PRELIMINARY
EXAMINATION IN POLITICAL LAW 2011
Answer
the following questions:
1.
(A) Is the
twenty percent allocation for party-list
representatives in Section 5(2), Article VI of the Constitution mandatory or
merely a ceiling? (B) Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
(C) Is the two percent threshold prescribed in Section 11(b) of RA 7941 to
qualify for one seat constitutional?(D) How shall the party-list representative seats be allocated? (E)Does the
Constitution prohibit the major political parties from participating in the party-list elections?(F) If not, can the
major political parties be barred from participating in the party-list elections?
ANSWER:
(A) the filling-up of all available
party-list seats is not mandatory. Actual occupancy of the party-list seats depends on the
number of participants in the party-list election. If only ten parties
participated in the 2007 party-list election, then, despite the availability of
54 seats, the maximum possible number of occupied party-list seats would only
be 30 because of the three-seat cap. In such a case, the three-seat cap
prevents the mandatory allocation of all the 54 available seats.
(B) The three-seat cap is constitutional. The three-seat cap is intended by the
Legislature to prevent any party from dominating the party-list system. There
is no violation of the Constitution because the 1987 Constitution does not
require absolute proportionality for the party-list system. The well-settled
rule is that courts will not question the wisdom of the Legislature as long as
it is not violative of the Constitution.
(C) The continued operation of the two
percent threshold as it applies to the allocation of the additional seats is
now unconstitutional because this threshold mathematically and
physically prevents the filling up of the available party-list seats.
(D In determining the allocation of seats for party-list representatives
under Section 11 of R.A. No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be
ranked from the highest to the lowest based on the number of votes they
garnered during the elections.
2. The parties, organizations, and coalitions receiving at
least two percent (2%) of the total votes cast for the party-list system shall
be entitled to one guaranteed seat each.
3. Those garnering sufficient number of votes, according to
the ranking in paragraph 1, shall be entitled to additional seats in proportion
to their total number of votes until all the additional seats are allocated.
4. Each party, organization, or coalition shall be entitled
to not more than three (3) seats.
In computing the additional seats, the guaranteed seats
shall no longer be included because they have already been allocated, at one
seat each, to every two-percenter. Thus, the remaining available seats for
allocation as "additional seats" are the maximum seats reserved under
the Party List System less the guaranteed seats. Fractional seats are disregarded
in the absence of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.
(E) Neither the Constitution nor R.A.
No. 7941 mandates the filling-up of the entire 20% allocation of party-list
representatives found in the Constitution. The Constitution, in paragraph 1,
Section 5 of Article VI, left the determination of the number of the members of
the House of Representatives to Congress: "The House of Representatives
shall be composed of not more than two hundred and fifty members, unless otherwise
fixed by law, x x x." The 20% allocation of party-list representatives is merely a ceiling;
party-list representatives cannot be more than 20% of the members of the House
of Representatives. However, we cannot allow the continued existence of a provision in the
law which will systematically prevent the constitutionally allocated 20%
party-list representatives from being filled. The three-seat cap, as a
limitation to the number of seats that a qualified party-list organization may
occupy, remains a valid statutory device that prevents any party from
dominating the party-list elections. Seats for party-list representatives shall
thus be allocated in accordance with the procedure used in Table 3 above.
However, by a vote of 8-7, the Court
decided to continue the ruling in Veterans disallowing major political
parties from participating in the party-list elections, directly or indirectly. Those who voted to continue
disallowing major political parties from the party-list elections joined Chief
Justice Reynato S. Puno in his separate opinion. On the formula to allocate
party-list seats, the Court is unanimous in concurring with this ponencia.
NOTE: integrate some changes with the recent decision of PAGLAUM CASE.
2.
Senator Pimentel the chairman of the Blue Ribbon
Committee in Senate discovered that the Chief of Staff of the Military
committed an anomaly when he bought a piece of land in General Santos City
allegedly for military use. The price was allegedly overpriced to 200%. The
seller is a certain Atty. Juan Cruz.
a. Senator Pimentel issued a subpoena to the Chief of
Staff and to Atty. Cruz to appear before the Blue Ribbon Committee to answer
some questions concerning said anomaly. Can the two refuse to appear before
said committee?
b. Meanwhile, the Ombudsman filed a case before the
Sandiganbayan concerning the two persons concerned. Atty. Cruz now refused to
appear before the Blue Ribbon Committee. Is he correct?
ANSWER: (A) the two cannot refuse to appear. The power of the Congress in
the exercise of its investigation in aid of legislation carries with it the
power to compel witnesses to testify before it, under pain of legislative
contempt if not heeded. (B) For the reason that a case is already filed before
the Sandiganbayan, the two may have a reason not to appear anymore, considering
that its constitutional right against self-incrimination may be violated.(AQUILINO Q. PIMENTEL, JR., Petitioner, vs. THE
HONORABLE JOSE S. MAJADUCON, in his capacity as Presiding Judge of Branch 23,
Regional Trial Court, General Santos City, respondent. [G.R. No.
138378. July 29, 2003])
3. Congress passed a law
prohibiting the importation of rice. The President of the Philippines enters
into a treaty with Vietnam to import rice to the Philippines since there was a
shortage of rice due to the recent flood. Mr. X sues the President for
violating the law against rice importation. The President justifies her acts by
saying that there is a national emergency. Questions:
(a) Is the suit against
the President valid?
(b) In case of the
conflict between a law and a treaty which should prevail? State the requisites
of Judicial Review. Explain each
(c)What is executive
power? Where is it lodged? What is residual power? State at least five powers
of the president enumerated in the Constitution.
ANSWER: (a) The suit against the President of the Philippines is invalid.
He is immune from suit.
(b) The law must prevail. This is in consonance with the ruling of the
Supreme Court in the case of Ichong v. Hernandez ;
(c) The requisites of Judicial Review are as follows: (1) there must be an
actual case or controversy (2) the constitutional question must be raised at
the earliest opportunity (3) it must be determinative of the case (4) It must
be raised by the proper party
© Executive power is not defined under the 1987 constitution. Said powers
are merely enumerated. Justice Cortez stated that executive power is “more than
the sum of the enumerated powers” enumerated under the Constitution. Executive
power is lodged in the President of the Philippines. Residual power is one
which is not enumerated. Examples of presidential powers include: (1) treaty
making (2) Appointing (3) military powers (4) veto powers (5) pardoning powers(
See, Marcos v. Manglapus)
3. On what principles is international law
founded? What does Art. II Sec 2 of the Constitution say about international
law? What is the practical justification of the doctrine of state immunity?
What is its restrictive application? Explain.
ANSWER: International law is founded
on the basic principle of PAR IN PAREM NON HABET IMPERIUM, i.e. An equal cannot
have dominion over an equal. Art II Section 2 provides that we “adopt the generally
accepted principles of international law as part of the law of the land. The
practical justification of state immunity is that there can be no legal right
as against the state which creates the law and for which that right depends.
Its restrictive application however states that a state is only immune with
respect to its governmental (jure imperii) functions, but not to its
proprietary (jure gestiones) functions.
4.
The Department of Agriculture (herein petitioner) and
Sultan Security Agency entered into a contract 3 on 01
April 1989 for security services to be provided by the latter to the said
governmental entity. Save for the increase in the monthly rate of the guards,
the same terms and conditions were also made to apply to another contract, dated
01 May 1990, between the same parties. Pursuant to their arrangements, guards
were deployed by Sultan Agency in the various premises of the petitioner.
On 13 September
1990, several guards of the Sultan Security Agency filed a complaint for
underpayment of wages, non-payment of 13th month pay, uniform allowances, night
shift differential pay, holiday pay and overtime pay, as well as for damages, 4 before
the Regional Arbitration Branch X of Cagayan de Oro City, docketed as NLRC Case
No. 10-09-00455-90 (or 10-10-00519-90, its original docket number), against the
Department of Agriculture and Sultan Security Agency.
Questions: (1)
Is the Department of Agriculture suable? (2) Will its assets be made liable
through a writ of execution?
ANSWER: (1) IT is suable. The
Supreme Court said: “In the instant case, the
Department of Agriculture has not pretended to have assumed a capacity apart
from its being a governmental entity when it entered into the questioned
contract; nor that it could have, in fact, performed any act proprietary in
character.
But, be that as
it may, the claims of private respondents, i.e. for underpayment of wages,
holiday pay, overtime pay and similar other items, arising from the Contract
for Service, clearly constitute money claims. Act No. 3083, aforecited, gives
the consent of the State to be "sued upon any moneyed claim involving
liability arising from contract, express or implied, . . . Pursuant, however,
to Commonwealth Act ("C.A.") No. 327, as amended by Presidential Decree
("P.D.") No. 1145, the money claim first be brought to the Commission
on Audit. Thus, in Carabao, Inc., vs. Agricultural Productivity Commission,
20 we ruled:
(C)laimants have to
prosecute their money claims against the Government under Commonwealth Act 327,
stating that Act 3083 stands now merely as the general law waiving the State's
immunity from suit, subject to the general limitation expressed in Section 7
thereof that "no execution shall issue upon any judgment rendered by any
Court against the Government of the (Philippines), and that the conditions
provided in Commonwealth Act 327 for filing money claims against the Government
must be strictly observed."
We fail to see
any substantial conflict or inconsistency between the provisions of C.A. No.
327 and the Labor Code with respect to money claims against the State. The
Labor code, in relation to Act No. 3083, provides the legal basis for the State
liability but the prosecution, enforcement or satisfaction thereof must still
be pursued in accordance with the rules and procedures laid down in C.A. No.
327, as amended by P.D. 1445.”
(2) Its assets
cannot be made liable however. The Supreme Court said: When the state gives its
consent to be sued, it does thereby necessarily consent to unrestrained
execution against it. tersely put, when the State waives its immunity, all it
does, in effect, is to give the other party an opportunity to prove, if it can,
that the State has a liability. 21 In Republic vs. Villasor 22 this Court, in
nullifying the issuance of an alias writ of execution directed against the
funds of the Armed Forces of the Philippines to satisfy a final and executory
judgment, has explained, thus —
The universal rule that
where the State gives its consent to be sued by private parties either by
general or special law, it may limit the claimant's action "only up to the
completion of proceedings anterior to the stage of execution" and that
the power of the Courts ends when the judgment is rendered, since government
funds and properties may not be seized under writs or execution or garnishment
to satisfy such judgments, is based on obvious considerations of public
policy. Disbursements of public funds must be covered by the correspondent
appropriation as required by law. The functions and public services rendered by
the State cannot be allowed to be paralyzed or disrupted by the diversion of
public funds from their legitimate and specific objects, as appropriated by
law. 23
5.On February 2,
1999, the COMELEC en banc appointed petitioner as "Acting Director
IV" of the EID. On February 15,
2000, then Chairperson Harriet O. Demetriou renewed the appointment of
petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino
S.B. Javier renewed again the appointment of petitioner to the same position in
a "Temporary" capacity.
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC Chairman, and Borra and Tuason as
COMELEC Commissioners, each for a term of seven years and all expiring on February
2, 2008. Benipayo took his oath of
office and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of
office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim appointments of
Benipayo, Borra and Tuason for confirmation. However, the Commission on
Appointments did not act on said appointments.
On June 1, 2001,
President Arroyo renewed the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term of seven years, expiring on
February 2, 2008. They took their oaths of office for a second time. The Office of the President transmitted on
June 5, 2001 their appointments to the Commission on Appointments for
confirmation.
Congress adjourned before the Commission on Appointments
could act on their appointments. Thus,
on June 8, 2001, President Macapagal Arroyo renewed again the ad interim
appointments of Benipayo, Borra and Tuason to the same positions. The Office of
the President submitted their appointments for confirmation to the Commission
on Appointments. They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001[11] addressed to petitioner as Director IV of
the EID and to Cinco as Director III also of the EID, designating Cinco
Officer-in-Charge of the EID and reassigning petitioner to the Law
Department. COMELEC EID Commissioner-in-Charge
Mehol K. Sadain objected to petitioner’s reassignment in a Memorandum dated
April 14, 2001 addressed to the COMELEC en banc. Specifically, Commissioner
Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of
the EID in the reassignment of petitioner.
On April 16, 2001,
petitioner requested Benipayo to reconsider her relief as Director IV of the
EID and her reassignment to the Law Department. Petitioner cited Civil Service
Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of
government offices that "transfer and detail of employees are prohibited
during the election period beginning January 2 until June 13, 2001."
Benipayo denied her request for reconsideration on April 18, 2001, citing
COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of the
powers conferred upon it by the Constitution, the Omnibus Election Code and
other election laws, as an exception to the foregoing prohibitions, has
RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the prohibited period,
provided that the changes in the assignment of its field personnel within the
thirty-day period before election day shall be effected after due notice and
hearing."
Petitioner appealed
the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001. Petitioner also filed an administrative and
criminal complaint with the Law Department against Benipayo, alleging that her
reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC
Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and
other pertinent administrative and civil service laws, rules and regulations.
During the pendency of
her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo,
Borra and Tuason, as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that
the ad interim appointments of
Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and members. Petitioner also assails as illegal her
removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges the designation
of Cinco as Officer-in-Charge of the EID.
Petitioner, moreover, questions the legality of the disbursements made
by COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman to
Benipayo, Borra and Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal
Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC
Chairman and Borra and Tuason as Commissioners, respectively, for a term of
seven years expiring on February 2, 2008. They all took their oaths of office
anew.
QUESTIONS:
1. Whether or not the assumption of
office by Benipayo, Borra and Tuason on the basis of the ad interim
appointments issued by the President amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of the Constitution;
2. Assuming that the first ad
interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their ad interim appointments
and subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution;
3. Whether or not Benipayo’s
removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having
been done without the approval of the COMELEC as a collegial body.
Answer: The
appointment ad interim is actually a permanent appointment, subject to the confirmation by the Commission on Appointments.
The renewal of the appointment is not violative since it was not yet
disapproved by the CA., they were just bypassed. The Comelec Chair’s
administrative action on the matter does not need the approval of the COMELEC
as a collegial body.
6.What is the function of the Senate Electoral Tribunal
and the House of Representatives Electoral Tribunal? What is the composition of
each?
ANSWER: The electoral tribunal
serves as the sole judge of all electoral protests filed by each member. The
electoral protests covers “the election, returns and qualification” of said
member. Each is composed of 3 justices from the Supreme Court to be designated
by the Chief Justice and six members from each house concerned.
7.What are the three principles governing the interpretation of the
constitution using the case of Francisco v. House of Representative? Explain
each.
ANSWER: First, verba
legis, that is, wherever possible, the words used in the Constitution must
be given their ordinary meaning except where technical terms are
employed. Second, where there is ambiguity, ratio legis est anima. The
words of the Constitution should be interpreted in accordance with the intent
of its framers. Finally, ut magis valeat quam pereat. The Constitution
is to be interpreted as a whole.
(Francisco v. House of Representatives G.R. No. 160261,November 10, 2003)
8.Atty. Jose CRUZ was the Chairman of the
COMELEC.He met an accident and died. Atty. Maria Diaz, one of the commissioners
of the COMELEC was designated by the President of the Philippines as COMELEC
Chair to occupy the vacancy. Is the act of the President valid?
ANSWER: NOT VALID. The SC said: “A designation as Acting Chairman is by its very terms
essentially temporary and therefore revocable at will. No cause need be
established to justify its revocation. Assuming its validity, the
designation of the respondent as Acting Chairman of the Commission on Elections
may be withdrawn by the President of the Philippines at any time and for
whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its
withdrawal.
It is true, as the Solicitor General points out, that
the respondent cannot be removed at will from her permanent position as Associate
Commissioner. It is no less true, however, that she can be replaced as
Acting Chairman, with or without cause, and thus deprived of the powers and
perquisites of that temporary position.
The lack of a statutory rule covering the situation at
bar is no justification for the President of the Philippines to fill the void
by extending the temporary designation in favor of the respondent. This
is still a government of laws and not of men. The problem allegedly
sought to be corrected, if it existed at all, did not call for presidential
action. The situation could have been handled by the members of the
Commission on Elections themselves without the participation of the President,
however well-meaning.
In the choice of the Acting Chairman, the members of
the Commission on Elections would most likely have been guided by the seniority
rule as they themselves would have appreciated it. In any event, that
choice and the basis thereof were for them and not the President to make.
The Court has not the slightest doubt that the
President of the Philippines was moved only by the best of motives when she
issued the challenged designation. But while conceding her goodwill, we
cannot sustain her act because it conflicts with the Constitution. Hence,
even as this Court revoked the designation in the Bautista case, so too must it
annul the designation in the case at bar.
The Constitution provides for many safeguards to the
independence of the Commission on Elections, foremost among which is the
security of tenure of its members. That guaranty is not available to the
respondent as Acting Chairman of the Commissions on Elections by designation of
the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines
of respondent Haydee B. Yorac as Acting Chairman of the
Commissions on Elections is declared UNCONSTITUTIONAL, and the respondent is
hereby ordered to desist from serving as such. This is without
prejudice to the incumbent Associate Commissioners of the Commission on
Elections restoring her to the same position if they so desire, or choosing
another member in her place, pending the appointment of a permanent Chairman by
the President of the Philippines with the consent of the Commission on
Appointments.”
(SIXTO
S. BRILLANTES, JR., petitioner, vs. HAYDEE B.
YORAC, in her capacity as ACTING CHAIRPERSON of the COMMISSION ON
ELECTIONS, respondent. EN BANC[G.R. No. 93867. December 18, 1990]
9. What is stare decisis? Is the Supreme Court
bound by said principle?
ANSWER: Stare decisis et non quieta movere.
This principle of
adherence to precedents has not lost its luster and continues to guide the
bench in keeping with the need to maintain stability in the law. Courts are
bound by prior decisions. Thus, once a case has been decided one way, courts
have no choice but to resolve subsequent cases involving the same issue in the
same manner. In the recent decision of the Supreme Court it was said as
follows:
First: Most of the movants contend that the
principle of stare decisis is
controlling, and accordingly insist that the Court has erred in disobeying or
abandoning Valenzuela.[1]
The contention has no basis.
Stare decisis derives its name from the Latin
maxim stare decisis et non quieta
movere, i.e., to adhere to precedent and not to unsettle things that
are settled. It simply means that a principle underlying the decision in one
case is deemed of imperative authority, controlling the decisions of like cases
in the same court and in lower courts within the same jurisdiction, unless and
until the decision in question is reversed or overruled by a court of competent
authority. The decisions relied upon as precedents are commonly those of
appellate courts, because the decisions of the trial courts may be appealed to
higher courts and for that reason are probably not the best evidence of the
rules of law laid down. [2]
Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those
called upon to abide by them, but also of those duty-bound to enforce obedience
to them.[3] In a hierarchical judicial system like ours, the
decisions of the higher courts bind the lower courts, but the courts of
co-ordinate authority do not bind each other. The one highest court does not
bind itself, being invested with the innate authority to rule according to its
best lights.[4]
The Court, as the highest court of the land, may be
guided but is not controlled by precedent. Thus, the Court, especially with a
new membership, is not obliged to follow blindly a particular decision that it
determines, after re-examination, to call for a rectification.[5] The adherence to
precedents is strict and rigid in a common-law setting like the United Kingdom,
where judges make law as binding as an Act of Parliament.[6] But
ours is not a common-law system; hence, judicial precedents are not always
strictly and rigidly followed. A judicial pronouncement in an earlier decision may
be followed as a precedent in a subsequent case only when its reasoning and
justification are relevant, and the court in the latter case accepts such
reasoning and justification to be applicable to the case. The application of
the precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed,
or abandoned, or reversed, and that its wisdom should guide, if not control,
the Court in this case is, therefore, devoid of rationality and foundation.
They seem to conveniently forget that the Constitution itself recognizes the
innate authority of the Court en banc to modify or reverse a doctrine or
principle of law laid down in any decision rendered en banc or in
division.[7]
ARTURO M. DE CASTRO, PETITIONER, VS. JUDICIAL AND BAR
COUNCIL (JBC) AND PRESIDENT GLORIA MACAPAGAL - ARROYO, RESPONDENTS. EN BANC[
G.R. No. 191002, April 20, 2010 ]
10.What is a political question? Give at least two examples.
Tañada and Macapagal
v. Cuenco, 103 Phil. 1051, 1067 (1957). In summarizing the definition of the
term, "political question," Justice Concepcion wrote: "In short,
the term ‘political question’ connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other
words, in the language of Corpus Juris Secundum, it refers to ‘those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch
of the Government.’ It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure."
