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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PRELIMINARY EXAMINATION IN POLITICAL LAW

PRELIMINARY EXAMINATION IN POLITICAL LAW

1.      Which of the following is correct about eminent domain? (a) Expropriation (b) condemnation (c) regulate property (d) none of the above (e) all of the above.

2.      Which is NOT correct concerning eminent domain? -(a) like police power because it is also inherent (b) taking of public property (c) payment of just compensation (d) a necessity (e) public use

3.      Eminent domain cannot be used in taking private property for –(a) historical sites (b) piers (c) cemeteries (d) all of the above (e) none of the above

4.      A municipality may exercise eminent domain. Which of the following is INCORRECT? (a) the mayor can go to the owner and make an offer to buy (b) the Sanggunian must first authorize the mayor through a Resolution passed by it (c) the municipality must file an expropriation proceeding in court (d) the municipality must deposit in court 15% of the fair market value  of the property (e) the value of the property shall be determined by the court.

5.      The exercise of police power is lodged to (a) delegated to the lgu’s (b) legislative branch of government (c) judicial branch (d) executive branch (e) Congress

6.      Which of the following is not an essential requisite before an LGU can exercise the power of eminent domain? (a) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property (b) The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless (c) There is payment of just compensation, as required under Section 9 Article III of the Constitution and other pertinent laws. (d) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted (e) there must be a certification from the Treasurer that money is available for payment.

7.       Which is not correct? (a) Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator (b) The measure is the taker’s gain (c) The word "just" is used to intensify the meaning of the word "compensation" an(d) the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. (e) none  of the above.

8.      Lines of NAPOCOR passed through the property of Mrs B. The payment of compensation shall be (a) the easement value only since not the whole lot is used by Napocor (b) the full value of the property (c) dependent on the court (d) gauged  on the loss suffered by Mrs. B (e) based on the current tax declaration of B.

9.      In eminent domain, the just compensation to which the owner of a condemned property is entitled is generally the  (a) market value (b) assessed value (c) full value (d)  whole value  (e) all of the above.

10.  Rule 67 of the 1997 Revised Rules of Court reveals that expropriation proceedings are comprised of two stages. Which of the following belongs to the second stage? (a) determination of authority to exercise the power of eminent domain (b) determination of just compensation by the Sanggunian concerned (c) appointment of three commissioners to determine valuation (d) order of condemnation (e) determination that the property is fit for public use.

11.  Which of the following is not taxable by the local government unit  pursuant to RA 7160? (A) non-stock/non-profit hospitals (b) cooperatives (c) non-profit educational  institutions (d) none of the above (e) all of the above.

12.  Which of the following is considered as the power to destroy? (a) eminent domain (b) police power (c) taxation (d) all of the above (e) none of the above.

13.  Which of the following is not correct with respect to consent to search? (a) Consent to a search is not to be lightly inferred and must be shown by clear and convincing evidence (b) the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion (c) The burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given lies with the person searched.(d) Acquiescence in the loss of fundamental rights is not to be presumed and courts indulge every reasonable presumption against waiver of fundamental constitutional rights(e) that the person involved had knowledge, either actual or constructive, of the existence of such right.

14.  The general rule is that a search may be conducted by law enforcers only on the strength of a valid search warrant is settled. Which of the following is not an exception thereto?(a) consented searches; (b) as an incident to a lawful arrest; (c) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (d) searches of  vehicles (e) where the prohibited articles are in "plain view

15.  Which of the following is INCORRECT concerning the stop and frisk operation? (a) the  police officer  stops a citizen on the street, interrogate him, and pat him for weapon(s) or contraband (b) The police officer  introduces himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons(c) The apprehending police officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him (d)  an arrest should precede the search for this principle to apply (e) the accused  exhibits a suspicious behavior and in fact attempts to flee after the police officer had identified himself.

16.  A police officer armed with a search warrant can  search (a)  the house immediately and even break a door open (b) only when there are two witnesses inside the house (c) the house even when there is only one occupant present (d) provided he is accompanied by a Barangay captain or tanod (e) only with the permission of the owner of the house.

17.  A search warrant was issued by Judge Herrera in connection with an undocketed criminal case for estafa, falsification, insurance fraud, and tax evasion, against the Asian Surety and Insurance Co., a corporation duly organized and existing under the laws of the Philippines, with principal office at Room 200 Republic Supermarket Bldg., Rizal Avenue, Manila. Which of the following statements is true? (a) the search warrant is valid since it is the judge who issued it (b) the search warrant is invalid since it is not particular or vague (c) the search warrant is valid since it refers to crimes which are closely related to each other (d) it is invalid since it was issued upon probable cause not in connection with one specific offense (e) it is invalid since the cases are not yet docketed.

18.  Zones of privacy are likewise recognized and protected in our laws. Which of the following is not considered as a zone of privacy? (a) the Intellectual Property Code  (b)  extension lines of a telephone (c)  the privacy of letters and other private communications (d) Anti-Wiretapping Law (e) bank deposits.

19.  The history of press freedom dates back to the English Magna Carta, promulgated in--- (a) 1512 (b)1215 (c) 1521 (d)1152 (e) 1216---, which established the principle that not even the lawmaker should be above the law. Through the years, many treatises on press freedom arose in reaction to various measures taken to curtail it.

20.  In the United States, press freedom was first put into organic law  to its Constitution, declaring that "Congress shall make no law x x x abridging the freedom of speech, or of the press." This set in stone the basis for virtually all contemporary laws and jurisprudence on the subject of press freedom. This is known as the (a) first (b) second (c) third (d) fourth (e) fifth –amendment.

21.  Indeed, freedom of speech cannot be absolute and unconditional. In legal, political, and philosophical contexts, it is always regarded as liable to be overridden by important countervailing interests. Which of the following is applicable in limiting the freedom of speech?  (a) state security (b)  public order (c)  safety of individual citizens (d)  none of the above (e)  all of the above

22.  Which of the following is not CORRECT about police power? (a) the power to prescribe regulations to promote the health, morals, education, good order, safety, or the general welfare of the people (b) that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society (c) to enact such laws in relation to persons and property as may promote public health, public morals, public safety and the general welfare of each inhabitant (d) establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood calculated to prevent conflict of rights (e) the powers of the people inherent in every sovereignty to the extent of its dominions.

23.  What statement below does not describe a Constitution? (a) body of rules and maxims (b) framework of a system of government (c) creates or confers basic rights (d) basic & paramount law (e) definition of power.

24.  Which of the following should not be found in the row? (a) actual case or controversy (b) lis mota  (c) earliest opportunity (d) substantive distinction (e)  injured party

25.  Which of the following belongs to the constitution of sovereignty? (a) political rights (b) civil rights (c) procedure (d) organization (e) limitations.

26.  Which is the odd one out? (a) verba  (b) anima (c) magis (d) exclusio (e) legis

27.  Which of the following is considered a proper party? (a) a physician questioning the constitutionality of a law prohibiting the use of contraceptives (b) a taxpayer questioning the validity of a law banning export of women labor (c) an accountant challenging in a qou warranto proceeding a doctor who had been appointed as Medical Examiner (d) a senator challenging the validity of the compulsory drug testing bill (e) a rallyist questioning the validity of his arrest.

28.  Which of the following regulate property rights? (a) police power (b) eminent domain (c) taxation (d) a & b  (e) b & e

29.  Which of the following is NOT considered as a test of police power? (a) public interest (b) reasonable means (c) lawful subject (d) conformity to law (e) particular class.

30.  Which of the following was declared constitutional?  A law which (a) prohibits the use of shoddy for the making of mattresses (b)  requires blood testing before a marriage license has to be issued (c)  prohibits the transport of carabao (d)  requires compulsory drug testing to government employees (e)  prohibits casino (PAGCOR) in their province.

31.  Which of the following is incorrect concerning the power of taxation? (a) enforced (b)proportional (c) method (d) contract  (e) duty.

32.  Which is true about the taxation powers of the local government units? (a) inherent power (b) valid delegation (c) direct authority (d) unlimited (e) confiscatory

33.  Which of the following describes substantive due process? (a) Intrinsic validity (b) manner (c) valid governmental objective (d) a & c but not b (e) a & b but not c.

34.  Which of the following violates substantive due process? (a) a  municipal ordinance which requires all laundry establishments to issue receipts in English and Spanish (b) a law which disallowed Chinese aliens to engage in retail trade (c) a law which requires preventive suspension of government officials facing graft and corruption charges (d) a municipal ordinance that prohibits cabarets & massage parlors in Ermita area (e) a law that prohibits fishing from on March and April of every year.

35.  Which is violative of due process? (a) a teacher deprived of her right to have counsel in an administrative case (b) an accused who is deprived of his right to appeal due to the negligence of his counsel (c) an accused who was arrested without a warrant caught in flagrante delicto (d) an employee caught stealing inside the office and dismissed immediately (e) a judge who does not inhibit himself in a case when asked to do so.

36.  In which of the following situations is notice and hearing  required? (a) cancellation of passport (b) preventive suspension (c) distraint of untaxed properties (d) abatement of nuisance per accidens (e) padlocking of theaters showing obscene movies.

37.  Which of the following is not necessary in administrative due process? (a) the right to a full blown hearing which includes the right to present one’s case and submit evidence (b) the tribunal must consider the evidenced presented (c) the decision must have something to support itself (d) the evidence must be substantial (e) the tribunal must act on its own independent consideration.

38.  Which of the following is odd? (a) germane to the purpose of the law (b) be limited to existing conditions (c) based on substantial distinctions (d) not be limited to existing conditions only (e) not be arbitrary.

39.  Which of the following is not considered as a personal determination of probable cause? (a) the judge may rely on the certification of the fiscal who conducted the preliminary investigation (b) the judge may rely on the Information/complaint found in the records of the case (c) the judge listens personally to the persons under oath applying for a search warrant (d) the judge must ask searching questions and answers (e) the judge must read carefully the affidavits attached on the record of the case.

40.  X is appointed both as manager of a government corporation and mayor of his city. The appointment as manager was declared illegal. Which of the following is true? (a) he must reimburse the government of his salary as manager (b) all the contracts signed by him as manager are invalidated (c) all appointments signed by him when he was manager are invalid (d) none of the above (e) all of the above.

41.  Which of the following complies with the “plain view doctrine”? (a)  a prior valid intrusion in which the police are legally present in the pursuit of their official duties (b) the evidence was inadvertently discovered by the police who had the right to be where they are (c) the evidence must be immediately apparent (d) the plain view justified mere seizure of evidence without further search (e) all of the above.

42.  Which should not belong to the group? (a) search incidental to a lawful arrest (b) search of moving vehicles (c) customs search (d) routine airport security (e)arrests effected in hot pursuits.

43.  Rafael S. Ortanez filed with the Regional Trial Court a complaint for annulment of marriage with damages against  Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons. Which of the following is correct? (a) the said tapes are inadmissible absolutely (b) Tape recordings are not inadmissible per se (c) they can be admitted in evidence for certain purposes, depending on how they are presented (d) Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. (e) all of the above.

44.  An interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m.  the vessel was about to dock at the port of Iligan City when its security officer,  received a complaint from passenger about her missing jewelry. She suspected one of her co-passengersas the culprit. Diesmo(security officer) and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section. The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents.

Which of the following statements is correct? (a) Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure.

(b) Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him

(c) the baggage  was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply

(d) the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order

(e) he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.

45. Routine inspections at checkpoints are not regarded as violative of an individual's right against unreasonable search. Which of the following does not demonstrate this principle? (a) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds (b) simply looks into a vehicle (c) flashes a light therein without opening the car's doors (4) where the occupants are not subjected to a physical or body search (d) where the inspection of the vehicles is limited to a visual search or visual inspection (e) where the routine check is conducted in any area.

PART II: Case Problem (5 points)

45. (G.R. No. 156320  Abenes v. People)The prosecution showed that three days prior to the May 11, 1998 national and local elections, the Philippine National Police (PNP) of Pagadian City, through its Company Commander Major Pedronisto Quano, created a team composed of seven policemen with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban which was then being implemented by the COMELEC. SPO3 Cipriano Q. Pascua was the designated team leader.

The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the Barangay Chairman of Danlugan, and the team put up a road block with the marking "COMELEC GUN BAN". Vehicles passing through the road block were required by the team to stop and their occupants were then politely requested to alight in order to allow routine inspection and checking of their vehicles. Motorists who refused the request were not forced to do so.

At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass through the check point was stopped by the team and directed to park at the side of the road. As the occupants within the vehicle could not be seen through its tinted windows, SPO1 Eliezer Requejo, a member of the team, knocked on the vehicle’s window and requested the occupants to step down for a routine inspection. The eight occupants, which included the accused-appellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked at the right waist of Abenes. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC. Accused answered in the affirmative. The policemen then demanded for the pertinent documents to be shown to support Abenes’ claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes’ firearm, which was later identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its magazine containing seven live ammunitions.

Questions: (a) Given the circumstances, and the evidence adduced, was the check-point validly established?(b) was the petitioner’s constitutional right against unlawful search and seizure violated? (c) Is the plain view doctrine applicable in this case? Why?

END OF THE EXAMINATION

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