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2015

Bar Questions and Suggested Answers


Political Law

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:
Senator Maagap is correct in so far as the second Executive Agreement is
concerned. The first Executive Agreement is in such a nature that such need
not be concurred in by the Senate. In Bayan Muna v. Romulo, the right of the
Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From
the earliest days of our history, we have entered executive agreements
covering such subjects as commercial and consular relations, most favored
nation rights, patent rights trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. However, for the
second Executive Agreement which is in the nature of an International
agreements involving political issues or changes on national policy and those
involving international arrangements of a permanent character, is deemed
as a treaty (Commissioner of Customs v. Eastern Sea Trading), in which case
must be concurred in by the Senate (Section 21, Article VI, 1987
Constitution). Hence Senator Maagap is only correct as regards the second

Executive Agreement which must be submitted for the concurrence of the


Senate.

II. (1) 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%)

SUGGESTED ANSWER:
No, the objection is not tenable. UNCLOS has nothing to do with the
redefinition of our territory. It merely regulates sea-use rights over maritime
zones, contiguous zones, exclusive economic zones, and continental shelves
which it delimits. Whether the bodies of water lying landward of the
baselines of the Philippines are internal waters or archipelagic waters, the
Philippines retains jurisdiction over them (Magallona v. Ermita, GR No.
187167, July 16, 2011, 655 SCRA 476).

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


(a) Territorial sea
(b) Contiguous zone
(c) Exclusive economic zone
(d) Continental shelf

SUGGESTED ANSWER:
(a) Territorial sea is the belt of waters adjacent to the coasts of the State,
excluding internal waters in bays and gulfs, over which the state claims

sovereignty and jurisdiction and which is 12 nautical miles from the


baseline.
(b)Contiguous zone is that belt of waters measured 24 nautical miles
from the same baseline used to measure the breadth of the territorial
sea. In this zone, the coastal state may exercise the control necessary
to
i)

Prevent infringement of its customs, fiscal, immigration or


sanitary laws and regulations within its territory or territorial
sea.

ii)

Punish infringement of the above laws and regulations


committed within its territory or territorial sea (Article 53,
UNCLOS)

(c) Exclusive Economic Zone is an area beyond and adjacent to the


territorial sea, over which a state has special rights over the
exploration and utilization of marine resources. It shall not extend
beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured. In case of archipelagic states, its
breadth shall be measured from the archipelagic baseline (Article 57,
58, 48, UNCLOS)
(d)Continental shelf - The continental shelf of a coastal State comprises
the seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory
to the outer edge of the continental margin, or to a distance of
200 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance (Article 76, UNCLOS).

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? Explain. (4%)

SUGGESTED ANSWER:
No, the argument is not valid. The prohibition of dual employment does not
apply to Professor Masipag because Section 5 [c], Canon III of the Code of
Conduct for Court Personnel allows court personnel to acquire outside
employment provided, among others, that the outside employment does not
require the practice of law; and provided, however, that court personnel may
render services as professor, lecturer, or resource person in law schools,
review or continuing education centers or similar institutions. Dual
employment applies to appointive officials who are not allowed to hold any
other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned corporation or their
subsidiaries, unless otherwise allowed by law or the primary functions of his
position (Article IX B Section 7 of the 1987 Constitution; Sections 1 and 2,
Rule XVIII of the Omnibus Rules Implementing Book V of E.O. No. 292).

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:
Facial challenge to the constitutionality of a law is traditionally allowed when
it operates in the area of freedom of expression. The established rule is that
a party can question the validity of a statute only if, as applied to him, it is
unconstitutional. The exception is the so-called Facial challenge". But the
only time a facial challenge to a statute is allowed is when it operates in the
area of freedom of expression. ln such instance, the "overbreadth doctrine"
permits a party to challenge the validity of a statute even though, as applied
to him, it is not unconstitutional, but it might be if applied to others not
before the Court whose activities are constitutionally protected. lnvalidation
of the statute "on its face", rather than "as applied", is permitted in the
interest of preventing a "chilling effect" on freedom of expression (Justice

Mendoza's concurring opinion in Cruz v. DENR, G.R. No. 135385, December


06, 20001). A facial challenge to a legislative act is the most difficult
challenge to mount successfully since the challenge must establish that no
set of circumstances exists under which the act would be valid (Estrada v.
Sandiganbayan, G.R. No. 148560, November 19,20011).

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. A T 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:
ATs contention does not hold water. The determination of the percentage of
Filipino ownership in a corporation is no longer primarily based on the
number of apparent shares of a stockholder, nor to the class of stock a
shareholder holds. In the latest ruling of the Supreme Court in Narra Nickel
Mining v. Redmont Consolidated Mines (G.R. No. 195580 January 28, 2015),
the computation of the total percentage of the Filipino ownership in a
corporation is applied to BOTH (a) the total outstanding shares of stock
entitled to vote in the election of directors; AND (b) the total number of
outstanding shares of stock, whether or not entitled to vote in the election of
directors.

In Narra v. Redmont, foreign corporations have resorted to elaborate


corporate layering as to make it appear that there is compliance with the
minimum Filipino ownership in the Constitution. The corporate layering
employed by certain foreign corporation was evidently designed to
circumvent the constitutional caveat allowing only Filipino citizens and
corporations 60%-owned by Filipino citizens to explore, develop, and use the
countrys natural resources. The application of the Control Test and the
Grandfather Rule must be applied where doubts or various indicia that the
"beneficial ownership" and "control" of the corporation do not in fact reside
in Filipino shareholders but in foreign stakeholders. Hence, AT cannot claim
that PTC is Filipino-owned based only on the apparent number of stocks
belonging to Filipinos.

VI.

(1) Distinguish the President's authority to declare a state of


rebellion from the authority to proclaim a state of national emergency.
(2%)

SUGGESTED ANSWER:
(1) The authority to declare a state of rebellion emanates from the
Presidents powers as Chief Executive (Sec. 4, Chapter 2, Book II,
Administrative Code of 1997). Its declaration is deemed harmless and
without legal significance (Canlakas v. Executive Secretary). In declaring a
state of national emergency in PP1017, President Arroyo did not only rely on
Sec. 18, Art. VII of the Constitution, but also on Sec. 17, Article Xll of the
Constitution, calling for the exercise of awesome powers which cannot be
deemed as harmless or without legal significance [David v. Macapagal
-Arroyo, supra].

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

SUGGESTED ANSWER:
The limitations to the pardoning power of the President are that, it:
i. Cannot be granted in cases of impeachment (Sec. 19, Art. VII)

ii.

iii.
iv.

v.
vi.

Cannot be granted in cases of violation of election laws without the


favorable recommendation of the Commission on Elections [Sec. 5, Art.
IX-C].
Can be granted only after conviction by final judgment
Cannot be granted in cases of legislative contempt (as it would violate
separation of powers), or civil contempt (as the State is without
interest in the same)
Cannot absolve the convict of civil liability.
Cannot restore public offices forfeited [Monsanto v. Factoran, supra].

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' contention tenable? Explain. (4%)

SUGGESTED ANSWER:
No, Senator Lis, contention is not tenable. The suspension contemplated in
the Constitution to discipline Member of the Senate is not the suspension
contemplated under the Sec. 5 of the Plunder Law. The latter is not a penalty
but a preliminary preventive measure and is not imposed upon the petitioner
for misbehavior as a member of Congress. In a synonymous case (Miriam
Defensor-Santiago v. Sandiganbayan, G.R. No. 128055, April 18,2001) it
appears to be a ministerial duty of the court to issue the order of suspension
upon a determination of the validity of the criminal information filed before
it. The order of suspension provided in RA 3019 is distinct from the power of
Congress to discipline its own ranks. Neither does the order of suspension
encroach upon the power of Congress. The doctrine of separation of powers,
by itself, is not deemed to have effectively excluded the members of
Congress from RA 3019.

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 set of qualification standards. After
the implementation of the Resolution, Atty. Dipasupil questioned the
legality of the Resolution alleging that the BOD has no authority to do
so. The BOD claims otherwise arguing that the doctrine of qualified
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 doctrine by the BOD
proper? Explain. (4 %)

SUGGESTED ANSWER:
The contention of the BOD is proper. Under the doctrine of qualified political
agency or alter ego principle, all executive and administrative organizations
are adjuncts of the Executive Department, the heads of the various
executive, and, except in cases where the Chief Executive is required by the
Constitution 0r law t0 act in person or the exigencies of the situation demand
that he acts personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of Executive departments when
performed and promulgated in the regular course of business or unless
disapproved or reprobated by the Chief Executive, are presumptively the
acts of the Chief Executive (Villena v. Secretary of the lnterior, No. 46574,
April 21, 1939).
Under our governmental set-up, corporations owned or controlled by the
government partake of the nature of government bureaus or offices, which
are administratively supervised by (one) whose compensation and rank
shall be that of a head of an Executive Department and who shall be
responsible to the President of the Philippines under whose control his

functions ... shall be exercised. (Executive Order No. 386 of December 22,
1950, section 1, issued under the Reorganization Act of 1950). (in Namarco v.
Arca, 29 SCRA 648). Through the Secretary of Finance, any act of the BOD
shall be subject to the constitutional power of control by the President over
all executive departments, bureaus and offices.

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
in scheduled public hearings regarding a wide range of subjects. The
invitations state that these public hearings were triggered by the
privilege speeches of the Senators that there was massive electoral
fraud during the last national 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:
The subject executive order is unconstitutional. The Court in Senate v. Ermita
(GR No. 169777) declared that the executive privilege is the power of the
government to withhold information from the public, the courts, and the
Congress. But this is recognized only for certain types of information of a
sensitive character. When Congress exercises its power of inquiry, the only
way for department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they are

department heads. Only one official may be exempted from this power -- the
President.
Under the Constitution, there are two different functions of the Legislature:
The power to conduct inquiries in aid of legislation and the power to conduct
inquiry during question hour. The objective of conducting a question hour is
to obtain information in pursuit of Congress oversight function. When
Congress merely seeks to be informed on how department heads are
implementing the statutes which it had issued, the department heads
appearance is merely requested. The power of inquiry in aid of legislation is
inherent in the power to legislate. A legislative body cannot legislate wisely
or effectively in the absence of information respecting the conditions which
the legislation is intended to affect or change. And where the legislative body
does not itself possess the requisite information, recourse must be had to
others who do possess it. The executive privilege is the exception under this
type of inquiry.
When an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded
reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary to provide the
President or the Executive Secretary with fair opportunity to consider
whether the matter indeed calls for a claim of executive privilege. If, after
the lapse of that reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to respect the
failure of the official to appear before Congress and may then opt to avail of
the necessary legal means to compel his appearance. (Senate v. Ermita)

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 by the DENR to dismiss the case for ABCs failure to exhaust
administrative remedies should be set aside. The rule on exhaustion of
administrative remedies applies only to decisions of administrative agencies
made in the exercise of their quasi-judicial powers [Association of Philippine
Coconut Desiccators v. Philippine Coconut Authority, G.R. No. 110526,
February 10, 1 9981. Thus, where what is assailed is the validity or
constitutionality of a rule or regulation issued by the administrative agency
in the performance of its quasi-legislative function, the regular courts have
jurisdiction to pass upon the same (Smart communications v. National
telecommunications commission, G.R. No. 151908, August 12, 2003).

XI.

(1) What is the concept of expanded judicial review under the


1987 Constitution? (3%)

SUGGESTED ANSWER:
The 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only
to settle actual controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Heretofore, the judiciary has
focused on the "thou shalt not's" of the Constitution directed against the
exercise of its jurisdiction. With the new provision, however, courts are given
a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not

just grant the Court power of doing nothing. (Belgica v. Ochoa, G.R. No.
208566 November 19, 2013)

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

SUGGESTED ANSWER:
The Rule-making power of the Supreme Court was vested by the 1987
Constitution to promulgate rules that would protect the constitutional rights
of our people, pleadings, practice and proceedings in all courts. This is
recognized power exclusive to the Supreme Court. But while the power of the
judiciary is to interpret laws, judicial legislation takes place when a court
steps in to craft missing parts or to fill in the gaps in laws or when it
oversteps its discretional boundaries and goes beyond the law to coin
doctrines or principles where none was before (Judicial Legislation: Dissected.
M. Vidal). This is frowned upon because the courts should merely interpret
laws, and not make new laws.

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:
Under the 1935 Constitution, Filipino citizens under the principle of jus
sanguinis are only those whose fathers are citizens of the Philippines. Under
the 1973 and 1987 Constitutions, Filipino citizens are those whose fathers or
mothers are Filipino citizens.

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
o f the 1987 Constitution. Is the claim correct? Explain. (4%)

SUGGESTED ANSWER:
No, Piolo Cruzs claim in incorrect. While the Constitution and the Local
Government Code expressly require a plebiscite to carry out any creation,
division, merger, abolition or alteration of the boundary of a local
government unit, no plebiscite requirement exists under the apportionment
or reapportionment provision (Bagabuyo v. COMELEC). In the case at bar, RA
1234 merely increased its representation in the House of Representatives.
There was no creation, division, merger, abolition or alteration of a local
government unit that took place. RA 1234 did not bring about any change in
the City of Pangaraps territory, population and income classification. Hence
no plebiscite is required.

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 from the payment of legal

fees in the cases that it would file and/or prosecute in the courts of law.
In two (2) cases that it filed, the City of Masuwerte was assessed legal
fees by the clerk of court pursuant to Rule 141 (Legal Fees) of the
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 claim of exemption is not tenable. Section 23 of the RA 14344 runs
contrary to the provisions of the Constitution. Under the 1987 Constitution,
only the Supreme Court has the power to promulgate its rules on pleadings,
practice and procedures in court (Section 5, Article VIII, 1987 Constitution).
Payment of legal fees is a vital component of the rules promulgated by this
Court concerning pleading, practice and procedure, it cannot be validly
annulled, changed or modified by Congress. As one of the safeguards of this
Courts institutional independence, the power to promulgate rules of
pleading, practice and procedure is now the Courts exclusive domain. That
power is no longer shared by this Court with Congress, much less with the
Executive (AM No. 12-2-03-0). Such act by Congress also transgresses the
fiscal autonomy of the Courts.
Hence the City of Masuwerte cannot question the assessment of legal fees
for the cases it filed before the court.

XV.

The President appointed Dexter I. Ty as Chairperson of the


COMELEC on June 14, 2011 for a term of seven (7) years pursuant to
the 1987 Constitution. His term of office started on June 2, 2011 to end
on June 2, 2018. Subsequently, the President appointed Ms. Marikit as
the third member of the COMELEC for a term of seven (7) years
starting June 2, 2014 until June 2, 2021. On June 2, 2015, Chairperson
Ty retired optionally after having served the 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 or on 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
appointment 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?

SUGGESTED ANSWER:
No, the constitutional challenge will not succeed. It is well settled in the case
of Matibag v. Benipayo, the Supreme Court said that when an ad interim
appointment (of the Chairman of the Commission on Elections) is not
confirmed (as it was by-passed, or that there was not ample time for the
Commission on Appointments to pass upon the same), another ad interim
appointment may be extended to the appointee without violating the
Constitution.

XVI.
(1)Gandang Bai filed her certificate of candidacy (COC) for municipal
mayor stating that she is eligible to run for the said position. Pasyo
Maagap, who also filed his COC for the same position, filed a petition to
deny due course or cancel Bai's COC under Section 78 of the Omnibus
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. P. 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.
Explain. (4%)

SUGGESTED ANSWER:
Vice Mayor Umaasa has the right to occupy the position of Mayor. This was
settled in Talaga v. COMELEC (G.R. No. 196804 October 9, 2012). where the
court upheld that the disqualification of Bai created a situation of a
permanent vacancy in the office of the Mayor. A permanent vacancy is filled
pursuant to the law on succession defined in Section 44 of the LGC which
states the If a permanent vacancy occurs in the office of the governor or
mayor, the vice-governor or vice-mayor concerned shall become the
governor or mayor.
Pasyo Maagap who garnered only the second highest number of votes lost to
Gandang Bai. Applying the Labo case cited in Talaga, Maagap could not
assume office for he was only second placer despite the disqualification of
the Gandang Bai because the second placer was "not the choice of the
sovereign will."60 Surely, the Court explained, a minority or defeated
candidate could not be deemed elected to the office.61 There was to be no
question that the second placer lost in the election, was repudiated by the
electorate, and could not assume the vacated position.62 No law imposed
upon and compelled the people of Lucena City to accept a loser to be their
political leader or their representative.
The only time that a second placer is allowed to take the place of a
disqualified winning candidate is when two requisites concur, namely: (a) the
candidate who obtained the highest number of votes is disqualified; and (b)
the electorate was fully aware in fact and in law of that candidates
disqualification as to bring such awareness within the realm of notoriety but
the electorate still cast the plurality of the votes in favor of the ineligible
candidate.64 Under this sole exception, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying
their franchise or throwing away their votes, in which case the eligible

candidate with the second highest number of votes may be deemed


elected.65 The facts of the case at bar did not state the existence of such
exception, thus it cannot apply in favor of Maagap simply because the
second element was absent.

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

SUGGESTED ANSWER:
The two remedies available to prevent a candidate from running in an
electoral race are under Section 68 and under Section 78 of the Omnibus
Election Code. The candidate who is disqualified based on the grounds under
Section 68 (i.e., prohibited acts of candidates, and the fact of a candidates
permanent residency in another country when that fact affects the residency
requirement of a candidate) is merely prohibited to continue as a candidate.
On the other hand, a candidate whose certificate is cancelled or denied due
course based on a statement of a material representation in the said
certificate that is false under Section 78, is not treated as a candidate at all,
as if he/she never filed a Certificate of Candidacy. (Talaga v. COMELEC)

XVI.

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 party-list
elections. The COMELEC denied the application for accreditation on the
ground that GBTYA espouses immorality which offends religious
dogmas. GBTY A challenges the denial of its application based on
moral grounds because it violates its right to equal protection ofthe
law.

(I)

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

SUGGESTED ANSWER:

The three kinds of tests applied in equal protection cases are:


a. Strict Scrutiny Test requires the government to show that the
challenged classifications serve a compelling state interest and that
the classification is necessary to serve that interest. This is used in
cases involving classifications based on race, national origin, religion,
alienage, denial of right to vote, interstate migration, access to courts
and other rights recognized as fundamental
b. Immediate or middle-tier scrutiny test requires government to show
that the challenged classification serves as an important state interest
and that the classification is at least substantially related to serving
that interest. This applies to suspect classification like gender or
illegitimacy.
c. Minimum or rational basis scrutiny according to which the
government need only to show that the challenged classification is
rationally related to serving a legitimate state interest. This is the
traditional rationality test and it applies to all subjects other than
those listed above. (see Bernas Commentary, in Ang Ladlad v.
COMELEC, GR No. 190582, April 8, 2010 for the explanation)
(II)

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

SUGGESTED ANSWER
The Rational Basis Test should be applied to the present case. In our
jurisdiction, the Supreme Court declared that the standard of analysis of
equal protection challenges is the rational basis test. Jurisprudence has
affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, the classification shall be upheld as long as it bears a rational
relationship to some legitimate end. In the case at bar, in so far as the partylist system is concerned, GBTYA is similarly situated as all other groups which
are running for a party-list seat in Congress (Ang Ladlad v. COMELEC).

XVII.

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
claiming 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 ofthe Philippines maintains that the case
ofHades 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
Hades claim is correct. The evidence obtained was illegally seized and is
thus inadmissible in evidence.
A consented warrantless search, if it exists or whether it was in fact
voluntary is a question of fact to be determined from the totality of all the
circumstances. Hades mere silence does not amount to consent. In the
absence of such consent, evidence obtained thereof shall be inadmissible in

evidence, in which case precludes conviction and calls for the acquittal of the
accused (Ong v. People, GR No. 197788, Feb. 29, 2012).

XVIII.

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
PSALMs claim is correct. Under the Water Code, a foreign company may not
be said to be appropriating our natural resources if it utilizes the waters
collected in the dam and converts the same into electricity through artificial
devices such as the hydroelectric facility as in the case case at bar. Since the
NPC remains in control of the operation of the dam by virtue of water rights
granted to it, there is no legal impediment to foreign-owned companies
undertaking the generation of electric power using waters already
appropriated by the NPC, the holder of the water permit. With the advent of
privatization of the electric power industry which resulted in its segregation
into four sectors, NPCs generation and transmission functions were
unbundled. Hence the acquisition by a foreign company of the hydroelectric
facility did not violate any constitutional provision (IDEALS v. PSALM, GR No.
192088).

XIX.

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 carryout 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
No, the action of the governor is not proper. Under the Constitution, it is only
the President, as Executive, who is authorized to exercise emergency powers
as provided under Section 23, Article VI, as well as the calling-out powers
under Section 7, Article VII thereof. In the case at bar, the provincial governor
is not endowed with the power to call upon the state forces at his own
bidding. It is an act which is ultra vires and may not be justified by the
invocation of Section 465 of the Local Government Code (Kulayan v. Gov.
Tan, GR No. 187298, July 3, 2012).

XX.

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 (R.A.) No. 7941? (4%)

SUGGESTED ANSWER
Yes, the PMP can join the party-list system in accordance with the rules
enunciated in Atong Paglaum v. COMELEC. Accordingly, political parties can
participate in party-list elections provided they register under the party-list
system and do not field candidates in legislative district elections. A political
party, whether major or not, that fields candidates in legislative district
elections can participate in party-list elections only through its sectoral wing
that can separately register under the party-list system. The sectoral wing is
by itself an independent sectoral party, and is linked to a political party
through a coalition (Atong Paglaum v. COMELEC, GR Nos. 203766, 20381819, et al.)

XXI.

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 ofthe 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:
Yes, the petition will prosper. The appointment of Melchor as ex-officio

member of the GSIS, ECC and PHILHEALTH during his tenure as the
chairperson of the CSC is unconstitutional for violating Section 2, Article IX-A
of the 1987 Constitution, prohibiting members of Constitutional Commissions
from holding any other office or employment and impairing the
independence of the CSC (Section 1, Article IX-A). This has been a settled
case where the Court ruled that the CSC Chairpersons holding other offices
resulted in double compensation and impairment to CSCs independence
because other offices held by the CSC chairperson are under the Office of the
President (Funa v. Duque, GR No. 191672, November 25, 2014).

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