PRELIMINARY EXAMINATION IN POLITICAL LAW 2011

PRELIMINARY EXAMINATION IN POLITICAL LAW 2011

July 30, 2011  2 p.m. Sci Tech Building

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.

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."

END OF THE EXAMINATION

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