In the absence of a law the ordinance in question is invalid.

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Three-Term Limit; from Municipality to Newly-Created City  (Q9-2005)
2. Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995 and 1998. He fully served his first two terms, and during his third term, the muni­cipality was converted into the component City of Tuba. The said charter provided for a hold­over and so without interregnum Manuel went on to serve as the Mayor of the City of Tuba.
In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed, though, that he had already served for three consecutive terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of candidacy that he is running for the position of Mayor for the first time now that Tuba is a city.
Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had already served for three consecutive terms as Mayor. The petition was not timely acted upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes received by Reyes as the only other candidate. It was only after Manuel took his oath and assumed office that the COMELEC ruled that he was disqualified for having ran and served for three consecutive terms. (5%)
(a)     As lawyer of Manuel, present the possible arguments to prevent his disqualification and removal.

SUGGESTED ANSWER:
As lawyer of Manuel, I would argue that he should not be disqualified and removed because he was a three-term mayor of the municipality of Tuba, and, with its conversion to a component city, the latter has a totally separate and different corporate personality from that of the municipality. Moreover, as a
rule, in a representative democracy, the people should be allowed freely to choose those who will govern them. Having won the elections, the choice of the people should be respected.
(b)     How would you rule on whether or not Manuel is eligible to run as Mayor of the newly-created City of Tuba immediately after having already served for three (3) consecutive terms as Mayor of the Municipality of Tuba?

SUGGESTED ANSWER:
Manuel is not eligible to run as mayor of the city of Tuba. The 1987 Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow Manuel to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Tuba, Manuel would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. (Latasa v. COMELEC, G.R. No. 154829, December 10, 2003)
(c)     Assuming that Manuel is not an eligible candidate, rebut Reyes’ claim that he should be proclaimed as winner having received the next higher number of votes.
ALTERNATIVE ANSWER:
Reyes cannot be proclaimed winner for receiving the second highest number of votes. The Supreme Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate’s election a nullity. In the present case, 10,000 votes were cast for private respondent Reyes as against the 20,000 votes cast for petitioner Manuel. The second placer is obviously not the choice of the people in this
particular election. The permanent vacancy in the contested office should be filled by succession. (Labo v. COMELEC, G.R. No. 105111, July 3,1992)
ALTERNATIVE ANSWER:
Reyes could not be proclaimed as winner because he did not win the election. To allow the defeated candidate to take over the Mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people’s right to elect officials of their choice. (Benito v. COMELEC, G.R. No. 106053, August 17, 1994)

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Powers of Barangay Assembly (2003)
Can a Barangay Assembly exercise any police power?
SUGGESTED ANSWER:
No, the Barangay Assembly cannot exercise any police power.  Under Section 398 of the Local Government Code, it can only recommend to the Sangguniang Barangay the adoption of measures for the welfare of the barangay and decide on the adoption of an initiative.
Powers; Liga ng mga Barangay (2003)
Can the Liga ng mga Barangay exercise legislative powers?
SUGGESTED ANSWER:
The Liga ng Mga Barangay cannot exercise legislative powers. As stated in Bito-Onon v. Fernandez. 350 SCRA 732 [2001], it is not a local government unit and its primary purpose is to determine representation of the mga in the sanggunians; to ventilate, articulate, and crystallize issues affecting barangay government administration; and to secure solutions for them through proper and legal means.

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Ordinance; Validity; Local Taxation vs. Special Assessment (1987)
1987 No. V: State whether or not the following city ordinances are valid and give reasons in support of your answers:
(b) An ordinance on business establishments to raise funds for the construction and maintenance of roads in private subdivisions, which roads are open for use by segments of the public who may have business inside the subdivision.

SUGGESTED ANSWER:
(b) The ordinance is valid. The charge on the business establishments is not a tax but a SPECIAL ASSESSMENT. Hence, the holding in Pascual v. Secretary of Public Works, 110 Phil. 331 (1960), that public funds cannot be appropriated for the construction of roads in a private subdivision, does not apply. As held in Apostolic Prefect v. City Treasurer of Baguio, 71 Phil. 547 (1941), special assessments may be charged to property owners benefited by public works, because the essential difference between a tax and such assessment is precisely that the latter is based wholly on benefits received.
However, if the ordinance levies a tax on all business establishments located outside the private subdivision, then it is objectionable on the ground that it appropriate private funds for a public purpose. (Pascual v. Secretary of Public Works, supra)

Ordinance; Validity; Preventing Immorality (1987)
(c) An ordinance prohibiting barbershop operators from rendering massage service to their customers in a separate room.
SUGGESTED ANSWER:

(c) The ordinance is valid. In Velasco v, Villegas, 120 SCRA 658 (1983) such ordinance was upheld on the ground that it is a means of enabling the City of Manila to collect a fee for operating massage clinics and of preventing immorality which might be committed by allowing the construction of separate rooms in barber shops.

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Creation of New Local Government Units; Plebiscite Requirement (2004)

NO. VII – MADAKO is a municipality composed of 80 barangays, 30 west of Madako River and 50 east thereof.  The 30 western barangays, feeling left out of economic initiatives, wish to constitute themselves into a new and separate town to be called Masigla.
A. Granting that Masigla’s proponents succeed to secure a law in their favor, would a plebiscite be necessary or not? If it is necessary, who should vote or participate in the plebiscite? Discuss briefly. (5%)
SUGGESTED ANSWER:
A plebiscite is necessary, because this is required for the creation of a new municipality. (Section 10, Article X of the 1987 Constitution.) The voters of both Madako and Masigla should participate in the plebiscite, because both are directly affected by the creation of Masigla. The territory of Madako will be reduced. (Tan v. COMELEC, 142 SCRA 727 [1986).

De Facto Public Corporations; Effect (2004)
NO. VII – MADAKO is a municipality composed of 80 barangays, 30 west of Madako River and 50 east thereof.  The 30 western barangays, feeling left out of economic initiatives, wish to constitute themselves into a new and separate town to be called Masigla. A law is passed creating Masigla and a plebiscite is made in favor of the law.
B. Suppose that one year after Masigla was constituted as a municipality, the law creating it is voided because of defects. Would that invalidate the acts of the municipality and/or its municipal officers? Explain briefly. (5%)

SUGGESTED ANSWER:
Although the municipality cannot be considered as a de facto corporation, because there is no valid law under which it was created, the acts of the municipality and of its officers will not be invalidated, because the existence of the law creating it is an operative fact before it was declared unconstitutional. Hence, the previous acts of the municipality and its officers should be given effect as a matter of fairness and justice. (Municipality ofMalabang v. Benito, 27 SCRA 533 [1969]

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