Political Law Bar Exam Questions 2015

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:

AT’s 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 country’s 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 President’s 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. Cannot be granted in cases of violation of election laws without the favorable
recommendation of the Commission on Elections [Sec. 5, Art. IX-C].
iii. Can be granted only after conviction by final judgment
iv. 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)
v. Cannot absolve the convict of civil liability.
vi. 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%)

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 ABC’s 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 Cruz’s 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 Pangarap’s 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 Court’s institutional independence, the power to
promulgate rules of pleading, practice and procedure is now the Court’s 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 re-
appointment 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
candidate’s 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 candidate’s 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 party-list 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

PSALM’s 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, NPC’s 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).

Q: 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%)

: 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).

XIX. 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, 203818-19, et al.)

XX. 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 Chairperson’s holding other offices resulted in double compensation and
impairment to CSC’s 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).