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Republic of the Philippines Supreme Court Manila 2015 BAR EXAMINATIONS POLITICAL LAW November 8, 2015 8:00A.M.-

Republic of the Philippines Supreme Court Manila

 

2015 BAR EXAMINATIONS

 

POLITICAL LAW

November 8, 2015

8:00A.M.- 12:00 NN.

   

INSTRUCTIONS

  • 1. This Questionnaire contains ten (10) pages including these Instructions

pages. Check the number of pages and the page numbers at the upper right

hand corner of each page of this Questionnaire and make sure it has the correct number of pages and their proper numbers.

There are 22 items (I to XXII) to be answered within four (4) hours.

  • 2. Read each question very carefully and write your answers in your Bar

Examination Notebook in the same order the questions are posed. Write your

answers only on thefront, not the back, page of every sheet in your Notebook. Note well the allocated percentage points for each number, question, or sub question. In your answers, use the numbering system in the questionnaire.

If the sheets provided in your Examination Notebook are not sufficient for your answers, use the back page of every sheet of your Examination Notebook, starting at the back page of the first sheet and the back of the succeeding sheets thereafter.

  • 3. Answer the Essay questions legibly, clearly, and concisely. Start each

number on a separate page. An answer to a sub-question under the same number may be written continuously on the same page and the immediately succeeding pages until completed.

Your answer should demonstrate your ability to analyze the facts presented by the question, to select the material from the immaterial facts, and to discern the points upon which the question turns. It should show your knowledge and understanding of the pertinent principles and theories of law involved and their qualifications and limitations. It should demonstrate your ability to apply the law to the given facts, to reason logically in a lawyer-like manner, and to form a sound conclusion from the given premises.

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A mere "Yes" or "No" answer without any corresponding explanation or discussion will not be given any credit. Thus, always briefly but fully explain your answers although the question does not expressly ask for an explanation. At the same time, remember that a complete explanation does not require that you volunteer information or discuss legal doctrines that are not necessary or pertinent to the solution to the problem. You do not need to re-write or repeat the question in your Notebook.

  • 4. Make sure you do not write your name or any extraneous notels or

distinctive markingls on your Notebook that can serve as an identifying mark/s (such as names that are not in the given questions, prayers, or private notes to the Examiner).

Writing, leaving or making any distinguishing or identifying mark in the exam Notebook is considered cheating and can disqualify you for the Bar . examinations.

You can use the questionnaire for notes you may wish/need to write during the examination.

YOU CAN BRING HOME THIS QUESTIONNAIRE OR SUBMIT IT TOGETHER WITH YOUR NOTEBOOK

It

JUSTICE TERESITA J. LEONARDO-DE CASTRO Chairperson 2015 Bar Examinations

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  • 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%)

No, Senator Maagap is incorrect. The Executive Agreement is in the form of a treaty or international agreement. A treaty or international agreement, according to Article VII Sec 21 of the Constitution, requires the concurrence of the Senate and not ratification. In the case at bar, what is required by our Constitution is a concurrence and not ratification, thus, Senator Maagap is erroneous in requiring the Senate to ratify the same, instead, he should ask for the concurrence of Senate; of which is indispensable for treaties and international agreements.

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 ofUNCLOS 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%)

No, Cong. Pat Rio cannot question the constitutionality of the bill. Art. VIII of the constitution provides that judicial power includes the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable. In the case at bar, there can be no justifiable controversy involving the constitutionality of a proposed bill, not being a law, creating no rights and imposes no legal duty enforceable by the court. (Montescarlos vs. COMELEC GR 152295 July

2002)

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

  • (a) Territorial sea

  • (b) Contiguous zone

(c) Exclusive economic zone (d) Continental shelf

The following are the limitations set by UNCLOS on the different maritime regimes:

(a)The territorial sea shall not exceed 12 nautical miles measured from the baselines using the straight baseline method. (b)The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. (c) The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. (d) 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

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%)

The argument is untenable. According to Section 7 of Article IX-B of the 1987 Constitution, no appointive official shall hold any other office or employment in the government or any subdivision or agency thereof, including government-owned or controlled corporations. It is clear that in the case at bar, Professor Masipag is an appointed official of the Court of Appeals while still holding another office in the University of the Philippines, a government-owned and controlled corporation. Thus, he is in violation of such constitutional provision. Whether or not he will receive compensation from only one of his offices is immaterial, what is material is his holding of two offices prohibited under this provision.

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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%)

A facial challenge is allowed to be made during the application of the void-for-vagueness doctrine, traditionally applied to those statutes that regulate spoken words. It is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. (Estrada v. Sandiganbayan GR 148560 Nov 2001)

  • V. BD Telecommunications, Inc. (BDTI), a Filipino-owned corporation, sold

its 1,000 common shares of stock in the Philippine Telecommunications Company (PTC), a public utility, to Australian Telecommunications (AT), another

stockholder

of the PTC which also owns 1,000 common shares. A Filipino

stockholder

of PTC questions the sale on the ground that it will increase the

common shares of AT, a foreign company, to more than 40% of the capital (stock) of PTC in violation of the 40% limitation of foreign ownership of a public utility. AT argues that the sale does not violate the 60-40 ownership requirement in favor of Filipino citizens decreed in Section II, Article XII ofthe 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%)

It is violative of the 60-40 Filipino ownership requirement. Sec. 11 of Art. XII of the 1987 Constitution provides that at least 60% of the capital of corporations operating public utilities shall be owned by Filipinos. Firstly, it is undisputed that PT is a public utility. Secondly, the term capital applies to shares with voting rights such as common shares. Preferred shares generally have no voting rights. It is clear that AT owns majority of the common shares representing PT’s capital, thus, it is in violation of abovementioned constitutional provision. (Gamboa vs. Tevez GR 176579 Oct 2012)

VI.

(1) Distinguish the President's

authority

to declare

a

state

of rebellion

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

The President’s authority to declare a state of rebellion is based on Sec. 18 Art. VII of the Constitution, as an exercise of his power as Chief Executive to prevent or suppress lawless violence, invasion, or rebellion. The President’s authority to proclaim a state of national emergency is based on Sec. 17 of Art VII exercising the extraordinary power of the state to take-over privately-owned public utilities and industries affected with public interest. (David vs. Arroyo GR 171396 May 2006)

(2)

What are the limitations, if any, to the pardoning power of the President?

(3%)

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The pardoning power of the president may only be exercised in:

  • a. Cases involving the violation of election laws, rules, and regulations with no recommendation from the COMELEC; (Art IX-C Sec. 5)

  • b. Cases of impeachment; (Art IX-C Sec. 19)

  • c. Cases that have resulted to final conviction; (Art IX-C Sec. 19)

The pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution. (Monsanto v. Factoran, Jr.GR 78239 Feb 1989)

VII.

Senator Fleur De Lis is charged with plunder before the Sandiganbayan. After finding the existence of probable cause, the court issues a warrant

for the Senator's arrest.

The prosecution files a motion to suspend the

Senator relying on Section 5 of the Plunder Law. According to the prosecution, the suspension should last until the termination of the case. Senator Lis vigorously opposes the motion contending that only the Senate can discipline its members; and that to allow his suspension by the Court would violate the principle of separation of powers. Is Senator Lis's contention tenable? Explain. (4%)

The Senator’s contention is without merit. The disciplinary power of the Congress and the Sandiganbayan are distinct. The suspension contemplated by Sec. 16 Art. VI of the Constitution is imposed on members of the Congress as punishment for disorderly behavior. While, Section 5 of the Plunder law is not a penalty but a preliminary preventive measure, according to the decision. Both suspensions are distinct, thus, there being no encroachment upon the principle of separation of powers. (Ceferino Paredes, Jr. vs Sandiganbayan 252 SCRA 641)

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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 ofthe 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%)

The doctrine holds no application in the case at bar. The doctrine is grounded on Sec. 12, Art. VII of the Constitution provides that the acts of secretaries of departments, being appointed by the Chief Executive, are presumptively the acts of the Chief Executive. In the case at bar, the Cabinet members sat on the Board of Directors of the GOCC, not because of their direct appointment to the Board by the President. Evidently, it was the law, not the President that sat them in the Board. Thus, the doctrine of qualified political agency is not applicable, their positions in the GOC not being appointed by the President. (Manalang-Demigillo vs. TIDCORP GR 168613 March 2013)

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%)

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The executive privilege is only available to the President and not to the department heads. Sec. 21, Art. VI of the Constitution recognizes the Congress’ power of inquiry. The executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege which is only accorder to the Chief Executive; they are not exempt by the mere fact that they are department heads. (Senate vs. Ermita GR 169777 April 2006)

  • 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.

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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%)

Yes, I shall grant the motion. The general rule, as provided by the Administrative Law, is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. This rule however, admits of several exceptions as in the case of Republic vs. Lacap; two of which are: (1) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; and (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice. The case at bar falls squarely on both exemptions as the as the license conversions are allegedly is a patent violation of the non-impairment clause of the Constitution, thus, making the act patently illegal. (Republic vs. Lacap G.R. No. 158253, March 2, 2007)

XI.

(1) What is the concept of expanded judicial review under the 1987 Constitution?

The concept is embodied in Sec. 1 of Article VIII of the 1987 Constitutions which provides that Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

(2) Differentiate

the

rule-making

power

or

the

power of the

Supreme

Court to promulgate rules under Section 5, Article VIII of the 1987

Constitution and judicial legislation. (2o/o)

The constitution provides that the Supreme Court shall: Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. While judicial legislation is when the courts under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms. (Lito Corpuz vs. People GR 180016 April 2014)

XII.

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

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The evolution of Jus Sanguinis or citizenship by blood traces its origins to the 1935 Constitution which stated that those born of Filipino fathers were automatically Filipino citizens. However, the 1935 Constitution also stated that those born of Filipino mothers are required to elect citizenship once reaching the age of majority. This has led to an absurd situation where even a member of Congress and a CPA was not even considered to be a Filipino because he was born to a foreign father and Filipino mother before the 1973 Constitution. This absurdity was corrected in the 1973 Constitution where those born of Filipino mothers and fathers were automatically citizens of the Philippines without having to elect citizenship even after reaching the age of majority. This correction of jus sanguinis citizenship was later re-affirmed in the 1987 Constitution.

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 ofPangarap." 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 I 0, Article X of the 1987 Constitution. Is the claim correct? Explain. (4%)

No, Piolo Cruz's claim is not correct. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit, no plebiscite requirement exists under the apportionment or reapportionment provision. In the case at bar, RA 1234 merely increased the representation of City of Pangarap in the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution. No such creation, division, merger, abolition or alteration of boundaries of a local government unit took place; and R.A. No. 1234 did not bring about any change in the City of Pangarap’s territory, population and income classification. (Bagabuyo vs. COMELEC GR 176970 Dec 2008)

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

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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%)

The claim is untenable. Sec 5(5), Article VIII of the Constitution provides that the Supreme Court shall have the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts. Since the payment of legal fees is a vital component of the rules promulgated by the Supreme Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by the Supreme Court. Viewed from this perspective, the claim of a legislative grant of exemption from the payment of legal fees granted to the City of Masuwerte under R.A. No. 14344 necessarily fails. (RE: Petition for the Recognition of the exemption of the GSIS AM 08-2-01-0 February 2010)

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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

Chairpersonis unconstitutional for the following reasons: ( 1) The appointment of Marikit as COMELEC Chairperson constituted a re appointment which is proscribed by Section 1(2), Article IX of the 1987 Constitution Section 1(2), Article IX of the 1987 Constitution;

and

(2) the

term

of office expressly

stated in the appointment papers of

Marikit likewise contravenes the aforementioned constitutional provision. Will the constitutional challenge succeed? Explain. (4%)

Yes, the challenge shall succeed. As a general rule, a party must have a locus standi in order to file a valid action in court. The party must have a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. Matalino in this case, being a taxpayer, has not and will not sustain direct or personal injury from the said appointment. But the Supreme Court had in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest and transcendental importance, and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. This is the Transcendental Importance rule. Thus, the action of Matalino shall succeed having locus standi; the violations of the provisions of Art. IX of the Constitution on appointments is a case involving paramount public interest and transcendental importance. (Francisco vs. House of Representatives GR 160261 Nov 2003)

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

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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.

(5%)

Maagap has a better right to occupy the position as Mayor. Section 41 of the Local Government Code provides that the Vice-Mayor shall become Mayor if a permanent vacancy occurs. The same section defines a permanent vacancy as on that arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. This does not apply to the case at bar. According to a ruling by the Supreme Court, when there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. With Bai’s disqualification, Maagap then becomes the winner in the election as he obtained the highest number of votes from among the qualified candidates. (Maquiling vs. COMELEC GR 195649 April 2013)

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

A petition for disqualification of a candidate may be filed pursuant to Section 68 of the same Code while a petition to cancel a candidate’s COC may be filed under Section 78 of the OEC. As to the effect, the Supreme Court held in that a candidate who is disqualified under Section 68 of the Omnibus Election Code can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose certificate of candidacy has been denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a candidate. (Tagolino vs. House of Representatives Electoral Tribunal, 693 SCRA 574 , March

2013)

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

(1)

What

are the

three

(3) levels

of test

that

are applied

in equal

protection cases? Explain. (3%)

 

The three test applied are:

  • a. Rational Basis test - laws or ordinances are upheld if they rationally further a legitimate governmental interest

  • b. Intermediate review test - a governmental interest is extensively examined and the availability of less restrictive measures is considered

  • c. Strict scrutiny test - the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest

(2)

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

Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.

XVIII. Around 12:00 midnight, a team of police officers was on routine patrol in Barangay Makatarungan when it noticed an open delivery van neatly covered with banana leaves. Believing that the van was loaded with contraband, the team leader flagged down the vehicle which was driven by Hades. He inquired from Hades what was loaded on the van. Hades just gave the police officer a blank stare and started to perspire profusely. The police officers then told Hades that they will look inside the vehicle. Hades did not make any reply. The police officers then lifted the banana leaves and saw several boxes. They opened the box;es 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 fmal 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 of the Philippines maintains that the case ofHades

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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%)

Hades’ claim is correct. The action of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the contraband obtained in violation of Hades’ right against warrantless search cannot be admitted for any purpose in any proceeding. Searches of vehicles are limited to visual searches. Consent cannot said to be validly given by mere failure to protest, especially in circumstances where fear might be present. If there was any, could not be more than a mere passive conformity on Hades' part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. (Aniag Jr. vs. COMELEC GR 104961 Oct 1994)

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XIX. Pursuant to its mandate to manage the orderly sale, disposition and privatization of the National Power Corporation's (NPC) generation assets, real estate and other disposable assets, the Power Sector Assets and Liabilities Management (PSALM) started the bidding process for the privatization of Angat Hydro Electric Power Plant (AHEPP). After evaluation of the bids, K-Pop Energy Corporation, a South Korean Company, was the highest bidder. Consequently, a notice of award was issued to K-Pop. The Citizens' Party questioned the sale arguing that it violates the constitutional provisions on the appropriation and utilization of a natural resource which should be limited to Filipino citizens and corporations which are at least 60o/o 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%)

PSALM’s claim is correct. Sec. 2, Art. XII of the 1987 Constitution provides that the exploration, development, and utilization of natural resources shall be granted to corporations with at least sixty per centum of whose capital is owned by Filipinos. Appropriation of water, as used in the Water Code refers to the "acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the manner and for any purpose allowed by law." Under the Water Code concept of appropriation, 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. The process of generating electric power from the dam water entering the power plant thus does not constitute appropriation within the meaning of natural resource utilization in the Constitution and the Water Code. Thus, the foreign ownership of a hydropower facility is not prohibited under existing laws. (IDEALS INC. vs. PSALM GR 192088 Oct 2012)

XX. Typhoon Bangis devastated the Province of Sinagtala. Roads and bridges were destroyed which impeded the entry of vehicles into the area. This caused food shortage resulting in massive looting of grocery stores and malls. There is power outage also in the area. For these reasons, the governor of the province declares a state of emergency in their province through Proclamation No. 1. He also invoked Section 465 of the Local Government Code of 1991 (R.A. No. 7160) which vests on the provincial governor the power to 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. (4o/o)

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No, the governor exceeded his powers. He exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code. (Kulayan vs. Tan GR 187298 July 2012)

XXI. The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major political party which has participated in every election since the enactment of the 1987 Constitution. It has fielded candidates mostly for legislative district elections. In fact, a number of its members were elected, and are actually serving, in the House of Representatives. In the coming 2016 elections, the PMP leadership intends to join the party-list system.

Can PMP join the party-list system without violating the Constitution and Republic Act (R.A.) No. 7941? (4o/o)

Yes. The Supreme Court ruled that the 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list elections so as to encourage them to work assiduously in extending their constituencies to the "marginalized and underrepresented" and to those who "lack well- defined political constituencies." The participation of major political parties in party-list elections must be geared towards the entry, as members of the House of Representatives, of the "marginalized and underrepresented" and those who "lack well-defined political constituencies," giving them a voice in law-making. A major political party such as PMP which regularly fields candidates for legislative district elections can participate in party-list elections by organizing a sectoral wing that will register under the party list system. (Atong Paglaum vs. COMELEC GR 203766 April 2013)

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XXII. The President appoints Emilio Melchor as Chairperson of the Civil Service Commission. Upon confirmation of Melchor's appointment, the President issues an executive order including him as Ex-Officio member of the Board of Trustees of the Government Service Insurance System (GSIS), Employees Compensation Commission (ECC), and the Board of Directors of the Philippine Health Insurance Corporation (PHILHEALTH). Allegedly, this is based on the Administrative Code of 1997 (E.O. No. 292), particularly Section 14, Chapter 3, Title I-A, Book

V. This provision reads: "The chairman of the CSC shall be a member of the Board of Directors of other governing bodies of government entities whose functions affect the career development, employment, status, rights, privileges, and welfare of government officials and

employees

..."

A taxpayer questions the designation of Melchor as ex-

officio member of the said corporations before the Supreme Court based on two (2) grounds, to wit: (1) it violates the constitutional prohibition on members of the Constitutional Commissions to hold any other office or employment during his tenure; and (2) it impairs the independence of the CSC. Will the petition prosper? Explain. (4%)

Yes the petition will prosper. The taxpayer has a valid locus standi the case being of transcendental importance, since it obviously has "far-reaching implications," and there is a need to promulgate rules that will guide the bench, bar, and the public in future analogous cases. Melchor’s designation as member of the governing Boards of the GSIS, PHILHEALTH, and ECC entitles him to receive additional compensation that is disallowed by the concept of an ex officio position by virtue of its clear contravention of the proscription set by Section 2, Article IX-A of the 1987 Constitution. Apart from violating the prohibition against holding multiple offices, Melchor’s designation as member of the governing Boards of the GSIS, PHILHEALTH, and ECC impairs the independence of the CSC. Under Section 17 Article VII of the Constitution, the President exercises control over all government offices in the Executive Branch. Undoubtedly, the GSIS, PHILHEALTH, and ECC and the members of their respective governing Boards are under the control of the President. As such, the CSC Chairman cannot be a member of a government entity that is under the control of the President without impairing the independence vested in the CSC by the 1987 Constitution under Article IX-A Section 2. (Funa vs. Duque GR 191672 Nov 2014)

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