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Due Process; Provisional Order (1991)

No 7 - On 29 July 1991. the Energy Regulatory Board (ERB), in response to public clamor,
issued a resolution approving and adopting a schedule for bringing down the prices of petroleum
products over a period of one (1) year starting 15 August 1991, over the objection of the oil companies
which claim that the period covered is too long to prejudge and foresee. Is the resolution valid?
SUGGESTED ANSWER:
No, the resolution is invalid, since the Energy Regulatory Board issued the resolution without
a hearing. The resolution here is not a provisional order and therefore it can only be issued after
appropriate notice and hearing to affected parties. The ruling in Philippine Communications Satellite
Corporation vs. Alcuaz, 180 SCRA 218, to the effect that an order provisionally reducing the rates which
a public utility could charge, could be issued without previous notice and hearing, cannot apply.

Right to Travel; Order of Arrest (1991)


No. 6: Mr. Esteban Krony, a Filipino citizen, is arrested for the crime of smuggling. He posts
bail for his release. Subsequently, he jumps bail and is about to leave the country when the
Department of Foreign Affairs (DFA) cancels his passport. He sues the DFA, claiming violation of his
freedom to travel, citing the new provision in the Bill of Rights of the 1987 Constitution, to wit: "Neither
shall the right to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. Decide the case.
SUGGESTED ANSWER:
The case should be dismissed. Any person under an order of arrest is under restraint and
therefore he can not claim the right to travel. If he is admitted to bail his freedom of movement is
confined within the country. Therefore, if he subsequently jumps bail, he cannot demand passport
which in effect will facilitate his escape from the country; he is in fact liable to be arrested anytime.
Indeed, the right to travel under the Constitution presupposes that the individual is under no restraint
such as that which would follow from the fact that one has a pending criminal case and has been placed
under arrest.

Searches and Seizures; Warrants of Arrest


(1991)
No. 8: On the basis of a verified report and confidential information that various electronic
equipment, which were illegally imported into the Philippines, were found in the bodega of the
Tikasan Corporation located at 1002 Binakayan St., Cebu City, the Collector of Customs of
Cebu issued, in the morning of 2 January 1988, a Warrant of Seizure and Detention against the
corporation for the seizure of the electronic equipment. The warrant particularly describes
the electronic equipment and specifies the provisions of the Tariff and Customs Code which were
violated by the importation. The warrant was served and implemented in the afternoon of 2 January
1988 by Customs policemen who then seized the described equipment. The inventory of the seized
articles was signed by the Secretary of the Tikasan Corporation. The following day, a hearing
officer in the Office of the Collector of Customs conducted a hearing on the confiscation of the
equipment. Two days thereafter, the corporation filed with the Supreme Court a petition for certiorari,
prohibition and mandamus to set aside the warrant, enjoin the Collector and his agents
from further proceeding with the forfeiture hearing and to secure the return of the confiscated
equipment, alleging therein that the warrant issued is null and void for the reason that, pursuant to
Section 2 of Article III of the 1987 Constitution, only a judge may issue a search warrant. In his comment
to the petition, the Collector of Customs, through the Office of the Solicitor General, contends that he is
authorized under the Tariff and Custom Code to order the seizure of the equipment whose duties and
taxes were not paid and that the corporation did not exhaust administrative remedies. Should the
petition be granted? Decide.
SUGGESTED ANSWER:
The petition should not be granted. Under Secs. 2205 and 2208 of the Tariff and Customs Code,
customs officials are authorized to enter any warehouse, not used as dwelling, for the purpose of seizing
any article which is subject to forfeiture. For this purpose they need no warrant issued by a court. As
stated in Viduya vs. Berdiago, 73 SCRA 553. for centuries the seizure of goods by customs officials to
enforce the customs laws without need of a search warrant has been recognized.

Law-Making; Overriding the Presidential


Veto (1991)
No. 2: The President signs into law the Appropriations Act passed by Congress but she
vetoes separate items therein, among which is a provision stating that the President may not
increase an item of appropriation by transfer of savings from other items. The House of Representatives
chooses not to override this veto. The Senate, however, proceeds to consider two options: (1) to
override the veto and (2) to challenge the constitutionality of the veto before the Supreme
Court. a) Is option (1) viable? If so. what is the vote required to override the veto? b) Is option (2) viable?
If not. why not? If viable, how should the Court decide the case?
SUGGESTED ANSWER:
(a) Option 1 is not viable in as much as the House of Representatives, from which the Appropriations Act
originated and to which the President must have returned the law, is unwilling to override the
presidential veto. There is, therefore, no basis for the Senate to even consider the possibility of
overriding the President's veto. Under the Constitution the vote of two-third of all the members of the
House of Representatives and the Senate, voting separately, will be needed to override the presidential
veto.
(b) It is not feasible to question the constitutionality of the veto before the Supreme
Court. In Gonzales vs. Macaraig, 191 SCRA 152, the Supreme Court upheld the constitutionality of a
similar veto. Under Article VI, Sec. 27(2) of the Constitution, a distinct and severable part of the General
Appropriations act may be the subject of a separate veto. Moreover, the vetoed provision does not
relate to any particular appropriation and is more an expression of a congressional policy in respect
of augmentation from savings than a budgetary provision. It is therefore an inappropriate provision and
it should be treated as an item for purposes of the veto power of the President. The Supreme Court
should uphold the validity of the veto in the event the question is brought before it.

Loans Extended to Members of Congress


(1991)

No. 9: A. After 2 February 1987, the Philippine National Bank (PNB) grants a loan to
Congressman X. Is the loan violative of the Constitution? Suppose the loan had instead been granted
before 2 February 1987, but was outstanding on that date with a remaining balance on the principal in
the amount of P50,000.00, can the PNB validly give Congressman X an extension of time after said date
to settle the obligation?
SUGGESTED ANSWER:
A. Whether or not the loan is violative of the 1987 Constitution depends upon its purpose. If it was
obtained for a business purpose, it is violative of the Constitution. If it was obtained
for some other purpose, e.g., for housing. It is not violative of the Constitution because under
Section 16, Article XI. Members of Congress are prohibited from obtaining loans from government-
owned banks only if it is for a business purpose. If the loan was granted before the effectivity of the
Constitution on February 2, 1987, the Philippine National Bank cannot extend its maturity after February
2, 1987, if the loan was obtained for a business purpose. In such a case the extension is a financial
accommodation which is also prohibited by the Constitution.

Appointing Power; ad interim appointments


(1991)
No. 3: - On 3 May 1992, while Congress is on a short recess for the elections, the president
appoints Renato de Silva to the rank of General (4-star) in the Armed Forces. She also designates him as
Chief of Staff of the AFP. He immediately takes his oath and assumes that office, with the rank of 4-star
General of the AFP. When Congress resumes its session on 17 May 1992, the Commission on
Appointments informs the Office of the President that it has received from her office only the
appointment of De Silva to the rank of 4-star General and that unless his appointment to the Office of
the Chief of Staff of the AFP is also submitted, the Commission will not act on the matter.
The President maintains that she has submitted to the Commission all that the Constitution calls
for. (a) Who is correct? (b) Did Gen. de Silva violate the Constitution in immediately assuming office
prior to a confirmation of his appointment? (c) Are the appointment and designation valid?
SUGGESTED ANSWER:
(a) The President is correct. Under Presidential Decree No. 360, the grade of four-star general
is conferred only upon the Chief of Staff. Hence, the appointment of Renato de Silva as a four-star
general must be deemed to carry with it his appointment as Chief of Staff of the AFP,

(b) Gen. Renato de Silva did not violate the Constitution when he immediately assumed office before the
confirmation of his appointment, since his appointment was an ad interim appointment. Under Article
VI I, Sec. 16 of the Constitution, such appointment is immediately effective and is subject only to
disapproval by the Commission on Appointments or as a result of the next adjournment of the Congress.

(c) The appointment and designation of Gen.de Silva are valid for reasons given above.
However, from another point of view they are not valid because they were made within the
period of the ban for making appointments. Under Article VII, Sec. 15 the President is prohibited from
making appointments within the period of two (2) months preceding the election for President and Vice
President. The appointment in this case will be made on May 3, 1992 which is just 8 days away from the
election for President and Vice President on May 11, 1992. For this reason the appointment and
designation of Gen. de Silva are after all invalid. [Note: May 3, 1991 and May 17, 1992 are Sundays.
However the Committee finds no relevance in the fact that these are holidays and therefore decided to
ignore this fact.]

Judicial Department; Writ of Amparo (1991)


No 1: What is a Constitutional writ of Amparo and what is the basis for such a remedy under the
Constitution?
SUGGESTED ANSWER:
The writ of Amparo in Mexican law is an extraordinary remedy whereby an interested
party may seek the invalidation of any executive, legislative or judicial act deemed in violation of a
fundamental right. The adoption of such a remedy in the Philippines may be based
on Article VIII, Sec. 5(5) of the Constitution, which empowers the Supreme Court to
promulgate rules concerning the protection and enforcement of constitutional rights.
Grant of Pardon in Election Offenses (1991)
No. 11 - In connection with the May 1987 Congressional elections, Luis Millanes was
prosecuted for and convicted of an election offense and was sentenced to suffer
imprisonment for six years. The court did not impose the additional penalty of disqualification
to hold public office and of deprivation of the right of suffrage as provided for in Section 164 of the
Omnibus Election Code of the Philippines (B.P. Blg. 881). In April 1991, the President granted him
absolute pardon on the basis of a strong recommendation of the Board of Pardons and
Parole. Then for the election in May 1992, Luis Millanes files his certificate of candidacy for the office of
Mayor in his municipality.
(a) What is the effect of the failure of the court to impose the additional penalty? (b) Is the pardon
valid?
SUGGESTED ANSWER:
(a) No need to expressly impose – they are accessory penalties.

(b) The pardon is void, since Luis Millanes was convicted for the commission of an election
offense and his pardon was not made upon the recommendation of the COMELEC. Under
Article IX, C, Sec. 5 of the Constitution, no pardon for violation of an election law may be granted
without the favorable recommendation of the COMELEC.

Disqualification; Grounds (1991)


No. 11 - In connection with the May 1987 Congressional elections, Luis Millanes was
prosecuted for and convicted of an election offense and was sentenced to suffer
imprisonment for six years. The court did not impose the additional penalty of disqualification
to hold public office and of deprivation of the right of suffrage as provided for in Section 164
of the Omnibus Election Code of the Philippines (B.P. Blg. 881). In April 1991, the President granted him
absolute pardon on the basis of a strong recommendation of the Board of Pardons and Parole. Then for
the election in May 1992, Luis Millanes files his certificate of candidacy for the office of Mayor in his
municipality. (c) Is a petition to disqualify Millanes viable? (d) What are the effects of a petition to
disqualify?
SUGGESTED ANSWER:
(c) In accordance with Sec. 68 of the Omnibus Election Code, Luis Millanes may be
disqualified from running for mayor as he was convicted of an election offense.

(d) Under Sec. 6 of the Electoral Reforms Law, any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and votes cast for him shall not be counted.
If before the election he is not declared by final judgment to be disqualified and he is voted for and he
receives the winning number of votes, the hearing on the question of disqualification
should continue. Upon motion of the complainant or any intervenor, the court or the COMELEC may
order the suspension of the proclamation of the winning candidate if the evidence of his guilt is strong.

Election Offenses; Conspiracy to Bribe


Voters (1991)
No. 12: Discuss the disputable presumptions (a) of conspiracy to bribe voters and (b) of the
involvement of a candidate and of his principal campaign managers in such conspiracy.
SUGGESTED ANSWER:
(a) Under Sec, 28 of the Electoral Reforms Law proof that at least one voter in different
precincts representing at least twenty per cent of the total precincts in any municipality, city or
province was offered, promised or given money, valuable consideration or other expenditure by the
relatives, leader or sympathizer of a candidate for the purpose of promoting the candidacy of such
candidate, gives rise to a disputable presumption of conspiracy to bribe voters.

(b) Under Sec. 28 if the proof affects at least 20% of the precincts of the municipality, city or
province to which the public office aspired for by the favored candidate relates, this shall
constitute a disputable presumption of the involvement of the candidate and of his principal campaign
managers in each of the municipalities concerned, in the conspiracy.

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.

Ordinances; Validity; Limitation of Penalties


(1991)
No. 10: The municipality of Alcoy, Cebu, passed Ordinance No. 10, series of 1991,
requiring owners, administrators, or tenants of buildings and premises to keep and maintain them in
sanitary condition, and should they fail to do so, cause them to be cleared and kept in
sanitary condition and the cost thereof to be assessed against the owner, administrator or
tenant, as the case may be, which cost shall constitute a lien against the property. It further
penalizes violation thereof with a fine not exceeding One Thousand Pesos (P1,000.00) or imprisonment
for one (1) year at the discretion of the court. Is the ordinance valid?
SUGGESTED ANSWER:
The ordinance is valid insofar as it requires owners, administrators, or tenants of buildings
and premises to keep and maintain them in sanitary condition and provides that should they
fail to do so, the municipality shall cause them to be cleaned and the cost shall be assessed
against the owner, administrator, or tenant and shall be a lien against the property. This is
expressly authorized by Sec. 149(kk) of the Local Government Code.
However, the penalty for the violation of the ordinance is invalid, because it is excessive.
The penalty in this case is a fine not exceeding P1,000 or imprisonment for one year, in the
discretion of the court. Under Sec. 149 (c) of the Local Government Code, however, the
penalty for the violation of a municipal ordinance cannot exceed a fine of P1,000.00 or Imprisonment for
six months, or both at the discretion of the court.

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.

Basic Principles in Public Int’l Law (1991)


Select any five (5) of the following and explain
each, using examples:
(a) Reprisal
(b) Retorsion
(c) Declaratory Theory of Recognition
Principle
(d) Recognition of Belligerency
(e) Continental Shelf
(f) Exequatur
(g) Principle of Double Criminality
(h) Protective Personality
(i) Innocent Passage
(j) Jus cogens in International Law
SUGGESTED ANSWER:
(a) REPRISAL is a coercive measure short of war, directed by a state against another, in
retaliation for acts of the latter and as means of obtaining reparation or satisfaction for such acts.
Reprisal involves retaliatory acts which by themselves would be illegal. For example, for violation of a
treaty by a state, the aggrieved state seizes on the high seas the ships of the offending state.

(b) RETORSION is a legal but deliberately unfriendly act directed by a state against
another in retaliation for an unfriendly though legal act to compel that state to alter its unfriendly
conduct. An example of retorsion is banning exports to the offending state.

(c) The DECLARATORY THEORY OF


RECOGNITION is a theory according to which recognition of a state is merely an
acknowledgment of the fact of its existence. In other words, the recognized state already exists and can
exist even without such recognition. For example, when other countries recognized Bangladesh,
Bangladesh already existed as a state even without such recognition.

(d) RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a third party of the


existence of a state of war between the central government and a portion of that state.
Belligerency exists when a sizeable portion of the territory of a state is under the effective control of an
insurgent community which is seeking to establish a separate government and the insurgents are in de
facto control of a portion of the territory and population, have a political organization, are able to
maintain such control, and conduct themselves according to the laws of war. For example, Great Britain
recognized a state of belligerency in the United States during the Civil War,

(e) CONTINENTAL SHELF of a coastal state comprises the sea-bed 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 shelf does not extend up to that distance.

(f) EXEQUATUR is an authorization from the receiving state admitting the head of a consular post to the
exercise of his functions. For example, if the Philippines appoints a consul general for New York, he
cannot start performing his functions unless the President of the United States issues an exequatur to
him,

(g) The principle of DOUBLE CRIMINALITY is the rule in extradition which states that for a
request to be honored the crime for which extradition is requested must be a crime in both the
requesting state and the state to which the fugitive has fled. For example, since murder is a crime both
in the Philippines and in Canada, under the Treaty on Extradition between the Philippines and Canada,
the Philippines can request Canada to extradite a Filipino who has fled to Canada.

(h) PROTECTIVE PERSONALITY principle is the principle by which the state exercise jurisdiction over the
acts of an alien even if committed outside its territory, if such acts are adverse to the interest of the
national state.

(i) INNOCENT PASSAGE means the right of continuous and expeditious navigation of a
foreign ship through the territorial sea of a state for the purpose of traversing that sea without
entering the internal waters or calling at a roadstead or port facility outside internal waters, or
proceeding to or from internal waters or a call at such roadstead or port facility. The passage is innocent
so long as it is not prejudicial to the peace, good order or security of the coastal state.

(j) JUS COGENS is a peremptory norm of general international law accepted and recognized by the
international community as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character, An
example is the prohibition against the use of force.

Rights and Obligation under UN Charter


(1991)
No. 14: State X invades and conquers State Y.
The United Nations Security Council declares
the invasion and conquest illegal and orders an
international embargo against State X.
Subsequently, the same U.N. body adopts a
resolution calling for an enforcement action
against State X under Chapter VII of the U.N.
Charter. State Z, a U.N. member, religiously
complies with the embargo but refuses to take
part in the enforcement action, sending a
medical mission instead of fighting troops to the
troubled area.
(a) Did State Z violate its obligations under the
U.N. Charter?
(b) If so, what sanctions may be taken against
it?
(c) If not, why not?
ANSWER:
(a) No, State Z did not violate its
obligations under the United Nations Charter. It
complied with the resolution calling for
enforcement action against State X, because it
sent a medical team.
(b) No sanctions may be taken against
State Z. because it did not violate its obligation
under the United Nations Charter.
(c) Compliance with the resolution
calling for enforcement action against Slate X
does not necessarily call for the sending of

fighting troops. Under Art 43 of the United


Nations Charter, compliance with the call for
enforcement action against State X has to be
made in accordance with a special agreement
with the Security Council and such agreement
shall govern the numbers and types of forces,
their degree of readiness and general locations,
and the nature of the facilities and assistance to
be supplied by members of the United Nations.

ADMINISTRATIVE LAW
Admin Law; Exhaustion of Administrative
Remedies (1991)
No. 9: B, For being notoriously undesirable
and a recidivist, Jose Tapulan, an employee in
the first level of the career service in the Office
of the Provincial Governor of Masbate, was
dismissed by the Governor without formal
investigation pursuant to Section 40 of the Civil
Service Decree (P.D. No. 807} which authorizes
summary proceedings in such cases.
As a lawyer of Jose what steps, if any,
would you take to protect his rights?
SUGGESTED ANSWER:

B. Section 40 of the Civil Service Decree has


been repealed by Republic Act No. 6654. As
lawyer of Jose Tapulan, I will file a petition for
mandamus to compel his reinstatement. In
accordance with the ruling in Mangubat us.
Osmena, G.R No. L-12837, April 30, 1959, 105
Phil. 1308, there is no need to exhaust all
administrative remedies by appealing to the
Civil Service Commission, since the act of the
governor is patently Illegal.

Admin Law; Exhaustion of Administrative


Remedies; Exceptions (1991)
No. 8: On the basis of a verified report and
confidential information that various electronic
equipment, which were illegally imported into
the Philippines, were found in the bodega of the
Tikasan Corporation located at 1002 Binakayan
St., Cebu City, the Collector of Customs of
Cebu issued, in the morning of 2 January 1988,
a Warrant of Seizure and Detention against the
corporation for the seizure of the electronic
equipment. The warrant particularly describes
the electronic equipment and specifies the
provisions of the Tariff and Customs Code
which were violated by the importation.
The warrant was served and
implemented in the afternoon of 2 January 1988
by Customs policemen who then seized the
described equipment. The inventory of the
seized articles was signed by the Secretary of
the Tikasan Corporation. The following day, a
hearing officer in the Office of the Collector of
Customs conducted a hearing on the
confiscation of the equipment.
Two days thereafter, the corporation
filed with the Supreme Court a petition for
certiorari, prohibition and mandamus to set
aside the warrant, enjoin the Collector and his
agents from further proceeding with the
forfeiture hearing and to secure the return of the
confiscated equipment, alleging therein that the
warrant issued is null and void for the reason
that, pursuant to Section 2 of Article III of the
1987 Constitution, only a judge may issue a
search warrant. In his comment to the petition,
the Collector of Customs, through the Office of
the Solicitor General, contends that he is
authorized under the Tariff and Custom Code to
order the seizure of the equipment whose
duties and taxes were not paid and that the
corporation did not exhaust administrative
remedies.
(a) Should the petition be granted?
Decide.
(b) If the Court would sustain the
contention of the Collector of Customs on the
matter of exhaustion of administrative
remedies, what is the administrative remedy
available to the corporation?
(c) What are the exceptions to the rule
on exhaustion of administrative remedies?
SUGGESTED ANSWER:
(a) No. No search warrant from court
needed.
(b) As pointed out in Chia us. Acting
Collector of Customs, 177 SCRA 753, the
administrative remedy available under Section
2313 of the Tariff and Customs Code is to
appeal to the Commissioner of Customs, from
whose decision an appeal to the Court of Tax
Appeals lies.
(c) The following are the exceptions to
the doctrine of exhaustion of administrative
remedies:
1. The case deals with private land;
2. The question involved is purely
legal;
3. The case involves a quo warranto
proceeding;
4. There is denial of due process;
5. The decision is patently illegal;
6. The aggrieved party will suffer
irreparable injury;
7. There is estoppel;
8. Resort to administrative remedies
would be futile;
9. The decision is that of a
department head;
10. The law expressly provides for
immediate judicial review;
11. Public interest is involved;
12. There was unreasonable delay in
the administrative proceedings; and
13. The aggrieved party is poor.