I.
The Philippines and the Republic of Kroi Sha established diplomatic relations and immediately their respective Presidents signed the following:
The Philippines and the Republic of Kroi Sha established diplomatic relations and immediately their respective Presidents signed the following:
- Executive Agreement allowing the Republic of
Kroi Sha to establish its embassy and consular offices within Metro
Manila; and
- Executive Agreement allowing the Republic of
Kroi Sha to bring to the Philippines its military complement, warships and
armaments, from time to time not exceeding one month,
- For the purpose of training exercises with Philippine
military forces and exempting from Philippine criminal jurisdiction acts
committed in line of duty by foreign military personnel, and
- From paying custom duties on all the goods brought by
said foreign forces into Philippine territory in connection with the
holding of the activities authorized under the said Executive Agreement.
Senator Maagap questioned the
constitutionality of the said Executive Agreements and demanded that the
Executive Agreements be submitted to the Senate for ratification pursuant to
the Philippine Constitution.
Is Senator Maagap correct? Explain. (4%)
RELEVANT PRINCIPLES: G.R. No. L-14279
The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.
The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments — treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements — whether denominated executive agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation.
RELEVANT PRINCIPLES: G.R. No. L-14279
The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.
The right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments — treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements — whether denominated executive agreements or exchanges of notes or otherwise — begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation.
II.
1.
A bill was introduced in the House
of Representatives in order to implement faithfully the provisions of the
UNCLOS to which the Philippines is a signatory.
Congressman Pat Rio Tek questioned the constitutionality of the bill on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution defining the Philippine internal waters and territorial sea. Do you agree or not with the said objection? Explain. (3%)
RELEVANT PRINCIPLE: G.R No. 187167
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.
Whether referred to as Philippine "internal waters" under Article I of the Constitution or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Congressman Pat Rio Tek questioned the constitutionality of the bill on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution defining the Philippine internal waters and territorial sea. Do you agree or not with the said objection? Explain. (3%)
RELEVANT PRINCIPLE: G.R No. 187167
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.
Whether referred to as Philippine "internal waters" under Article I of the Constitution or as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status
of archipelagic waters, of the air space over archipelagic waters and of their
bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over
the archipelagic waters, as well as to their bed and subsoil, and the resources
contained therein.
x x x x
4. The regime of archipelagic sea lanes passage
established in this Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by the
archipelagic State of its sovereignty over such waters and their air space, bed
and subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty,
however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if
not marginal, burdens in the interest of maintaining unimpeded, expeditious
international navigation, consistent with the international law principle of freedom
of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate
innocent and sea lanes passage. Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their exercise. Significantly, the right of innocent passage is a customary international law, thus automatically incorporated in the corpus of Philippine law. No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.
Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies) must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x." Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 2) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles. UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.
2.
Describe the following maritime regimes:
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s limitations and conditions for their exercise. Significantly, the right of innocent passage is a customary international law, thus automatically incorporated in the corpus of Philippine law. No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.
Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies) must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x." Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 2) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space – the exclusive economic zone – in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles. UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.
2.
Describe the following maritime regimes:
- Territorial Sea 12 nautical
miles from the baseline
- Contiguous Zone 24 nautical
miles from the baseline
- Exclusive Economic Zone Exclusive
Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from
the baselines
- Continental Shelf (4%) The
continental shelf of a coastal State comprises the seabed and subsoil of
the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental margin does not extend up to that
distance.
III.
Professor Masipag who holds a
plantilla or regular item in the University of the Philippines (UP) is
appointed as an Executive Assistant in the Court of Appeals (CA).
The professor is considered only on
leave of absence in UP while he reports for work at the CA which shall pay him
the salary of the Executive Assistant.
The appointment to the CA position was questioned but Prof. Masipag countered that he will not collect the salary for both positions; hence, he cannot be accused of receiving double compensation.
Is the argument of the professor valid? (4%)
RELEVANT PRINCIPLE: G. R. No. 156982
In Civil Liberties Union, the Supreme Court elucidated on the two constitutional prohibitions against holding multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or financial interest, whether government or private, unless allowed by the Constitution.
Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the government and receiving additional or double compensation:
SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.
(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind form any foreign state.
IV.
When is a facial challenge to the constitutionality of a law on the ground of violation of the Bill of Rights traditionally allowed? Explain your answer. (3%)
RELEVANT PRINCIPLE: G.R. NO. 167011
Petitioners challenge the constitutionality of Section 45(j) "as applied" to them in a live case under which they face prosecution. This is the traditional "as applied" approach in challenging the constitutionality of any statute. In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground - whether absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness.
The U.S. Supreme Court has created a notable exception to the prohibition against third-party standing. Under the exception, a petitioner may mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute. To mount a "facial" challenge, a petitioner has only to show violation under the assailed statute of the rights of third parties not before the court. This exception allowing "facial" challenges, however, applies only to statutes involving free speech. The ground allowed for a "facial" challenge is overbreadth or vagueness of the statute. Thus, the U.S. Supreme Court declared: x x x the Court has altered its traditional rules of standing to permit - in the First Amendment area - ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ x x x Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression. The rationale for this exception allowing a "facial" challenge is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply refuse to speak to avoid being charged of a crime. The overbroad or vague law chills him into silence.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment.106 These include religious freedom, freedom of the press, and the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While this Court has withheld the application of facial challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights.109 The underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life, speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino people.
V.
BD Telecom, a Filipino-owned corporation, sold its 1,000 common shares of stock in the Philippine Telecom Company, a public utility, to Australian Communication, another stockholder of the PTC, which also owns 1,000 common shares of stock.
A Filipino stockholder of PTC questions the sale on the ground that it will increase the common shares of AT, a foreign company, to more than 40% of the capital stock of PTC in violation of the 40% limitation of foreign ownership of public utility.
AT argues that the sale does not violate the 60-40 ownership requirement in favor of Filipino citizens decreed in Section II, Article XII of the 1987 Constitution because Filipinos still own 70% of the capital of the PTC.
The appointment to the CA position was questioned but Prof. Masipag countered that he will not collect the salary for both positions; hence, he cannot be accused of receiving double compensation.
Is the argument of the professor valid? (4%)
RELEVANT PRINCIPLE: G. R. No. 156982
In Civil Liberties Union, the Supreme Court elucidated on the two constitutional prohibitions against holding multiple positions in the government and receiving double compensation: (1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government employees against holding multiple government offices, unless otherwise allowed by law or the primary functions of their positions, and (2) the stricter prohibition under Section 13, Article VII on the President and his official family from holding any other office, profession, business or financial interest, whether government or private, unless allowed by the Constitution.
Sections 54 and 56 of the Administrative Code of 1987 reiterate the constitutional prohibition against multiple positions in the government and receiving additional or double compensation:
SEC. 54. Limitation on Appointment. - (1) No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.
(3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law nor accept without the consent of the President, any present, emolument, office, or title of any kind form any foreign state.
IV.
When is a facial challenge to the constitutionality of a law on the ground of violation of the Bill of Rights traditionally allowed? Explain your answer. (3%)
RELEVANT PRINCIPLE: G.R. NO. 167011
Petitioners challenge the constitutionality of Section 45(j) "as applied" to them in a live case under which they face prosecution. This is the traditional "as applied" approach in challenging the constitutionality of any statute. In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground - whether absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness.
The U.S. Supreme Court has created a notable exception to the prohibition against third-party standing. Under the exception, a petitioner may mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute. To mount a "facial" challenge, a petitioner has only to show violation under the assailed statute of the rights of third parties not before the court. This exception allowing "facial" challenges, however, applies only to statutes involving free speech. The ground allowed for a "facial" challenge is overbreadth or vagueness of the statute. Thus, the U.S. Supreme Court declared: x x x the Court has altered its traditional rules of standing to permit - in the First Amendment area - ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ x x x Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression. The rationale for this exception allowing a "facial" challenge is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply refuse to speak to avoid being charged of a crime. The overbroad or vague law chills him into silence.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment.106 These include religious freedom, freedom of the press, and the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While this Court has withheld the application of facial challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights.109 The underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life, speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino people.
V.
BD Telecom, a Filipino-owned corporation, sold its 1,000 common shares of stock in the Philippine Telecom Company, a public utility, to Australian Communication, another stockholder of the PTC, which also owns 1,000 common shares of stock.
A Filipino stockholder of PTC questions the sale on the ground that it will increase the common shares of AT, a foreign company, to more than 40% of the capital stock of PTC in violation of the 40% limitation of foreign ownership of public utility.
AT argues that the sale does not violate the 60-40 ownership requirement in favor of Filipino citizens decreed in Section II, Article XII of the 1987 Constitution because Filipinos still own 70% of the capital of the PTC.
AT points to the fact that it owns
only 2,000 common voting shares and 1,000 non -voting preferred shares while
Filipino stockholders own 1,000 common shares and 6,000 preferred shares,
therefore, Filipino stockholders still own a majority of the outstanding
capital stock of the corporation, and both classes of shares have a par value
of Php 20.00 per share. Decide. (5%)
VI.
1.
Distinguish the President's authority to declare a state of rebellion from the authority to declare a state of national emergency.
2.
What are the limitations, if any, to the pardoning powers of the President?
VII.
1.
Distinguish the President's authority to declare a state of rebellion from the authority to declare a state of national emergency.
2.
What are the limitations, if any, to the pardoning powers of the President?
VII.
Senator Fleur De Lis is charged with
plunder before the Sandiganbayan. After finding the existence of probable
cause, the court issues a warrant for the Senator's arrest.
The prosecution files a motion to
suspend the Senator relying on Section 5 of the Plunder Law. According to the
prosecution, the suspension should last until the termination of the case.
VIII.
A law provides that the Secretaries of the Departments of Finance and Trade and Industry, the Governor of the Central Bank, the Director General of the National Economic Development Authority, and the Chairperson of the Philippine Overseas Construction Board shall sit as ex -officio members of the Board of Directors (BOD) of a government owned and controlled corporation (GOCC). The other four (4) members shall come from the private sector.
The BOD issues a resolution to implement a new organizational structure, staffing pattern, a position classification system, and a new set of classification standards.
After the implementation of the Resolution, Atty. Dipasupil questioned the legality of the Resolution alleging that the BOD has no authority to do so.
The BOD claims otherwise arguing that the doctrine of qualified political agency applies to the case. It contends that since its agency is attached to the Department of Finance, whose head, the Secretary of Finance, is an alter ego of the President, the BOD's acts were also the acts of the President.
VIII.
A law provides that the Secretaries of the Departments of Finance and Trade and Industry, the Governor of the Central Bank, the Director General of the National Economic Development Authority, and the Chairperson of the Philippine Overseas Construction Board shall sit as ex -officio members of the Board of Directors (BOD) of a government owned and controlled corporation (GOCC). The other four (4) members shall come from the private sector.
The BOD issues a resolution to implement a new organizational structure, staffing pattern, a position classification system, and a new set of classification standards.
After the implementation of the Resolution, Atty. Dipasupil questioned the legality of the Resolution alleging that the BOD has no authority to do so.
The BOD claims otherwise arguing that the doctrine of qualified political agency applies to the case. It contends that since its agency is attached to the Department of Finance, whose head, the Secretary of Finance, is an alter ego of the President, the BOD's acts were also the acts of the President.
Is the invocation of the doctrine by
the BOD proper? Explain. (4%)
IX.
Several senior officers of the Armed
Forces of the Philippines received invitations from the Chairperson of the
Senate Committees on National Defense and Security for them to appear as
resource persons in scheduled public hearings regarding a wide range of
subjects.
The invitations state that these
public hearings were triggered by the privilege speeches of the Senators that
there was massive electoral fraud during the last national elections.
The invitees Brigadier General Matapang and Lieutenant Coronet Makatuwiran, who were among those tasked to maintain peace and order during the last election, refused to attend because of an Executive Order banning all public officials enumerated in paragraph 3 thereof from appearing before either house of Congress without prior approval of the President to ensure adherence to the rule of executive privilege.
The invitees Brigadier General Matapang and Lieutenant Coronet Makatuwiran, who were among those tasked to maintain peace and order during the last election, refused to attend because of an Executive Order banning all public officials enumerated in paragraph 3 thereof from appearing before either house of Congress without prior approval of the President to ensure adherence to the rule of executive privilege.
Among those included in the
enumeration are "senior officials of executive departments who, in the
judgment of the department heads, are covered by executive privilege."
Several individuals and groups challenge the constitutionality of the subject
executive order because it frustrates the power of the Congress to conduct
inquiries in aid of legislation under Section 21, Article VI of the 1987
Constitution. Decide the case. (5%)
X.
The Secretary of the Department of Environment and Natural Resources (DENR) issued Memorandum Circular No. 123-15 prescribing the administrative requirements for the conversion of a timber license agreement (TLA) into an Integrated Forestry Management Agreement (IFMA). ABC Corporation, a holder of a TLA which is about to expire, claims that the conditions for conversion imposed by the said circular are unreasonable and arbitrary and a patent nullity because it violates the non -impairment clause under the Bill of Rights of the 1987 Constitution.
In the same proclamation, the governor called upon the members of the Philippine National Police, with the assistance of the Armed Forces of the Philippines, to set up checkpoints and chokepoints, conduct general searches and seizures including arrests, and other actions necessary to ensure public safety. Was the action of the provincial governor proper? Explain. (4%)
XI.
1) What is the concept of expanded judicial review under the 1987 Constitution? (3%)
2) Differentiate the rule -making power or the power of the Supreme Court to promulgate rules under Section 5, Article VIII of the 1987 Constitution and judicial legislation. (2%)
XII.
Discuss the evolution of the principle of jus sanguinis as basis of Filipino citizenship under the 1935, 1973, and 1987 Constitutions. (3%)
XIII.
On August I5, 2015, Congresswoman Dina Tatalo filed and sponsored House Bill No. 5432, entitled "An Act Providing for the Apportionment of the Lone District of the City of Pangarap." The bill eventually became a law, R.A. No. 1234. It mandated that the lone legislative district of the City of Pangarap would now consist of two (2) districts.
Piolo Cruz assails the COMELEC Resolution as unconstitutional. According to him, R.A. No. 1234 cannot be implemented without conducting a plebiscite because the apportionment under the law falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the 1987 Constitution. Is the claim correct? Explain. (4%)
XIX.
Pursuant to its mandate to manage the orderly sale, disposition and privatization of the National Power Corporation's (NPC) generation assets, real estate and other disposable assets, the Power Sector Assets and Liabilities Management (PSALM) started the bidding process for the privatization of Angat Hydro Electric Power Plant (AHEPP). After evaluation of the bids, K -Pop Energy Corporation, a South Korean Company, was the highest bidder Consequently, a notice of award was issued to K -Pop.
XV.
On June 2, 2015, Chairperson Ty retired optionally after having served the government for thirty (30) years. The President then appointed Commissioner Marikit as COMELEC Chairperson. The Commission on Appointments confirmed her appointment. The appointment papers expressly indicate that Marikit will serve as COMELEC Chairperson "until the expiration of the original term of her office as COMELEC Commissioner or on June 2, 2021."
Matalino, a tax payer, files a petition for certiorari before the Supreme Court asserting that the appointment of Marikit as COMELEC Chairperson is unconstitutional for the following reasons:
X.
The Secretary of the Department of Environment and Natural Resources (DENR) issued Memorandum Circular No. 123-15 prescribing the administrative requirements for the conversion of a timber license agreement (TLA) into an Integrated Forestry Management Agreement (IFMA). ABC Corporation, a holder of a TLA which is about to expire, claims that the conditions for conversion imposed by the said circular are unreasonable and arbitrary and a patent nullity because it violates the non -impairment clause under the Bill of Rights of the 1987 Constitution.
In the same proclamation, the governor called upon the members of the Philippine National Police, with the assistance of the Armed Forces of the Philippines, to set up checkpoints and chokepoints, conduct general searches and seizures including arrests, and other actions necessary to ensure public safety. Was the action of the provincial governor proper? Explain. (4%)
XI.
1) What is the concept of expanded judicial review under the 1987 Constitution? (3%)
2) Differentiate the rule -making power or the power of the Supreme Court to promulgate rules under Section 5, Article VIII of the 1987 Constitution and judicial legislation. (2%)
XII.
Discuss the evolution of the principle of jus sanguinis as basis of Filipino citizenship under the 1935, 1973, and 1987 Constitutions. (3%)
XIII.
On August I5, 2015, Congresswoman Dina Tatalo filed and sponsored House Bill No. 5432, entitled "An Act Providing for the Apportionment of the Lone District of the City of Pangarap." The bill eventually became a law, R.A. No. 1234. It mandated that the lone legislative district of the City of Pangarap would now consist of two (2) districts.
Piolo Cruz assails the COMELEC Resolution as unconstitutional. According to him, R.A. No. 1234 cannot be implemented without conducting a plebiscite because the apportionment under the law falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the 1987 Constitution. Is the claim correct? Explain. (4%)
XIX.
Pursuant to its mandate to manage the orderly sale, disposition and privatization of the National Power Corporation's (NPC) generation assets, real estate and other disposable assets, the Power Sector Assets and Liabilities Management (PSALM) started the bidding process for the privatization of Angat Hydro Electric Power Plant (AHEPP). After evaluation of the bids, K -Pop Energy Corporation, a South Korean Company, was the highest bidder Consequently, a notice of award was issued to K -Pop.
XV.
On June 2, 2015, Chairperson Ty retired optionally after having served the government for thirty (30) years. The President then appointed Commissioner Marikit as COMELEC Chairperson. The Commission on Appointments confirmed her appointment. The appointment papers expressly indicate that Marikit will serve as COMELEC Chairperson "until the expiration of the original term of her office as COMELEC Commissioner or on June 2, 2021."
Matalino, a tax payer, files a petition for certiorari before the Supreme Court asserting that the appointment of Marikit as COMELEC Chairperson is unconstitutional for the following reasons:
(1) The appointment of Marikit as
COMELEC Chairperson constituted a re -appointment which is proscribed by
Section 1(2),Article IX of the 1987 Constitution; and
(2) the term of office expressly
stated in the appointment papers of Marikit likewise contravenes the
aforementioned constitutional provision.
Will the constitutional challenge
succeed? Explain. (4%)
XVI.
(SOMETHING'S MISSING HERE.)
Hence, she is disqualified perpetually from holding
any public office or from being elected to any public office. Before the
election, the COMELEC cancelled Bars COC but her motion for reconsideration
(MR) remained pending even after the election. Bai garnered the highest number
of votes followed by Pasyo Maagap, who took his oath as Acting Mayor.
Thereafter, the COMELEC denied Bars MR and declared her disqualified for running for Mayor. P. Maagap asked the Department of Interior and Local Government Secretary to be allowed to take his oath as permanent municipal mayor. This request was opposed by Vice Mayor Umaasa, invoking the rule on succession to the permanent vacancy in the Mayor's office. Who between Pasyo Maagap and Vice Mayor Umaasa has the right to occupy the position of Mayor? Explain your answer. (5%)
(2) How do you differentiate the petition filed under Section 68 from the petition filed under Section 78, both of the Omnibus Election Code? (3%)
XVII.
The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization of gay, bisexual, and transgender persons, filed for accreditation with the COMELEC to join the forthcoming party -list elections. The COMELEC denied the application for accreditation on the ground that GBTYA espouses immorality which offends religious dogmas. GBTYA challenges the denial of its application based on moral grounds because it violates its right to equal protection of the law.
Thereafter, the COMELEC denied Bars MR and declared her disqualified for running for Mayor. P. Maagap asked the Department of Interior and Local Government Secretary to be allowed to take his oath as permanent municipal mayor. This request was opposed by Vice Mayor Umaasa, invoking the rule on succession to the permanent vacancy in the Mayor's office. Who between Pasyo Maagap and Vice Mayor Umaasa has the right to occupy the position of Mayor? Explain your answer. (5%)
(2) How do you differentiate the petition filed under Section 68 from the petition filed under Section 78, both of the Omnibus Election Code? (3%)
XVII.
The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization of gay, bisexual, and transgender persons, filed for accreditation with the COMELEC to join the forthcoming party -list elections. The COMELEC denied the application for accreditation on the ground that GBTYA espouses immorality which offends religious dogmas. GBTYA challenges the denial of its application based on moral grounds because it violates its right to equal protection of the law.
1. What are the three (3) levels of test that are applied in equal protection cases? Explain. (3%)
In Bernas, The 1987 Constitution of the Philippines: A Commentary 139-140 (2009), Fr. Joaquin Bernas, S.J. writes:
For determining the reasonableness of classification, later jurisprudence
has developed three kinds of test[s] depending on the subject matter involved.
The most demanding is the strict scrutiny test which requires the government to show that the challenged
classification serves a compelling state interest and that the classification
is necessary to serve that interest. This [case] is used in cases involving
classifications based on race, national origin, religion, alienage, denial of
the right to vote, interstate migration, access to courts, and other rights
recognized as fundamental.
Next is the intermediate or middle-tier scrutiny
test which
requires government to show that the challenged classification serves an
important state interest and that the classification is at least substantially
related to serving that interest. This is applied to suspect classifications
like gender or illegitimacy.
The most liberal is the minimum or rational basis scrutiny according to which government need only
show that the challenged classification is rationally related to serving a
legitimate state interest. This is the traditional rationality test and it
applies to all subjects other than those listed above.
2. Which of the three (3) levels of test should be applied to the present case? Explain. (3%)
XVIII.
Around 12:00 midnight, a team of police officers was on routine patrol in Barangay Makatarungan when it noticed an open delivery van neatly covered with banana leaves. Believing that the van was loaded with contraband, the team leader flagged down the vehicle which was driven by Hades. He inquired from Hades what was loaded on the van. Hades just gave the police officer a blank stare and started to perspire profusely.
The police officers then told Hades that they will look inside the vehicle. Hades did not make any reply. The police officers then lifted the banana leaves and saw several boxes. They opened the boxes and discovered several kilos of shabu inside. Hades was charged with illegal possession of illegal drugs. After due proceedings, he was convicted by the trial court. On appeal, the Court of Appeals affirmed his conviction.
In his final bid for exoneration, Hades went to the Supreme Court claiming that his constitutional right against unreasonable searches and seizures was violated when the police officers searched his vehicle without a warrant; or that the shabu confiscated from him is thus inadmissible in evidence; or and that there being no evidence against him, he is entitled to an acquittal.
For its part, the People of the Philippines maintains that the case of Hades involved a consented warrantless search which is legally recognized. The People adverts to the fact that Hades did not offer any protest when the police officers asked him if they could look inside the vehicle. Thus, any evidence obtained in the course thereof is admissible in evidence. Whose claim is correct? Explain. (5%)
XIX.
The Citizens' Party questioned the sale arguing that it violates the constitutional provisions on the appropriation and utilization of a natural resource which should be limited to Filipino citizens and corporations which are at least 60% Filipino -owned. The PSALM countered that only the hydroelectric facility is being sold and not the Angat Dam; and that the utilization of water by a hydroelectric power plant does not constitute appropriation of water from its natural source of water that enters the intake gate of the power plant which is an artificial structure. Whose claim is correct? Explain. (4%)
XX.
Typhoon Bangis devastated the Province of Sinagtala. Roads and bridges were destroyed which impeded the entry of vehicles into the area. This caused food shortage resulting in massive looting of grocery stores and malls. , There is power outage also in the area.
For these reasons, the governor of the province declares a state of emergency in their province through Proclamation No. I. He also invoked Section 465 of the Local Government Code of 1991 (R.A. No. 7160) which vests on the provincial governor the power to carry out emergency measures during man-made and natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to suppress disorder and lawless violence.
XXI.
The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major political party which has participated in every election since the enactment of the 1987 Constitution. It has fielded candidates mostly for legislative district elections. In fact, a number of its members were elected, and are actually serving, in the House of Representatives. In the coming 2016 elections, the PMP leadership intends to join the party -list system. Can PMP join the party -list system without violating the Constitution and Republic Act No. 7941? (4%)
XXII.
The President appoints Emilio Melchor Chairperson of the Civil Service Commission. 0 Upon confirmation of Melchor,s appointment, the: President issues an executive order including him as Ex -Officio member of the Board of Trustees of the =Lc Government Service Insurance System (GSIS), Employees Compensation Commission (ECC), and the Board of Directors of the Philippine Health Insurance Corporation (PHILHEALTH).
A taxpayer questions the designation of Melchor as ex -officio member of the said corporations before the Supreme Court based on two (2) grounds, to wit: (I) it violates the constitutional prohibition on members of the Constitutional Commissions to hold any other office or employment during his tenure; and (2) it impairs the independence of the CSC. Will the petition prosper? Explain. (4%)
Allegedly, this is based on the Administrative Code-ofri_ 1997 (E.O. No. 292), particularly Section 14, Chaptee±: - 3,Title I -A, Book V.
This provision reads: "The chairman of the CSC shall be a member of the Board of Directors of other governing bodies of government entities whose functions affect the career development, employment, status, rights, privileges, and welfare of government officials and employees..."
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