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NATIONAL TERRITORY

Bar QuestionQ: A law was passed dividing the Philippines into

3 regions (Luzon, Visayas, Mindanao), eachconstituting an independent state except onmatters of foreign relations, national defense andnational taxation, which are vested in the Centralgovernment.

Is the law valid? Explain.

A: The law dividing the Philippines into 3 regions,each constituting an independent state and vesting ina central government matters of foreign relations,national defense and national taxation, isunconstitutional. First, it violates Art. I, whichguarantees the integrity of the national territory of thePhilippines because it divided the Philippines into 3states. Second, it violates Sec. 1, Art. II of the

Constitution, which provides for the establishment ofdemocratic and republic States by replacing it with 3States organized as a confederation. Third, it violatesSec. 22, Art. II of the Constitution, which, whilerecognizing and promoting the rights of indigenouscultural communities, provides for autonomousregions in Muslim Mindanao and in the Cordilleraswithin the framework of national sovereignty as wellas territorial integrity of the Republic of thePhilippines. Fifth, it violates the sovereignty of theRepublic of the Philippines.

GOVERNMENT

Bar QuestionQ: Are government-owned or controlledcorporations within the scope and meaning of theGovernment of the Philippines?

A: Sec. 2 of the Introductory Provision of theAdministrative Code of 1987 defines the governmentof the Philippines as the corporate governmentalentity through which the functions of government areexercised throughout the Philippines, including, sameas the contrary appears from the context, the variousarms through which political authority is madeeffective in the Philippines, whether pertaining to theautonomous regions, the provincial, city, municipal orbarangay subdivisions or other forms of local

government.Government-owned or controlled corporations are

within the scope and meaning of the Government ofthe Philippines if they are performing governmental orpolitical functions.

DECLARATION OF PRINCIPLES AND STATEPOLICIES

Bar QuestionQ:

(a) Discuss the concept of social justiceunder the 1987 Constitution.

(b) How does it compare with the oldconcept of social justice under the 1973Constitution? Under the 1935Constitution?

A:(a) Section 10, Article II of the 1987 Constitution

provides, The State shall promote socialjustice in all phases of nationaldevelopment. As stated in Marquez vs.Secretary of Labor, 171 SCRA 337, social

justice means that the State should assist theunderprivileged. Without such help, they might not beable to secure justice for themselves. Since theprovision on social justice in the 1987 Constitutioncovers all phases of national development, it is notlimited to the removal of socio-economic inequitiesbut also includes political and cultural inequities. The1987 Constitution elaborated on the concept of social

justice by devoting an entire article, Article XIII, to it.(b) In Calalang vs. Williams, et. al., 70 Phil. 726, socialjustice was defined as neither communism nordespotism, nor atomism, nor anarchy, but thehumanization of laws and the equalization of socialand economic forces by the State so that justice in itsrational and objectively secular conception may atleast be approximated. Social justice means thepromotion of the welfare of all the people, theadoption by the government of measures calculatedto insure economic stability of all the competentelements of society, through the maintenance of aproper economic and social equilibrium in theinterrelations of the members of the community.

Bar QuestionQ: Does the 1987 Constitution provide for a policy oftransparency in matters of public interest? Explain.

A: Yes, the 1987 Constitution provides for a policy oftransparency in matters of public interest. Section 28, Article IIof the 1987 Constitution provides:

Subject to reasonable conditions prescribed by law,the sate adopts and implements a policy of full disclosure of allits transactions involving public interest.

Section 7, Article III of the 1987 Constitution states:

The right of the people to information on matters of

public concern shall be recognized. Access to official records,and to documents, and papers pertaining to official acts,transactions, or decisions, as well as to government researchdata used as basis for policy development, shall be affordedthe citizen, subject to such limitations as may be provided bylaw.

Section 20, Article VI of the 1987 Constitution reads:

The records and books of account of the Congressshall be preserved and be open to the public in accordancewith law, and such books shall be audited by the Commissionon Audit which shall publish annually an itemized list ofamounts paid to and expenses incurred for each member.

Under Section 17, Article XI of the 1987 Constitution,the sworn statement of assets, liabilities and net worth of thePresident, the Vice-President, the Members of the Cabinet ,the Congress, the Supreme Court, the ConstitutionalCommission and other constitutional offices, and officers of thearmed forces with general or flag rank filed upon theassumption of office shall be disclosed to the public in themanner provided by law.

Section 21, Article XII of the Constitution declares:

Information on foreign loans obtained or guaranteedby the government shall be made available to the public.

As held in Valmonte vs. Belmonte, G.R. No. 74930, Feb.13, 1989, these provisions on public disclosures are intendedto enhance the role of the citizenry in governmental decision-making as well as in checking abuse in government.

GRANT OF EMERGENCY POWERS TO THE PRESIDENT

Bar Question

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Q: During a period of national emergency,Congress may grant emergency powers to thePresident. State the conditions under which suchvesture is allowed.

A: Under Section 23(2), Article VI of the Constitution,Congress may grant the President emergency powerssubject to the following conditions:

1. There is a war or other nationalemergency:

2. The grant of emergency powersmust be for a limited period:

3. The grant of emergency powers issubject to such restrictions asCongress may prescribe: and

4. The emergency powers must beexercised to carry out a declarednational policy.

LEGISLATIVE POWER

Bar QuestionQ: Are the following bills filed in Congressconstitutional?

(a) A bill originating from the Senate,which provides for the creation of thePublic Utility Commission to regulatepublic service companies andappropriating the initial funds neededto establish the same. Explain.

(b) A bill creating a joint legislative-executive commission to give, onbehalf of the Senate, its advice,consent and concurrence to treatiesentered into by the President. Thebill contains the guidelines to be

followed by the commission in thedischarge of its functions. Explain.

A:(a) A bill providing for the creation of the

Public Utility Commission to regulatepublic service companies andappropriating funds needed to establishit may originate from the Senate. It isnot an appropriation bill, because theappropriation of public funds is not theprincipal purpose of the bill. In

Association of Small Landowner of thePhilippines, Inc. vs. Secretary of

Agrarian Reform, 175 SCRA 343, it washeld that a law is not an appropriationmeasure if the appropriation of publicfunds is not its principal purpose and theappropriation is only incidental to someother objective.

(b) A bill creating a joint legislative-executive commission to give, on behalfof the Senate, its advice, consent andconcurrence to treaties entered into bythe President is unconstitutional. TheSenate cannot delegate this function tosuch a commission, because underSection 21, Article VII of theConstitution, the concurrence of at least

two-thirds of Senate itself is required forthe ratification of treaties.

POWER OF APPROPRIATION

Bar QuestionQ: Suppose the President submits a budgetwhich does not contain provisions for CDF(Countrywide Development Funds), popularly

known as the pork barrel, and because of this Congressdoes not pass the budget.

(a) Will that mean paralization of governmentoperations in the next fiscal year for lack ofan appropriation law?

(b) Suppose in the same budget, there is aspecial provision in the appropriations for

the Armed Forces authorizing the Chief ofStaff, AFP, subject to the approval of theSecretary of National Defense, to use savingsin the appropriations provided therein tocover up whatever financial losses sufferedby the AFP Retirement and SeparationBenefits System (RSBS) in the last five (5)years due to alleged bad business judgment.Would you question theconstitutionality/validity of the specialprovision?

A:(a) No, the failure of congress to pass the budget will

not paralyze the operations of the Government.

Section 25(7), Article VI of the Constitutionprovides:

If, by the end of any fiscal year, theCongress shall have failed to pass the generalappropriations bill for the ensuing fiscal year, thegeneral appropriations law for the precedingfiscal year shall be deemed reenacted and shallremain in force and effect until the generalappropriations bill is passed by the Congress.

(b) Yes, the provision authorizing the Chief of Staff,with the approval of the Secretary of NationalDefense, to use savings to cover the lossessuffered by the AFP Retirement and Separation

Benefits System is unconstitutional.

Section 25(5), Article VI of the Constitutionprovides:

No law shall be passed authorizing anytransfer of appropriations; however, thePresident, the President of the Senate, theSpeaker of the House of Representatives, theChief Justice of the Supreme Court, and theheads of Constitutional Commissions may, bylaw, be authorized to augment any item in thegeneral appropriation law for their respectiveoffices from savings in other items of theirrespective appropriations.

In Philippine Constitution vs. Enriquez, 235SCRA 506, 544, the Supreme Court held that aprovision in the General Appropriation Actauthorizing the Chief of Staff to use savings toaugment the funds or the AFP Retirement andSeparation Benefits Systems wasunconstitutional.

While Section 25(5) allows as an exceptionthe realignment of savings to augment items inthe general appropriations law for the executivebranch, such right must and can be exercisedonly by the President pursuant to a specific law.

Bar QuestionQ: Explain how the automatic appropriation of publicfunds for debt servicing can be reconciled with Article VI,Section 29(1) of the constitution. Said provision says thatno money shall be paid out of the Treasury except inpursuance of an appropriation made by law.

A: As stated in Guingona vs Carague, 196 SCRA 221, thepresidential decrees providing for the appropriation of funds topay the public debt do not violate Section 29(1), Article VI of

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the Constitution. They provide for a continuingappropriation, there is no constitutional prohibitionagainst this. The presidential decrees appropriate asmuch money as is needed to pay the principal,interest, taxes and other normal banking charges onthe loan. Although no specific amounts arementioned, the amounts are certain because they canbe computed from the books of the national Treasury.

Bar QuestionQ: Upon request of a group of overseas contractworkers in Brunei, Rev. Father Juan de la Cruz, aRoman Catholic priest, was sent to that countryby the President of the Philippines to minister totheir spiritual needs. The travel expenses, perdiems, clothing allowance and monthly stipend ofP5, 000.00 were ordered charged against thePresidents discretionary fund. Upon post auditof the vouchers therefor, the Commission onAudit refused approval thereof claiming that theexpenditures were in violation of the Constitution.

Was the Commission on Audit correct indisallowing the vouchers in question?

A: Yes, the Commission on Audit was correct indisallowing the expenditures, Section 29(2), Article VIof the Constitution prohibits the expenditure of publicfunds for the use, benefit or support of any priest.The only exception is when the priest is assigned tothe armed forces, or to any penal institution, orgovernment orphanage or leprosarium. The sendingof a priest to minister to the spiritual needs ofoverseas contract workers does not fall within thescope of any of the exceptions.

APPOINTING POWER OF THE PRESIDENT

Bar QuestionQ:

(a) What are the six categories ofofficials who are subject to theappointing power of the President?

(b) Name the category or categories ofofficials whose appointments needconfirmation by the Commission onAppointments?

(c) What are the restrictions prescribedby the Constitution on the power ofthe President to contract orguarantee foreign loans on behalf ofthe Republic of the Philippines?Explain.

(d) What are the limitation/restrictionprovided by the Constitution on thepower of Congress to authorize thePresident to fix tariff rates, importand export quotas, tonnage andwharfage dues. Explain.

A:(a) Under Section 16, Article VII of the

Constitution, the six categories ofofficials who are subject to theappointing power of the President arethe following:

(a.1) Head of executive

departments;(a.2) Ambassadors, other publicministers and consuls;(a.3) Officers of the armed forcesfrom the rank of colonel or navalcaptain;(a.3) Other officers whoseappointments are vested in him bythe Constitution;

(a.4) All other officers of the governmentwhose appointments are not otherwiseprovided by law; and(a.5) Those whom he may be authorized bylaw to appoint.

(b) According to Sarmiento vs. Mison, 156 SCRA549, the only officers whose appointments needconfirmation by the Commission on

Appointments are the head of executivedepartments, ambassadors, other publicministers and consuls, officers of the armedforces from the rank of colonel or naval captain,and other officials whose appointments arevested in the President by the Constitution.

(c) Under Section 20, Article VII of the Constitution,the power of the President to contract orguarantee loans on behalf of the Republic of thePhilippines is subject to the prior concurrence ofthe Monetary Board and subject to suchlimitations as may be prescribed by law.

(d) According to Section 28(2), Article VI of theConstitution, Congress may, by law, authorizethe President to fix within specified limits, and

subject to such limitations and restrictions it mayimpose, tariff rates, import and export quotas,tonnage and wharfage dues and other duties orimposts within the framework of the nationaldevelopment program of the Government.

LEGAL STANDING

Bar QuestionQ: When the Marcos administration was toppled by therevolutionary government, the Marcoses left behindseveral Old Masters paintings and antique silverware saidto have been acquired by them as personal gifts.Negotiations were then made with Ellen Layne of London

for their disposition and sale at public auction. Later, thegovernment entered in a Consignment Agreementallowing Ellen Layne of London to auction off the subjectart pieces. Upon learning of the intended sale, well-knownartists, patrons and guardians of the arts of thePhilippines filed a petition in court to enjoin the sale anddisposition of the valued items asserting that their culturalsignificance must be preserved for the benefit of theFilipino people.

(a) Can the court take cognizance of the case?(b) What are the requisites for a taxpayers suit

to prosper?

A:(a) No, the court cannot take cognizance of the

case. As held in Joya vs. PresidentialCommission on Good Government, 225 SCRA569, since the petitioners were not the legalowners of paintings and antique silverware, theyhad no standing to question their disposition.Besides, the paintings and the antique silverwaredid not constitute important cultural properties ornational cultural treasures, as they had noexceptional historical and cultural significance tothe Philippines.

(b) According to Joya vs. Presidential Commissionon Good government, 225 SCRA 568, for ataxpayers suit to prosper, four requisites must be

considered: (1) the question must be raised bythe proper party: (2) there must be an actualcontroversy; (3) the question must be raised atthe earliest possible opportunity: and (4) thedecision on the constitutional or legal questionmust be necessary to the determination of thecase. In order that a taxpayer may havestanding to challenge the legality of an official actof the government, the act being questionedmust involve a disbursement of public funds uponthe theory that the expenditure of public funds for

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an unconstitutional act is amisapplication of such funds, which maybe enjoined at the instance of ataxpayer.

JUDICIAL POWER

Bar QuestionQ: Judicial power as defined in Section 1, 2nd par.,Article VIII, 1987 Constitution, now includes theduty of the Courts of Justice to settle actualcontroversies involving rights which are legallydemandable and enforceable, and to determinewhether or not there has been a grave abuse ofamounting to lack of excess of jurisdiction on thepart of any branch or instrumentality of theGovernment. This definition is said to haveexpanded the power of the judiciary to includepolitical questions formerly beyond its

jurisdiction.(a) Do you agree with such as

interpretation of the constitutional

definition of judicial power thatwould authorize the courts to reviewand, if warranted, reverse theexercise of discretion by the politicaldepartments (executive andlegislative) of the government,including the ConstitutionalCommissions? Discuss fully.

(b) In your opinion, how should suchdefinition be construed so as not toerode considerably or disregardentirely the existing politicalquestion doctrine? Discuss fully.

A:

(a) Yes, the second paragraph of Section 1,Article VIII of the 1987 Constitution hasexpanded the power of the judiciary toinclude political questions. This was notfound in the 1935 and the 1973Constitution. Precisely, the framers ofthe 1987 constitution intended to widenthe scope of judicial review.

(b) As pointed out in Marcos vs.Manglapus, 177 SCRA 668, so as not todisregard entirely the political questiondoctrine, the extent of judicial reviewwhen political questions are involvedshould be limited to a determination ofwhether or not there has been a graveabuse of discretion amounting to lack orexcess of jurisdiction on the part of theofficial whose act is being questioned. Ifgrave abuse of discretion is not shown,the courts should not substitute their

judgment for that of the officialconcerned and decide a matter whichby its nature or by law is for the latteralone to decide.

Bar QuestionQ:

(a) Where is judicial power vested?

What are included in such power?(b) Despite the lapse of 4 months fromthe time that the trial was terminatedand the case submitted for decision,the trial court failed to decide thecase. The defense counsel moved todismiss the case on the ground thatafter the lapse of 90 days, the courthad lost jurisdiction to decide thecase. Should the motion begranted?

A:(a) According to Section 1, Article VIII of the 1987

Constitution, judicial power is vested in oneSupreme Court and in such lower courts as maybe established by law. It includes the duty of thecourts of justice to settle actual controversiesinvolving rights which are legally demandable

and enforceable, and to determine whether or notthere has been a grave abuse of discretionamounting to lack or excess of jurisdiction on thepart of any branch or instrumentality of theGovernment.

(b) No, the motion should not be granted. Section15(4), Article VIII of the 1987 Constitutionprovides:

Despite the expiration of the applicablemandatory period, the court, withoutprejudice to such responsibility as may havebeen incurred in consequence thereof, shalldecide or resolve the case or mattersubmitted thereto for determination, without

further delay.

POWER OF LEGISLATIVE INVESTIGATION

Bar QuestionQ:

A case was filed before the Sandiganbayanregarding a questionable government transaction. In thecourse of the proceedings, newspaper linked the name ofSenator J. de Leon to the scandal.

Senator de Leon took the floor of the Senate tospeak on a matter of personal privilege to vindicate hishonor against those baseless and malicious allegations.The matter was referred to the Committee on

Accountability of Public Officers, which proceeded toconduct a legislative inquiry. The Committee asked Mr.Vince Ledesma, a businessman linked to the transactionand now a respondent before the Sandiganbayan, toappear and to testify before the Committee.

Mr. Ledesma refuses to appear and file suit beforethe Supreme Court to challenge the legality of theproceedings before the Committee. He also asks whetherthe Committee had the power to require him to testify.

Identify the issues involved and resolve them.

A:The issues involved in this case are the following:

(a) Whether or not the Supreme court hasjurisdiction to entertain the case;

(b) Whether or not the Committee onAccountability of Public Officers has thepower to investigate a matter which isinvolved in a case pending in court; and

(c) Whether or not the petitioner can invoke hisright against self-incrimination.

All these issues were resolved in the case of Bengzonvs. Senate Blue Ribbon Committee, 203 SCRA 767.

The Supreme Court has jurisdiction over the casebecause it involves the question of whether or not theCommittee on Accountability of Public Officers has the powerto conduct the investigation. Under Section 1, Article VIII of

the Constitution, judicial power includes the duty of the courtsto determine whether or not any branch of the government isacting with grave of abuse of discretion amounting to lack of

jurisdiction.

The Committee on Accountability of Public Officershas no power to investigate the scandal. Since the scandal isinvolved in a case pending in court, the investigation willencroach upon the exclusive domain of the court. To allow theinvestigation will create the possibility of conflicting judgmentsbetween the committee and the court. If the decision of the

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committee were reached before e that of the court, itmight influence the judgment of the court.

The petitioner can invoke his right againstself-incrimination, because this right is available in allproceedings. Since the petitioner is a respondent inthe case pending before the Sandiganbayan, he mayrefuse to testify.

EN BANC/DIVISION CASES

Bar QuestionQ:

(a) Enumerate the cases required by theConstitution to be heard en banc bythe Supreme Court?

(b) What does it mean when a SupremeCourt Justice concurs in a decisionpro hac vice?

(c) What is the composition of theJudicial and Bar Council and theterm of office of its regular

members?(d) What do you understand by the

mandate of the Constitution that thejudiciary shall enjoy fiscal autonomycite the constitutional provisionscalculated to bring about therealization of the said constitutionalmandate.

A:(a) The following are the cases required by

the Constitution to be heard en banc bythe Supreme Court:

1. Cases involving the

constitutionality of a treaty,international or executiveagreement, or law;

2. Cases which under the Rulesof Court are required to beheard en banc.

3. Cases involving theconstitutionality, application, oroperation of presidentialdecrees, proclamations,orders, instructions,ordinances, and other regulations;

4. Cases heard by a divisionwhen the required majority isnot obtained;

5. Cases where a doctrine orprinciple of law previously laiddown will be modified orreversed;

6. Administrative cases againstjudges when the penalty isdismissal; and

7. Election contests for Presidentor Vice-President.

(b) When a decision is pro hac vice, itmeans the ruling will apply to thisparticular case only.

(c) The Judicial and Bar Council iscomposed of the following:

1. The Chief Justice as ex officiochairman;

2. The Secretary of Justice as exofficio member;

3. A representative of Congressas ex officio member;

4. A representative of theIntegrated Bar;

5. A professor of law;6. A retired Justice of the Supreme Court;

and7. A representative of the private sector.

(Section 8(1), Article VIII of theConstitution)

The term of office of the regular members is

four (4) years. (Section 8(2), Article VIII ofthe Constitution)

(d) Under Section 3, Article VIII of the Constitution,the fiscal autonomy of the Judiciary means thatappropriations for the Judiciary may not bereduced by the legislature below the amountappropriated for the previous year and, afterapproval, shall be automatically and regularlyreleased.

In Bengzon vs. Drilon, 208 SCRA 133, theSupreme Court explained that fiscal autonomycontemplates a guarantee of full flexibility toallocate and utilize resources with the wisdom

and dispatch that the needs require. Itrecognizes the power and authority to deny,assess and collect fees, fix rates of compensation not exceeding the highest ratesauthorized by law for compensation and payplans of the government and allocate anddisburse such sums as may be provided by lawor prescribed by it in the course of the dischargeof its functions.

.DOCTRINE OF STATE IMMUNITY

Bar QuestionQ:

(a) What do you understand by state immunityfrom suit? Explain.

(b) How may consent of the state to be sued begiven? Explain.

(c) The employees of the Philippine TobaccoAdministration (PTA) sued to recoverovertime pay. In resisting such claim, the

PTA theorized that it isperforming governmental functions. Decideand explain.

(d) The Province of X required the NationalDevelopment Company to pay real estatetaxes on the land being occupied by NDC andthe latter argued that since it is agovernment-owned corporation, itsproperties are exempt from real estate taxes.If you were the Judge, how would you decidethe case? Reason out.

A:

(a) State immunity from suit means that the Statecannot be sued without its consent. A corollaryof such principle is that properties used by theState in the performance of its governmentalfunctions cannot be subject to judicial execution.

(b) Consent of the State to be sued may be madeexpressly as in the case of a specific, expressprovision of law as waiver of State immunity from

suit is not inferred lightly or impliedly as when theState engages in proprietary functions or when itfiles a suit in which case the adverse party mayfile a counter-claim or when the doctrine would ineffect be used to perpetuate an injustice.

(c) As held in Philippine Virginia TobaccoAdministration vs. Court of Industrial Relations,65 SCRA 416, the Philippine Tobacco

Administration is not liable for overtime pay,since it is performing governmental functions.

Among its purposes are to promote the effective

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merchandising of tobacco so that thoseengaged in the tobacco industry willhave economic security, to stabilize theprice of tobacco, and to improve theliving and economic conditions of thoseengaged in the tobacco industry.

(d) In National Development Company vs.Cebu City, 215 SCRA 382, the Supreme

court held that the NationalDevelopment company was not liablefor real estate tax on the propertybelonging to the government which itoccupy. However, Section 234 lf theLocal Government code subsequentlywithdrew the exemption from realproperty taxes of government-owned orcontrolled corporations. If I were theJudge, I would hold the NationalDevelopment Company liable for realestate taxes.

Bar QuestionQ: It is said that waiver of immunity by the State

does not mean a concession of its liability. Whatare the implications of this phrase?

A: The phrase that waiver of immunity by the Statedoes not mean a concession of liability means that byconsenting to be sued, the State does not necessarilyadmit it is liable. As stated in Philippine RockIndustries, inc. vs. Board of Liquidators, 180 SCRA171, in such a case the State is merely giving theplaintiff a chance to prove that the State is liable butthe State retains the right to raise all lawful defenses.

Bar QuestionQ: The Municipality of Antipolo, Rizal,expropriated the property of Juan Reyes for use

as a public market. The Municipal councilappropriated P1, 000,000.00 for the purchase ofthe lot but the Regional Trial Court, on the basisof the evidence, fixed the value at P2, 000,000.00.

(a) What legal action can Juan Reyestake to collect the balance?

(b) Can Juan Reyes and the RegionalTrial Court to garnish theMunicipalitys account with the LandBank?

A:

(a) To collect the balance of judgment, asstated in Tan Toco vs. MunicipalCounsel of Iloilo, 49 Phil. 52, JuanReyes may levy on patrimonialproperties of the Municipality of

Antipolo. If it has no patrimonialproperties, in accordance with theMunicipality of Makati vs. Court of

Appeals, 190 SCRA 206, the remedy ofJuan Reyes is to file a petition formandamus to compel the Municipalityof Antipolo to appropriate the necessaryfunds to satisfy the judgment.

(b) Pursuant to the ruling in Pasay CityGovernment vs. Court of First Instance

of manila, 132 SCRA 156, since theMunicipality of Antipolo has appropriateP1,000,000.00 to pay for the lot, itsbank account may be garnished bur upto this amount only.

Bar Question

Q: A, while an incumbent Governor of hisprovince, was invited by the Government of

Cambodia as its official guest. While there the Sovereignking awarded Governor A with a decoration of honor andgifted him with a gold ring of insignificant monetary value,both of which he accepted.

Was Governor As acceptance of the decorationand gift violative of the Constitution?

Answer:

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

Bar Question

Q: 1) A, an associate justice of the Supreme Court reachthe age of seventy on July 1, 1996. there was a casecalendared for deliberation on that day where the vote of Awas crucial.

Can A hold over the position and participate indeliberation of the case on July 1, 1996? Explain.

2) A, an employee of the National Treasurer,retired on January 10, 1996. before she could collect herretirement benefits, the National Treasurer discovered thatA had been negligent in the encashment of falsifiedtreasury warrants. It appears, however, that A hadreceived all money and property clearances from theNational Treasurer before her retirement.

Can the National Treasurer withhold theretirement of A pending determination of her negligence inthe encashment of the falsified treasury warrants?Explain.

Answer:1) No, A cannot hold over his position as Associate

Justice of the Supreme Court and participate in

the deliberations of the case on July 1, 1996.under Section 11, Article VIII of the Constitution,Members of the Supreme Court hold office untilthey reach the age of seventy years or becomeincapacitatd to discharge their duties.Constitutional officers whose terms are fixed bythe Constitution have no right to hold over theirpositions until their successors shall have beenappointed and qualified unless otherwiseprovided in the Constitution. (Mechem, A Treatieson the Law of Public Offices and Officers, p. 258)

2) In accordance with Tantuico v. Domingo, 230SCRA 391 and Cruz v. Tantuico, 166 SCRA 670,the National Treasurer cannot withhold thepayment of the retirement benefits of A pendingdetermination of her liability for negligence in theencashment of the falsified treasury warrants,because her retirement benefits are exempt fromexecution.

Bar Question

Q: A Commission on Elections (COMELEC) resolutionprovides that political parties supporting a common set ofcandidates shall be allowed to purchase jointly air timeand the aggregate amount of advertising space purchased

for campaign purposes shall not exceed that allotted toother political parties or groups that nominated only oneset of candidates. The resolution is challenged as aviolation of the freedom of speech and of the press. Is theresolution constitutionally defensible? Explain.

Answer:Yes, the resolution is constitutionally defensible.

Under Section 4, Article IX-C of the 1987 Constitution, duringthe election period the Commission on Elections maysupervise or regulate the media of communication or

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information to ensure equal opportunity, time, andspace among candidates with the objective of holdingfree, orderly, honest, peaceful and credible elections.To allow candidates which are supported by morethan one political party to purchase more air time andadvertising space than candidates supported by onepolitical party only will deprive the latter of equal timeand space in the media.

Alternative Answer:No. although the expenditure limitation

applies only to the purchase of air time, thus leavingpolitical parties free to spend for other forms ofcampaign, the limitation nonetheless results in adirect and substantial reduction of the quantity ofpolitical speech by restricting the number of issuesthat can be discussed, the depth of

their discussion and the size of the audience that canbe reached, through the broadcast media. Since thepurpose of the Free Speech Clause is to promote thewidest possible dissemination of information, and the

reality is that to do this requires the expenditure ofmoney, a limitation on expenditure of money, alimitation on expenditure for this purpose cannot be

justified, not even for the purpose of equalizing theopportunity of political candidates. This is the ruling inBuckley, v. Valeo, 424 U.S. 1 (1976), whichinvalidated a law limiting the expenditures ofcandidates for campaigning in the United States. Inthe Philippines, a provision of the Tanada- SingsonLaw, limiting the period for campaigning, was nearlyinvalidated on this same principle, except that themajority of court lacked one more vote to make theirdecision effective. (See Gonzalez v. Comelec, 27SCRA 835(1969).

Q: Pedro Cruz, the City Engineer of Baguio,retired. To fill the vacant position, the City Mayorappointed Jose Reyes, a civil engineer whoformerly worked under Cruz but had beenassigned to the Office of the Mayor for the pastfive years.

Vicente Estrada, the Assistant CityEngineer filed a protest with the Civil ServiceCommission claiming that being the officer nextin rank he should have been appointed as CityEngineer.

1) Who has a better right to beappointed to the contested position?

2) Can the Civil Service Commissionrevoke an appointment by theappointing power and direct theappointment of an individual of itschoice?

Answer:1) On the assumption that Jose Reyes

possesses the minimum qualification requirementsprescribed by law for the position, the appointmentextended to him is valid. Consequently, he has abetter right that Vicente Estrada.

The claim of Estrada that being the officernext in rank he should have been appointed as CityEngineer is not meritorious. It is a settled rule that the

appointing authority is not limited to promotion infilling up vacancies but may choose to fill them by theappointment of persons with civil service eligibilityappropriate to the position. Even if a vacancy were tobe filled by promotion, the concept of next in rankdoes not import any mandatory requirement that theperson next in rank must be appointed to thevacancy. What the civil service law provides is that ifa vacancy is filled by promotion the person holdingthe position next in rank thereto shall be considered

for promotion. (Espanol v. Civil Service Commission, 206SCRA 715)

Alternative Answer:Neither Jose Reyes nor Vicente Estrada has a better

right to be appointed City Engineer. As held in Barrozo v. CSC,198 SCRA 487, the appointing authority is not required toappoint the one next-in-rank- to fill a vacancy. He is allowed to

fill it also by the transfer of an employee who possesses civilservice eligibility.

2) According to the ruling in Medalla v. Sto. Tomas,208 SCRA 351, the Civil Service Commission cannot dictate tothe appointing power whom to appoint. Is function is limited todetermining whether or not the appointee meets the minimumqualification requirements prescribed for the position.Otherwise, it would be encroaching upon the discretion of theappointing power.

Bar Question

Q: The Constitution distinguishes between two types of

owned and/or controlled corporations: those with originalcharters and those which are subsidiaries of suchcorporations. In which of the following rule/rules is such adistinction made? Consider each of the following itemsand explain briefly your answer, citing pertinentprovisions of the Constitution.

1. The rule prohibiting the appointment to certaingovernment positions, of the spouse and relativesof the President within the fourth degree ofconsanguinity or affinity. (2%)

2. The rule making it incompatible for members ofCongress to hold offices or employment in thegovernment. (2%)

3. The rule prohibiting members of theConstitutional Commissions, during their tenure,to be financially interested in any contract with orany franchise or privilege granted by thegovernment. (2%)

4. The rule providing for post audit by the COA ofcertain government agencies. (2%)

5. The rule requiring Congress to provide for thestandardization of compensation of government officialsand employees. (2%)

SUGGESTED ANSWER:

1. Section 13, Article VII of the Constitution, which prohibits thePresident from appointing his spouse and relatives within thefourth degree of consanguinity or affinity does not distinguishbetween government corporations with original charters andtheir subsidiaries, because the prohibition applies to both.

2. Section 13, Article VII of the Constitution, which prohibitsMembers of Congress from holding any other office duringtheir term without forfeiting their seat, does not distinguishbetween government corporations with original charters and

their subsidiaries, because the prohibition applies to both.

3. Section 2, Article IX-A of the Constitution, which prohibitsMembers of the Constitutional Commissions from beingfinancially interested in any contract with or any franchise orprivilege granted by the Government, does not distinguishbetween government corporations with original charters andtheir subsidiaries, because the prohibition applies to both.

4. Section 2(1), Article IX-D of the Constitution, which providesfor post audit by the Commission on Audit of government

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corporations, does not distinguish betweengovernment corporations, does not distinguishbetween government corporations with originalcharters and their subsidiaries, because the provisionapplies to both.

5. Section 5, Article IX-B of the Constitution whichprovides for the standardization of the compensation

of government officials and employees, distinguishesbetween government corporations and theirsubsidiaries, for the provision applies only togovernment corporations with original charters.

Bar Question

Q:A. What is the meaning and guarantee of securityof tenure? (2%)

B. What characteristic the career service and whatare included service? (2%)

C. Luzviminda Marfel, joined by eleven otherretrenched employees, filed a complaint with theDepartment of Labor and Employment (DOLE) forunpaid retrenchment or separation pay,underpayment of wages and non payment ofemergency cost of living allowance. Thecomplaint was filled against Food Terminal Inc.moved of dismiss on the ground of lack of

jurisdiction, theorizing that it is a government owned and controlled corporation and itsemployees are governed by the Civil Service Lawand not by the Labor Code. Marfel opposed themotion to dismiss, contending that although FoodTerminal, Inc. is a corporation owned andcontrolled by the government earlier created and

organized under the general corporation law asThe Greater Manila Food Terminal, Inc. it hasstill the marks of a private corporation: it directlyhires its employees without seeking approvalfrom the Civil Service Commission and itspersonnel are covered by the Social SecuritySystem and not the Government ServiceInsurance System. The question posed in thepetition for certiorari at bar is whether or not alabor law claim against a government- owned orcontrolled corporation like the Food Terminal, Inc.falls within the jurisdiction of the Department ofLabor and Employment or the Civil ServiceCommission? Decide and ratiocinate. (4%)

SUGGESTED ANSWER:

A. According to Palmera v. Civil Service Commission,235 SCRA 87, security of tenure means that no officeror employee in the Civil Service shall be suspendedor dismiss except for cause or provided by law andafter due process.

B. According to Section 7, Chapter 2, Title 1, Book Vof the administrative Code of 1987, the career serviceis characterized by (1) entrance based on merit andfitness to be determined as far as practicable bycompetitive examination or based on highly technicalqualification; (2) opportunity for advancement to

higher career position; and (3) security of tenure.

The career service included:

(1) Open career position for appointment to whichprior qualification in an appropriate examination isrequired;

(2) Closed career positions which are scientific orhighly technical in nature;

(3) Positions in the career executive service;

(4) Career officers other than those in the career executiveservice, who are appointed by the President;

(5) Commissioned officers and enlisted men of the ArmedForces;

(6) Personnel of government owned or controlledcorporations, whether performing governmental or proprietaryfunctions, who do not fall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, orunskilled.

C. The claim of the retrenched employees falls under thejurisdiction of the National Labor Commissions and not underthe jurisdiction of the Civil Service Commission. As held inLumanta v. National Labor Relations Commission, 170 SCRA79, since Food Terminal, Inc. was organized under theCorporation Law and was not created by a special law inaccordance with Section 2 (1), Article IX-B of the Constitution,it is not covered by the civil service.

Q:1) A and B were the only candidates for mayor of Bigaa,Bulacan in the May 1995 local elections. A obtained 10,000 votes as against 3,000 votes for B. In the sameelections, X got the highest number of votes among thecandidates for the Sangguniang Bayan of the same town.A died the day before his proclamation.

a) Who should the Board of Canvassersproclaim as elected mayor, A, B or X?Explain.

b) Who is entitled to discharge the functions ofthe office of the mayor, B or X? Explain.

2) X, a member of the House of Representatives, wasserving his third consecutive term in the House. In June1996 he was appointed Secretary of National Defense.

Can he run for election to the Senate in the 1998elections? Explain.

Answer:1.a) In accordance with Benito v. Comelec, 235

SCRA 436, it is A who should be proclaimed as winner,because he was the one who obtained the highest number ofvotes for the position of mayor, but a notation should be madethat he died for the purpose of applying the rule on successionto office. B cannot be proclaimed, because the death of thecandidate who obtained the highest number of votes does notentitle the candidate who obtained the next highest number ofvotes to be proclaimed the winner, since he was not the choiceof the electorate. X is not entitled to be proclaimed elected asmayor, because he ran for the Sangguniang Bayan.

b) Neither B nor X is entitled to discharge thefunctions of the office of mayor. B is not entitled to dischargethe office of mayor, since he was defeated in the election. X isnot entitled to discharge the office of mayor. Under Section 44of the Local Government Code, it is the vice mayor who shouldsucceed in case of permanent vacancy in the office of themayor. It is only when the position of the vice mayor is alsovacant that the member of the Sangguniang Bayan who

obtained the highest number of votes will succeed to the officeof mayor.

2) Yes, X can run for the Senate in the 1998 election.Under Section 7, Article X of the Constitution, having servedfor three consecutive terms as Member of the House ofRepresentatives, X is only prohibited from running for the sameposition.

Bar Question

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Q: Pedro Cruz, the City Engineer of Baguio,retired. To fill the vacant position, the City Mayorappointed Jose Reyes, a civil engineer whoformerly worked under Cruz but has beenassigned to the Office of the Mayor for the pastfive years.

Vicente Estrada, the Assistant City

Engineer filed a protest with the Civil ServiceCommission claiming that being the officer nextin rank he should have been appointed as CityEngineer.

1) Who has a better right to beappointed to the contested position?

2) Can the Civil Service Commissionrevoke an appointment by theappointing power and direct theappointment of an individual of itschoice?

Answer:

1) On the assumption that Jose Reyespossesses the minimum qualification requirementsprescribed by law for the position, the appointmentextended to him is valid. Consequently, he has abetter right than Vicente Estrada.

The claim of Estrada that being the officernext in rank he should have been appointed as CityEngineer is not meritorious. It is a settled rule that theappointing authority is not limited to promotion infilling up vacancies but may choose to fill them by theappointment of persons with civil service eligibilityappropriate to the position, even if a vacancy were to

be filled by promotion, the concept of next in rankthereto shall be considered for promotion. Espanolv. Civil Service Commission, 206 SCRA 715.

Alternative Answer:

Neither Jose Reyes nor Vicente Estrada hasa better right to be appointed City engineer. As held inBarrozo v. CSC, 198 SCRA 487, the appointingauthority is not required to appoint the one next-in-rank to fill a vacancy. He is allowed to fill it also by thetransfer of an employee who possesses civil serviceeligibility.

According to the ruling in Medalla v. Sto.Tomas , 208 SCRA 351, the Civil ServiceCommission cannot dictate to the appointing powerwhom to appoint. Its function is limited to determiningwhether or not the appointee meets the minimumqualification requirements prescribed for the position.Otherwise, it would be encroaching upon thediscretion of the appointing power.

Q: In December 1988, while Congress was inrecess, A was extended an ad interimappointment as Brigadier General of thePhilippine Army. In February 1989, whenCongress was in session, B was nominated as

Brigadier General of the Philippine Army. Bsnomination was confirmed on August 5, 1989while As appointment was confirmed onSeptember 5, 1989.

1) Who is deemed more senior of the two,A or B?

2) Suppose Congress adjourned withoutthe Commission on Appointments acting on bothappointments, can A and B retain their originalranks of colonel?

Answer:

1) A is senior to B. In accordance with the ruling inSummers v. Ozaeta, 81 Phil. 754, the ad interim appointmentextended to A is permanent and is effective upon hisacceptance although it is subject to confirmation by theCommission on Appointments.

2) If Congress adjourned without the appointments ofA and B having been confirmed by the Commission onAppointments, A cannot return to his old position. As held inSummers v. Ozaeta, 81 Phil. 754, by accepting an ad interimappointment to a new position, A waived his right to hold hisold position. On the other hand since B did not assume thenew position, he retained his old position.

Bar Question

Q: A City Mayor in Metro Manila was designated asMember of the Local Amnesty Board (LAB) as allowedunder the Rules and Regulations Implementing Amnesty

Proclamation Nos. 347 and 348, as amended byProclamation No. 377. The LAB is entrusted with thefunctions of receiving and processing applications foramnesty and recommending to the National AmnestyCommission approval or denial of the applications. Theterm of the Commission and, necessarily, the LocalAmnesty Boards under it expires upon the completion ofits assigned tasks as may be determined by the President.

May the City Mayor accept his designationwithout forfeiting his elective position in the light of theprovision of Sec. 7, 1st par., Art. IX-B of the 1987Constitution which pertinently states that :[N]o electiveofficial shall be eligible for appointment or designation inany capacity to any public office or position during his

tenure?

Discuss fully.

Answer:No, the City Mayor may not accept his designation

without forfeiting his elective positions. As stated in Flores v.Drilon, 223 SCRA 568, it is the intention of Section 7, Article X-B of the 1987 Constitution that local elective officials shoulddevote their full time to their constituents. While secondparagraph of Section 7, Article IX-B of the 1987 Constitutionallows appointive officials to hold other offices when allowed bylaw or by the primary functions of their positions, no suchexception is made in the first paragraph, which deals withelective officials. It is the intention of the 1987 Constitution tobe more stringent with elective local officials.

Alternative Answer:Yes, he may accept such designation without

forfeiting his mayorship. The Constitutional provision beingcited contemplates a public office or position. It is believedthat the Local Amnesty Board is not such an office since it ismerely an ad hoc body. Besides, it is believed that its functionsare not sovereign in character which is one of the elements ofa public office.

Bar Question

Q:1) When is an appointment in the civil service

permanent?2)Distinguish between an appointment in an

acting capacity extended by a Department Secretary froman ad ad interim appointment extended by the President.

3) Distinguish between a provisional and atemporary appointment.

Answer:

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1) Under Section 25 (a) of the Civil ServiceDecree, an appointment in the civil service ispermanent when issued to a person who meets all therequirements for the position to which he is beingappointed, including the appropriate eligibilityprescribed, in accordance with the provisions of law,rules and standards promulgated in pursuance

thereof.

2) An appointment in an acting capacityextended by a Department Secretary is notpermanent but temporary. Hence, the DepartmentSecretary may terminate the services of the appointeeat any time. On the other hand, an ad interimappointment extended by the Presidents is anappointment which is subject to confirmation by theCommission on Appointments and was during therecess of Congress. As held in Summers v. Ozaeta,81 Phil. 754, an ad interim appointment is permanent.

3) In Section 24 (d) of the Civil Service Act of1959, a temporary appointment is one issued to a

person to a position needed only for a limited periodnot exceeding six months. UnderSection 25 (b) of the Civil Service Decree, atemporary appointment is one issued to a person whomeets all the requirements for the position to which heis being appointed except the appropriate civil serviceeligibility because of the absence of appropriateeligibles and it is necessary in the public interest to fillthe vacancy. On the other hand, Section 24 (e) of theCivil Service Act of 1959 defined a provisionalappointment as one issued upon the priorauthorization of the Civil Service Commission inaccordance with its provisions and the rules andstandards promulgated in pursuance thereto to aperson who has not qualified in an appropriate

examination but who otherwise meets therequirements for appointment to a regular position inthe competitive service, whenever a vacancy occursand the filling thereof is necessary in the interest ofthe service and there is no appropriate at the time ofappointment.

Provisional appointments in general havealready been abolished by Republic Act 6040.However, it still applies with regard to teachers underthe Magna Carta for Public School Teachers.

Alternative Answer:The case of Regis v. Osmena, 197 SCRA

308, laid down the distinction between a provisionaland a temporary appointment.

A provisional appointment is extended to aperson who has not qualified in an appropriateexamination but who otherwise meets therequirements for appointment to a regular position inthe competitive service whenever a vacancy occursand the filling thereof is necessary in the interest ofthe service and there is no appropriate register ofeligible at the time of the appointment. On the otherhand, a temporary appointment given to a non-civilservice eligible is without a definite tenure and isdependent on the pleasure of the appointing power.

A provisional appointment is good only untilreplacement by a civil service eligible and in no casebeyond 30 days from date of receipt by the appointingofficer of the certificate of eligibility. (Sec. 24 [c],Republic Act 2260).

A provisional appointment contemplates adifferent situation from that of a temporaryappointment. Whereas a temporary appointment isdesigned to fill a position needed only for a limitedperiod not exceeding six (6) months, a provisional

appointment, on the other hand, is intended for thecontingency that a vacancy occurs and the filling thereof isnecessary in the interest of the service and there is noappropriate register of eligibles at the time of the appointment.

In other words, the reason for extending a provisionalappointment is not because there is an occasional work to bedone and is expected to be finished in not more thatn six

months but because the interest of the service requires thatcertain work be done by a regular employee, only that no onewith appropriate eligibility can be appointed to do such work inthe meantime that a suitable eligible does not qualify for theposition.

To be more precise, a provisional appointment maybe extended only to a person who has not qualified in anappropriate examination but who otherwise meets therequirements for appointment to a regular postion in thecompetitive service, meaning one who must anyway be a civilservice eligible.

In the case of a temporary appointment, all that thelaw enjoins is that preference in filling such position be given

to persons on appropriate eligible lists. Merely givingpreference presupposes that even a non-eligible may beappointed. Under the law, even if the appointee has therequired civil service eligibility, his appointment is stilltemporary simply because such is the nature of the work to bedone.

NOTE: Since provisional appointments have alreadybeen abolished examinees should be given full credit forwhatever answer they may or may not give.

AMENDMENTS OR REVISIONS

Bar QuestionQ: State the various modes of, and steps in, revising oramending the Philippine Constitution.

A: There are three modes of amending the Constitution.

(a) Under Section 1, Article XVIII of the constitution,Congress may by three-fourths vote of all itsMembers propose any amendment to or revisionof the Constitution.

(b) Under the same provision, a constitutionalconvention may propose any amendment to orrevision of the Constitution. According to Section3, Article XVII of the Constitution, Congress mayby a two-thirds vote of all its Members call aconstitutional convention or by a majority vote ofall its Members submit the question of callingsuch a convention to the electorate.

(c) Under Section 2, Article XVII of the Constitution,the people may directly propose amendments tothe Constitution through initiative upon a petitionof at least twelve per cent of the total number ofregistered voters, of which every legislativedistrict must be represented by at least threepercent of the registered voters therein.

According to Section 4, Article XVII of theconstitution, to be valid any amendment to orrevision of the Constitution must be ratified by a

majority of the votes cast in a plebiscite.