Mock Bar Examinations 2004
Political & Public International Law
This questionnaire consists of 17 pages including this cover. There are ten Roman Numeral Numbers divided into subsets with corresponding percentages. Read each question very carefully. Answer it directly, concisely, and clearly. Write legibly. Start each roman number on a separate page. An answer to a sub-question under the same number may be written continuously on the same and immediately succeeding pages until completed. Do not repeat the questions. A mere “yes” or “no” answer to a problem without explanation or discussion will not be given any credit.
QUESTION NO. I.(5%).
What do you understand by “generally accepted principles of international law”? What is its significance under our constitution and public international law? Give at least three examples of said principles.
B. Define the following:
1. rebus sic stantibus
2. par in parem non habet imperium
3. jure gestiones
4. uti possidetis
QUESTION NO. II.(5%)
Acebedo Optical Co. applied for a business permit license in Iligan City. The license was granted on the following conditions: 1.It cannot put up an optical clinic but only a commercial store; 2.Since it is a corporation it cannot examine and/or prescribe reading and similar optical glasses for patients, because these are functions of optical clinics; 3.IT cannot sell reading glasses without prescription having first been made by an independent optometrist (not its employee); it can only sell directly to the public rayban and similar eyeglasses;4. it cannot advertise optical lenses and eyeglasses but can advertise rayban and similar eyeglasses and frames;5.it is allowed to grind lenses but only upon prescription of an independent optometrist. Are the conditions valid? Reason out your answer.
QUESTION NO. III.(5%)
The Philippine Port Authority granted the respondents license to engage in pilotage until they retire at the age of 70 years. However, an administrative order was later issued providing that all existing regular appointments “shall remain valid up to December 31, 1992 and, henceforth, all appointments shall be for a “term of one year from the date of effectivity subject to renewal or cancellation by the PPA after a conduct of a rigid evaluation of performance. Is the administrative regulation valid?
QUESTION NO. IV.(5%)
Espiritu in a gathering of drivers and sympathizers at the corner of Valencia and Magsaysay Street among others uttered: “Bukas tuloy ang welga natin… hanggang sa magkagulo na!”.Later at a conference at the National Press Club, he called for a nationwide strike. He was arrested, without a warrant for inciting to sedition. Was the arrest valid? Reason out your answer.
QUESTION NO. V.(5%)
Accused was convicted by the Sandiganbayan for estafa on May 30, 1980.Accused appealed. On March 16, 1982, Batas Pambansa Blg. 195 was passed authorizing suspension of public officers against whom an information may be pending at any stage. On July 22, 1982, the Court suspended accused. Was there violation of the ex post facto clause of the constitution? Reason.
QUESTION NO. VI.(5%)
Cruz was a natural born citizen of the Philippines. On November 5, 1985, however, he enlisted in the US Marine Corps and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United State. As a consequence, he lost his Filipino citizenship. On June 5, 1990, he was naturalized as an American. On March 17, 1994 he reacquired his Philippine citizenship through repatriation under Republic Act. No. 2630.He ran for and was elected as the Representative of the 2nd district of Pangasinan in the May 11, 1998 elections. Was he a natural-born Filipino? Is he qualified to hold said office?
QUESTION NO. VII. (5%)
1.May religious leaders be elected or selected as sectoral representatives? Explain.
2.Explain the double aspect of the freedom of religion.
3.May the state require a license for the dissemination of religious literature?
4.The Philippine Bible Society is subjected to a VAT registration of 1,000 pesos, pursuant to R.A. 7716 (value added tax law). Is this valid?
5.Republic Act 3350 excludes from its application and coverage, a “closed shop agreement” concerning employees belonging to any religious sect, which prohibits affiliation of their members with any labor organization. Does this violate the contract clause? Equal protection clause?
QUESTION NO. VIII.(5%)
Records show that petitioner’s domicile of origin was Candon, Ilocos Sur and that sometime in 1991,he acquired a new domicile of choice at 24 Bonifacio St, Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd district of Quezon City in the May 1995 elections. Petitioner is now claiming that he had effectively abandoned his “residence” in Quezon City and has established a new “domicile” of choice at the province of Sarangani.Decide.
QUESTION NO. IX.(5%)
The petitioner was granted a Timber License Agreement (TLA), authorizing it to cut, remove and utilize timber within the concession area covering 29,500 hectares of forest land in Zamboanga del Sur, for a period of ten years expiring on September 31, 1992.
On July 31, 1987, the herein private respondents filed a petition with the Department of Environment and Natural Resources for the cancellation of the TLA on the ground of serious violations of its conditions and the provisions of forestry laws and regulations.
The same charges were subsequently made, also by the herein private respondents, in a complaint for injunction with damages against the petitioner, which was docketed as Civil Case No. 2732 in the Regional Trial Court of Pagadian City.
The petitioner moved to dismiss this case on three grounds, to wit: 1) the court had no jurisdiction over the complaint; 2) the plaintiffs had not yet exhausted administrative remedies; and 3) the injunction sought was expressly prohibited by section 1 of PD 605.
Judge Alfonso G. Abad denied the motion to dismiss on December 11, 1987, and the motion for reconsideration on February 15, 1988. The petitioner then elevated the matter to the respondent Court of Appeals, which sustained the trial court in a decision dated July 4, 1988, and in its resolution of September 27, 1988, denying the motion for reconsideration.
The Court of Appeals held that the doctrine of exhaustion of administrative remedies was not without exception and pointed to the several instances approved by this Court where it could be dispensed with. The respondent court found that in the case before it, the applicable exception was the urgent need for judicial intervention, which it explained thus:
The lower court found out that sometime on July 1981, the City Council of Pagadian in its Resolution No. 111 requested the Bureau of Forest Development to reserve 1,000 hectares in Lison Valley. This request remained unacted upon. Instead in 1982, a TLA covering 29,500 hectares, including the area requested, was given to petitioner.
Then the fear expressed by the City Council of Pagadian in its resolution became reality.
"As averred in the complaint, the erosion caused by the logging operations of the defendant has caused heavy siltation not only in the Labangan River (as predicted by the City Council of Pagadian City in 1981) but also in the Tukuran River, Salug River, Sindangan River, and Sibuguey River. In other words, the adverse effects of the logging operations of the defendant have already covered a wider area than that feared to be adversely affected by the City Council of Pagadian City.
Floods are unknown phenomena in heavily forested areas years back, particularly in the Island of Mindanao. When the grant of logging concessions started, so was the denudation of forests. . . . It is common knowledge that heavy floods have occurred in areas/places adjoining logging concessions. (Resolution dated December 11, 1987, p. 5).
Thus, it is urgent that indiscriminate logging be stopped. Irreparable damage would ensue unless the court intervenes. Reliance on the DENR may not be enough, judging from its inaction on the council's request seven years back.
The respondent court cited in support of this conclusion the case of De Lara v. Cloribel,(14 SCRA 269) where "irreparable damage and injury" was allowed as an exceptional ground, and Arrow Transportation Corporation v. Board of Transportation,(63 SCRA 193) where the doctrine was waived because of "the strong public interest in having the matter settled" as soon as possible.
The decision also declared invalid Section 1 of PD 605, which provides:
Sec. 1. No court of the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary mandatory injunction in any case involving or growing out of the issuance, approval or disapproval, revocation or suspension of, or any action whatsoever by the proper administrative official or body on concessions, licenses, permits, patents, or public grants of any kind in connection with the disposition, exploitation, utilization, exploration and/or development of the natural resources of the Philippines.
This was held to be an encroachment on the judicial power vested in the Supreme Court and the lower courts by Article VIII, Section 1, of the Constitution. The respondent court cited Export Processing Zone Authority v. Dulay,(149 SCRA 305) where several presidential decrees were declared unconstitutional for divesting the courts of the judicial power to determine just compensation in expropriation cases.
The petitioner is now before the Court, contending that the doctrine of exhaustion of administrative remedies was not correctly applied and that the declaration of the unconstitutionality of Section 1 of PD 605 was improper.
Questions: 1. Based on the facts at hand, is the doctrine of exhaustive of administrative remedies applicable? Reason out.
2.Is the lower court correct in declaring P.D. 605 unconstitutional?
3. Explain the meaning of the doctrine of exhaustion of administrative remedies?
4.Explain the requirements of judicial inquiry, which are necessary elements before a court can resolve a constitutionality issue?
5.Give the exceptions to the doctrine of exhaustion of administrative remedies.
QUESTION NO. X.(5%)
On 21 July 1989 private respondent Celestino Villalon filed a complaint for collection of back rentals and damages before the Regional Trial Court of Tagbilaran City against petitioners Lope Machete, Nicasio Jumawid, Santiago Jumawid, John Jumawid, Pedro Gamaya, Renato Delgado, Fernando Ombahin, Matias Roleda, Pasiano Baro, Ignacio Baro, Mamerto Plaras and Justiniano Villalon. The complaint alleged that the parties entered into a leasehold agreement with respect to private respondent's landholdings at Poblacion Norte, Carmen, Bohol, under which petitioners were to pay private respondent a certain amount or percentage of their harvests. However, despite repeated demands and with no valid reason, petitioners failed to pay their respective rentals. Private respondent thus prayed that petitioners be ordered to pay him back rentals and damages.
Petitioners moved to dismiss the complaint on the ground of lack of jurisdiction of the trial court over the subject matter. They contended that the case arose out of or was connected with agrarian relations, hence, the subject matter of the complaint fell squarely within the jurisdiction of the Department of Agrarian Reform (DAR) in the exercise of its quasi-judicial powers under Sec. 1, pars. (a) and (b), Rule II of the Revised Rules of the Department of Agrarian Reform Adjudication Board (DARAB).
On 22 August 1989 the trial court granted the motion to dismiss, and on 28 September 1989 denied the motion for reconsideration. 2
Private respondent sought annulment of both orders before respondent Court of Appeals which on 21 May 1992 rendered judgment reversing the trial court and directing it to assume jurisdiction over the case on the basis of its finding that :. . . The CARL (RA 6657) and other pertinent laws on agrarian reform cannot be seen to encompass a case of simple collection of back rentals by virtue of an agreement, as the one at bar, where there is no agrarian dispute to speak of (since the allegation of failure to pay the agreed rentals was never controverted in the motion to dismiss) nor the issue raised on application, implementation, enforcement or interpretation of these laws.
Questions: 1.On the basis of the above facts, is the RTC correct in dismissing the case? State your reasons.
2.The case at bar,(discussed during the lecture) defined the term “agrarian relations” or “agrarian dispute”. State its definition and scope.
3.The case also states about the doctrine of “primary jurisdiction”. State the definition of the principle and rule whether it is applicable in the case at bar.
4.The case also mentions that the RTC is not totally divested of jurisdiction with respect to agrarian disputes. Comment on that RTC jurisdiction.
5.Does the RTC have jurisdiction on the case for “collection of back rentals” in the case at bar? State your reasons.
QUESTION NO. XI. (5%).
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth. The mayor and the city legislators led demonstrations. The media trumpeted the protest, describing the casino as an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353:AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation of casino within the city limits.
Sec. 2.That it shall be a violation of existing business permit by any persons, partnership or corporation to use its business establishment or portion thereof, or allow the use thereof by others for casino operation and other gambling activities.
Sec. 3.PENALTIES. Any violation of such existing business permit as defined in the preceding section shall suffer the following penalties, to wit:
a)Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day
b)Suspension of the business permit for Six (6) months for the second offense, and a fine of P3,000.00/day
c)Permanent revocation of the business permit and imprisonment of One (1) year, for the third and subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93:AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulate or prohibit such activity pertaining to amusement or entertainment in order to protect social and moral welfare of the community;
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person responsible in the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their enforcement. Reconsideration of this decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court. They aver that the respondent Court of Appeals erred in holding that:
1.Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's territorial limits.
2.The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) (v) of R.A. 7160 could only mean "illegal gambling."
3.The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.
4.The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point.
5.The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality concerned and inconsistent with the laws or policy of the State.
1.In the case at bar, rule whether the two ordinances passed by the legislative council of Cagayan de Oro City is valid or not. Explain your answer.
2.State the requirements for the validity of a city ordinance, as enumerated in the case at bar.
3.It is said that legislative power is delegated to the city. What is the legal basis of said delegation? State the provision.
4.It is apparent that there is a conflict between the ordinance in question and the existing P.D. 1869.State the conflict and decide which of the two should prevail.
5.Davide made a concurring opinion in the case at bar, stressing the “hierarchy of the courts”. Please elaborate said concept.
QUESTION NO. XII.(5%).
In February 1989, petitioner, herself a member of respondent Movie and Television Review and Classification Board (MTRCB), wrote its records officer requesting that she be allowed to examine the board's records pertaining to the voting slips accomplished by the individual board members after a review of the movies and television productions. It is on the basis of said slips that films are either banned, cut or classified accordingly.
Acting on the said request, the records officer informed petitioner that she has to secure prior clearance from respondent Manuel Morato, as chairman of MTRCB, to gain access to the records sought to be examined.
Petitioner's request was eventually denied by respondent Morato on the ground that whenever the members of the board sit in judgment over a film, their decisions as reflected in the individual voting slips partake the nature of conscience votes and as such, are purely and completely private and personal. It is the submission of respondents that the individual voting slips is the exclusive property of the member concerned and anybody who wants access thereto must first secure his (the member's) consent, otherwise, a request therefor may be legally denied.
Petitioner argues, on the other hand, that the records she wishes to examine are public in character and other than providing for reasonable conditions regulating the manner and hours of examination, respondents Morato and the classification board have no authority to deny any citizen seeking examination of the board's records.
On February 27, 1989, respondent Morato called an executive meeting of the MTRCB to discuss, among others, the issue raised by petitioner. In said meeting, seventeen (17) members of the board voted to declare their individual voting records as classified documents which rendered the same inaccessible to the public without clearance from the chairman. Thereafter, respondent Morato denied petitioner's request to examine the voting slips. However, it was only much later, i.e., on July 27, 1989, that respondent Board issued Resolution No. 10-89 which declared as confidential, private and personal, the decision of the reviewing committee and the voting slips of the members.
Petitioner brought the matter to the attention of the Executive Secretary, which in turn, referred the same to respondent Morato for appropriate comment.
Another incident which gave rise to this petition occurred in a board meeting held on June 22, 1989. In that meeting, respondent Morato told the board that he has ordered some deletions on the movie "Mahirap ang Magmahal" notwithstanding the fact that said movie was earlier approved for screening by the Board with classification "R-18 without cuts". He explained that his power to unilaterally change the decision of the Review Committee is authorized by virtue of MTRCB Resolution No. 88-1-25 (dated June 22,1988) which allows the chairman of the board "to downgrade a film (already) reviewed especially those which are controversial."
Petitioner informed the Board, however, that respondent Morato possesses no authority to unilaterally reverse a decision of the review committee under PD 1986 (Creating the Movie and Television Review and Classification Board).
After the matter was referred by the Deputy Executive Secretary to the Justice Secretary, the latter opined that PD 1896 does not vest respondent Morato any authority to unilaterally reverse the decision of the review committee but declined to comment on the constitutionality of Res. No. 10-89 on the ground that the resolution thereof is a judicial prerogative.
The Justice Secretary's opinion to the contrary notwithstanding, respondent Morato opted to ignore it.
Hence, this petition anchored on the following:
A.MORATO AND THE MTRCB BY APPROVING AND ENFORCING RESOLUTION NO. 10-89 ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION BECAUSE THE SAME VIOLATES ARTICLE III SECTION 7 OF THE 1987 CONSTITUTION.
B.MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS AND CONSTITUTES AN UNLAWFUL DELEGATION OF DISCRETIONARY POWERS.
C.MORATO AND THE MTRCB BY REFUSING TO ABIDE BY OPINION NO. 1 SERIES OF 1990 OF THE SECRETARY OF JUSTICE AND BY INSISTING ON THE VALIDITY OF RESOLUTION NO. 88-1-25 ACTED CAPRICIOUSLY, ARBITRARILY, IN BAD FAITH, IN EXCESS OF THEIR JURISDICTION, AND WITH GRAVE ABUSE OF DISCRETION.
Petitioner therefore seeks the nullification of 1) MTRCB Resolution No. 88-1-25 which allows the Chairman of the Board to unilaterally downgrade a film (already) reviewed especially those which are controversial and 2) MTRCB RESOLUTION No. 10-89 (dated July 27, 1989) declaring as strictly confidential, private and personal a) the decision of a reviewing committee which previously reviewed a certain film and b) the individual voting slips of the members of the committee that reviewed the film.
1.Is the Board correct in ruling that the vote of each member is confidential and cannot be revealed without the consent of the member concerned? Reason.
2.Are the two MTCB Resolutions valid? Reason.
3.Morato argued that the petition should be dismissed, as it did not exhaust administrative remedies. Is he correct? Reason.
QUESTION NO. XIII (5%):
Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the governorship. Private respondent Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition and is being impleaded herein in that official capacity for having issued, by authority of the President, the assailed Resolution granting executive clemency to respondent governor.
Sometime in 1989, petitioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then Department of Local Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other appropriate laws, among them, the Anti-Graft and Corrupt Practices Act. Prior to that, petitioner filed with the Office of the Ombudsman a verified complainant dated November 10, 1988 against respondent governor for the latter's alleged violation of Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both petitioner and respondent governor presented their respective evidence.
Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial Governor Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock and non-profit organization headed by the governor himself as chairman and controlled by his brother-in-law as executive director, trustee, and secretary; that the said Loan Agreement was never authorized and approved by the Provincial Board, in direct contravention of the provisions of the Local Government Code; that the said Agreement is wholly one-sided in favor of the Foundation and grossly inimical to the interest of the Provincial Government (because it did not provide for interest or for any type security and it did not provide for suretyship and comptrollership or audit to control the safe disbursement of said loan); that a total amount of P20,000,000.00 was disbursed to the aforesaid Foundation; that the transactions constitute a fraudulent scheme to defraud the Provincial Government; and that the said Agreement is wholly unconstitutional, illegal, a immoral.
On the other hand, it is the contention of respondent governor that "the funds were intended to generate livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was authorized by law and considered the best alternative as a matter of judgment."; that he resigned from the said Foundation in order to forestall any suspicion that he would influence it; that it is not true that the Loan Agreement did not provide for continuing audit by the Provincial Government because the Memorandum of Agreement provides otherwise; and that the Agreement is not manifestly and grossly disadvantageous to the Provincial Government and respondent governor did not and would not profit thereby because it provided sufficient safeguards for repayment.
After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, 1990, dispositive portion of which reads:
WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which act amounts to serious neglect of duty and/or abuse of authority, for which the penalty of suspension from office for a period of ninety (90) days, effective upon the finality of this Decision, is hereby imposed upon him.
Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension.
Respondent governor moved for a reconsideration of the above quoted decision but the same was denied on October 19, 1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial dated October 19, 1990 to the Office of the President (O.P. Case No. 4480).
On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent governor's appeal and affirming the September 21, 1990 DLG decision.
Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of the President in administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the administrative suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991), respondent governor moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an opposition. From the allegations of the petitioner in his petition, respondent governor accepted his suspension and turned over his office to petitioner.
To the surprise of petitioner, however, respondent governor on March 19, 1991, issued an "administrative order" dated March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my functions as governor and shall hold office at my residence," in the belief that "the pendency of my Motion for Reconsideration precludes the coming into finality as executory the DLG decision." And, as categorically stated in the petition, the reassumption ceremony by respondent governor was held on May 21, 1991.
Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution dated May 15, 1991, in O.P. Case No. 4480, which reads:
This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in connection with the decision of the Secretary of then Department of Local Government (DLG) dated 21 September 1990, as affirmed in a Resolution of this Office dated 26 February 1991, suspending petitioner from office for period of ninety (90) days upon the finality of said decision.
As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a loan contract with the Lingkod Tarlac Foundation, Inc. (LTFI) grossly/manifestly disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG Secretary's decision clearing him of having personally benefited from the questioned transaction. In the same letter, petitioner manifests serving more than sixty (60) days of the ninety-day suspension. Previously, petitioner submitted documents and letters from his constituents tending to show the relative success of his livelihood loan program pursue under the aegis of the LTFI and/or the Foundation's credible loan repayment record. To cite some:
1.Certification of the Chairman, Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full payment of its loan (P15.05 M) plus interest with LTFI;
2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of the loan granted to family-borrowers out of funds provided by LTFI;
3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by LTFI;
4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI have bee utilized in hybrid com production; and
5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the payment of 76 of the amount (P203,966.00) loaned to the Federation for tobacco production.
Petitioner's act, vis-a-vis the loan to LTFI, may have been prompted by an over eagerness to accelerate the delivery of livelihood services to his province mates. As the truism goes, however, the end does not always justify the means. Be that as it may, but without belaboring the propriety of the loan agreement aforementioned, some measure of leniency may be accorded petitioner as the purpose of his suspension may have made its mark.
WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense that his ninety-day suspension is hereby reduced to the period already served.
By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly without any notification made to the petitioner.
Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," basically on the ground that executive clemency could be granted by the President only in criminal cases as there is nothing in the statute books or even in the Constitution which allows the grant thereof in administrative cases. Petitioner also contends that since respondent governor refused to recognize his suspension (having reassumed the governorship in gross defiance of the suspension order), executive clemency cannot apply to him; that his rights to due process were violated because the grant of executive clemency was so sudden that he was not even notified thereof; and that despite a finding by public respondent of impropriety in the loan transaction entered into by respondent governor, the former failed to justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the executive clemency granted by public respondent was "the product of a hocus-pocus strategy" because there was allegedly no real petition for the grant of executive clemency filed by respondent governor. (G.R. No. 99031,October 15, 1991 RODOLFO D. LLAMAS vs. OSCAR ORBOS)
1.The issue here is whether the president can grant executive clemency over a person convicted of an administrative offense: does the president possess such power? Explain.
2.The president apparently ruled over/”override” the power of the Secretary of DLG, in the matter of suspension of Ocampo.State and explain what administrative principle is involved in the case at bar.
QUESTION NO. XIV (5%).
Petitioner National Amnesty Commission (NAC) is a government agency created on March 25, 1994 by then President Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to receive, process and review amnesty applications. It is composed of seven members: a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local Government as ex officio members.
It appears that after personally attending the initial NAC meetings, the three ex officio members turned over said responsibility to their representatives who were paid honoraria beginning December 12, 1994. However, on October 15, 1997, NAC resident auditor Eulalia disallowed on audit the payment of honoraria to these representatives amounting to P255,750 for the period December 12, 1994 to June 27, 1997, pursuant to COA Memorandum No. 97-038. On September 1, 1998, the NGAO(National Government Audit Office) upheld the auditor’s order and notices of disallowance were subsequently issued to the following:
1. Cesar Averilla
Department of National Defense P 2,500.00
2. Ramon Martinez
Department of National Defense 73,750.00
Department of Justice 8,750.00
4. Purita Deynata
Department of Justice 62,000.00
5. Alberto Bernardo
Department of the Interior
And Local Government 71,250.00
Department of the Interior and
Local Government 26,250.00
7. Artemio Aspiras
Department of Justice 1,250.00
Meanwhile, on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations of Proclamation No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof provides:
Section 1, Composition – The NAC shall be composed of seven (7) members:
a) A Chairperson who shall be appointed by the President;
b) Three (3) Commissioners who shall be appointed by the President;
c) Three (3) Ex-officio Members
1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government
The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law.
Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the NGAO disallowing payment of honoraria to the ex officio members’ representatives, to no avail.
Hence, on March 14, 2003, the NAC filed the present petition, contending that the COA committed grave abuse of discretion in: (1) implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code; (2) invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said Memorandum; (3) applying the Memorandum to the NAC ex officio members’ representatives who were all appointive officials with ranks below that of an Assistant Secretary; (4) interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void, and (5) disallowing the payment of honoraria on the ground of lack of authority of representatives to attend the NAC meetings in behalf of the ex officio members.
Questions: 1.Is the disallowance of the COA possessed of any constitutional basis? Explain. Cite at least one case as precedent of the case.
2. Granting arguendo that the disallowance is correct, can the petitioners invoke the defense that at least they should be considered de facto officers entitled to said emoluments? Explain.
QUESTION NO. XV(5%).
Petitioner Moll and Private Respondent Ceriola were candidates for mayor of the Municipality of Malinao, Albay, during the elections of May 14, 2001.
Moll obtained the highest number of votes cast for the position while Ceriola came in second, with a total of nine hundred eighty-seven (987) votes separating the two. Kare was elected vice mayor in the same election.
On May 18, 2001, Ceriola filed a “Petition to Confirm the Disqualification and/or Ineligibility of Dindo K. Moll to Run for Any Elective Position.” The Petition alleged that the latter had been sentenced by final judgment to suffer the penalty of six (6) months of arresto mayor to one (1) year and nine (9) months of prision correccional, for the crime of usurpation of authority or official functions under Article 177 of the Revised Penal Code.
In its May 28, 2001 Resolution, the Comelec First Division dismissed the Petition. Ceriola filed his Motion for Reconsideration with the Comelec en banc which, on August 31, 2001, set aside the said Resolution. It thereafter directed the clerk of the Comelec to remand the Petition to the provincial election supervisor of Albay for hearing and reception of evidence.
On March 19, 2003, after the provincial election supervisor of Albay submitted the report and recommendation, the Comelec en banc issued the questioned Resolution affirming Moll’s disqualification and proclaiming Ceriola as the mayor-elect of the municipality.
As earlier adverted to, the Comelec ruled that Moll had indeed been disqualified from being a mayoral candidate in the May 14, 2001 local election, and that his subsequent proclamation as mayor was void ab initio. Consequently, he was disqualified from holding that office.
The Comelec further ruled that the trial court’s final judgment of conviction of Moll disqualified him from filing his certificate of candidacy and continued to disqualify him from holding office. Accordingly, the votes cast in his favor were stray or invalid votes, and Ceriola -- the candidate who had obtained the second highest number of votes -- was adjudged the winner. Thus, the Comelec ordered the Municipal Board of Canvassers to proclaim him as the mayor-elect of the municipality.
Before Ceriola’s actual proclamation, Kare filed a Petition before this Court with a prayer for a Status Quo Order, which was granted on April 1, 2003. In this Order, the Comelec, the provincial election supervisor of Albay, and the municipal canvassers of Malinao (Albay) were required to observe the status quo prevailing before the filing of the Petition.
QUESTIONS: 1. Should Moll be disqualified from running and/or holding the position of mayor?
2.) If the first issue is answered in the affirmative, who should become the mayor -- Ceriola, the second placer in the mayoral election? Or Kare, the elected vice mayor?
QUESTION NO. XVI. (5%).
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR).
Ebdane then issued a memorandum guideline canceling all PTCFORs, including that issued to Chavez, who challenged the validity of the memorandum as follows:
I.THE PRESIDENT HAS NO POWER OR AUTHORITY – MUCH LESS BY A MERE SPEECH – TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE RESIDENCES.
II.OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN BAN; THE PRESIDENT’S VERBAL DECLARATION ON GUN BAN VIOLATED THE PEOPLE’S RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY FIREARMS.
III.THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED GUIDELINES BECAUSE:
1)THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.
2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.
3)THE PRESIDENT’S SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF IMPLEMENTNG GUIDELINES ON THE GUN BAN.
IV.ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO ISSUE THE SAME BECAUSE –
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE PROMULGATED JOINTLY BY THE DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF OF THE PHILIPPINE CONSTABULARY.
V. THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION BECAUSE:
1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH THE PEOPLE’S INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF LAW FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI.ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE – TO DETER AND PREVENT CRIME –THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.
VII.THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.
VIII.THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS – THE LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY, AND NPA) – UNTOUCHED.
IX.THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.
X.THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR PROMULGATION.”
Petitioner’s submissions may be synthesized into five (5) major issues:
First, whether respondent Ebdane is authorized to issue the assailed Guidelines;
Second, whether the citizens’ right to bear arms is a constitutional right?;
Third, whether the revocation of petitioner’s PTCFOR pursuant to the assailed Guidelines is a violation of his right to property?;
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and
Fifth, whether the assailed Guidelines constitute an ex post facto law?
QUESTION: On the basis of your knowledge in political/constitutional law, resolve the five major issues enumerated above.
QUESTION NO. XVII.(5%)
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Civil Service Commission (CSC) seeks to reverse and set aside the decision of 23 July 2002 of the Court of Appeals and its resolution of 18 October 2002 in CA-G.R. SP No. 65096. The former modified the penalty imposed by the CSC on respondent Delia T. Cortez from dismissal from the service with forfeiture of benefits and disqualification from reemployment in the government service without prejudice to any civil or criminal liability in a proper action to that of being considered resigned from the service with entitlement to all the benefits under the law. The latter denied petitioner’s motion to reconsider the former. The antecedent facts follow.
Respondent Delia T. Cortez, Chief Personnel Specialist of the Examination and Placement Services Division (EPSD) of Civil Service Regional Office (CSRO) No. X, Cagayan de Oro City, was formally charged with dishonesty, grave misconduct and conduct grossly prejudicial to the best interest of the service in Resolution No. 99-0039 of the CSC dated 7 January 1999. Pertinent portions of the formal charge read as follows:
1. That on June 26, 1998 at about 3 p.m., two teenagers, namely June Grace Abina and Rubielyn Ofredo appeared at the CSRO No. X for the purpose of filing application forms for the Career Service Professional Examination for their aunt and her [their aunt’s] co-employees;
2. That on the above-mentioned date and time Abina and Ofredo proceeded to the CSRO No. X, Cashier's Office to purchase the required examination fee stamps. A personnel from the Cashier’s Office, however, told them to first proceed to the EPSD for the approval of the said application forms;
3. That when Abina and Ofredo presented the said application forms at the EPSD, respondent Cortez pasted a stamp worth P150.00 on each of the application forms. Thereafter, she asked from them the payment corresponding to the value of the stamps pasted on the said application forms;
4. Thereafter, Abina and Ofredo returned to the Cashier’s Office to inquire as to whether there are still other fees to be paid. But when the Cashier saw that the said application forms were already pasted with stamps, she examined the same and she noted that the serial numbers of the said stamps did not correspond with the serial numbers of the stamps issued to said Office;
5. This prompted the cashier, accompanied by Abina and Ofredo[,] to proceed to the EPSD and confronted [sic] respondent Cortez on the unauthorized selling of stamps. Consequently, respondent immediately removed the stamps from the application forms, kept them, and brought out the money which Abina and Ofredo earlier gave her and handed the same to the Cashier who subsequently, issued them another stamps;
6. That the stamps which respondent Cortez sold to Abina and Ofredo bearing serial numbers 0216430, 0216432, 0216441, and 0116443 were issued to the CSRO No. X way back in 1995 for the Professional Board Examination for Teachers (PBET).
In its resolution of 1 February 1999, the CSC placed respondent under a 90-day preventive suspension pending formal investigation of the serious charges against her.
After carefully evaluating the evidence of the parties, petitioner CSC in its Resolution No. 010499 of 22 February 2001 concluded that the version of the complainants was more credible. It noted that witnesses Abina and Ofredo categorically pointed to respondent as the source of the questionable stamps and material portions of their testimonies were corroborated by two other witnesses, Eva S. Alcalde and Acting Cashier Angeline P. Lim. In contrast, the CSC noted that respondent Cortez relied on mere denials which could not prevail over the clear, positive and categorical testimonies against her. It also pointed out that respondent never presented any competent and credible evidence to show why the witnesses against her, especially Abina and Ofredo, would falsely testify against her. Thus, it ruled that respondent was guilty of illegally selling recycled stamps for her own financial gain, an act which constituted dishonesty, grave misconduct and conduct grossly prejudicial to the best interest of the service. It ordered respondent dismissed from the service with forfeiture of benefits and disqualification from reemployment in the government service, without prejudice to any civil or criminal liability in a proper action.
Respondent filed a motion for reconsideration, but the CSC denied it in its Resolution No. 010926 of 11 May 2001, on the ground that the motion was a mere rehash of the allegations in her answer and counter-affidavit which had already been passed upon by the Commission in its decision.
Respondent promptly filed a petition for review before the Court of Appeals under Rule 43 of the Rules of Court. She raised in her petition the issues of violation of administrative due process and the propriety of the penalty of dismissal. The appeal was docketed as CA-G.R. SP No. 65096.
In its decision of 23 July 2002, the Court of Appeals granted respondent’s petition. It ruled that although respondent was properly accorded administrative due process as evidenced by the fact that she was able to file an answer, a counter-affidavit and even a motion for reconsideration, the penalty of dismissal imposed on her was too harsh considering (a) her twenty-one years of service in the government, (b) the fact that it was her first offense and (c) that no damage was sustained by the Government. Accordingly, it modified the penalty imposed on respondent from dismissal from the service with all its accessory penalties to that of forced resignation from the service with entitlement to all the benefits under the law. Pertinent portions of the decision of the Court of Appeals read as follows:
Applying these principles and given the fact that Petitioner duly filed her Answer, Counter-Affidavit and even a Motion for Reconsideration, there is no denying that she was duly accorded administrative due process.
Nonetheless, We agree with the Petitioner that the penalty of dismissal would be too harsh for the offense she has committed. Considering that the Petitioner has been in the service for twenty one (21) years, the fact that this is her first offense, during the length of her service she was never administratively called upon to answer for any official misconduct not to mention that no damage was sustained by the government for the misconduct she has committed, should be considered mitigating circumstances for which a penalty less than dismissal would be justified. In her motion for reconsideration, Petitioner prayed that if the penalty imposed upon her be mitigated, that she would just be considered forcibly resigned.
WHEREFORE, premises considered, the instant Petition for Review is GRANTED. Petitioner is hereby considered forcibly resigned from the service with a right to all the benefits to which she may be entitled under the law.
Its motion for reconsideration having been denied by the Court of Appeals for having been filed one day late, petitioner filed the petition at bar, assigning the following issue for our consideration:WHETHER THE PENALTY OF DISMISSAL METED OUT TO RESPONDENT IS TOO HARSH TAKING INTO CONSIDERATION HER BEING A FIRST-TIME OFFENDER AND HER OVER TWENTY-ONE (21) YEARS IN GOVERNMENT SERVICE.
QUESTION: Rule on the issue abovementioned. In short, who is correct the CSC or the Court of Appeals? How did the Supreme Court rule on the matter?
QUESTION NO. VIII. (5%).
On January 4, 1999, the Supreme Court issued a TRO staying the execution of Leo Echegaray scheduled on the same day. The Justice Secretary assailed the issuance of the TRO arguing, inter alia, that the action of the Court not only violated the rule on finality of judgment but also encroached on the power of the executive to grant reprieve. Decide.
QUESTION NO. XIX. (5%)
1.What is the difference between a declaratory judgment and an advisory opinion?
2.Can a Secretary of Justice and a Municipal Trial Court Judge render an advisory opinion?
3.What about the International Court of Justice, can it render an advisory opinion?
4.Can a court, reverse an award of honors granted by a board of teachers to a student?
5.A law is passed prohibiting courts from issuing injunctions in cases involving infrastructure projects of the government. Does such law violate judicial independence?
QUESTION NO. XX.(5%).
1.How is the proposal of amendments by “initiative and referendum” done under the 1987 constitution?
2.Is the constitutional provision on initiative and referendum self-executory?
3.May a revision of the constitution be effected thru initiative and referendum? What is the reason for the rule?
4.Does the president of the Phil. have the power to propose amendments to the constitution?
5.What is an amendment? How does it differ from a revision?
END OF THE EXAMINATION
Hand in your notebook with this questionnaire.