BAR QUESTIONS IN ADMINISTRATIVE LAW FROM 1989-2003
2001 BAR EXAMINATION
I
TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and
Hearing)
The Philippine Ports Authority (PPA) General Manager issued
anadministrative order to the fact that all existing
regularappointments to harbor pilot positions shall remain valid
only up toDecember 31 of the current year and that henceforth all
appointmentsto harbor pilot positions shall be only for a term of
one year fromdate of effectivity, subject to yearly renewal or
cancellation by thePPA after conduct of a rigid evaluation of
performance. Pilotage asa profession may be practiced only by duly
licensed individuals, whohave to pass five government professional
examinations.
The Harbor Pilot Association challenged the validity of
saidadministrative order arguing that it violated the harbor
pilots'right to exercise their profession and their right to due
process oflaw and that the said administrative order was issued
without priornotice and hearing. The PPA countered that the
administrative orderwas valid as it was issued in the exercise of
its administrativecontrol and supervision over harbor pilots under
PPA's legislativecharter; and that in issuing the order as a rule
or regulation, itwas performing its executive or legislative, and
not a quasi-judicialfunction.
Due process of law is classified into two kinds, namely,
proceduraldue process and substantive due process of law. Was
there, or, wasthere no violation of the harbor pilots' right to
exercise theirprofession and their right to due process of law?
Suggested Answer:
The right of the pilots to due process was violated. As held,
inCorona vs. United Harbor Pilots Association of the Philippines,
283SCRA 31 (1997), pilotage as a profession is a property
rightprotected by the guarantee of due process. The
pre-evaluationcancellation of the licenses of the harbor pilots
every year isunreasonable and violated their right to substantive
due process.The renewal is dependent on the evaluation after the
licenses havebeen cancelled. The issuance of the administrative
order alsoviolated procedural due process, since no prior public
hearing wasconducted. As held in Commissioner r of Internal Revenue
vs. Courtof Appeals, 261 SCRA 237 (199 , when a regulation is being
issuedunder the quasi-legislative authority of an administrative
agency,the requirements of notice, hearing and publication must be
observed.
II
TOPIC: JUDICIAL REVIEW
Give the two (2) requisites for the judicial review of
administrativedecision/actions, that is, when is an administrative
action ripe forjudicial review?
Suggested Answer:
1. The administrative action has already been fully
completedand, therefore, is a final agency action; and2. All
administrative remedies have been exhausted.
(Gonzales,Administrative Law, Rex Bookstore: Manila, p. 136
(1979).
2000 BAR EXAMINATION
I
TOPIC: QUASI-LEGISLATIVE FUNCTION (Necessity for Notice and
Hearing)
The Maritime Industry Authority (MARINA) issued new rules
andregulations governing pilotage services and fees and the conduct
ofpilots in Philippine ports. This it did without notice, hearing
norconsultation with harbor pilots or their associations whose
rightsand activities are to be substantially affected. The harbor
pilotsthen filed suit to have the new MARINA rules and regulations
declaredunconstitutional for having been issued without due
process.
Suggested Answer:
The issuance of the new rules and regulations violated due
process.Under Section 9, Chapter II, Book VII of the Administrative
Code of1987, as far as practicable, before adopting proposed rules,
anadministrative agency should publish or circulate notices of
theproposed rules and afford interested parties the opportunity
tosubmit their views; and in the fixing of rates, no rule shall
bevalid unless the proposed rates shall have been published in
anewspaper of general circulation at least two weeks before the
firsthearing on them. In accordance with this provision, in
Commissionerof Internal Revenue vs. Court of Appeals, 261 SCRA 236
(1996), it washeld that when an administrative rule substantially
increases theburden of those directly affected, they should be
accorded the chanceto be heard before its issuance.
Alternative Answer:
Submission of the rule to the University of the Philippines
LawCenter for publication is mandatory. Unless this requirement
iscomplied with, the rule cannot be enforced.
II
TOPIC: JUDICIAL REVIEW (Doctrine of Exhaustion of
AdministrativeRemedies)
A) Explain the doctrine of exhaustion of administrative
remedies.B) Give at least three exceptions to its application.
Suggested Answer:
A) The doctrine of exhaustion of administrative remedies
meansthat when an adequate remedy is available within the
ExecutiveDepartment, a litigant must first exhaust this remedy
before he canresort to the courts. The purpose of the doctrine is
to enable theadministrative agencies to correct themselves if they
have committedan error. (Rosales vs. Court of Appeals, 165 SCRA 344
(198 .B) The following are the exceptions to the application of
thedoctrine of exhaustion of administrative remedies.1. The
question involved is purely legal;2. The administrative body is in
estoppel;3. The act complained of is patently illegal;4. There is
an urgent need for judicial intervention;5. The claim involved is
small;6. Grave and irreparable injury will be suffered;7. There is
no other plain, speedy and adequate remedy;8. Strong public
interest is involved;9. The subject of the controversy is private
law;10. The case involves a quo warranto proceeding (Sunville
TimberProducts, Inc. vs. Abad, 206 SCRA 482 (1992);11. The party
was denied due process (SamahangMagbubukid ngKapdula, Inc. vs.
Court Appeals, 305 SCRA 147 (1999);12. The decision is that of a
Department Secretary (Nazareno vs.Court of Appeals, G. R. No.
131641, February 23, 2000);13. Resort to administrative remedies
would be futile (universityof the Philippines Board of Regents vs.
Rasul, 200 SCRA 685 (1991)14. There is unreasonable delay (Republic
vs. Sandiganbayan, 301SCRA 237 (1999)15. The action involves
recovery of physical possession of publicland (Gabrito vs. Court of
Appeals, 167 SCRA 771 (198 ;16. The party is poor (Sabello vs.
Department of Education,Culture and Sports, 180 SCRA 623 (1989);
and17. The law provides for immediate resort to the court
(Rullanvs. Valdez, 12 SCRA 501 (1964).
1999 BAR EXAMINATIONITOPIC: RIGHT TO HEARING AND NOTICEA. Give
examples of acts of the state which infringe the dueprocess
clause:1. In its substantive aspect; and2. In its procedural
aspect
B. On April 6, 1963. Police Officer Mario Gatdula was chargedby
the Mayor with Grave Misconduct and Violation of Law before
theMunicipal Board. The Board investigated Gatdula but before the
casecould be decided, the City charter was approved. The City
Fiscal,citing Section 30 of the city charter, asserted that he
wasauthorized thereunder to investigate city officers and
employees. Thecase against Gatdula was then forwarded to him, and
are-investigationwas conducted. The office of the Fiscal
subsequently recommendeddismissal. On January 11, 1966, the City
Mayor returned the recordsof the case to the City Fiscal for the
submission of an appropriateresolution but no resolution was
submitted. On March 3, 1968, theCity Fiscal transmitted the records
to the City Mayor recommendingthat final action thereon be made by
the City Board of Investigators(CBI). Although the CBI did not
conduct an investigation, the recordsshow that both the Municipal
Board and the Fiscal's Officeexhaustively heard the case with both
parties afforded ampleopportunity to adduce their evidence and
argue their cause. ThePolice Commission found Gatdula guilty on the
basis of the recordsforwarded by the CBl. Gatdula challenged the
adverse decision of thePolice Commission theorizing that he was
deprived of due process.Questions: Is the Police Commission bound
by the findings of the CityFiscal? Is Gatdula's protestation of
lack or nonobservance of dueprocess well-grounded? Explain your
answers.
C. On November 7, 1990, nine lawyers of the Legal Department of
YBank who were all under Fred Torre, sent a complaint to
managementaccusing Torre of abusive conduct and mismanagement.
Furnished with acopy of the complaint, Torre denied the charges.
Two days later, thelawyers and Torre were called to a conference in
the office of theBoard Chairman to give their respective sides of
the controversy.However, no agreement was reached thereat. Bank
Director Romulo Moretwas tasked to look further into the matter. He
met with the lawyerstogether with Torre several times but to no
avail. Moret thensubmitted a report sustaining the charges or the
lawyers. The BoardChairman wrote Torre to inform him that the bank
had chosen thecompassionate option of "waiting" for Torre's
resignation. Torre wasasked, without being dismissed, to turn over
the documents of allcases handled by him to another official of the
bank but Torrerefused to resign and requested for a "full hearing",
Days later, hereiterated his request for a "full hearing", claiming
that he hadbeen "constructively dismissed", Moret assured Torre
that he is "freeto remain in the employ of the bank" even if he has
no particularwork assignment. After another request for a "full
hearing" wasignored, Torre filed a complaint with the arbitration
branch of NLRCfor illegal dismissal. Reacting thereto, the bank
terminated theservices of Torre.
Questions: (a) Was Torre "constructively dismissed" before he
filedhis complaint? (b) Given the multiple meetings held among the
bankofficials, the lawyers and Torre, is it correct for him to say
thathe was not given an opportunity to be heard? Explain your
answers.
SUGGESTED ANSWER:A.1.) A law violates substantive due process
when it is unreasonableor unduly oppressive. For example,
Presidential Decree No. 1717,which cancelled all the mortgages and
liens of a debtor, wasconsidered unconstitutional for being
oppressive. Likewise, as statedin Ermita-Malate Hotel and Motel
Operators Association, Inc. v. CityMayor of Manila, 20 SCRA 849, a
law which is vague so that men ofcommon intelligence must guess at
its meaning and differ as to itsapplication violates substantive
due process. As held in Taada v.Tuvera, 146 SCRA 446, due process
requires that the law be published.2.) In State Prosecutors v.
Muro, 236 SCRA 505, it was held that thedismissal of a case without
the benefit of a hearing and without anynotice to the prosecution
violated due process. Likewise, as held inPeople v. Court of
Appeals, 262 SCRA 452, the lack of impartiality ofthe judge who
will decide a case violates procedural due process.B.The Police
Commission is not bound by the findings of the CityFiscal. In
Mangubat v. de Castro, 163 SCRA 608, it was held that thePolice
Commission is not prohibited from making its own findings onthe
basis of its own evaluation of the records. Likewise,
theprotestation of lack of due process is not well-grounded, since
thehearings before the Municipal Board and the City Fiscal
offeredGatdula the chance to be heard. There is no denial of due
process ifthe decision was rendered on the basis of evidence
contained in therecord and disclosed to the parties affected.C.a)
Torre was constructively dismissed, as held in Equitable
BankingCorporation v. National Labor Relations Commission, 273 SCRA
352.Allowing an employee to report for work without being assigned
anywork constitutes constructive dismissal.b) Torre is correct in
saying that he was not given the chance to beheard. The meetings in
the nature of consultations and conferencescannot be considered as
valid substitutes for the proper observanceof notice and
hearing.
1998 BAR EXAMINATION
ITOPIC: EXHAUSTION OF ADMINISTRATIVE REMEDIESThe Department of
National Defense entered into contract withRaintree Corporation for
the supply of ponchos to the Armed Forces ofthe Philippines (AFP),
stipulating that, in the event of breach,action may be filed in the
proper court in Manila.Suppose the AFP fails to pay for delivered
ponchos where mustRaintree Corporation file its claim? Why?
SUGGESTED ANSWER:
Raintree Corporation must file its claim with the Commission
onAudit. Under Section 2(1) IX-D of the Constitution, the
Commission onAudit has the authority to settle all accounts
pertaining toexpenditure of public funds. Raintree Corporation
cannot file a casein court. The Republic of the Philippines did not
waive its immunityfrom suit when it entered into the contract with
Raintree Corporationfor the supply of ponchos for the use of the
Armed Forces of thePhilippines. The contract involves the defense
of the Philippines andtherefore relates to a sovereign
function.In-United States vs. Ruiz, 136 SCRA 487,492, the Supreme
Court held:"The restrictive application of State immunity is proper
only whenthe proceedings arise out of commercial transactions of
the foreignsovereign, its commercial activities or economic
affairs. Stateddifferently, a State may be said to have descended
to the level of anindividual and can thus be deemed to have tacitly
given its consentto be sued only when it enters into business
contracts. It does notapply where the contract relates to the
exercise of its sovereignfunctions. In this case the project are an
integral part of the navalbase which is devoted to the defense of
both the United States andthe Philippines, indisputably a function
of the government of thehighest order: they are not utilized for
nor dedicated to commerce orbusiness purposes"The provision for
venue in the contract does not constitute a waiverof the State
immunity from suit, because the express waiver of thisimmunity can
only be made by a statute.In Republic vs. Purisima. 78 SCRA 470
474, the Supreme Court ruled:"Apparently respondent Judge was
misled by the terms of the contractbetween the private respondent,
plaintiff in his sala, and defendantRice and Com Administration
which, according to him, anticipated thecase of a breach of
contract between the parties and the suits thatmay thereafter
arise. The consent, to be effective though, must comefrom the State
acting through a duly enacted statute as pointed outby Justice
Bengzon in Mobil."
ALTERNATIVE ANSWER:In accordance with the doctrine of exhaustion
of administrativeremedies, Raintree Corporation should first file a
claim with theCommission on Audit. If the claim is denied, it
should file apetition for certiorari with the Supreme Court.
IITopic: Administrative rulings subject to final determination
of thecourtsAndres Ang was born of a Chinese father and a Filipino
mother inSorsogon, Sorsogon, on January 20, 1973. In 1988, his
father wasnaturalized as a Filipino citizen On May 11, 1998. Andres
Ang waselected Representative of the First District of Sorsogon.
Juan Bontowho received the second highest number of votes, filed a
petition forQuo Warranto against Ang. The petition was filed with
the House ofRepresentative Electoral Tribunal (HRET). Bonto
contends that Ang isnot a natural born citizen of the Philippines
and therefore isdisqual1fied to be a member of the House.The HRET
ruled in favor of Ang. Bonto filed a petition for certiorariin the
Supreme Court. The following issues are raised:1. Whether the case
is justiciable considering that Article VI.Section 17 of the
Constitution declares the HRET to be the sole Judge-of all contests
relating to the election returns anddisqualifications of members of
the House of Representatives.2. Whether Ang is a natural born
citizen of the Philippines.How should this case be decided?
SUGGESTED ANSWER:1. The case is justiciable. As stated in
Lazatinvs.House ElectoralTribunal. 168 SCRA 391, 404, since
judicial power includes the dutyto determine whether or not there
has been a grave abuse ofdiscretion amounting to lack or excess of
jurisdiction on the part ofany branch or instrumentality of the
Government, the Supreme Courthas the power to review the decisions
of the House of RepresentativesElectoral Tribunal in case of grave
abuse of discretion on its part.2. Andres Ang should be considered
a natural born citizen of thePhilippines. He was born of a Filipino
mother on January 20, 1973.This was after the effectivity of the
1973 Constitution on January17, 1973. Under Section (I), Article
III of the 1973 Constitution,those whose fathers or-mothers are
citizens of the Philippines arecitizens of the Philippines. Andres
Ang remained a citizen of thePhilippines after the effectivity of
the 1987 Constitution. Section1. Article IV of the 1987
Constitution provides:"The following are citizens of the
Philippines:"(1) Those who are citizens of the Philippines at the
time of theadoption of this Constitution:"
IIITOPIC: SELF INCRIMINATIONSuppose Congress passed a law to
implement the Constitutionalprinciple that a public office is a
public trust, by providing asfollows:"No employee of the Civil
Service shall be excused from attending andtestifying or from
producing books, records, correspondence,documents or other
evidence in any administrative investigationconcerning the office
in which he is employed on the ground that histestimony or the
evidence required of him may tend to incriminate himor subject him
to a penalty or forfeiture: but his testimony or anyevidence
produced by him shall not be used against him in
criminalprosecution based on the transaction, matter or thing
concerningwhich is compelled, after invoking his privilege against
self-incrimination to testify or produce evidence. Provided,
however, thatsuch individual so testifying shall not be exempt from
prosecutionand punishment for perjury committed in so testifying
nor shall he beexempt from demotion or removal from office. Any
employee who refusesto testify or produce any documents under this
Act shall be dismissedfrom the service."Suppose further, that Ong,
a member of the Professional RegulatoryBoard, is required to answer
questions in an investigation regardinga LEAKAGE in a medical
examination.1. Can Ong refuse to answer questions on the ground
that he wouldincriminate himself?2. Suppose he refuses to answer,
and for that reason, is dismissedfrom the service; can he pausibly
argue that the Civil Commission hasinferred his guilt from his
refusal to answer in violation of theConstitution?3. Suppose on the
other hand, he answers the question and on thebasis of his answers,
he is found guilty and is dismissed. Can hepausibly assert that his
dismissa1 is based on coerced confession?
SUGGESTED ANSWER:1. No. Ong cannot refuse to answer the question
on the ground that hewould incriminate himself, since the Jaw
grants him immunity andprohibits the use against him in a criminal
prosecution of thetestimony or evidence produced by him. As stated
by the United StatesSupreme Court in Brown vs. Walker, 161 U.S.591,
597, what theconstitutional prohibition against self-incrimination
seeks toprevent is the conviction of the witness on the basis of
testimonyelicited from him. The rule is satisfied when he is
granted immunity.
ALTERNATIVE ANSWER:
1. In accordance with Evangelista vs. Jarencio, 68 SCRA 99,
107-108,if Ong is being cited merely as a witness, he may not
refuse toanswer. However, if the question tends to violate his
right againstself-incrimination, he may object to it. On the other
hand, under theruling in Chavez vs. Court of Appeals. 24 SCRA 663,
680, if be is arespondent, Ong may refuse to answer any question
because of hisright against self-incrimination.
SUGGESTED ANSWER:2. No Ong cannot argue that the Civil Service
Commission inferredhis guilt from his refusal to answer. Be was not
dismissed because ofhis involvement in the leakage in the medical
examination but for hisrefusal to answer. This is a violation of
the law. He could becompelled to answer the question on pain of
being dismissed in caseof his refusal, because he was granted
immunity.
In Lefkowitz vs. Turley, 414 U.S. 70,84, the United States
SupremeCourt said:"Furthermore, the accommodation between the
interest of the State andthe Fifth Amendment requires that the
State have means at itsdisposal to secure testimony if immunity is
supplied and testimony isstill refused. This is recognized by the
power of courts to compeltestimony, after a grant of immunity, by
use of civil contempt andcoerced imprisonment. Shilitani vs. United
States, 384 US 364, 16 LEd 2d 622, 86 5 Ct 1531 (1966). Also, given
adequate immunity theState may plainly insist that employees either
answer questions underoath about the performance of their job or
suffer the loss ofemployment."3. Yes, Ong can argue that his
dismissal was based on coercedconfession. In Garrity vs. New
Jersey, 385 U.S. 493, 500, the UnitedStates Supreme Court held:"We
now hold the protection of the individual under the
FourteenthAmendment against coerced statements prohibits use in
subsequentcriminal proceedings of statements obtained under threat
of removalfrom office, and that it extends to all, whether they are
policemenor other members of the body politic."
IVTOPIC: LIMITATIONS OF POWERThe police had suspicions that.
Juan Samson, member of the subversiveNew-Proletarian Army, was
using the mail for propaganda purposes ingaining new adherents to
its cause. The Chief of Police ofBantolan., Lanao del Sur ordered
the Postmaster of the town tointercept and open all mail addressed
to and coming from Juan Samsonin the interest of the national
security. Was the order of the Chiefof Police valid?
SUGGESTED ANSWER:No, the order of the Chief of Police is not
valid, because there isno law which authorizes him to order the
Postmaster to open theletters addressed to and coming from Juan
Samson. An official in theExecutive Department cannot interfere
with the privacy ofcorrespondence and communication in the absence
of a law authorizinghim to do so or a lawful order of the
court.Section 3(1), Article III of the Constitution provides:"The
privacy of communication and correspondence shall be
inviolableexcept upon lawful order of the court, or when public
safety or orderrequires otherwise as prescribed by law."
IV
TOPIC: JURISDICITONSuppose a Commissioner of the COMELEC is
charged before theSandiganbayan for allegedly tolerating violation
of the election lawsagainst proliferation of prohibited billboards
and electionpropaganda with the end in view of removing him from
office. Will theaction prosper?
SUGGESTED ANSWER:No, the action will not prosper. Under Section
8 Article Xl of theConstitution. the Commissioners of the
Commission on Elections areremovable by impeachment. As held in the
case of In re Gonzales, 160SCRA 771,774-775, a public officer who
is removable by impeachmentcannot be charged before the
Sandiganbayan with an offense whichcarries with it the penalty of
removal from office unless he is firstimpeached. Otherwise, he will
be removed from office by a methodother than impeachment.
1997 BAR EXAMINATIONITOPIC: ADMINISTRATIVE CODEAre the
government-owned or controlled corporations within the scopeand
meaning of the "Government of the Philippines"?
Suggested Answer:Section 2 of the Introductory Provisions of the
Administrative Codeof 1987 defines the government of the
Philippines as the corporategovernmental entity through which the
functions of government areexercised throughout the Philippines,
including, save as the contraryappears from the context, the
various arms through which politicalauthority is made effective in
the Philippines, whether pertaining tothe autonomous regions, the
provincial, city, municipal or barangaysubdivisions or other forms
of local government.Government-owned or controlled corporations are
within the scope andmeaning of the Government of the Philippines if
they are performinggovernmental or political functions.
IITOPIC: ADMINISTRATIVE CODE FLAG CEREMONYSection 28, Title VI,
Chapter 9, of the Administrative Code of 1987requires all
educational institutions to observe a simple anddignified flag
ceremony, including the playing or singing of thePhilippine
National Anthem, pursuant to rules to be promulgated bythe
Secretary of Education, Culture and Sports. The refusal of
ateacher, student or pupil to attend or participate in the
flagceremony is a ground for dismissal after due investigation.
TheSecretary of Education, Culture and Sports issued a
memorandumimplementing said provision of law. As ordered, the flag
ceremonywould be held on Mondays at 7:30 a.m. during class days. A
group ofteachers, students and pupils requested the Secretary that
they beexempted from attending the flag ceremony on the ground
thatattendance thereto was against their religious belief. The
Secretarydenied the request. The teachers, students and pupils
concerned wentto the Court to have the memorandum circular declared
null and void.Decide the case.
Suggested Answer:The teachers and the students should be
exempted from the flagceremony. As held in Ebralinag vs. Division
Superintendent of Schoolsof Cebu, 251 SCRA 569 , to compel them to
participate in the flagceremony will violate their freedom of
religion. Freedom of religioncannot be impaired except upon the
showing of a clear and presentdanger of a substantive evil which
the State has a right to prevent.The refusal of the teachers and
the students to participate in theflag ceremony does not pose a
clear and present danger.
1996 BAR EXAMINATIONITOPIC: ADMINISTRATIVE REMEDIES1.
Distinguish the doctrine of primary jurisdiction from thedoctrine
of exhaustion of administrative remedies.2. Does the failure to
exhaust administrative remedies beforefiling a case in court oust
said court of jurisdiction to hear thecase? Explain.Suggested
Answer:1. The doctrine of primary jurisdiction and the doctrine
ofexhaustion of administrative remedies both deal with the
properrelationships between the courts and administrative agencies.
Thedoctrine of exhaustion of administrative remedies applies where
aclaim is cognizable in the first instance by an administrative
agencyalone. Judicial interference is withheld until the
administrativeprocess has been completed. As stated in Industrial
Enterprises, Inc.vs. Court of Appeals, 184 SCRA 426, the doctrine
of primaryjurisdiction applies where a case is within the
concurrentjurisdiction of the court and an administrative agency
but thedetermination of the case requires the technical expertise
of theadministrative agency. In such a case, although the matter is
withinthe jurisdiction of the court, it must yield to the
jurisdiction ofthe administrative case.
2. No, the failure to exhaust administrative remedies
beforefiling a case in court does not oust the court of
jurisdiction tohear the case. As held in Rosario vs. Court of
Appeals, 211 SCRA 384,the failure to exhaust administrative
remedies does not affect thejurisdiction of the court but results
in the lack of a cause ofaction, because a condition precedent that
must be satisfied beforeaction can be filed was not fulfilled.
1995 BAR EXAMINATIONITOPIC: LOCAL GOVERNMENT UNIT VS.
ADMINISTRATIVE AGENCYThe Municipality of Binangonan, Rizal passed a
resolution authorizingthe operation of an open garbage dumpsite in
a 9-hectare land in theReyes Estate within the Municipality's
territorial limits. Someconcerned residents of Binangonan filed a
complaint with the LagunaLake Development Authority (LLDA) to stop
the operation of thedumpsite due to its harmful effects on the
health of the residents.The LLDA conducted an on-site
investigation, monitoring, testing andwater sampling and found that
the dumpsite would contaminate Lagunade Bay and the surrounding
areas of the Municipality. The LLDA alsodiscovered that no
environmental clearance was secured by theMunicipality from the
Department of Environment and Natural Resources(DENR) and the LLDA
as required by law. The LLDA therefore issued tothe Binangonan
Municipal Government a cease and desist order to stopthe operation
of the dumpsite. The Municipality of Binangonan filed acase to
annul the order issued by the LLDA.1. Can the Municipality of
Binangonan invoke police power toprevent its residents and the LLDA
from interfering with theoperation of the dumpsite by the
Municipality? Explain.2. Can the LLDA justify its order by
asserting that the healthof the residents will be adversely
affected? Explain.
Suggested Answer:1. No, the Municipality of Binangonan cannot
invoke its policepower. According to Laguna Lake Development
Authority vs. Court ofAppeals, 231 SCRA 292, under Republic Act No.
4850, the LLDA ismandated to promote the development of the Laguna
Lake area,including the surrounding Province of Rizal, with due
regard to theprevention of pollution. The LLDA is mandated to pass
upon andapprove or disapprove all projects proposed by local
governmentoffices within the region.2. Yes, the LLDA can justify
its order. Since it has beenauthorized by Executive Order No. 927
to make orders requiring thediscontinuance of pollution, its power
to issue the order can beinferred from this. Otherwise, it will be
a toothless agency.Moreover, the LLDA is specifically authorized
under its Charter toissue cease and desist orders.
1991 BAR EXAMINATIONITOPIC: ADMINISTRATIVE BODIES OR AGENCYOn
July 1991, the Energy Regulatory Board (ERB), in response topublic
clamor, issued a resolution approving and adopting a schedulefor
bringing down the prices of petroleum products over a period ofone
(1) year starting 15 August 1991, over the objection of the
oilcompanies which claim that the period covered is too long to
prejudgeand foresee.Is the resolution valid?
Suggested Answer:No, the resolution is not valid, since the
Energy Regulatory Boardissued the resolution without a hearing. The
resolution here is not aprovisional order and therefore it can only
be issued afterappropriate notice and hearing to affected parties.
The ruling inPhilippine Communications Satellite Corporation vs.
Alcuaz, 180 SCRA218, to the effect that an order provisionally
reducing the rateswhich a public utility could charge, could be
issued without previousnotice and hearing, cannot apply.1990 BAR
EXAMINATIONITOPIC: EXECUTIVE AND ADMINISTRATIVE FUNCTIONSExecutive
Orders Nos. 1 and 2, issued by President Corazon C. Aquinocreated
the Presidential Commission on Good Government (PCGG) andempowered
it to sequester any property shown prima facie to be ill-gotten
wealth of the late President Marcos, his relatives andcronies.
Executive Order No. 14 vests on the Sandiganbayanjurisdiction to
try hidden wealth cases. On April 14, 1986, after aninvestigation,
the PCGG sequestered the assets of X Corporation, Inc.(1) X
Corporation, Inc, claimed that President Aquino as President,could
not lawfully issue Executive Orders Nos. 1, 2, 14, which havethe
force of law, on the ground that legislation is a function
ofCongress. Decide.(2) Said corporation also questioned the
validity of the threeexecutive orders on the ground that they are
bills of attainder and,therefore, unconstitutional. Decide
Suggested Answer:(1) The contention of X Corporation should be
rejected. Executiveorders Nos. 1, 2 and 14 were issued in 1986. At
that time PresidentCorazon Aquino exercised legislative power
Section 1, Article II ofthe Provisional Constitution established by
Proclamation No. 3,provided:"Until a legislature is elected and
convened under a newconstitution, the President shall continue to
exercise legislativepower."In case of Kapatiran ng
mgaNaglilingkodsaPamahalan ng Pilipinas,Inc. vs. Tan, 163 SCRA 371,
the Supreme Court ruled that theProvisional Constitution and the
1987 Constitution, both recognizedthe power of the President to
exercise legislative powers until thefirst Congress created under
the 1987 Constitution was convened onJune 27, 1987.(2) Executive
Orders Nos. 1,2 and 14 are not bill of attainder. Abill of
attainder is a legislative act which inflicts punishmentwithout
trial. On the contrary, the expressly provide that anyjudgment that
the property sequestered is ill-gotten wealth is to bemade by a
court (the Sandiganbayan) only after trial.IITOPIC: LAW ON PUBLIC
OFFICERSA. After 2 February 1987, the Philippine National bank
(PNB) grants aloan to congressman X. Is the loan violative of the
Constitution?Suppose the loan had instead been granted before 2
February 1987, butwas outstanding on that date with a remaining
balance on theprincipal in the amount of P50,000, can the PNB
validly giveCongressman X an extension of time after said date to
stele theobligation?B. For being notoriously undesirable and
recidivist, Jose Tapulan, anemployee in the first level of the
career service in the Office ofthe Provincial Governor of Masbate,
was dismissed by the Governorwithout formal investigation pursuant
to Section 40 of the CivilService Decree (P.D. No. 807) which
authorizes summary proceedings insuch cases.As a lawyer of Jose
what steps, if any, would you take to protect hisrights?
Suggested Answer:A. whether or not the loan is violative of the
1987 Constitutiondepends upon its purpose, if it was obtained for a
business purpose,it is violative of the Constitution. If it was
obtained for someother purpose, e.g. for housing, it is not
violative of theConstitution because under Section 16, Article XI,
Members ofCongress are prohibited from obtaining loans from
government-ownedbanks only if it is for a business purpose.If the
loan was granted before the effectivity of the Constitution
onFebruary 2, 1987, the Philippine National Bank cannot extend
itsmaturity after February 2, 1987, if the loan was obtained for
abusiness purpose. In such case the extension is a
financialaccommodation which is also prohibited by the
Constitution.B. Section 40 of the Civil Service Decree has been
repealed byrepublic Act No. 6654. As a lawyer of Jose Tapulan, I
will file apetition for mandamus to compel his reinstatement. In
accordance withthe ruling in Mangubat vs. Osmea, G.R. No. L-12837,
April 30, 1959,there is no need to exhaust all administrative
remedies by appealingto Civil Service Commission, since the act of
the governor ispatently illegal.
1989 BAR EXAMINATIONITOPIC: LAW ON PUBLIC OFFICERSAn existing
law grants government employees the option to retire uponreaching
the age of 57 years and completion of at least 30 years oftotal,
government service. As a fiscal retrenchment measure, theOffice of
the President later issued a Memorandum Circular requiringphysical
incapacity as an additional condition for optionalretirement age of
65 years. A government employee, whose applicationfor optional
retirement was denied because he was below 65 years ofage and was
not physically incapacitated, filed an action in courtquestioning
the disapproval of his application claiming that theMemorandum
Circular is void. Is the contention of the employeecorrect?
Explain.
Suggested Answer:Yes, the contention of the employee is correct.
In Marasigan vs.Cruz, SCRA , it was held that such memorandum
circular is void. Byintroducing physical capacity as additional
condition for optionalretirement, the memorandum circular tried to
amend the law. Suchpower is lodged with the legislative branch and
not with theexecutive branch.IITOPIC: LAW ON PUBLIC OFFICERSIn
1986, F, then the officer-in-charge of Botolan, Zambales,
wasaccused of having violated the ANTI-Graft and Corrupt Practices
Actbefore the Sandigan Bayan. Before he could be arraigned, he
waselected Governor of Zambales. After his arraignment, he put
underpreventive suspension by the Sandiganbayan" for the duration
of thetrial".(1) Can F successfully challenge the legality of his
preventivesuspension on the ground that the criminal case against
him involvedacts committed during his term as officer-in-charge and
not duringhis term as Governor?(2) Can F validly object to the
aforestated duration of hissuspension?
Suggested Answer:(1) No, F cannot successfully challenge the
legality of hispreventive suspension on the ground that the
criminal case againsthim involve acts committed during his term as
OIC and not during histerm as governor because suspension from
office under Republic Act3019 refers to any office that the
respondent is presently holdingand not necessarily to the one which
he hold when he committed thecrime with which he is charged. This
was the ruling in Deloso vs.Sandiganbayan, 173 SCRA 409(2) Yes, F
Can validly object to the duration of the suspension. InDeloso vs.
Sandiganbayan, 173 SCRA 409, it was held that theimposition of
preventive suspension for an indefinite period of timeis
unreasonable and violates the right of the accused to due
process.The people who elected the governor to office would be
deprived ofhis services for an indefinite period, and his right to
hold officewould be nullified. Moreover, since under Section 42 of
the CivilService Decree the duration of preventive suspension
should belimited to ninety (90) days, equal protection demands that
theduration of preventive suspension under the Anti-Graft and
CorruptPractices Act be also limited to ninety (90) days only.
