2019 Pre Week Bar Review in Admin & Public Officers & Election & Local Govt and PIL PDF
2019 Pre Week Bar Review in Admin & Public Officers & Election & Local Govt and PIL PDF
ADMINISTRATIVE LAW
• QUESTION:
• The Legal Education Board was created by law
to regulate law schools around the country,
including admission process and curriculum
development.
• It is the purpose of the law to ensure competent,
globally competitive and ethical candidates for
the admission to the practice of law.
• As part of AY 2017-2018 legal education reform
measures, the LEB issued a memorandum
which will require aspirants for a law career to
take the Philippine Law School Admission Test
(PhilSAT).
• QUESTIONS:
• 1. Is the Legal Education Board a government
instrumentality or a GOCC?
• 2. Can the LEB exercise quasi-legislative powers
to promulgate rules for admission to law school
thru the PHILSAT?
• 3. Are officers of the LEB considered “public
officers”?
• 4. The LEB has a sectoral representative from law
students, appointed by the President. If this law
student commits a crime in relation with his
functions as a member of LEB, will he be under
the jurisdiction of the Sandiganbayan?
• QUESTION:
• To qualify to take the PhilSAT, the aspirant must meet
the following requirements:
• (1) Graduated with bachelor’s degree, or is expecting
to graduate with a bachelor’s degree at the end of the
regular semester immediately preceding the school
year when he/she intends to commence the study of
the basic law course; and
• (2) Had obtained a general weighted average not
below 2.50 or 80% in the bachelor’s degree earned,
or if a graduating student has a general average of no
less than 80% from the 1st up to third year of his/her
study.
• Are the requirements constitutional? Decide with
reasons.
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• NOTE:
• Administrative Code of 1987, Section 3 of
Chapter 2, Book VII states:
• Filing. — (1) Every agency shall file with
the University of the Philippines Law
Center three (3) certified copies of every
rule adopted by it.
• Rules in force on the date of effectivity of
this Code which are not filed within three (3)
months from the date shall not thereafter be
the basis of any sanction against any party
or persons.
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15
• 1. Legislative Rule
• 2. Interpretative Rules
• 3. Contingent Rules
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• A:
• Legislative rules are in the nature of
subordinate legislation and designed to
implement a primary legislation by providing
the details thereof.
• They usually implement existing law,
imposing general, extra-statutory obligations
pursuant to authority properly delegated by
Congress and effect a change in existing
law or policy which affects individual rights
and obligations. [Republic v. Drugmakers
Laboratories, March 5, 2014]
17
• A:
• Interpretative rules are intended to interpret,
clarify or explain existing statutory regulations
under which the administrative body operates.
• Their purpose or objective is merely to construe
the statute being administered and purport to do
no more than interpret the statute.
• Simply, they try to say what the statute means
and refer to no single person or party in particular
but concern all those belonging to the same
class which may be covered by the said rules.
[Republic v. Drugmakers Laboratories, March
5, 2014]
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• A:
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• Exceptions:
• A. Subordinate legislation
• B. Rate-Fixing (Increasing Burdens)
21
Rules on Rate-Fixing
– If it’s pursuant to a legislative
function (i.e., increasing fees for
renewal of driver’s license or NBI
clearance), prior notice or hearing
is NOT REQUIRED. (See Philippine Consumers
Foundation v. Secretary, DECS, 153 SCRA 622)
22
• QUESTION:
• If the Office of the President revokes FTAA’s
entered into by the President, is it exercising
quasi-judicial or adjudicatory powers?
• ANSWER: NO.
• Quasi-judicial or administrative adjudicatory
power is the power of the administrative agency
to adjudicate the rights of persons before it.
• The OP's cancellation and/or revocation of the
FTAA is obviously not an "adjudication" in the
sense above-described.
• [Narra Nickel v. Redmont, G.R. No. 202877,
December 09, 2015, PERLAS-BERNABE, J.]
23
• NOTE:
• The FTAA is a contract to which the OP
itself represents a party, i.e., the Republic.
• It merely exercised a contractual right by
cancelling/revoking said agreement, a
purely administrative action which should
not be considered quasi-judicial in nature.
• Thus, absent the OP’s proper exercise of
a quasi-- judicial function, the CA had no
appellate jurisdiction over the case, and its
Decision is, perforce, null and void. [Narra
Nickel v. Redmont, G.R. No. 202877, December
09, 2015, PERLAS-BERNABE, J.]
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PUBLIC
OFFICERS
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• QUESTION:
• Ramirez was appointed as Executive Assistant III,
on contractual basis by then Chairman Eufemio
Domingo of the PAGC, effective Sept. 3, 2001,
• On Sept. 20, 2001, Chairman Domingo resigned
and Buenaflor was appointed as the new PAGC
Chairman Buenaflor terminated the employment of
Ramirez on the ground that he is co-terminous.
• Ramirez filed a suit in the RTC and argued that
since his appointment is contractual and no period
was stated, it is clearly understood that the term is
for a period of one (1) year from Sept. 3, 2001 and
subject to renewal. Is he correct?
38
• ANSWER: NO.
• It cannot be disputed that Ramirez's complaint was thereby
challenging the validity of his termination from the service,
and that he thereby wanted the RTC to pry into the
circumstances of the termination.
• Such challenge was outside of the RTC's sphere of authority.
Instead, it was the CSC that was vested by law with
jurisdiction to do so.
• Disciplinary cases and cases involving personnel actions
affecting employees in the Civil Service, like appointment or
separation from the service, are within the exclusive
jurisdiction of the CSC.
• Indeed, the Constitution vests in the CSC the jurisdiction over
all employees of the Government, including all its branches,
subdivisions, instrumentalities, and agencies, as well as
GOCC’s. Buenaflor v. Ramirez, G.R. No. 201607.
February 15, 2017.
39
• QUESTION:
• Vigilant Investigative and Security Agency
Incorporated or VISAI is a security firm owned by
Solicitor General Jose Calida. The solicitor general
resigned as president and chairman of the
company in June 2016, but remained as holder of
60% of company shares, while the remaining 40%
is evenly spread out among his wife Milagros and
their 3 children.
• Since he became Sol Gen on July 30, 2016, VISAI
bagged 12 contracts from 6 government agencies,
including the DOJ.
• Is there probable cause to charge Sol Gen Calida
for violating RA 6713? Explain.
40
• ANSWER: YES.
• Section 6 of the Code of Conduct of Public Officials states
that “a public official or employee shall avoid conflicts of
interest at all times.”
• The law adds: “When a conflict of interest arises, he shall
resign from his position in any private business
enterprise within thirty (30) days from his assumption of
office and divest himself of his shareholdings or
interest within sixty (60) days from such assumption.”
• The law explicitly states that when a conflict of interest
arises, an official has 60 days to resign and/or divest his
shares from the time he assumed office.
• Divestment is mandatory if the official is a substantial
stockholder “even if he has resigned from his position.”
• Thus, resigning is not enough.
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INCOMPATIBLE OFFICE
Unless otherwise allowed by law or
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. [Section 7, paragraph
(2), Article IX-B of the 1987
Constitution]
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QUESTION:
To improve the computer system in giving tests to
professionals, the Professional Regulations Commission (PRC)
hired an IT expert to study, improve, and manage their
computer system. PRC hired Computer Specialists Anna Garcia
for the job. Unfortunately, Anna got involved in a scandal where
topics for the 2010 Nursing Exam were leaked. The Civil
Commission investigated the matter.
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QUESTION:
A. What is the classification of her position in
relation to her appointing process?
Choose only ONE and explain.
1. Competitive position
2. Non-competitive position
3. Career service position
4. Non-career service position
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Sample Question
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Sample Question
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• NOTE:
• The abandonment of the doctrine of condonation is
prospective in application, hence, the same doctrine
is still applicable in cases that transpired prior to the
ruling of the SC in Carpio-Morales v. CA and BinayJr.
• The most important consideration in the doctrine of
condonation is the fact that the misconduct was done
on a prior term and that the subject public official was
eventually re-elected by the same body politic.
• It is inconsequential whether the said re-election be on
another public office or on an election year that is not
immediately succeeding the last, as long as the
electorate that re-elected the public official be the
same.[OFFICE OF THE OMBUDSMAN v MAYOR JULIUS
CESAR VERGARA G.R. No. 216871. December 6, 2017]
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ELECTION LAW
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81
– Exclusion
• Any registered voter in the city or municipality
• Representative of political party
• Election officer
• COMELEC (BP 881 Omnibus Election Code)
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• Q: AGE QUALIFICATION
• Age requirement: (Sec. 39, LGC)
• 23 – gov; vice gov; mayor; vice mayor;
councilor (highly urbanized cities);
• 21 – mayor; vice mayor (component
cities / municipalities);
• 18 – sanggunian brgy. members and
punong barangay
• 15 to 30 – can vote in SK elections
• 18 to 24 – can run as SK official
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• QUESTION:
• “A” is a naturalized citizen of
another country who reacquires
Filipino citizenship. On the other
hand, “B” possesses dual
citizenship by birth.
• If they desire to run for elective
public office, what requirement must
they comply with as regards their
citizenship?
90
• Answer:
• “A” must comply with the requirements set in
R.A 9225. Sec 5(3) of R.A. 9225 states that
naturalized citizens who reacquire Filipino
citizenship and desire to run for public office
shall “…make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath” aside from
the oath of allegiance prescribed in Section
3 of R.A. 9225.
91
• Answer:
• “B” need not comply with the twin requirements of
swearing an oath of allegiance and executing a
renunciation of foreign citizenship because he is a
natural-born Filipino who did not subsequently
become a naturalized citizen of another country.
• It is sufficed, if upon the filing of his certificate of
candidacy, he elects Philippine citizenship to
terminate his status as person with dual citizenship
considering that his condition in the unavoidable
consequence of conflicting laws of different States.
(Cordora v. COMELEC, G.R. No. 176947,
February 19, 2009).
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• 1. Repatriation
• 2. Naturalization
• 3. Re-acquisition
• 4. Retention
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• Question:
• X was a natural-born Filipino who went to the
USA to work and subsequently became a
naturalized American citizen.
• On 28 March 2007, he applied for
reacquisition of his Philippine Citizenship.
• He then filed a Certificate of Candidacy for
Mayor of the Municipality of General
Macarthur, Eastern Samar for the May 2007
election.
• When should his residence be reckoned?
Since birth or only at the time he renounced
his foreign citizenship?
96
• ANSWER:
• X’s reacquisition of his Philippine citizenship under
R.A. No. 9225 had no automatic impact or effect on
his residence/domicile.
• The length of his residence therein shall be
determined only from the time he renounced his
foreign citizenship and made the Municipality of
General Macarthur, Eastern Samar as his domicile
of choice.
• His residence shall not retroact to the time of his
birth. It is the fact of residence that is the decisive
factor in determining whether or not an individual
has satisfied the residency qualification requirement.
(Japzon v. COMELEC, G.R. No. 180088, Jan.19, 2009)
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Q: A Mayor ran for his 4th consecutive term but was later
disqualified by final judgment before election day due to a
petition for cancellation of COC under Sec 78 of the OEC.
Can he be substituted?
A: No. He was absolutely precluded from asserting an
eligibility to run as Mayor of Lucena City for the fourth
consecutive term. Resultantly, his CoC was invalid and
ineffectual ab initio for containing the incurable defect
consisting in his false declaration of his eligibility to run.
Since his COC was cancelled, for all intents and purposes the
COMELEC’s declaration of his disqualification had the effect
of announcing that he was no candidate at all.
We stress that a non-candidate had no right to pass on to his
substitute. (Talaga v. COMELEC, G.R. No. 196804 and
197015, October 09, 2012)
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ANSWER:
Federico’s substitution of Edna Sanchez was not valid having
been filed beyond the period prescribed under COMELEC
Resolution No. 8678.
There being no valid substitution, the candidate with the
highest number of votes should be proclaimed as the duly
elected mayor.
As Federico's substitution was not valid, there was only one
qualified candidate in the mayoralty race in Sto. Tomas,
Batangas -- Maligaya. Being the only candidate, he received
the highest number of votes. Accordingly, he should be
proclaimed as the duly elected mayor in the May 10,2010
elections.
The vice mayor cannot be proclaimed because there is simply
no vacancy. When there is no vacancy, the rule on succession
under Section 4442 of the LGC cannot be invoked.
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QUESTION:
On October 25, 2012, Luis Villafuerte (LV) filed
with the COMELEC a Verified Petition to deny
due course to or cancel the Certificate of
Candidacy (COC) of his grandson Miguel, Jr. on
the ground of intentional and material
misrepresentation of a false and deceptive name
or nickname that would mislead the voters.
LV alleged that Miguel deliberately omitted his
first name “Miguel”, which was recorded in
his Birth Certificate, and instead used
“MigzBaby” as nickname.
This is also the nick name of his father
Miguel, Sr. who is the incumbent Governor of
the province.
Should the COC of Miguel, Jr. be canceled?
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ANSWER: NO.
No. Section 78 of the Omnibus Election Code states that the
false representation in the contents of the Certificate of
Candidacy (COC) must refer to material matters in order to
justify the cancellation of the COC.
Material misrepresentation under the Omnibus Election
Code refers to “qualifications for elective office”
(residency, age, citizenship, or any other legal
qualifications necessary to run for local elective office as
provided in the Local Government Code) coupled with a
showing that there was an intent to deceive the electorate.
The nickname written in the COC cannot be considered a
material fact, which pertains to his eligibility and thus
qualification to run for public office. (LUIS R. VILLAFUERTE
v. COMELEC and MIGUEL VILLAFUERTE, G.R. No.
206698. February 25, 2014)
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QUESTION:
The COMELEC motu propio declared a candidate as
“nuisance” without any hearing. Is this valid?
ANSWER:
No. Under the OEC, to minimize the logistical confusion
caused by nuisance candidates, the COMELEC may cancel
their certificates of candidacy or deny them due course.
This denial or cancellation may be “motu proprio or upon
a verified petition of an interested party,” “subject to an
opportunity to be heard.”
Respondent in this case declared petitioner a nuisance
candidate without giving him a chance to explain his bona
fide intention to run for office. This was a violation of his right
to be heard. [JOSEPH B. TIMBOL vs. COMMISSION ON
ELECTIONS, G.R. No. 206004, February 24, 2015]
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QUESTION:
Salvador, who belonged to a local political
party, was a mayoralty candidate in San Jose
City, Nueva Ecija in 2010.
Salvador spent a total of P449,000.00 in the
2010 election, when the maximum expenditure
allowed by law is P275,667.00.
Salvador now argues that under R.A. 7166, he
was allowed to spend P5.00 per voter (instead
of P3.00 per voter) since he received no
support from his party although he was a
member thereof. Is Salvador guilty of
overspending?
127
ANSWER: YES.
The law is clear — the candidate must both be
without a political party and without support
from any political party for the P5.00 cap to
apply.
In the absence of one, the exception does not
apply.
Thus, his limit is P3.00 per registered voter.
To allow Salvador’s contention is to deviate from the
intention of the legislature in enacting the law, as the
same would find all candidates on equal footing,
whether member of a political party or not.
[SALVADOR v. COMELEC, G.R. No. 230744,September 26,
2017]
128
QUESTION:
Maturan failed to file his Statement of Contributions
and Expenditures (SOCE) in the 2010 elections.
Accordingly, the COMELEC imposed upon him an
administrative fine, which he paid immediately.
Likewise, for his 2013 candidacy, Maturan does not
have a SOCE on record. Maturan argues that by
virtue of the withdrawal of his candidacy on 12 May
2013, just a day before the elections, he is not
required to file his SOCE.
He again filed a certificate of candidacy in the 2016
elections. The COMELEC disqualified him.
Is the COMELEC correct?
129
ANSWER:
A: YES. The COMELEC is correct. In Pilar v.
Commission on Elections (July 11, 1995), the
Supreme Court held that every candidate, including
one who lost or withdraws his candidacy, is required
to file his SOCE pursuant to Section 14 of R.A. No.
7166. Good faith is not a defense.
Failure to file the SOCE shall constitute an
administrative offense for which the offenders shall
be liable to pay an administrative fine. For the
commission of a second or subsequent offense the
offender shall be subject to perpetual
disqualification to hold public office. [Maturan v.
COMELEC, March 28, 2017)
130
QUESTION:
In 2013, the COMELEC promulgated Resolution 9615
providing rules that would implement Sec 9 of RA 9006 or the
Fair Elections Act.
One of the provisions of the Resolution provide that the
posting of any election propaganda or materials during the
campaign period shall be prohibited in public utility vehicles
(PUV) and within the premises of public transport terminals.
1 UTAK, a party-list organization, questioned the prohibition
as it impedes the right to free speech of the private owners of
PUVs and transport terminals.
Issue: W/N the COMELEC may impose the prohibition on
PUVs and public transport terminals during the election
pursuant to its regulatory powers delegated under Art IX-C,
Sec 4 of the Constitution?
131
ANSWER:
No. The COMELEC may only regulate the franchise or
permit to operate and not the ownership per se of PUVs
and transport terminals.
The posting of election campaign material on vehicles
used for public transport or on transport terminals is not
only a form of political expression, but also an act of
ownership – it has nothing to do with the franchise or
permit to operate the PUV or transport terminal.
It unduly infringes on the fundamental right of the people to
freedom of speech.
Central to the prohibition is the freedom of individuals such as
the owners of PUVs and private transport terminals to express
their preference, through the posting of election campaign
material in their property, and convince others to agree with
them. [1-United Transport Koalisyon v. Commission on
Elections, G.R. No. 206020, April 14, 2015]
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QUESTION:
On February 21, 2013, the Diocese of Bacolod City posted
two (2) tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6') by ten feet (10') in size. They were
posted on the front walls of the cathedral within public view.
133
QUESTION:
Those who voted for the passing of the law were classified by
petitioners as comprising "Team Patay," while those who
voted against it form "Team Buhay".
134
QUESTION:
On February 22, 2013, the Election Officer of Bacolod City
issued a Notice to Remove Campaign Materials addressed to
the Bishop of the Diocese of Bacolod City. The election officer
ordered the tarpaulin's removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615
provides for the size requirement of tarpulins or campaign
posters of NOT MORE than two feet (2') by three feet (3').
135
ANSWER:
The Diocese of Bacolod City is not a candidate. Neither does
it belong to any political party. COMELEC does not have the
authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this
case.
The law and COMELEC Rules regulating the posting of
campaign materials only apply to candidates and political
parties, and the Diocese of Bacolod City is neither of the two.
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139
A:
GR: The RTC has the exclusive and original jurisdiction to
hear and decide any criminal action or proceedings for
violation of the OEC.
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LOCAL GOVERNMENT
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• ANSWER:
• An LGU may have control over the waters but may not
necessarily claim them as part of their territory. This
supports the Court's finding that the exercise of authority
does not determine the LGU's territorial jurisdiction.
• It is true that under Sections 442 and 450 of the Local
Government Code, "(t)he requirement on land area shall not
apply" if the municipality or city proposed to be created is
composed of one or more islands.
• This does not mean, however, that the territory
automatically extends to the waters surrounding the islands
or to the open sea. Nowhere in said provisions is it even
remotely suggested that marine waters, or for that matter
the continental shelf, are consequently to be included as
part of the territory. [Republic v. Provincial Government
of Palawan, G.R. No. 170867. Dec. 4, 2018.]
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Hiring of Consultants
• Is there a limit on the consultants that a
Mayor can hire?
• Yes. Under Section 22 (c) of the LGC, the
mayor cannot hire consultants without prior
authorization from the Sanggunian. (DILG Opinion
No. 40-2003 dated 26 March 2003)
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166
PROBLEM:
Latasa was elected and served as mayor of the
Municipality of Digos, Davao del Sur for terms 1992-
1995, 1995-1998, and 1998-2001.
During petitioner's third term, Digos was converted
into a component city. Can Latasa run for City Mayor
in the 2001 election?
A: NO. Because the area and inhabitants of the
locality are the same and the municipal mayor
continued to hold office until such time as city elections
are held. The conversion of the municipality into a city
did not convert the office of the municipal mayor into a
local government post different from the office of the
city mayor. [Latasa v. Comelec, GR 154829, 12.10.2003]
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168
Aldovino v. COMELEC
G.R. No. 184836, 23 December 2009
170
Aldovino v. COMELEC
G.R. No. 184836, 23 December 2009
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172
• FIRST CASE:
• Morales was elected mayor of the Municipality of
Mabalacat, Pampanga for THREE (3) consecutive
terms: 1995-1998, 1998-2001, and 2001-2004.
• In the 2004 elections, Morales ran again as mayor of
the same town and was proclaimed mayor for the term
commencing 1 July 2004 to 30 June 2007.
• A petition for quo warranto was later filed against
Morales alleging that he was ineligible to run for a
"fourth" term, having served as mayor for three
consecutive terms.
• Morales answered that his supposed 1998-2001 term
could not be considered against him, because he was
not able to fully serve his 2nd term as it was nullified by
the RTC. Is Morales correct?
173
• ANSWER:
• No. Morales exceeded the three-term limit rule,
because he was mayor for the entire period from
1998 to 2001, notwithstanding the decision of the
RTC.
• The fact of being belatedly ousted, which was after
the expiry of his term, could not constitute an
interruption in Morales' service of the full term, and
Morales could not be considered as a mere
"caretaker of the office" or "de facto officer" for
purposes of applying the three-term limit rule.
• Whether as 'caretaker' or 'de facto' officer, he
exercises the powers and enjoys the prerequisites of
the office which enables him 'to stay on indefinitely.
• Rivera v. COMELEC, 551 Phil. 37 (2007).
174
• SECOND CASE:
• Morales occupied the position of mayor of Mabalacat
for the following periods: 1 July 1995 to 30 June 1998,
1 July 1998 to 30 June 2001, 1 July 2001 to 30 June
2004, and 1 July 2004 to 16 May 2007.
• However, the SC ruled in a previous case that Morales
was not the duly elected mayor for the 2004-2007
term. Eventually, Morales also won the elections and
assumed the mayoralty position for the 2007-2010
term.
• Dizon filed a petition to disqualify Morales as mayor on
the ground that his assumption of the mayoralty
position on 1 July 2007 makes the 2007-2010 term his
fifth term in office, which violates the three-term limit
rule. Is Dizon correct?
175
• ANSWER:
• No. For purposes of determining the resulting
disqualification brought about by the three-term
limit, it is not enough that an individual has served
three consecutive terms in an elective local office,
he must also have been elected to the same
position for the same number of times.
• There should be a concurrence of two conditions
for the application of the disqualification: (1) that
the official concerned has been elected for three
consecutive terms in the same local government
post and (2) that he has fully served three
consecutive terms. (Dizon v. COMELEC GR
182088 Jan.30, 2009)
176
• ANSWER:
• Morales cannot be deemed to have served the full
term of 2004-2007 because he was ordered to
vacate his post before the expiration of the term.
• His occupancy of the position of mayor of
Mabalacat from 1 July 2004 to 16 May 2007 cannot
be counted as a term for purposes of computing the
three-term limit.
• Indeed, the period from 17 May 2007 to 30 June
2007 served as a gap for purposes of the three-
term limit rule. Thus, the present term [1 July 2007
to 30 June 2010] is effectively his first term for
purposes of the three-term limit rule. (Dizon v.
COMELEC GR 182088 Jan.30, 2009)
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• ANSWER: NO (Finally)
• The conversion of Mabalacat into a city did not
change even by an inch the land area previously
covered by the Municipality of Mabalacat.
• Consequently, the inhabitants are the same group
of voters who elected Morales to be their mayor for
three consecutive terms, and over whom he held
power and authority as their mayor.
• Accordingly, Morales never ceased from acting and
discharging his duties and responsibilities as chief
executive of Mabalacat, despite the conversion of
the Municipality of Mabalacat into Mabalacat City.
• Halili v. COMELEC, G.R. No. 231643.
January 15, 2019.
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PUBLIC
INTERNATIONAL LAW
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192
• QUESTION:
• On October 27, 2015 the USS Lassen (a US
military ship) carried out the first freedom
of navigation patrol to challenge China’s
territorial claims over the 12-nautical-mile
region surrounding its artificial islands in
the South China Sea (West Philippine Sea).
Chinese authorities responded angrily.
• What is meant by “freedom of
navigation”? Is the US correct in
conducting FON patrols in the South
China Sea? Explain.
193
• ANSWER:
• Freedom of navigation (FON) is a
principle of customary international law
which states that ships flying the flag of
any sovereign state shall not suffer
interference from other states while in
international waters.
• This right is now also codified as article
87(1)a of the 1982 United Nations
Convention on the Law of the Sea.
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Transit Passage
• It is the right to exercise freedom of navigation and
overflight solely for the purpose of continuous and
expeditious transit through the straits used for
international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.
• All ships and aircraft enjoy the right of transit
passage.
• The requirement of continuous and expeditious transit
does not preclude passage through the strait for the
purpose of entering, leaving or returning from a State
bordering the strait, subject to the conditions of entry
to that State. (Magalona, 2005; Article 38[2],
UNCLOS)
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• QUESTIONS:
• Explain each concept in no more than two
sentences each.
• 1. Terra nullius
• 2. Intertemporal Law
• 3. Contiguous zone
• 4. Hot pursuit
• 5. “Flags of convenience"
• 6. Passive personality principle
• 7. Objective territorial principle (effects doctrine)
• 8. Agrement and Exequatur
• 9. "Effective control" (Nicaragua vs. U.S.)
• 10. Progressive realization
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• QUESTIONS:
• 1. Under Article 36 of the Statute of the International
Court of Justice (ICJ), what is the scope of the
contentious jurisdiction of the ICJ?
• 2. What are the ways by which a State can accept or
recognize the ICJ'S jurisdiction in contentious
cases?
• 3. Explain and distinguish the concepts of State
immunity and immunity of a head of State.
• 4. What is the UN ECOSOC Resolution 1503
(Confidential Consideration)? How does it work,
procedurally, and how does this procedure obtain
results?
200
• QUESTIONS:
• On Sources of Obligation Under
International Law:
• 1. Discuss the various ways by which
international law may apply to Philippine
municipal law. In this context, explain how our
Supreme Court had appreciated the
applicability of international law to concrete
cases before it.
• 2. Is our concept of a treaty or international
agreement under the 1987 Constitution the
same as the Vienna Convention on the Law of
Treaties? Explain your answer.
201
• QUESTIONS:
• On International Legal Personality:
• 1. The Sultanate of Sulu seeks a remedy
before the ICJ in regard to the Sabah claim.
Does it have international legal personality to
do so? Explain your answer.
• 2. How do you legally justify the entry of the
Philippine government into peace agreements
with armed groups which do not even
recognize the Philippine Constitution and
even assert "state-like entity status" under
international law?
202
• QUESTIONS:
• On State Responsibility:
• Explain the legal standards for
establishing responsibility for a wrongful
act or omission by a state under
international law.
•
• On Dispute Resolution:
• Discuss the various modes of settling
international disputes citing the advantages
or disadvantages for each.
203
204
205
QUESTION:
The new Bangsamoro Basic Law (BBL)
established an autonomous Bangsamoro
Region to be considered an associated
state (a state within a state) in the
Philippines.
It will have its own law-making powers
and police; but will be under the national
government with regard to foreign policy
and national defense.
Is this Constitutional? Explain.
206
ANSWER: NO.
The concept of an associated state (state within a state)
is not recognized under the present Constitution. Indeed,
the concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional
government. It also implies the recognition of the associated
entity as a state.
The Constitution does not contemplate any state in this
jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
The concept of association – runs counter to the national
sovereignty and territorial integrity of the Republic (Prov. of
North Cotabato v. The Gov’t of the Rep. of the
Philippines, G.R. No. 183591, October 14, 2008).
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212
• Suggested Answer:
• The Supreme Court should declare the treaty abrogation
invalid.
• While the Constitution is silent on whether a treaty
abrogation shall require the concurrence of the Senate to
make it valid and effective, the treaty-ratifying power of
Senate carries with it the power to concur a treaty abrogated
by the President by way of necessary implication.
• Under the doctrine of incorporation, a treaty duly ratified by
the Senate and recognized as such by the contracting State
shall form an integral part of the law of the land.
• The President alone cannot effect the repeal of a law of
the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a
treaty. To abrogate a treaty, the President’s action must be
approved by the Senate.
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215
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218
• Q: Who is a refugee?
• 1. The person must be outside their country of
origin or habitual residence.
• 2. The person must have a well founded fear
of persecution for reasons of: race, religion,
nationality, political opinion, membership of a
particular social group
3. The person must be unable or unwilling to
avail of the protection of their own State for
reasons of such persecution. (Article 1A of
the 1951 Convention On Migrants and
Refugees)
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