POLITICAL & CRIMINAL LAW REVIEW BLOG: January 2013

Tuesday, January 29, 2013

bedol v. comelec 2009

The main thrust of petitioner’s argument is that the COMELEC exceeded its jurisdiction in initiating the contempt proceedings when it was performing its administrative and not its quasi-judicial functions as the National Board of Canvassers for the election of senators. According to petitioner, the COMELEC may only punish contemptuous acts while exercising its quasi-judicial functions.

The COMELEC possesses the power to conduct investigations as an adjunct to its constitutional duty to enforce and administer all election laws, by virtue of the explicit provisions of paragraph 6, Section 2, Article IX of the 1987 Constitution, which reads:

Article IX-C, Section 2. xxx

(6) xxx; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.

The above-quoted provision should be construed broadly to give effect to the COMELEC’s constitutional mandate as enunciated in Loong v. Commission on Elections,⁶ which held:

xxx. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections. Congruent to this intent, this Court has not been niggardly in defining the parameters of powers of COMELEC in the conduct of our elections.

The powers and functions of the COMELEC, conferred upon it by the 1987 Constitution and the Omnibus Election Code, may be classified into administrative, quasi-legislative, and quasi-judicial. The quasi-judicial power of the COMELEC embraces the power to resolve controversies arising from the enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; and of all contests relating to the elections, returns, and qualifications. Its quasi-legislative power refers to the issuance of rules and regulations to implement the election laws and to exercise such legislative functions as may expressly be delegated to it by Congress. Its administrative function refers to the enforcement and administration of election laws. In the exercise of such power, the Constitution (Section 6, Article IX-A) and the Omnibus Election Code (Section 52 [c]) authorize the COMELEC to issue rules and regulations to implement the provisions of the 1987 Constitution and the Omnibus Election Code.⁷

The quasi-judicial or administrative adjudicatory power is the power to hear and determine questions of fact to which the legislative policy is to apply, and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The Court, in Dole Philippines Inc. v. Esteva,⁸ described quasi-judicial power in the following manner, viz:

Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative agency to adjudicate the rights of persons before it. It is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature. Since rights of specific persons are affected, it is elementary that in the proper exercise of quasi-judicial power due process must be observed in the conduct of the proceedings. [Emphasis ours.]

The Creation of Task Force Maguindanao was impelled by the allegations of fraud and irregularities attending the conduct of elections in the province of Maguindanao and the non-transmittal of the canvassing documents for all municipalities of said province.

Task Force Maguindanao’s fact-finding investigation – to probe into the veracity of the alleged fraud that marred the elections in said province; and consequently, to determine whether the certificates of canvass were genuine or spurious, and whether an election offense had possibly been committed – could by no means be classified as a purely ministerial or administrative function.

The COMELEC, through the Task Force Maguindanao, was exercising its quasi-judicial power in pursuit of the truth behind the allegations of massive fraud during the elections in Maguindanao. To achieve its objective, the Task Force conducted hearings and required the attendance of the parties concerned and their counsels to give them the opportunity to argue and support their respective positions.

The effectiveness of the quasi–judicial power vested by law on a government institution hinges on its authority to compel attendance of the parties and/or their witnesses at the hearings or proceedings. As enunciated in Arnault v. Nazareno⁹ –

Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.

In the same vein, to withhold from the COMELEC the power to punish individuals who refuse to appear during a fact-finding investigation, despite a previous notice and order to attend, would render nugatory the COMELEC’s investigative power, which is an essential incident to its constitutional mandate to secure the conduct of honest and credible elections. In this case, the purpose of the investigation was however derailed when petitioner obstinately refused to appear during said hearings and to answer questions regarding the various election documents which, he claimed, were stolen while they were in his possession and custody. Undoubtedly, the COMELEC could punish petitioner for such contumacious refusal to attend the Task Force hearings.

Even assuming arguendo that the COMELEC was acting as a board of canvassers at that time it required petitioner to appear before it, the Court had the occasion to rule that the powers of the board of canvassers are not purely ministerial. The board exercises quasi-judicial functions, such as the function and duty to determine whether the papers transmitted to them are genuine election returns signed by the proper officers.¹⁰ When the results of the elections in the province of Maguindanao were being canvassed, counsels for various candidates posited numerous questions on the certificates of canvass brought before the COMELEC. The COMELEC asked petitioner to appear before it in order to shed light on the issue of whether the election documents coming from Maguindanao were spurious or not. When petitioner unjustifiably refused to appear, COMELEC undeniably acted within the bounds of its jurisdiction when it issued the assailed resolutions.

In Santiago, Jr. v. Bautista,¹¹ the Court held:

xxx. The exercise of judicial functions may involve the performance of legislative or administrative duties, and the performance of and administrative or ministerial duties, may, in a measure, involve the exercise of judicial functions. It may be said generally that the exercise of judicial functions is to determine what the law is, and what the legal rights of parties are, with respect to a matter in controversy; and whenever an officer is clothed with that authority, and undertakes to determine those questions, he acts judicially.

On the procedure adopted by the COMELEC in proceeding with the indirect contempt charges against petitioner, Section 52 (e), Article VII of the Omnibus Election Code pertinently provides:

Section 52. Powers and functions of the Commission on Elections.

xxx

(e) Punish contempts provided for in the Rules of Court in the same procedure and with the same penalties provided therin. Any violation of any final and executory decision, order or ruling of the Commission shall constitute contempt thereof. [Emphasis ours.]

The aforecited provision of law is implemented by Rule 29 of COMELEC’s Rules of Procedure, Section 2 of which states:

Rule 29 – Contempt

Sec. 1. xxx

Sec. 2. Indirect Contempt. – After charge in writing has been filed with the Commission or Division, as the case may be, and an opportunity given to the respondent to be heard by himself or counsel, a person guilty of the following acts may be punished for indirect contempt:

(a) Misbehavior of the responsible officer of the Commission in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, judgment or command of the Commission or any of its Divisions, or injunction or restraining order granted by it;

(c) Any abuse of or any inlawful interference with the process or proceedings of the Commission or any of its Divisions not constituting direct contempt under Section 1 of this Rules;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice by the Commission or any of its Divisions;

(e) Assuming to be an attorney and acting as such without authority; and

(f) Failure to obey a subpoena duly served.

SEC. 3 Penalty for Indirect Contempt. – If adjudged guilty, the accused may be punished by a fine not exceeding one thousand (P1,000.00) pesos or imprisonment for not more than six (6) months, or both, at the discretion of the Commission or Division.

The language of the Omnibus Election Code and the COMELEC Rules of Procedure is broad enough to allow the initiation of indirect contempt proceedings by the COMELEC motu proprio. Furthermore, the above-quoted provision of Section 52(e), Article VII of the Omnibus Election Code explicitly adopts the procedure and penalties provided by the Rules of Court. Under Section 4, Rule 71, said proceedings may be initiated motu proprio by the COMELEC, viz:

SEC. 4. How proceedings commenced. – Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.

Hence, the COMELEC properly assumed jurisdiction over the indirect contempt proceedings which were initiated by its Task Force Maguindanao, through a Contempt Charge and Show Cause Order, notwithstanding the absence of any complaint filed by a private party.

Saturday, January 19, 2013

Bar Examination Questionnaire for Political Law

Bar Examination Questionnaire for Political Law
Set A

(1) Filipino citizenship may be acquired through judicial naturalization only by an alien

(A) born, raised, and educated in the Philippines who has all the qualifications and none of the disqualifications to become a Filipino citizen.

(B) who has all the qualifications and none of the disqualifications to become a Filipino citizen.

(C) born and raised in the Philippines who has all the qualifications and none of the disqualifications to become a Filipino citizen.

(D) whose mother or father is a naturalized Filipino and who himself is qualified to be naturalized.

(2) Jax Liner applied for a public utility bus service from Bacolod to Dumaguete from the Land Transportation Franchising and Regulatory Board (LTFRB). BB Express opposed. LTFRB ruled in favor of Jax. BB appealed to the Secretary of the Department of Transportation and Communication (DOTC), who reversed the LTFRB decision. Jax appealed to the Office of the President which reinstated the LTFRB’s ruling. BB Express went to the Court of Appeals on certiorari questioning the decision of the Office of the President on the ground that Office of the President has no jurisdiction over the case in the absence of any law providing an appeal from DOTC to the Office of the President. Will the petition prosper?

(A) No, exhaustion of administrative remedies up to the level of the President is a pre-requisite to judicial recourse.

(B) No, the action of the DOTC Secretary bears only the implied approval of the President who is not precluded from reviewing the decision of the former.

(D) Yes, the doctrine of qualified political agency renders unnecessary a further appeal to the Office of the President.

(3) Where A is set for promotion to Administrative Assistant III and B to the post of Administrative Assistant II vacated by A, the appointing authority must

(A) submit to the CSC the two promotional appointments together for approval.

(B) not appoint B until the CSC has approved A’s appointment.

(D) simultaneously issue the appointments of A and B.

(4) When a witness is granted transactional immunity in exchange for his testimony on how his immediate superior induced him to destroy public records to cover up the latter's act of malversation of public funds, the witness may NOT be prosecuted for

(A) direct contempt.

(B) infidelity in the custody of public records.

(D) false testimony.

(5) Mario, a Bureau of Customs’ examiner, was administratively charged with grave misconduct and preventively suspended pending investigation. The head of office found him guilty as charged and ordered his dismissal. The decision against him was executed pending appeal. The Civil Service Commission (CSC) subsequently found him guilty and after considering a number of mitigating circumstances, reduced his penalty to only one month suspension. Is Mario entitled to back salaries?

(A) Yes, the reduction of the penalty means restoration of his right to back salaries.

(B) No, the penalty of one month suspension carries with it the forfeiture of back salaries.

(D) Yes, corresponding to the period of his suspension pending appeal less one month.

(6) Althea, a Filipino citizen, bought a lot in the Philippines in 1975. Her predecessors-in-interest have been in open, continuous, exclusive and notorious possession of the lot since 1940, in the concept of owner. In 1988, Althea became a naturalized Australian citizen. Is she qualified to apply for registration of the lot in her name?

(A) Yes, provided she acquires back her Filipino citizenship.

(B) No, except when it can be proved that Australia has a counterpart domestic law that also favors former Filipino citizens residing there.

(C) Yes, the lot is already private in character and as a former natural-born Filipino, she can buy the lot and apply for its registration in her name.

(D) No, foreigners are not allowed to own lands in the Philippines.

(7) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when

(A) public safety or public health requires otherwise as prescribed by law.

(B) dictated by the need to maintain public peace and order.

(D) public safety or order requires otherwise as determined by the President.

(8) One advantage of a written Constitution is its

(A) reliability.

(B) permanence.

(D) expediency.

(9) An appointment held at the pleasure of the appointing power

(A) essentially temporary in nature.

(B) requires special qualifications of the appointee.

(D) is co-extensive with the term of the public officer who appointed him.

(10) The city government filed a complaint for expropriation of 10 lots to build a recreational complex for the members of the homeowners' association of Sitio Sto. Tomas, the most populated residential compound in the city. The lot owners challenged the purpose of the expropriation. Does the expropriation have a valid purpose?

(A) No, because not everybody uses a recreational complex.

(B) No, because it intends to benefit a private organization.

(D) Yes, it serves the well-being of the local residents.

(11) An example of a content based restraint on free speech is a regulation prescribing

(A) maximum tolerance of pro-government demonstrations.

(B) a no rally-no permit policy.

(D) calibrated response to rallies that have become violent.

(12) The President forged an executive agreement with Vietnam for a year supply of animal feeds to the Philippines not to exceed 40,000 tons. The Association of Animal Feed Sellers of the Philippines questioned the executive agreement for being contrary to R.A. 462 which prohibits the importation of animal feeds from Asian countries. Is the challenge correct?

(A) Yes, the executive agreement is contrary to our existing domestic law.

(B) No, the President is the sole organ of the government in external relations and all his actions as such form part of the law of the land.

(D) Yes, the executive agreement is actually a treaty which does not take effect without ratification by the Senate.

(13) Jose Cruz and 20 others filed a petition with the COMELEC to hold a plebiscite on their petition for initiative to amend the Constitution by shifting to a unicameral parliamentary form of government. Assuming that the petition has been signed by the required number of registered voters, will it prosper?

(A) No, only Congress can exercise the power to amend the Constitution.

(B) Yes, the people can substantially amend the Constitution by direct action.

(D) No, since they seek, not an amendment, but a revision.

(14) The Comelec en banc cannot hear and decide a case at first instance EXCEPT when

(A) a Division refers the case to it for direct action.

(B) the case involves a purely administrative matter.

(D) a related case is pending before the Supreme Court en banc.

(15) Each of the Constitutional Commissions is expressly described as "independent," exemplified by its

(A) immunity from suit.

(B) fiscal autonomy.

(D) collegiality.

(16) There is double jeopardy when the dismissal of the first case is

(A) made at the instance of the accused invoking his right to fair trial.

(B) made upon motion of the accused without objection from the prosecution.

(D) based on the objection of the accused to the prosecution's motion to postpone trial.

(17) The new Commissioner of Immigration, Mr. Suarez, issued an Office Order directing the top immigration officials to tender courtesy resignation to give him a free hand in reorganizing the agency. In compliance, Director Sison of the Administrative Department tendered his resignation in writing which Mr. Suarez immediately accepted. Director Sison went to court, assailing the validity of his courtesy resignation and Mr. Suarez’s acceptance of the same. Will the action prosper?

(A) No, Director Sison tendered his resignation and it was accepted.

(B) No, estoppel precludes Director Sison from disclaiming the resignation he freely tendered.

(D) Yes, Director Sison merely complied with the order of the head of office; the element of clear intention to relinguish office is lacking.

(18) An administrative rule that fixes rates is valid only when the proposed rates are

(A) published and filed with the UP Law Center.

(B) published and hearings are conducted.

(D) published and all stakeholders are personally notified.

(19) The government sought to expropriate a parcel of land belonging to Y. The law provides that, to get immediate possession of the land, the government must deposit the equivalent of the land's zonal value. The government insisted, however, that what apply are the rules of court which require an initial deposit only of the assessed value of the property. Which should prevail on this matter, the law or the rules of court?

(A) Both law and rules apply because just compensation should be fixed based on its zonal or assessed value, whichever is higher.

(B) Both law and rules apply because just compensation should be fixed based on its zonal or assessed value, whichever is lower.

(C) The law should prevail since the right to just compensation is a substantive right that Congress has the power to define.

(D) The rules of court should prevail since just compensation is a procedural matter subject to the rule making power of the Supreme Court.

(20) After X, a rape suspect, was apprised of his right to silence and to counsel, he told the investigators that he was waiving his right to have his own counsel or to be provided one. He made his waiver in the presence of a retired Judge who was assigned to assist and explain to him the consequences of such waiver. Is the waiver valid?

(A) No, the waiver was not reduced in writing.

(B) Yes, the mere fact that the lawyer was a retired judge does not cast doubt on his competence and independence.

(D) No, a retired Judge is not a competent and independent counsel.

(21) Governor Paloma was administratively charged with abuse of authority before the Office of the President. Pending hearing, he ran for reelection and won a second term. He then moved to dismiss the charge against him based on this supervening event. Should the motion be granted?

(A) Yes, Governor Paloma's reelection is an expression of the electorate's obedience to his will.

(B) No, Governor Paloma's reelection cannot extinguish his liability for malfeasance in office.

(C) No, Governor Paloma's reelection does not render moot the administrative case already pending when he filed his certificate of candidacy for his reelection bid.

(D) Yes, Governor Paloma's reelection is an expression of the electorate's restored trust.

(22) The decision of the Regional Trial Court on appeals pertaining to inclusions or exclusions from the list of voters

(A) is inappealable.

(B) is subject to an action for annulment.

(D) is appealable to the Commission on Elections.

(23) The equal protection clause allows valid classification of subjects that applies

(A) only to present conditions.

(B) so long as it remains relevant to the government.

(D) for as long as the problem to be corrected exists.

(24) The President wants to appoint A to the vacant post of Associate Justice of the Supreme Court because of his qualifications, competence, honesty, and efficiency. But A’s name is not on the list of nominees that the Judicial and Bar Council (JBC) submitted to the President. What should the President do?

(A) Request the JBC to consider adding A to the list.

(B) Decline to appoint from the list.

(D) Return the list to JBC.

(25) Courts may still decide cases that have otherwise become academic when they involve

(A) the basic interest of people.

(B) petitions for habeas corpus.

(D) Presidential election protests.

(26) The right of the State to prosecute crimes by available evidence must yield to the right of

(A) the accused against self-incrimination.

(B) another State to extradite a fugitive from justice.

(D) the complainant to drop the case against the accused.

(27) A temporary appointee to a public office who becomes a civil service eligible during his tenure

(A) loses his temporary appointment without prejudice to his re-appointment as permanent.

(B) has the right to demand conversion of his appointment to permanent.

(D) retains his temporary appointment.

(28) Upon endorsement from the Senate where it was first mistakenly filed, the House of Representatives Committee on Justice found the verified complaint for impeachment against the President sufficient in form but insufficient in substance. Within the same year, another impeachment suit was filed against the President who questioned the same for being violative of the Constitution. Is the President correct?

(A) No, "initiated" means the Articles of Impeachment have been actually filed with the Senate for trial; this did not yet happen.

(B) No, the first complaint was not deemed initiated because it was originally filed with the Senate.

(C) Yes, the dismissal of the first impeachment proceeding bars the initiation of another during the same term of the President.

(D) Yes, no impeachment proceeding can be filed against the President more than once within a year.

(29) The Solicitor General declines to institute a civil action on behalf of a government agency due to his strained relation with its head, insisting that the agency’s lawyers can file the action. Is the Solicitor General correct?

(A) Yes, when he deems he cannot harmoniously and effectively work with the requesting agency.

(B) No, he must, in choosing whether to prosecute an action, exercise his discretion according to law and the best interest of the State.

(D) No, the Solicitor General's duty to represent the government, its offices and officers is mandatory and absolute.

(30) A department secretary may, with the President's consent, initiate his appearance before the Senate or the House of Representatives which

(A) must seek the concurrence of the other House before acting.

(B) must hold an executive session to hear the department secretary.

(D) must accept such initiated appearance.

(31) The Metro Manila Development Authority (MMDA) passed a rule authorizing traffic enforcers to impound illegally parked vehicles, for the first offense, and confiscate their registration plates for the second. The MMDA issued this rule to implement a law that authorized it to suspend the licenses of drivers who violate traffic rules. Is the MMDA rule valid?

(A) No, since the MMDA does not have rule-making power.

(B) Yes, it is a valid exercise of the power of subordinate legislation.

(D) No, the rule goes beyond the sphere of the law.

(32) Senator Bondoc was charged with murder and detained at the Quezon City Jail. He invoked, in seeking leave from the court to attend the session of the Senate, his immunity from arrest as a Senator. How should the court rule on his motion?

(A) Deny the motion unless the Senate issues a resolution certifying to the urgency of his attendance at its sessions.

(B) Grant the motion provided he posts bail since he is not a flight risk.

(D) Deny the motion since immunity from arrest does not apply to a charge of murder.

(33) X, an administrative officer in the Department of Justice, was charged with grave misconduct and preventively suspended for 90 days pending investigation. Based on the evidence, the Secretary of Justice found X guilty as charged and dismissed him from the service. Pending appeal, X's dismissal was executed. Subsequently, the Civil Service Commission (CSC) reversed the Secretary’s decision and the reversal became final and executory. What is the effect of X's exoneration?

(A) X is entitled to reinstatement and back salaries both during his 90 day preventive suspension and his suspension pending appeal.

(B) X is entitled to reinstatement and back salaries corresponding only to the period of delay caused by those prosecuting the case against him.

(D) X is entitled to reinstatement and back salaries during his suspension pending appeal.

(34) Courts may dismiss a case on ground of mootness when

(A) the case is premature.

(B) petitioner lacks legal standing.

(D) the issue of validity of law was not timely raised.

(35) Alfredo was elected municipal mayor for 3 consecutive terms. During his third term, the municipality became a city. Alfredo ran for city mayor during the next immediately succeeding election. Voltaire sought his disqualification citing the 3 term limit for elective officials. Will Voltaire's action prosper?

(A) No, the 3 term limit should not apply to a person who is running for a new position title.

(B) Yes, the 3 term limit applies regardless of any voluntary or involuntary interruption in the service of the local elective official.

(D) No, the 3 term limit should not apply to a local government unit that has assumed a different corporate existence.

(36) In what scenario is an extensive search of moving vehicles without warrant valid?

(A) The police became suspicious on seeing something on the car’s back seat covered with blanket.

(B) The police suspected an unfenced lot covered by rocks and bushes was planted to marijuana.

(C) The police became suspicious when they saw a car believed to be of the same model used by the killers of a city mayor.

(D) The driver sped away in his car when the police flagged him down at a checkpoint.

(37) Pre-proclamation controversies shall be heard

(A) summarily without need of trial.

(B) through trial by commissioner.

(D) through speedy arbitration.

(38) When the President orders the Chief of the Philippine National Police to suspend the issuance of permits to carry firearms outside the residence, the President exercises

(A) the power of control.

(B) the Commander-in-Chief power.

(D) the calling out power.

(39) Carlos, a foreign national was charged with and convicted of a serious crime in State X and sentenced to life imprisonment. His country applied for relief with the International Court of Justice (ICJ), arguing that State X did not inform Carlos of his right under Article 36 of the Vienna Convention to be accorded legal assistance by his government. State X, as signatory to the Vienna Convention, agreed to ICJ's compulsory jurisdiction over all disputes regarding the interpretation or application of the Vienna Convention. ICJ ruled that State X violated its obligation to provide consular notification to the foreign national's country. ICJ also required State X to review and reconsider the life sentence imposed on the foreign national. State X then wrote the United Nations informing that it was withdrawing from the Optional Protocol on Vienna Convention and was not bound by the ICJ decision. What principle of international law did State X violate?

(A) Pacta Sunt Servanda

(B) Act of State Doctrine

(D) Jus Cogens

(40) An informer told the police that a Toyota Car with plate ABC 134 would deliver an unspecified quantity of ecstacy in Forbes Park, Makati City. The officers whom the police sent to watch the Forbes Park gates saw the described car and flagged it down. When the driver stopped and lowered his window, an officer saw a gun tucked on the driver's waist. The officer asked the driver to step out and he did. When an officer looked inside the car, he saw many tablets strewn on the driver's seat. The driver admitted they were ecstacy. Is the search valid?

(A) No, the rule on warrantless search of moving vehicle does not allow arbitrariness on the part of the police.

(B) Yes, the police officers had the duty to verify the truth of the information they got and pursue it to the end.

(D) No, police officers do not have unbridled discretion to conduct a warrantless search of moving vehicles.

(41) The Commission on Elections is an independent body tasked to enforce all laws relative to the conduct of elections. Hence, it may

(A) conduct two kinds of electoral count: a slow but official count; and a quick but unofficial count.

(B) make an advance and unofficial canvass of election returns through electronic transmission.

(D) authorize the citizens arm to use election returns for unofficial count.

(42)The President may proclaim martial law over a particular province subject to revocation or extension

(A) by Congress,subject to ratification by the Supreme Court.

(B) by the Supreme Court.

(D) by Congress, upon recommendation of the respective Sangguniang Panlalawigan.

(43) During his incumbency, President Carlos shot to death one of his advisers during a heated argument over a game of golf that they were playing. The deceased adviser’s family filed a case of homicide against President Carlos before the city prosecutor’s office. He moved to dismiss the case, invoking presidential immunity from suit. Should the case be dismissed?

(A) Yes, his immunity covers his interactions with his official family, including the deceased adviser.

(B) No, his immunity covers only work-related crimes.

(D) No, his immunity does not cover crimes involving moral turpitude.

(44) The School Principal of Ramon Magsaysay High School designated Maria, her daughter, as public school teacher in her school. The designation was assailed on ground of nepotism. Is such designation valid?

(A) No, because the law prohibits relatives from working within the same government unit.

(B) Yes, because Maria’s position does not fall within the prohibition.

(D) No, because Maria is related to the supervising authority within the prohibited degree of consanguinity.

(45) The President's appointment of an acting secretary although Congress is in session is

(A) voidable.

(B) valid.

(D) unenforceable.

(46) Congress passed a bill appropriating P50 million in assistance to locally based television stations subject to the condition that the amount would be available only in places where commercial national television stations do not operate. The President approved the appropriation but vetoed the condition. Was the veto valid?

(A) Yes, since the vetoed condition may be separated from the item.

(B) Yes, the President's veto power is absolute.

(D) No, since the approval of the item carried with it the approval of the condition attached to it.

(47) In the exercise of its power of legislative inquiries and oversight functions, the House of Representatives or the Senate may only ask questions

(A) that the official called is willing to answer.

(B) that are relevant to the proposed legislation.

(D) material to the subject of inquiry.

(48) An ordinance prohibits "notorious street gang members" from loitering in public places. The police are to disperse them or, if they refuse, place them under arrest. The ordinance enumerates which police officers can make arrest and defines street gangs, membership in them, and public areas. The ordinance was challenged for being vague regarding the meaning of "notorious street gang members." Is the ordinance valid?

(A) No, it leaves the public uncertain as to what conduct it prohibits.

(B) No, since it discriminates between loitering in public places and loitering in private places.

(D) Yes, it is sufficiently clear for the public to know what acts it prohibits.

(49) The people may approve or reject a proposal to allow foreign investors to own lands in the Philippines through an electoral process called

(A) referendum.

(B) plebiscite.

(D) certification.

(50) Where a candidate for the Senate stated in his certificate of candidacy that he is single, when he is very much married, though separated, his certificate of candidacy

(A) may be canceled.

(B) will subject him to a quo warranto action.

(D) may be denied due course.

(51) A candidate who commits vote buying on Election Day itself shall be prosecuted by the

(A) COMELEC.

(B) Secretary of Justice.

(D) City or Provincial Prosecutor.

(52) A law authorized the Secretary of Agriculture to require the quarantine of animals that suffer from dangerous communicable diseases at such place and for such time he deems necessary to prevent their spread. The Secretary of Agriculture issued a regulation, imposing a penalty of imprisonment for 10 days on persons transporting quarantined animals without his permission. The regulation is

(A) a valid exercise of the power of subordinate legislation.

(B) invalid for being ultra vires.

(D) invalid for being discriminatory.

(53) Small-scale utilization of natural resources by Filipino citizens may be allowed by

(A) Congress.

(B) either the Senate or the House of Representatives.

(D) the President with the consent of Congress.

(54) When the Civil Service Commission (CSC) approves the appointment of the Executive Director of the Land Transportation Franchising and Regulatory Board who possesses all the prescribed qualifications, the CSC performs

(A) a discretionary duty.

(B) a mix discretionary and ministerial duty.

(D) a rule-making duty.

(55) Xian and Yani ran for Congressman in the same district. During the canvassing, Yani objected to several returns which he said were tampered with. The board of canvassers did not entertain Yani's objections for lack of authority to do so. Yani questions the law prohibiting the filing of pre-proclamation cases involving the election of Congressmen since the Constitution grants COMELEC jurisdiction over all pre-proclamation cases, without distinction. Is Yani correct?

(A) Yes, the Constitution grants jurisdiction to COMELEC on all pre-proclamation cases, without exception.

(B) No, COMELEC’s jurisdiction over pre-proclamation cases pertains only to elections for regional, provincial, and city officials.

(C) No, COMELEC’s jurisdiction over pre-proclamation cases does not include those that must be brought directly to the courts.

(D) Yes, any conflict between the law and the Constitution relative to COMELEC's jurisdiction must be resolved in favor of the Constitution.

(56) When the Supreme Court nullified the decisions of the military tribunal for lack of jurisdiction, it excluded from their coverage decisions of acquittal where the defendants were deemed to have acquired a vested right. In so doing, the Supreme Court applied

(A) the operative fact doctrine.

(B) the rule against double jeopardy.

(D) the orthodox doctrine.

(57) Accused X pleaded not guilty to the charge of homicide against him. Since he was admitted to bail, they sent him notices to attend the hearings of his case. But he did not show up, despite notice, in four successive hearings without offering any justification. The prosecution moved to present evidence in absentia but the court denied the motion on the ground that the accused has a right to be present at his trial. Is the court correct?

(A) No, the court is mandated to hold trial in absentia when the accused had been arraigned, had notice, and his absence was unjustified.

(B) Yes, it remains discretionary on the court whether to conduct trial in absentia even if the accused had been arraigned and had notice and did not justify his absence.

(C) Yes, it is within the court's discretion to determine how many postponements it will grant the accused before trying him in absentia.

(D) No, the court may reject trial in absentia only on grounds of fraud, accident, mistake, or excusable negligence.

(58) Following COMELEC Chairman Bocay's conviction for acts of corruption in the impeachment proceedings, he was indicted for plunder before the Sandiganbayan and found guilty, as charged. Can he get Presidential pardon on the plunder case?

(A) No, plunder is not a pardonable offense.

(B) No, conviction in a criminal case for the same acts charged in the impeachment proceedings is not pardonable.

(C) Yes, convictions in two different fora for the same acts, are too harsh that they are not beyond the reach of the President’s pardoning power.

(D) Yes, conviction in court in a criminal action is subject to the President's pardoning power.

(59) A private person constituted by the court as custodian of property attached to secure a debt sought to be recovered in a civil proceeding is

(A) a private sheriff.

(B) a public officer.

(D) an agent of the party to whom the property will ultimately be awarded.

(60) The COMELEC en banc shall decide a motion for reconsideration of

(A) the House or Representatives and the Senate electoral tribunals.

(B) the decision of the election registrar.

(D) its own decision involving an election protest.

(61) Adela served as Mayor of Kasim for 2 consecutive terms. On her third term, COMELEC ousted her in an election protest that Gudi, her opponent, filed against her. Two years later, Gudi faced recall proceedings and Adela ran in the recall election against him. Adela won and served as Mayor for Gudi's remaining term. Can Adela run again for Mayor in the next succeeding election without violating the 3 term limit?

(A) No, she won the regular mayoralty election for two consecutive terms and the recall election constitutes her third term.

(B) A. No, she already won the mayoralty election for 3 consecutive terms.

(D) Yes, the fresh mandate given her during the recall election erased her disqualification for a third term.

(62) A child born in the United States to a Filipino mother and an American father is

(A) a Filipino citizen by election.

(B) a repatriated Filipino citizen.

(D) a natural born Filipino citizen.

(63) Involuntary servitude may be required as

(A) part of rehabilitation of one duly charged with a crime.

(B) substitute penalty for one who has been duly tried for a crime.

(D) condition precedent to one's valid arraignment.

(64) Van sought to disqualify Manresa as congresswoman of the third district of Manila on the ground that the latter is a greencard holder. By the time the case was decided against Manresa, she had already served her full term as congresswoman. What was Manresa's status during her incumbency as congresswoman?

(A) She was a de jure officer, having been duly elected.

(B) She was not a public officer because she had no valid existing public office.

(D) She was a de facto officer since she was elected, served, and her disqualification only came later.

(65) Whose appointment is NOT subject to confirmation by the Commission on Appointments?

(A) Chairman of the Civil Service Commission

(B) Chief Justice of the Supreme Court

(D) Executive Secretary

(66) The system of checks and balances operates when

(A) the President nullifies a conviction in a criminal case by pardoning the offender.

(B) Congress increases the budget proposal of the President.

(D) Congress expands the appellate jurisdiction of the Supreme Court, as defined by the Constitution.

(67) The price of staple goods like rice may be regulated for the protection of the consuming public through the exercise of

(A) power of subordinate legislation.

(B) emergency power.

(D) residual power.

(68) Associate Justice A retires from the Supreme Court 90 days before the forthcoming Presidential election. May the incumbent President still appoint Justice A's successor?

(A) No, it will violate the Constitutional prohibition against midnight appointments.

(B) Yes, vacancies in the Supreme Court should be filled within 90 days from occurrence of the vacancy.

(C) Yes, vacancies in the Supreme Court should be filled within 90 days from submission of JBC nominees to the President.

(D) No, the incumbent President must yield to the choice of the next President

(69) The President may set a limit on the country's import quota in the exercise of his

(A) delegated power.

(B) concurring power.

(D) inherent power.

(70) Amor sued for annulment of a deed of sale of Lot 1. While the case was ongoing, Baltazar, an interested buyer, got a Certification from Atty. Crispin, the Clerk of Court, that Lot 1 was not involved in any pending case before the court. Acting on the certification, the Register of Deeds canceled the notice of lis pendens annotated on Lot 1’s title. Amor filed a damage suit against Atty. Crispin but the latter invoked good faith and immunity from suit for acts relating to his official duty, claiming he was not yet the Clerk of Court when Amor filed his action. Decide.

(A) Atty. Crispin is immune from suit since he enjoys the presumption of regularity of performance of public duty.

(B) Atty. Crispin's defense is invalid since he issued his certification recklessly without checking the facts.

(D) As Clerk of Court, Atty. Crispin enjoys absolute immunity from suit for acts relating to his work.

(71) The Housing and Land Use Regulatory Board (HLURB) found Atlantic Homes, Inc. liable in damages arising from its delayed release of the title to the house and lot that it sold to Josephine. Atlantic appealed to the Office of the President which rendered a one page decision, affirming the attached HLURB judgment. Atlantic challenges the validity of the decision of the Office of the President for not stating the facts and the law on which it is based. Is the challenge correct?

(A) No, the Office of the President is governed by its own rules respecting review of cases appealed to it.

(B) Yes, the decision of the Office of the President must contain its own crafted factual findings and legal conclusions.

(C) Yes, administrative due process demands that the Office of the President make findings and conclusions independent of its subordinate.

(D) No, the Office of the President is not precluded from adopting the factual findings and legal conclusions contained in the HLURB decision.

(72) A collision occurred involving a passenger jeepney driven by Leonardo, a cargo truck driven by Joseph, and a dump truck driven by Lauro but owned by the City of Cebu. Lauro was on his way to get a load of sand for the repair of the road along Fuente Street, Cebu City. As a result of the collision, 3 passengers of the jeepney died. Their families filed a complaint for damages against Joseph who in turn filed a third party complaint against the City of Cebu and Lauro. Is the City of Cebu liable for the tort committed by its employee?

(A) The City of Cebu is not liable because its employee was engaged in the discharge of a governmental function.

(B) The City of Cebu is liable for the tort committed by its employee while in the discharge of a non-governmental function.

(D) The City of Cebu is not liable as a consequence of its non-suitability.

(73) During promulgation of sentence, the presence of the accused is mandatory but he may appear by counsel or representative when

(A) he is charged with a light offense.

(B) he was able to cross-examine the prosecution’s witnesses.

(D) he is convicted of a bailable offense.

(74) An information for murder was filed against X. After examining the case records forwarded to him by the prosecution, the trial judge granted bail to X based on the prosecution's manifestation that it was not objecting to the grant of bail. Is the trial judge correct?

(A) Yes, the trial judge may evaluate the strength or weakness of the evidence based on the case records forwarded to him.

(B) No, the trial judge should have held a hearing to ascertain the quality of the evidence of guilt that the prosecution had against X.

(D) Yes, the trial judge may reasonably rely on the prosecution's manifestation that he had no objection to the grant of bail.

(75) The President CANNOT call out the military

(A) to enforce customs laws.

(B) to secure shopping malls against terrorists.

(D) to raid a suspected haven of lawless elements.

(76) Mass media in the Philippines may be owned and managed by

(A) corporations wholly owned and managed by Filipinos.

(B) corporations 60% owned by Filipinos.

(D) corporations 60% owned and managed by Filipinos.

(77) Procedural due process in administrative proceedings

(A) requires the tribunal to consider the evidence presented.

(B) allows the losing party to file a motion for reconsideration.

(D) permits the parties to file memoranda.

(78) The Constitution prohibits cruel and inhuman punishments which involve

(A) torture or lingering suffering.

(B) primitive and gross penalties.

(D) degrading and queer penalties.

(79) Judge Lloyd was charged with serious misconduct before the Supreme Court. The Court found him guilty and ordered him dismissed. Believing that the decision was not immediately executory, he decided a case that had been submitted for resolution. The decision became final and executory. But the losing party filed a certiorari action with the Court of Appeals seeking to annul the writ of execution issued in the case and bar Judge Lloyd from further acting as judge. Can the relief against Judge Lloyd be granted?

(A) No, Judge Lloyd's right to stay as judge may be challenged only by direct proceeding, not collaterally.

(B) Yes, the action against Judge Lloyd may be consolidated with the case before the Court of Appeals and decided by it.

(D) No, the losing party has no standing to challenge Judge Lloyd's right to stay as judge.

(80) Executive Secretary Chua issued an order prohibiting the holding of rallies along Mendiola because it hampers the traffic flow to Malacanang. A group of militants questioned the order for being unconstitutional and filed a case against Secretary Chua to restrain him from enforcing the order. Secretary Chua raised state immunity from suit claiming that the state cannot be sued without its consent. Is the claim correct?

(A) No, public officers may be sued to restrain him from enforcing an act claimed to be unconstitutional.

(B) Yes, the order was not a proprietary act of the government.

(D) Yes, Secretary Chua cannot be sued for acts done in pursuance to his public office.

(81) Anton was the duly elected Mayor of Tunawi in the local elections of 2004. He got 51% of all the votes cast. Fourteen months later, Victoria, who also ran for mayor, filed with the Local Election Registrar, a petition for recall against Anton. The COMELEC approved the petition and set a date for its signing by other qualified voters in order to garner at least 25% of the total number of Bar Examination Questionnaire for Political Law Set A registered voters or total number of those who actually voted during the local election in 2005, whichever is lower. Anton attacked the COMELEC resolution for being invalid. Do you agree with Anton?

(A) No, the petition, though initiated by just one person, may be ratified by at least 25% of the total number of registered voters.

(B) No, the petition, though initiated by just one person may be ratified by at least 25% of those who actually voted during the 2004 local elections.

(C) Yes, the petition should be initiated by at least 25% of the total number of registered voters who actually voted during the 2004 local elections.

(D) Yes,the petition should be initiated by at least 25% of the total number of registered voters of Tunawi.

(82) Using the description of the supplier of shabu given by persons who had been arrested earlier for selling it, the police conducted a surveillance of the area indicated. When they saw a man who fitted the description walking from the apartment to his car, they approached and frisked him and he did not object. The search yielded an unlicensed gun tucked on his waist and shabu in his car. Is the search valid?

(A) No, the man did not manifest any suspicious behavior that would give the police sufficient reason to search him.

(B) Yes, the police acted on reliable information which proved correct when they searched the man and his car.

(C) Yes, the man should be deemed to have waived his right to challenge the search when he failed to object to the frisking.

(D) No, reliable information alone, absent any proof beyond reasonable doubt that the man was actually committing an offense, will not validate the search.

(83) A law interfering with the rights of the person meets the requirements of substantive due process when

(A) the means employed is not against public policy.

(B) it is in accord with the prescribed manner of enforcement as to time, place, and person.

(D) the interest of the general public, as distinguished from those of a particular case, requires such interference.

(84) A judge of the Regional Trial Court derives his powers and duties from

(A) statute.

(B) the President, the appointing power.

(D) the rules of court.

(85) When an elective official's preventive suspension will result in depriving his constituents of his services or representation, the court may

(A) require the investigating body to expedite the investigation.

(B) hold in abeyance the period of such suspension.

(D) shorten the period of such suspension.

(86) When the State requires private cemeteries to reserve 10% of their lots for burial of the poor, it exercises its

(A) eminent domain power.

(B) zoning power.

(D) taxing power.

(87) In the valid exercise of management prerogative consistent with the company's right to protect its economic interest, it may prohibit its employees from

(A) joining rallies during their work shift.

(B) marrying employees of competitor companies.

(D) patronizing the product of competitor companies.

(88) The President issued an executive order directing all department heads to secure his consent before agreeing to appear during question hour before Congress on matters pertaining to their departments. Is the executive order unconstitutional for suppressing information of public concern?

(A) No, because those department heads are his alter egos and he is but exercising his right against self-incrimination.

(B) Yes, the President cannot control the initiative of the department heads to conform with the oversight function of Congress.

(C) Yes, the President cannot withhold consent to the initiative of his department heads as it will violate the principle of check and balance.

(D) No, the President has the power to withhold consent to appearance by his department heads during question hour.

(89) When the President contracted a personal loan during his incumbency, he may be sued for sum of money

(A) during his term of office.

(B) during his tenure of office.

(D) after his tenure of office.

(90) The Senate Blue Ribbon Committee summoned X, a former department secretary, to shed light on his alleged illicit acquisition of properties claimed by the Presidential Commission on Good Government. X sought to restrain the Committee from proceeding with its investigation because of a pending criminal case against him before the Sandiganbayan for ill-gotten wealth involving the same properties. Decide. The investigation may

(A) not be restrained on ground of separation of powers.

(B) be restrained on ground of prejudicial question.

(D) be restrained for being sub judice.

(91) A government that actually exercises power and control as opposed to the true and lawful government is in terms of legitimacy

(A) a government of force.

(B) an interim government.

(D) an illegitimate government.

(92) The Special Committee on Naturalization is headed by

(A) the Secretary of Justice.

(B) the Secretary of Foreign Affairs.

(D) the Solicitor General.

(93) The President issued Proclamation 9517 declaring a state of emergency and calling the armed forces to immediately carry out necessary measures to suppress terrorism and lawless violence. In the same proclamation, he directed the government's temporary takeover of the operations of all privately owned communication utilities, prescribing reasonable terms for the takeover. Is the takeover valid?

(A) Yes, it is an implied power flowing from the President's exercise of emergency power.

(B) No, it is a power reserved for Congress alone.

(D) No, it is a power exclusively reserved for the People's direct action.

(94) A candidate for Senator must be at least 35 years old on

(A) the day he is duly proclaimed.

(B) the day the election is held.

(D) the day he takes his oath of office.

(95) The Office of the Special Prosecutor may file an information against a public officer for graft

(A) on its own initiative subject to withdrawal of the information by the Ombudsman.

(B) independently of the Ombudsman, except in plunder cases.

(D) independently of the Ombudsman.

(96) Since the Constitution is silent as to who can appoint the Chairman of the Commission on Human Rights, the President appointed W to that position without submitting his appointment to the Commission on Appointments for confirmation. Is W’s appointment by the President valid?

(A) No, since the position of Chairman of the Commission was created by statute, the appointment of its holder requires the consent of Congress.

(B) Yes, since the power to appoint in the government, if not lodged elsewhere, belongs to the President as Chief Executive.

(C) Yes, since the power to fill up all government positions mentioned in the Constitution has been lodged in the President.

(D) No, because absent any express authority under the Constitution, the power to appoint does not exist.

(97) The Chief Justice appointed X, the President’s sister, as Assistant Court Administrator in the Supreme Court during the President's tenure. Claiming that the Constitution prohibits the appointment in government of a President’s relative, a taxpayer asks for its nullification. Will the challenge prosper?

(A) Yes, since the appointment essentially violates the law against nepotism.

(B) Yes, because relatives of the President within the fourth civil degree cannot be appointed as heads of offices in any department of government.

(D) No, the position to which X was appointed is not among those prohibited under the Constitution.

(98)May an incumbent Justice of the Supreme Court be disbarred as a lawyer?

(A) No, it will amount to removal.

(B) No, his membership in the bar is secure.

(D) Yes, by Congress in joint session.

(99) Mayor Lucia of Casidsid filed her certificate of candidacy for congresswoman of the district covering Casidsid. Still, she continued to act as mayor of Casidsid without collecting her salaries as such. When she lost the election and a new mayor assumed office, she filed an action to collect the salaries she did not get while serving as mayor even when she ran for congresswoman. Is her action correct?

(A) No, salaries can be waived and she waived them.

(B) No, because her acts as de facto officer are void insofar as she is concerned.

(D) A. Yes, it is but just that she be paid for the service she rendered.

(100) X, a Filipino and Y, an American, both teach at the International Institute in Manila. The institute gave X a salary rate of P1,000 per hour and Y, P1,250 per hour plus housing, transportation, shipping costs, and leave travel allowance. The school cited the dislocation factor and limited tenure of Y to justify his high salary rate and additional benefits. The same package was given to the other foreign teachers. The Filipino teachers assailed such differential treatment, claiming it is discriminatory and violates the equal protection clause. Decide.

(A) The classification is based on superficial differences.

(B) The classification undermines the "Filipino First" policy.

(D) The distinction is substantial and uniformly applied to each class.

Sunday, January 13, 2013

pol law review preliminary exam set on Jan 17, 2013

coverage: public international law and administrative/election law

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