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RULES OF COURT AMENDMENTS 2019Download

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remedial-law-reviewer-2019Download

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Bar 2021 Bulletin: Mock Bar Exam Slated

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Civil Code, Arts. 1-36

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REMEDIAL LAW REVIEWER 2019

PLEASE CLICK THE LINK BELOW TO GENERATE THE PDF FILE.

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ELMER’S REMEDIAL LAW REVIEWER 2018

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Good luck to the 2018 Barristers! To God be all the glory!

 

 

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2017 BAR EXAMS QUESTIONS IN MERCANTILE LAW

 

I.

A.

Absolute Timber Co. (ATC) has been engaged in the logging business in Isabela. To secure one of its shipments of logs to be transported by Andok Shipping Co., ATC purchased a marine policy with an all-risk provision. Because of a strong typhoon then hitting Northern Luzon, the vessel sank and the shipment of lofs was totally lost. ATC filed its claim, but the insurer denied the claim on several grounds, namely:

1. the vessel had not been seaworthy;
2. the vessel’s crew had lacked sufficient training;
3. the improper loading of the logs on only one side of the vesse had led to the tilting of the ship to that side during the stormy voyage; and
4. the extremely bad weather had been a fortuitous event.

ATC now seeks your legal advice to know if its claim was sustainable. What is your advice? Explain your answer. (3%)

B.

The newly restored Ford Mustang muscle car was just released from the car restoration shop to its owner, Seth, an avid sportsman. Given his passion for sailing, he needed to go to a round-the-world voyage with his crew on his brand-new 180-meter yacht. Hearing about his coming voyage, Sean, his bosom friend, asked Seth if he could borrow the car for his net roadshow. Sean, who had been in display the restored car of Seth in major cities of the country. Seth agreed and lent the Ford Mustang to Sean. Seth further expressly allowed Sean to use the car even for his own purposes on special occasions during his absence from the country. Seth and Sean then went together to Bayad Agad Insurance Co. (BAIC) to get separate policies for the car in their respective names.

BAIC consults you as its lawyer on whether separate policies could be issued to Seth and Sean in respect of the same car.

1. What is insurable interest? (2%)
2. Do Seth and Sean have separate insurable interests? Explain briefly your answer. (3%)

II.

A.

Morgan, a lawyer, received a lot of diving and other water sports equipment as payment of his professional fees by Dennis, his client in a child custody case. Dennis owned a diving and water sports dealership in Anilao, Batangas. Morgan decided to name Dennis as entrustee because he did not have any experience in selling such specialized sports equipment. They executed a trust receipt agreement, with Morgan as entruster and Dennis as entrustee.

Before the sports equipment could be sold, a strong typhoon hit Batangas. Anilao and other parts of Batangas experienced power outage. Taking advantage of the total darkness, unidentified thieves destroyed the padlocks of the establishment of Dennis, and carted off the equipment inside.

Morgan demanded that Dennis pay the value of the stolen equipment, but the latter refused on the ground that he also had suffered from the effects of the typhoon, and insisted that the cause of the loss was fortuitous event or force majeure.

Is the justification of Dennis warranted? Explain your answer. (4%)

B.

Safe Warehouse, Inc. (Safe) issued on various dates negotiable warehouse receipts to Peter, Paul, and Mary covering certain goods deposited by the latter with the former. Peter, Paul, and Mary then negotiated and endorsed the warehouse receipts to Cyrus, Magnus, and Charles upon payment by the latter of valuable consideration for the warehouse receipts. Cyrus, Magnus, and Charles were not aware of, nor were they parties to any irregularity or infirmity affecting the title or the face of the warehouse receipts.

On due dates of the warehouse receipes, Cyrus, Magnus, and Charles demanded that Safe surrender the goods to them. Safe refused because its warehouseman’s claim must first be paid. Cyrus, Magnus, and Charles refused to pay, and insisted that such claim was the liability of Peter, Paul, and Mary.

1. What is a warehouseman’s claim? (3%)
2. Is Safe’s refusal to surrender the goods to Cyrus, Magnus, and Charles legally justified? Explain your answer. (3%)

III.

A.

Data Realty, Inc. (DRI) was engaged in realty development. The family of Matteo owned 100% of the capital stock of DRI. Matteo was also the President and Chairman of the Board of Directors. Other members of Matteo’s family held the major positions in DRI. Because of a nasty takeover fight with D&E Realty Co., Inc. (D&E), another realty developer, for the control of a smaller realty company with vast landholdings, DRI and D&E engaged in an expensive litigation that eventually led to a money judgment being rendered in favor of D&E.

Meantime, DRI, facing inability to pay its liabilities as they fall due but still holding substantial assets, filed a petition for voluntary rehabilitation. Trying to beat the consequences of rehabilitation proceedings, D&E moved in the trial court for the issuance of a writ of execution. The trial court also happened to be the rehabilitation court. The writ of execution was issued.

Serving the writ of execution, Merto, the court sheriff who had just passed his Credit Transactions subject in law school, garnished Matteo’s bank accounts, and levied his real properties, including his house and lot in Makati.

Are the garnishment and levy of Matteo’s assets lawful and proper? Explain your answer. (4%)

B.

Sid used to be the majority stockholder and President of Excellent Corporation (Excellent). When Meridian Co., Inc. (Meridian), a local conglomerate, took over control and ownership of Excellent, it brought along its team of officers. Sid thus became a minority stockholder and a minority member of the Board of Directors. Excellent, being the leading beverage manufacturer in the country, became the monopoly when Meridian’s own beverage business was merged with Excellent’s, thereby making Excellent virtually the only beverage manufacturer in the country.

Left out and ignored by the management, Sid became a fiscalizer of sorts, questioning during the Board meetings the direction being pursued by Excellent’s officers.

Ultimately, Sid demanded the inspection of the books and other corporate records of Excellent. The management refused to comply, saying that his right as a minority stockholder has been much reduced.

State under what conditions may Sid properly assert his right to inspect the books and other corporate records of Excellent. Explain your answer. (3%)

IV.

Procopio, a Director and the CEO of Parisian Hotel Co., Inc. (Parisian), was charged along with other company officials with several counts of estafa in connection with the non-remittance of SSS premiums the company had collected from its employees. During the pendency of the cases, Parisian filed a petition for rehabilitation. The court, finding the petition to be sufficient in form and substance, issued a commencement order together with a stay or suspension order.

Citing the commencement order, Procopio and the other officers facing the criminal charges moved to suspend the proceedings in the estafa cases.

1. What is a commencement order, and what is the effect of its issuance? Explain your answer. (4%)
2. Suppose you are the trial judge, will you grant the motion to suspend of Procopio, et al.? Explain your answer. (4%)

V.

A.

Under the Nell Doctrine, so called because it was first pronounced by the Supreme Court in the 1965 ruling in Nell v. Pacific Farms, Inc. (15 SCRA 415), the general rule is that where one corporation sells or otherwise transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor.

State the exceptions to the Nell Doctrine. (4%)

B.

Santorini Corporation (Santorini) was in dire straits. In order to firm up its financial standing, it agreed to entertain the merger and takeover offer of Proficient Corporation (Proficient), the leading company in their line of business. Erica, the major stockholder of Santorini, strongly opposed the merger and takeover. The matter of the merger and takeover by Proficient was included in the agenda of the next meeting of Santorini’s Board of Directors. However, owing to Erica’s serious illness that required her to seek urgent medical treatment and care in Singapore, she failed to attend the meeting and was consequently unable to cast her vote. The Board of Directors approved the merger and takeover. At the time of the meeting, Santorini had been in the red for a number of years owing to its recurring business losses and reverses.

Erica seeks your legal advice regarding her right as a stockholder opposed to the corporate action. Explain your answer. (4%)

C.

Samito is the President and a Director of Lucky Bank (Lucky), a commercial bank holding its main office in Makati. His brother, Othello, owned a big fishing business based in Malabon. Othello applied for a loan of P50 million with Lucky. Othello followed the ordinary banking procedures in all the stages of the processing of his application. When required, he made the necessary arrangements to guarantee the loan. Thus, in addition to the real estate mortgage, Othello executed a joint and solidary suretyship, issued postdated checks, and submitted all other requirements prescribed by Lucky.

When the loan application was about to be approved and the proceeds released, BG Company, a keen competitor of Othello in the fishing industry, wrote to the Board of Directors and the management of Lucky questioning the loan on the ground of conflict of interest due to Samito and Othello being brothers, citing the legal restriction against bank exposure of directors, officers, stockholders or their related interests. (DOSRI).

1. What are the three restrictions imposed by law on DOSRI transactions? (4%)
2. Is BG Company’s opposition based on conflict of interest and violation of the restrictions on DOSRI transactions legally and factually correct? Explain your answer. (4%)

VI.

A.

Hortencio owned a modest grocery business in Laguna. Because of the economic downturn, he incurred huge financial liabilities. he remained afloat only because of the properties inherited from his parents who had both come from landed families in laguna. His main creditor was Puresilver Company (Puresilver), the principal supplier of the merchandise sold in his store. To secure his credit with Puresilver, he executed a real estate mortgage with a dragnet clause involving his family’s assets worth several millions of pesos.

Nonetheless, Hortencio, while generally in the black, now faces a situation where he is unable to pay his liabilities as they fall due in the ordinary course of business. What will you advise him to do to resolve his dire financial condition? Explain your answer. (5%)

B.

Wyatt, an internet entrepreneur, engaged in a sideline business of creating computer programs for selected clients on a per project basis and for servicing basic computer problems of his friends and family members. His main job was being an IT consultant at Futurex Co., a local computer company.

Because of his ill-advised investments in the stock market and the fraud perpetrated against him by his trusted confidante, Wyatt was already drowning in debt, that is, he had far more liabilities than his entire assets.

What legal recourse remained available to Wyatt? Explain your answer. (5%)

VII.

A.

Virtucio was a composer of Ilocano songs who has been quite popular in the Ilocos Region. Pascuala is a professor of music in a local university with special focus on indigenous music. When she heard the musical works of Virtucio, she purchased a CD of his works. She copied thte CD and sent the second copy to her Music class with instructions for the class to listen to the CD and analyze the works of Virtucio.

Did Pascuala thereby infringe Virtucio’s copyright? Explain your answer. (4%)

B.

Super Biology Corporation (Super Biology) invented and patented a miracle medicine for the cure of AIDS. Being the sole manufacturer, Super Biology sold the medicine at an exorbitant price. Because of the sudden prevalence of AIDS cases in Metro Manila and other urban areas, the Department of Health (DOH) asked Super Biology for a license to produce and sell the AIDS medicine to the public at a substantially lower price. Super Biology, citing the huge costs and expenses incurred for research and development, refused.

Assuming you are asked your opinion as the legal consultant of DOH, discuss how you will resolve the matter. (4%)

VIII.

A.

Flora, a frequent traveller, found a purse concealed between the cushions of a large sofa inside the VIP lounge in NAIA while she was waiting for her flight to be called. Inside the purse was a very valuable diamond-studded necklace. She decided not to turn over the purse to the airport management, and instead to keep it. On her return from her travels, she had a dependable jeweller appraise the necklace, and the latter told her that the necklace was easily worth at least P5 million in the open market. To test the appraisal, she pawned the necklace for P2 million. She then deposited the entire amount in her checking account with Metro Bank. Promptly, Metro Bank reported the transaction to the Anti-Money Laundering Council (AMLC).

Given that her appropriation was theft, may Flora be successfully prosecuted for money laundering? Explain briefly your answer. (4%)

B.

Prosperous Bank is a domestic bank with head office in Makati. It handles the banking requirements of thousands of clients.

The AMLC initiated a discreet investigation of the financial transactions of Lorenzo, a suspected drug trafficker based in Naga City. The intelligence group of the AMLC, in coordination with the counterpart group from the PDEA and the NBI, gathered ample evidence establishing Lorenzo’s unlawful drug activities. The AMLC had probable cause that his deposits and investments in various banks, including Prosperous Bank, were related to money laundering.

Accordingly, the AMLC now transmits to Prosperous Bank a formal demand to allow its agent to examine the banking transactions of Lorenzo, but Prosperous Bank refuses the demand.

Is Prosperous Bank’s refusal justified? Explain your answer. (4%)

IX.

A.

Alfred issued a check for P1,000 to Benjamin, his friend, as payment for an electronic gadget. The check was drawn against Alfred’s account with Good Bank. Benjamin then indorsed the check specially in favor of Cesar. However, Cesar misplaced the check. Dexter, a dormmate of Cesar, found the check, altered its amount to P91,000 and forged Cesar’s indorsement by way of a blank indorsement in favor of Felix, a known jeweler. Felix then caused the deposit of the check in his account with Solar Bank. As collecting bank, Solar Bank stamped “all previous indorsements guaranteed” on the check. Seeing such stamp of the collecting bank, Good Bank paid the amount of P91,000 on the check.

May Good Bank claim reimbursement from Alfred? Explain your answer. (4%)

B.

In 2006, Donald, an American temporarily residing in Cebu City, issued to Rhodora a check for $50,000 drawn against Wells Fargo Bank with offices in San Francisco, California. Rhodora negotiated the check and delivered it to Yaasmin, a Filipina socialite who frequently travelled locally and internationally. Because of her frequent travels, Yaasmin misplaced the check. It was only 11 years later on, in 2017, when she found the check inside a diary kept in her vault in her Hollywood, California house.

Discuss and explain the rights of Yaasmin on the check. (4%)

X.

Wisconsin Transportation Co., Inc. (WTC) owned and operated an inter-island deluxe bus service plying the Manila-Batangas-Mindoro route. Three friends, namely: Aurelio, Jerome, and Florencio rode on the same WTC bus from Manila bound for Mindoro. Aurelio purchased a ticket for himself. Jerome, being a boyhood friend of the bus driver, was allowed a free ride by agreeing to sit during the trip on a stool placed in the aisle. Florencio, already penniless after spending all of his money on beer the night before, just stole a ride in the bus by hiding in the on-board toilet of the bus.

During the trip, the bus collided with another bus coming from the opposite direction. The three friends all suffered serious physical injuries.

What are WTC’s liabilities, if any, in favor of Aurelio, Jerome, and Florencio? Explain your answer. (4%)

XI.

TRUE or FALSE – Explain briefly your answer.

1. A conviction under the Trust Receipts Law shall bar a prosecution for estafa under the Revised Penal Code. (2%)
2. The term capital in relation to public utilities under Sec. 11, Art. XII of the 1987 Constitution refers to the total outstanding capital stock comprising both common and non-voting preferred shares. (2%)
3. Forgery is a real defense but may only be raised against a holder not in due course. (2%)
4. News reports are not copyrightable. (2%)
5. The law on life insurance prohibits double insurance. (2%)

XII.

Onassis Shipping, Inc. (Onassis) operated passenger vessels and cargo trucks, and offered its services to the general public. In line with its vision and mission to protect the environment, Go-Green Asia (Go-Green), an NGO affiliated with Greenpeace, entered into a contract with Onassis whereby Go-Green would operate with its own crew the M/V Dolphin, an ocean-going passenger vessel of Onassis.

While on its way to Palawan carrying Go-Green’s invited guests who were international and local observers desirous of checking certain environmental concerns in the area, the M/V Dolphin encountered high waves and strong winds caused by a typhoon in the West Philippine Sea. The rough seas led to serious physical injuries to some of the guests.

Discuss the liabilities of Onassis and Go-Green to the passengers of the M/V Dolphin. Explain briefly your answer. (3%)

***END OF EXAMINATION***

 

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2017 BAR EXAMS QUESTIONS IN CIVIL LAW

 

I.

State whether the following marital unions are valid, void, or voidable, and give the corresponding justifications for your answer:

(a) Ador and Becky’s marriage wherein Ador was afflicted with AIDS prior to the marriage. (2%)

(b) Carlos’ marriage to Dina which took place after Dina had poisoned her previous husband Edu in order to free herself from any impediment in order to live with Carlos. (2%)

(c) Eli and Fely’s marriage solemnized seven years after the disappearance of Chona, Eli’s previous spouse, after the plane she had boarded crashed in the West Philippine Sea. (2%)

(d) David who married Lina immediately the day after obtaining a judicial decree annulling his prior marriage to Elisa. (2%)

(e) Marriage of Zoren and Carmina who did not secure a marriage license prior to their wedding, but lived together as husband and wife for 10 years without any legal impediment to marry. (2%)

II.

In 1960, Rigor and Mike occupied two separate but adjacent tracts of land in Mindoro. Rigor’s tract was classified as timber land while Mike’s was classified as agricultural land. Each of them fenced and cultivated his own tract continuously for 30 years. In 1991, the Government declared the land occupied by Mike as alienable and disposable, and the one cultivated by Rigor as no longer intended for public use or public service.

Rigor and Mike now come to you today for legal advice in asserting their right of ownership of their respective lands based on their long possession and occupation since 1960.

(a) What are the legal consequences of the 1991 declarations of the Government respecting the lands? Explain your answer. (2%)

(b) Given that, according to Section 48(b) of Commonwealth Act No. 141, in relation to Section 14(1) of Presidential Decree No. 1529, the open, continuous, exclusive, and notorious possession and occupation of alienable and disposable lands of the public domain as basis for judicial confirmation of imperfect title must be from June 12, 1945, or earlier, may Mike nevertheless validly base his assertion of the right of ownership on prescription under the Civil Code? Explain your answer. (4%)

(c) Does Rigor have legal basis for his application for judicial confirmation of imperfect title based on prescription as defined by the Civil Code given that, like Mike, his open, continuous, exclusive, and notorious possession and occupation was not since June 12, 1945, or earlier, and his tract of land was timber land until the declaration in 1991? Explain your answer. (4%)

III.

Josef owns a piece of land in Pampanga. The National Housing Authority (NHA) sought to expropriate the property for its socialized housing project. The trial court fixed the just compensation for the property at P50 million. The NHA immediately deposited the same at the authorized depository bank and filed a motion for the issuance of a writ of possession with the trial court. Unfortunately, there was delay in the resolution of the motion. Meanwhile, the amount deposited earned interest.

When Josef sought the release of the amount deposited, NHA argued that Josef should only be entitled to P50 million.

Who owns the interest earned? (3%)

IV.

(a) Distinguish antichresis from usufruct. (3%)

(b) Distinguish commodatum from mutuum. (3%)

V.

Jacob has owned a farm land in Ramos, Tarlac. In 2012, Liz surreptitiously entered and cultivated the property. In 2014, Jacob discovered Liz’s presence in and cultivation of the property. Due to his being busy attending to his business in Cebu, he tolerated Liz’s cultivation of the property. Subsequently, in December 2016, Jacob wanted to regain possession of the property; hence, he sent a letter to Liz demanding that she vacate the property. Liz did not vacate despite the demand.

Jacob comes to enlist your legal assistance to bring an action against Liz to recover the possession of the property.

What remedies are available to Jacob to recover possession of his property under the circumstances? Explain your answer. (4%)

VI.

Tyler owns a lot that is enclosed by the lots of Riley to the North and East, of Dylan to the South, and of Reece to the West. The current route to the public highway is a kilometer’s walk through the northern lot of Riley, but the route is a rough road that gets muddy during the rainy season, and is inconvenient because it is only 2.5 meters wide. Tyler’s nearest access to the public highway would be through the southern lot of Dylan.

May Dylan be legally required to afford to Tyler a right of way through his property? Explain your answer. (4%)

VII.

Alice agreed to sell a parcel of land with an area of 500 square meters registered in her name and covered by TCT No. 12345 in favor of Bernadette for the amount of P900,000. Their agreement dated October 15, 2015, reads as follows:

I, Bernadette, agree to buy the lot owned by Alice covered by TCT No. 12345 for the ammount of P900,000 subject to the following schedule of payment:

Upon signing of agreement – P100,000

November 15, 2015 – P200,000

December 15, 2015 – P200,000

January 15, 2016 – P200,000

February 15, 2016 – P200,000

Title to the property shall be transferred upon full payment of P900,000 on or before February 15, 2016.

After making the initial payment of P100,000 on october 15, 2015, and the second installment of P200,000 on November 15, 2015, Bernadette defaulted despite repeated demands from Alice.

In December 2016, Bernadette offered to pay her balance but Alice refused and told her that the land was no longer for sale. Due to the refusal, Bernadette caused the annotation of her adverse clalm upon TCT No. 12345 on December 19, 2016. Later on, Bernadette discovered that Alice had sold the property to Chona on February 5, 2016, and that TCT No. 12345 had been cancelled and another one issued (TCT No. 67891) in favor of Chona as the new owner.

Bernadette sued Alice and Chona for specific performance, annulment of sale and cancellation of TCT No. 67891. Bernadette insisted that she had entered into a contract of sale with Alice; and that because Alice had engaged in double sale, TCT No. 67891 should be cancelled and another title be issued in Bernadette’s favor.

1. Did Alice and Bernadette enter into a contract of sale of the lot covered by TCT No. 12345? Explain your answer. (4%)
2. Did Alice engage in double sale of the property? Explain your answer. (4%)

VIII.

Pedro had worked for 15 years in Saudi Arabia when he finally decided to engage in farming in his home province where his 10-hectare farmland valued at P2,000,000 was located. He had already P3,000,000 savings from his long stint in Saudi Arabia.

Eagerly awaiting Pedro’s arrival at the NAIA were his aging parents Modesto and Jacinta, his common-law spouse Veneranda, their three children, and Alex, his child by Carol, his departed legal wife. Sadly for all of them, Pedro suffered a stroke because of his over-excitement just as the plane was about to land, and died without seeing any of them.

The farmland and the savings were all the properties he left.

(a) State who are Pedro’s legal heirs, and the shares of each legal heir to the estate? Explain your answer. (4%)

(b) Assuming that Pedro’s will is discovered soon after his funeral. In the will, he disposed of half of his estate in favor of Veneranda, and the other half in favor of his children and his parents in equal shares. Assuming also that the will is admitted to probate by the proper court. Are the testamentary dispositions valid and effective under the law on succession? Explain your answer. (4%)

IX.

Danny and Elsa were married in 2002. In 2012, Elsa left the conjugal home and her two minor children with Danny to live with her paramour. In 2015. Danny sold without EIsa’s consent a parcel of land registered in his name that he had purchased prior to the marriage. Danny used the proceeds of the sale to pay for his children’s tuition fees.

Is the sale valid, void or voidable? Explain your answer. (3%)

X.

Briefly explain whether the following contracts are valid, rescissible, unenforceable, or void:

(a) A contract of sale between Lana and Andy wherein 16-year old Lana agreed to sell her grand piano for 25,000.00. (2%)

(b) A contract of lease of the Philippine Sea entered by and between Mitoy and Elsa. (2%)

(c) A barter of toys executed by 12-year old Clarence and 10-year old Czar (2%)

(d)A sale entered by Barri and Garri, both minors, which their parents later ratified. (2%)

(e) Jenny’s sale of her car to Celestine in order to evade attachment by Jenny’s creditors. (2%)

XI.

Zeny and Nolan were best friends for a long time already. Zeny borrowed 310,000.00 from Nolan, evidenced by a promissory note whereby Zeny promised to pay the loan “once his means permit.” Two months later, they had a quarrel that broke their long-standing friendship.

Nolan seeks your advice on how to collect from Zeny despite the tenor of the promissory note. what will your advice be? Explain your answer. (3%)

XII.

Krystal owns a parcel of land covered by TCT No. 12345 in Angeles City, Due to severe financial constraints, Krystal was lorc based in the property to RBP Corporation, a foreign corporation based in South Korea. Subsequently, RBP Corporation sold the property to Gloria, one of its most valued clients.

Wanting her property back, Krystal, learning of the transfer of the property from RBP Corporation to Gloria, sued both of them in the Regional Trial Court (RTC) for annulment of sale and for reconveyance. She alleged that the sale by RBP Corporation to Gloria was void because RBP Corporation was a foreign corporation prohibited by the Constitution from acquiring and owning lands in the Philippines.

Will KrystaI’s suit for annulment of sale and reconveyance prosper? Explain your answer. (4%)

XIII.

TRUE or FALSE – Explain your answers.

(a) All rights are considered as property. (2%)

(b) A lessee cannot bring a case for quieting of title respecting the property that he leases. (2%)

(c) Only the city or municipal mayor can file a civil action to abate a public nuisance. (2%)

(d) Possession of a movable property is lost when the location of the said movable is unknown to the owner. (2%)

(e) Continuous non-apparent easements can be acquired either through title or by prescription. (2%)

XIV.

Plutarco owned land that borders on a river. After several years the action of the water of the river caused the deposit of soil, and increased the area of Plutarco’s property by 200 square meters.

(a) If Plutarco wants to own the increase in area, what will be his legal basis for doing so? Explain your answer. (2%)

(b) On the other hand, if the river dries up, may Plutarco validly claim a right of ownership of the dried-up river bed? Explain your answer. (2%)

XV.

Kevin signed a loan agreement with ABC Bank. To secure payment, Kevin requested his girlfriend Rosella to execute a document entitled “Continuing Guaranty Agreement” whereby she expressly agreed to be solidarily liable for the obligation of Kevin.

Can ABC Bank proceed directly against Rosella upon Kevin’s default even without proceeding against Kevin first? Explain your answer. (3%)

XVI.

Jovencio operated a school bus to ferry his two sons and five of their schoolmates from their houses to their school, and back. The parents of the five schoolmates paid for the service. One morning, Porfirio, the driver, took a short cut on the way to school because he was running late, and drove across an unmanned railway crossing. At the time, Porfirio was wearing earphones because he loved to hear loud music while driving. As he crossed the railway tracks, a speeding PNR train loudly blared its horn to warn Porfirio, but the latter did not hear the horn because of the loud music. The train inevitably rammed into the school bus. The strong impact of the collision between the school bus and the train resulted in the instant death of one of the classmates of Jovencio’s younger son.

The parents of the fatality sued Jovencio for damages based on culpa contractual alleging that Jovencio was a common carrier; Porfirio for being negligent; and the PNR for damages based on culpa aquiliana.

Jovencio denied being a common carrier. He insisted that he had exercised the diligence of a good father of a family in supervising Porfirio, claiming that the latter had had no history of negligence or recklessness before the fatal accident.

(a) Did his operation of the school bus service for a limited clientele render Jovencio a common carrier? Explain your answer. (3%)

(b) In accordance with your answer to the preceding question, state the degree of diligence to be observed by Jovencio, and the consequences thereof. Explain your answer. (3%)

(c) Assuming that the fatality was a minor of only 15 years of age who had no earning capacity at the time of his death because he was still a student in high school, and the trial court is minded to award indemnity, what may possibly be the legal and factual justifications for the award of loss of earning capacity? Explain your answer. (4%)

***END OF EXAMINATION***

 

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2017 BAR EXAMS QUESTIONS IN TAXATION LAW

 

I.

SMZ, Inc., is a VAT-registered enterprise engaged in the general construction business. HP International contracts the services of SMZ, Inc. to construct HP International’s factory building located in the Laguna Techno Park, a special economic zone. HP lnternational is registered with the the Philippine Economic Zone Authority (PEZA) as an ecozone export enterprise, and, as such, enjoys income tax holiday pursuant to the Special Economic Zone Act of 1995.

SMZ, Inc., files an application with the Bureau of lnternal Revenue (BIR) for the VAT zero-rating of its sale of services to HP International. However, the BIR denies SMZ, lnc.’s application on the ground that HP lnternational already enjoys income tax holiday.

Is the BIR correct in denying SMZ, lnc.’s application? Explain your answer. (6%)

II.

Wreck Corporation is a domestic corporation engaged in the business of importing, refining and selling petroleum products. During the period from September 1, 2014 to December 31, 2014, Wreck Corporation imported 225 million liters of Jet A-1 aviation fuel and paid the excise taxes thereon. Seventy-five percent (75%) of the total volume of aviation fuel imported were actually sold to international carriers of Philippine and foreign registries for their use or consumption outside of the Philippines in the period from November 1, 2014, to December 31, 2014. Wreck Corporation did not pass on to the international carriers the excise taxes it paid on the importation of petroleum products.

On June 25, 2015, Wreck Corporation filed an administrative claim for refund or issuance of tax credit certificate amounting to the excise taxes it had paid on the importation of 225 million liters of Jet A-1 aviation fuel.

If you were the Commissioner of lnternal Revenue, will you grant Wreck Corporation’s administrative claim for refund or issuance of tax credit certificate Explain your answer. (6%)

III.

Vanderful, Inc.’s income tax return for taxable year 2015 showed an overpayment due to excess creditable witholding taxes in the amount of P750,000. The company opted to carry over the excess income tax credits as tax credit against its quarterly income tax liabilities for the next succeeding years. For taxable year 2016, the company’s income tax return showed an overpayment due to excess creditable withholding taxes in the amount of P1,100,000, which included the carry-over from year 2015 in the amount of P750,000 because its operations resulted in a net loss hence, there was no application for any tax liability. This time, the company opted and marked the box “To be refunded” in respect of the total amount of P1,100,000.

Vanderful, lnc. now files in the BIR a claim for refund of unutilized overpayments of P1,100,000. Is the claim meritorious? (4%)

IV.

On the basis of a warrant of seizure and detention issued by the Collector of Customs for the purpose of enforcing the Tariff and Customs Code, assorted brands of liquor and cigarettes said to have been illegally imported into the Philippines were seized from a store operating in a Freeport zone. The store owner moved for the quasahal of the warrant on the ground that the collector of Customs had no jurisdiction to enforce it within the Freeport zone.

Should the motion to quash be granted (3%)

V.

On March 30, 2016, XL Co. filed an administrative claim for refund of unutilized input VAT for taxable year 2014, together with supporting documents. XL Co. claimed that its sale of generated power and delivery of electric capacity was VAT zero-rated. Due to the inaction of the Commissioner of Internal Revenue (CIR), XL Co. filed with the Court of Tax Appeals (CTA) the following judicial claims for refund.

• Period Covered – Date Filed
• 1st Quarter of 2014 – March 31, 2016
• 2nd Quarter of 2014 – June 30, 2016
• 3rd and 4th quarter of 2014 – August 12, 2016

Is XL Co.’s claim for VAT refund timely filed? Explain your answer. (5%)

VI.

Heeding the pronouncement of the President that the worsening traffic condition in the metropolis was a sign of economic progress, the Congress enacted Republic Act No. 10701, also known as An Act Imposing a Transport Tax on the Purchase of Private Vehicles.

Under RA 10701, buyers of private vehicles are required to pay a transport tax equivalent to 5% of the total purchase price per vehicle purchased. RA 10701 provides that the Land Transportation Office (LTO) shall not accept for registration any new vehicles without proof of payment of the 5% transport tax. RA 10701 further provide that existing owners of private vehicles shall be required to pay a tax equivalent to 5% of the current fair market value of every vehicle registered with the LTO. However, RA 10701 exempts owners of public utility vehicles and the Government from the coverage of the 5% transport tax.

A group of private vehicle owners sue on the ground that  the law is unconstitutional for contravening the Equal Protection Clause of the Constitution.

Rule on the constitutionality and validity of RA 10701. (5%)

VII.

Calvin Dela Pisa was a Permits and Licensing Officer (rank-and-file) of Sta. Portia Realty Corporation (SPRC). He invited the Regional Director of the Housing and Land Use Regulatory Board (HLURB) to lunch at the Sulo Hotel in Quezon City to discuss the approval of SPRC’s application for a development permit in connection with its subdivision development project in Pasig City. At breakfast the following day, Calvin met a prospective client interested to enter into a joint venture with SPRC for the construction of a residential condominium unit in Cainta, Rizal.

Calvin incurred expenses for the lunch and breakfast meetings he had with the Regional Director of HLURB and the prospective client, respectively. The expenses were duly supported by official receipts issued in his name. At month’s end, he requested the reimbursement of his expenses, and SPRC granted his request.

(a) Can SPRC claim an allowable deduction for the expenses incurred by Calvin? Explain your answer. (2.5%)

(b) Is the reimbursement received by Calvin from SPRC subject to tax? Explain your answer. (2.5%)

VIII.

On April 30, 2015, Daryl resigned as the production manager of 52nd Avenue, a television studio owned by SSS Entertainment Corporation. 52nd Avenue issued to her a Certificate of Withholding Tax on Compensation (BIR Form No. 2316), which showed that the tax withheld from her compensation was equal to her income tax due for the period from January 2015 to April 30 2015.

A month after her resignation, Daryl put up her own studio and started producing short films. She was able to earn a meager income from her short films but did not keep record of her production expenses.

Is Daryl qualified for substituted filing for taxable year 2015? Explain your answer. (3%)

IX.

Upon his retirement, Alfredo transferred his savings derived from his salary as a marketing assistant to a time deposit with AAB Bank. The bank regularly deducted 20% final withholding tax on the interest income from the time deposit.

Alfredo contends that the 20% final tax on the interest income constituted double taxation because his salary had been already subjected to withholding tax.

Is Alfredo’s contention correct? Explain your answer. (3%)

X.

On January 27, 2017, Ramon, the comptroller of Vantage Point, Inc., executed a document entitled “Waiver of the Statute of Limitations” in connection with the BIR’s investigation of the tax liabilities of the company for the year 2012. However, the Board of Directors of Vantage Point, Inc., did not adopt a board resolution authorizing Ramon to execute the waiver.

On October 14, 2017, Vantage Point, Inc., received a preliminary assessment notice from the BIR indicating its deficiency withholding taxes for the year  2012. Vantage Point, Inc., filed its protest. On October 30, 2017, the BIR issued a formal letter of demand and final assessment notice. Vantage Point, Inc., again filed a protest. The Commissioner of Internal Revenue denied the protests and directed the collection of the assessed deficiency taxes.

Accordingly, Vantage Point, Inc., filed a petition for review in the CTA to seek the cancellation and withdrawal of the assessment on the ground of prescription.

(a) What constitutes a valid waiver of the statute of limitations for the assessment and collection of taxes? Explain your answer. (3%)

(b) Has the right of the Government to assess and collect deficiency taxes from Vantage Point, Inc. for the year 2012 prescribed? Explain your answer. (3%)

XI.

The Board of Directors of Sumo Corporation, a company primarily engaged in the business of marketing and distributing pest control products, approved the partial cessation of its commercial operations, resulting in the separation of 32 regular employees. Only half of the affected employees were notified of the board resolution.

Rule on the taxability of the separation pay and indemnity that will be received by the affected employees as the result of their separation from service. Explain your answer. (3%)

XII.

On September 17, 2015, Data Realty, Inc., a real-estate corporation duly organized and existing under Philippine law, sold to Jenny Vera a condominium unit at Freedom Residences in Malabon City with an area of 32.31 square meters for a contract price of P4,213,000. The condominium unit had a zonal value amounting to P2,877,000 and fair market value amounting to P550,000.

(a) Is the transaction subject to value-added tax and documentary stamp tax? Explain your answer. (3%)

(b) Would your answer be the same if the property was sod by a bank in a foreclosure sale? Explain your answer. (3%)

XIII.

BATAS Law is a general professional partnership operating in the City of Valenzuela. It regularly pays value-added tax on its services. All its lawyers have individually paid the required professional tax for the year 2017. However, as a condition for the renewal of its business permit for the year 2017, the City Treasurer of Valenzuela assessed BATAS Law for the payment of percentage business tax on its gross receipts for the year 2016 in accordance with the Revenue Tax Code of Valenzuela.

Is BATAS Law liable to pay the assessed percentage business tax? Explain your answer. (3%)

XIV.

Globesmart Services, Inc. received a final assessment notice with formal letter of demand from the BIR for deficiency income tax, value-added tax and withholding tax for the taxable year 2016 amounting to P48 million. Globesmart Services, Inc., fied a protetst against the assessment, but the Commissioner of Internal Revenue denied the protest. Hence, Globesmart Services, Inc. filed a petition for review in the CTA with an urgent motion to suspend the collection of tax.

After hearing, the CTA Division issued a resolution granting the motion to suspend but required Globesmart Services, Inc., to post a surety bond equivalent to the deficiency assessment within 15 days from notice of the resolution. Globesmart Services, Inc. moved for the partial reconsideration of the resolution and for the reduction of the bond to an amount it could obtain. The CTA division issued another resolution reducing the amount of the surety bond to P24 million. The latter amount was still more than the net worth of Globesmart Services, Inc., as reported in its audited financial statements.

(a) May the collection of taxes be suspended? Explain your answer. (3%)

(b) Is the CTA Division justified in requiring Globesmart Services, Inc., to post a surety bond as a condition for the suspension of the deficiency tax collection? Explain your answer. (3%)

XV.

Casimira died on June 19, 2017, after three weeks of confinement due to an unsuccessful liver transplant. For her confinement, she had incurred substantial medical expenses that she financed through personal loans secured by mortgages on her real properties. Her heirs are still in the process of making an inventory of her assets that can be used to pay the estate taxes, if any, which are due on December 19, 2017.

(a) Are the medical expenses, personal loans and mortgages incurred by Casimira deductible from her gross estate? Explain your answer. (5%)

(b) May the heirs of Casimira file the estate tax return and pay the corresponding estate tax beyond December 19, 2017, without incurring interest and surcharge? Explain your answer. (3%)

XVI.

The BIR assessed the Babuyan Water District (BWD) with deficiency income taxes amounting to P8.5 million, inclusive of interest and surcharge. The BWD disputed the assessment, and argued that it was a wholly-owned government entity performing essential government functions. However, the BIR denied the protest.

The BWD filed a petition for arbitration in the Office of the Secretary of Justice pursuant to Sections 66 to 71, Chapter 14, Book IV of the Administrative Code of 1987 to assail the denial of its protest, and to seek the proper interpretation of Section 32(B)(7)(b) of the Tax Code that excluded from gross income the income derived by the Government or its political subdivisions. The Secretary of Justice rendered a decision declaring the BWD exempt from the payment of income tax.

The Commissioner of Internal Revenue appealed to the CTA on the sole ground that the Secretary of Justice had no jurisdiction to review the assessment of the BIR.

Is the appeal meritorious? Explain your answer. (4%)

XVII.

San Juan University is a non-stock, non-profit educational institution. It owns a piece of land in Caloocan City on which its three 2-storey school buildings stood. Two of the buildings are devoted to classrooms, laboratories, a canteen, a bookstore, and administrative offices. The third building is reserved as dormitory for student athletes who are granted scholarships for a given academic year.

In 2017, San Juan University earned income from tuition fees and from leasing a portion of its premises to various concessionaires of food, books, and school supplies.

(a) Can the City Treasurer of Caloocan City collect real property taxes on the land and building of San Juan University? Explain your answer. (5%)

(b) Is the income earned by San Juan University for the year 2017 subject to income tax? Explain your answer. (5%)

XVIII.

(a) Distinguishoutright smugglingfrom technical smuggling. (3%)

(b) Distinguish compromisefrom abatementof taxes. (3%)

XIX.

CMI School, Inc., a non-stock, non-profit corporation, donated its three parcels of idle land situated in the Municipality of Cuyapo, Nueva Ecija to SLC University, another non-stock, non-profit corporation, in recognition of the latter’s contribution to and participation in the spiritual and educational development of the former.

(a) Is CMI School, Inc., liable for the payment of donor’s tax? Explain your answer. (2.5%)

(b) If SLC University later sells the three parcels of idle land to Puregold Supermarket, Inc., a stock corporation, will SLC University be liable for capital gains tax? Explain your answer. (3%)

(c) If SLC University donates the three parcels of idle land in favor of the Municipality of Cuyapo, Nueva Ecija, will SLC University be liable for donor’s tax? Explain your answer. (2.5%)

***END OF EXAMINATION***

 

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2017 Bar Exams Questions in Labor Law

 

I

 

a. What are the accepted tests to determine the existence of an employer-employee relationship? (5%)

 

b. Applying the tests to determine the existence of employer-employee relationship, is a jeepney driver operating under the boundary system an employee of the jeepney operator or a mere lessee of the jeepney? Explain your answer. (3%)

 

II

 

Procopio was dismissed from employment for stealing his co-employee Raul’s watch. Procopio filed a complaint for illegal dismissal. The Labor Arbiter ruled in Procopio’s favor on the ground that Raul’s testimony was doubtful, and, therefore, the doubt should be resolved in favor of Procopio. On appeal, the NLRC reversed the ruling because Article 4 of the Labor Code – which states that all doubts in the interpretation and implementation of the provisions of the Labor Code, including the implementing rules and regulations, shall be resolved in favor of labor – applied only when the doubt involved the “implementation and interpretation” of the Labor Code; hence, the doubt, which involved the application of the rules on evidence, not the Labor Code, could not necessarily be resolved in favor of Procopio. Was the reversal correct? Explain your answer. (3%)

 

III

 

a. Andrew Manning Agency (AMA) recruited Feliciano for employment by Invictus Shipping, its foreign principal. Meantime, AMA and Invictus Shipping terminated their agency agreement. Upon his repatriation following his premature termination, Feliciano claimed from AMA and Invictus Shipping the payment of his salaries and benefits for the unserved portion of the contract. AMA denied liability on the ground that it no longer had an agency agreement with Invictus Shipping. Is AMA correct? Explain your answer. (3%)

 

b. As a rule, direct hiring of migrant workers is not allowed. What are the exceptions? Explain your answer. (2.5%)

 

c. Phil, a resident alien, sought employment in the Philippines. The employer, noticing that Phil was a foreigner, demanded that he first secures an employment permit from the DOLE. Is the employer correct? Explain your answer. (2.5%)

 

IV.

 

The Regional Tripartite Wages and Productivity Board (RTWPB) for Region 3 issued a wage order on November 2, 2017, fixing the minimum wages for all industries throughout Region 3.

 

a. Is the wage order subject to the approval of the National Wages and Productivity Commission before it takes effect? (2%)

 

b. The law mandates that no petition for wage increase shall be entertained within a period of 12 months from the effectivity of the wage order. Under what circumstances may the Kilusang Walang Takot, a federation of labor organizations that publicly and openly assails the wage order as blatantly unjust, initiate the review of the wage increases under the wage order without waiting for the end of the 12-month period? Explain your answer. (3%)

 

V.

 

a. Percival was a mechanic of Pacific Airlines. He enjoyed a meal break of one hour. However, during meal breaks, he was required to be on standby for emergency work. During emergencies, he was made to forego his meals or to hurry up eating. He demanded payment of overtime for work done during his meal periods. Is Percival correct? Explain your answer. (3%)

 

b. Distinguish a learner from an apprentice. (4%)

 

c. Are there differences between a househelper and a homeworker? Explain your answer. (4%)

 

VI.

 

a. One of Pacific Airline’s policies was to hire only single applicants as flight attendants, and considered as automatically resigned the flight attendants at the moment they got married. Is the policy valid? Explain your answer. (2.5%)

 

b. Tarcisio was employed as operations manager and received a monthly salary of P25,000 through his payroll account with DB Bank. He obtained a loan from Roberto to purchase a car. Tarcisio failed to pay Roberto when the loan fell due. Roberto sued to collect, and moved to garnish Tarcisio’s payroll account. The latter vigorously objected and argued that salaries were exempt from garnishment. Is Tarcisio correct? Explain your answer. (3%)

 

VII.

 

Dr. Crisostomo entered into a retainer agreement with AB Hotel and Resort whereby he would provide medical services to the guests and employees of AB Hotel and Resort, which, in turn, would provide the clinic premises and medical supplies. He received a monthly retainer fee of P60,000, plus 70% share in the service charges from AB Hotel and Resort’s guests availing themselves of the clinic’s services. The clinic employed nurses and allied staff, whose salaries, SSS contributions, and other benefits he undertook to pay. AB Hotel and Resort issued directives giving instructions to him on the replenishment of emergency kits and forbidding the clinic staff from receiving cash payments from the guests. In time, the nurses and the clinic staff claimed entitlement to rights as regular employees of AB Hotel and Resort, but the latter refused on the ground that Dr. Crisostomo, who was their employer, was an independent contractor. Rule with reasons. (4%)

 

VIII.

 

Marciano was hired as Chief Engineer on board the vessel M/V Australia. His contract of employment was for nine months. After nine months, he was re-hired. He was hired for a third time after another nine months. He now claims entitlement to the benefits of a regular employee based on his having performed tasks usually necessary and desirable to the employer’s business for a continuous period of more than one year. is Marciano’s claim tenable? Explain your answer. (3%)

 

IX.

 

Section 255 of the Labor Code recognizes three categories of employees, namely: managerial, supervisory, and rank-and-file.

 

a. Give the characteristics of each category of employees, and state whether the employees in each category may organize and form unions. Explain your answer. (5%)

 

b. May confidential employees who assist managerial employees and who act in a confidential capacity or have access to confidential matters being handled by persons exercising managerial functions in the field of labor relations form, or assist, or join labor unions? Explain your answer. (2.5%)

 

X.

 

a. The labor sector has been loudly agitating for the end of labor-only contracting, as distinguished from job contracting. Explain these two kinds of labor contracting, and give the effect of a finding that one is a labor-only contractor. Explain your answers. (4%)

 

b. What are the grounds for validly terminating the services of an employee based on a just cause? (5%)

c. Give the procedure to be observed for validly terminating the services of an employee based on a just cause. (4%)

 

XI.

 

a. The modes of determining the exclusive bargaining agent of the employees in a business are: (a) voluntary recognition; (b) certification election; and (c) consent election. Explain how they differ from one another. (4%)

 

b. Marcel was the Vice President for Finance and Administration and a member of the Board of Directors of Mercedes Corporation. He brought a complaint for illegal suspension and illegal dismissal against Mercedes Corporation, which moved to dismiss the complaint on the ground that the complaint pertained to the jurisdiction of the RTC due to the controversy being intracorporate based on his positions in the corporation. Marcel countered that he had only been removed as Vice President for Finance and Administration, not as a member of the Board of Directors. he also argued that his position was not listed as among the corporate offices in Mercedes Corporation’s by-laws. Is the argument of Marcel correct? Explain your answer. (2.5%)

c. State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary Arbitrators in labor disputes? (4%)

 

XII.

 

A.

 

Juanito initiated a case for illegal dismissal against Mandarin Company. The Labor Arbiter decided in his favor, and ordered his immediate reinstatement with full backwages and without loss of seniority and other benefits. Mandarin Company did not like to allow him back in its premises to prevent him from influencing his co-workers to move against the interest of the company; hence, it directed his payroll reinstatement and paid his full backwages and other benefits even as it appealed to the NLRC.

 

A few months later, the NLRC reversed the ruling of the Labor Arbiter and declared that Juanito’s dismissal was valid. The reversal ultimately became final.

May Mandarin Company recover the backwages and other benefits paid to Juanito pursuant to the decision of the Labor Arbiter in view of the reversal by the NLRC? Rule with reasons. (2.5%)

 

B.

Gene is a married regular employee of Matibay Corporation. The employees and Matibay Corporation had an existing CBA that provided for funeral and bereavement aid of P15,000 in case of the death of a legal dependent of a regular employee. His widowed other, who had been living with him and his family for many years, died; hence, he claimed the funeral aid. Matibay Corporation denied the claim on the basis that she had not been his legal dependent as the term legal dependent was defined by the Social Security Law.

a. Who may be the legal dependents of Gene under the Social Security Law? (2.5%)

b. Is Gene entitled to the funeral aid for the death of his widowed mother? Explain your answer. (2%)

 

C.

Rosa was granted vacation leave by her employer to spend three weeks in Africa with her family. Prior to her departure, the General manager of the company requested her to visit the plant of a client of the company in Zimbabwe in order to derive the best manufacturing practices useful to the company. She accepted the request because the errand would be important to the company and Zimbabwe was anyway in her itinerary. It appears that she contracted a serious disease during the trip. Upon her return, she filed a claim for compensation, insisting that she had contracted the disease while serving the interest of her employer.

 

Under the Labor Code, the sickness or death of an employee, to be compensable, must have resulted from an illness either definitely accepted as an occupational disease by the Employees’ Compensation Commission, or caused by employment subject to proof that the risk of contracting the same is increased by working conditions.

Is the serious disease Rosa contracted during her trip to Africa compensable? Explain your answer. (2.5%)

 

XIII.

 

A.

 

Given that the liability for an illegal strike is individual, not collective, state when the participating union officers and members may be terminated from employment because of the illegal strike. Explain your answer. (4%)

 

B.

 

A sympathetic strike is stoppage of work to make common cause with other strikers in another establishment or business. Is the sympathetic strike valid? Explain your answer. (1%)

 

C.

 

Due to business recession, Ballistic Company retrenched a part of its workforce. Opposing the retrenchment, some of the affected employees staged a strike. Eventually, the retrenchment was found to be justified, and the strike was declared illegal; hence, the leaders of the strike, including the retrenched employees, were declared to have lost their employment status.

 

Are the striking retrenched employees still entitled to separation pay under Sec. 298 of the Labor Code despite the illegality of their strike? Explain your answer. (2%)

 

XIV.

 

Pursuant to his power under Sec. 278(g) of the Labor Code, the Secretaryy of Labor assumed jurisdiction over the three-day old strike in Armor Steel Plates, Inc., one of the country’s bigger manufacturers of steel plates, and ordered all the striking employees to return to work. The striking employees ignored the order to return to work.

 

a. What conditions may justify the Secretary of Labor to assume jurisdiction? (2.5%)

b. What are the consequences of the assumption of jurisdiction by the Secretary of Labor, and of the disobedience to the return to work? Explain your answer. (2.5%)

 

 

***END OF EXAMINATION***

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I.

A priority thrust of the Administration is the change  of the form of government from unitary to federal. The change can be effected only through constitutional amendment or revision.

A. What are the methods of amending the Constitution? Explain briefly each method. (3%)

B.Cite at least three provisions of the Constitution that need to be amended or revised to effect the change from unitary to federal, and explain briefly why. (3%)

II.

A.

Under the doctrine of immunity from suit, the State cannot be sued without its consent. How may the consent be given by the State? Explain your answer. (3%)

B.

The doctrine of immunity from suit in favor of the State extends to public officials in the performance of their official duties. May such officials be sued nonetheless to prevent or undo their oppressive or illegal acts, or to compel them to act? Explain your answer. (3%)

C.

Do government-owned or -controlled corporations also enjoy the immunity of the State from suit? Explain your answer. (3%)

III.

State A and State B, two sovereign states, enter into a 10-year mutual defense treaty. State A finds that more progressive State B did not go to the aid of State A when it was threatened by its strong neighbor State C. State B reasoned that it had to be prudent and deliberate in reacting to State C because of their existing trade treaties.

1. May State A unilaterally withdraw from its mutual defense treaty with State B? Explain your answer. (2.5%)
2. What is the difference between the principles of pacta sunt servandaand rebus sic stantibusin international law? (2.5%)
3. Are the principles of pacta sunt servandaand rebus sic stantibusrelevant in the treaty relations between State A and State B? What about in the treaty relations between State B and State C? Explain your answer. (2.5%)

IV.

What is the pardoning power of the President under Art. VIII, Sec. 19 of the Constitution? Is the exercise of the power absolute? (4%)

Distinguish pardon from amnesty. (4%)

V.

1. What is the right of legation, and how is it undertaken between states? Explain your answer. (2%)
2. Under this right, may a country like Malaysia insist that the Philippines establishes a consulate in Sabah to look after the welfare of the Filipino migrants in the area? Explain your answer. (2%)

VI.

A.

The President appoints the Vice President as his Administration’s Housing Czar, a position that requires the appointee to sit in the Cabinet. Although the appointment of the members of the Cabinet requires confirmation by the Commission on Appointment (CA), the Office of the President does not submit the appointment to the CA. May the Vice President validly sit in the Cabinet? (2.5%)

B.

The  Executive Department has accumulated substantial savings from its appropriations. Needing P3,000,000 for the conduct of a plebiscite for the creation of a new city but has no funds appropriated soon by the Congress for the purpose, the COMELEC requests the President to transfer funds from the savings of the Executive Department in order to avoid a delay in the holding of the plebiscite.

May the President validly exercise his power under the 1987 Constitution to transfer funds from the savings of the Executive Department, and make a cross-border transfer of P3,000,000 to the COMELEC by way of augmentation? Is your answer the same if the transfer is treated as aid to the COMELEC? Explain your answer. (4%)

VII.

Give the limitations on the power of the Congress to enact the General Appropriations Act. Explain your answer. (5%)

VIII.

A bank acquired a large tract of land as the highest bidder in the foreclosure sale of the mortgaged assets of its borrower. It appears that the land has been originally registered under the Torrens system in 1922 pursuant to the provisions of the Philippine Bill of 1902, the organic act of the Philippine Islands as a colony of the USA. Sec. 21 of the Philippine Bill of 1902 provided that “all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed, are hereby declared to be free and open too exploration, occupation, and purchase, and the land in which they are found to occupation and purchase, by citizens of the United States, or of said Islands.” Sec. 27 of the law declared that a holder of the mineral claim so located was entitled to all the minerals that lie within his claim but he could not mine outside the boundary lines of his claim.

The 1935 Constitution expressly prohibited the alienation of natural resources except agricultural lands. Sec. 2, Art. XII of the 1987 Constitution contains a similar prohibition, and proclaims that all lands of public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildilfe, flora, and fauna, and other natural resources are owned by the State. This provision enunciates the Regalian Doctrine.

May the Government, on the basis of the Regalian Doctrine enunciated in the constitutional provisions, deny the bank its right as the owner of the mineral resources underneath the surface of its property as recognized under the Philippine Bill of 1902? Explain your answer. (5%)

IX.

A.

Ambassador Robert of State Alpha committed a very serious crime while he headed his foreign mission in the Philippines. Is he subject to arrest by Philippine authorities? Explain your answer. (3%)

B.

Extradition is the process pursuant to a treaty between two State parties for the surrender by the requested State to the custody of the requesting State of a fugitive criminal residing in the former. However, extradition depends on the application of two principles – the principle of specialty and the dual criminality principle. Explain these principles. (4%)

C.

The President signs an agreement with his counterpart in another country involving reciprocity in the treatment of each other country’s nationals residing in the other’s territory. However, he does not submit the agreement to the Senate for concurrence.

Sec. 21, Art. VII of the Constitution provides that no treaty or international agreement shall be valid and effective without such concurrence.

Is the agreement signed by the President effective despite the lack of Senate concurrence? Explain your answer. (4%)

X.

A.

Under the enrolled bill doctrine, the signing of a bill by both the Speaker of the House of Representatives and the President of the Senate and the certification by the secretaries of both Houses of Congress that the bill was passed on a certain date are conclusive on the bill’s due enactment. Assuming there is a conflict between the enrolled bill and the legislative journal, to the effect that the enrolled bill signed by the Senate President and eventually approved by the President turned out to be different from what the Senate actually passed as reflected in the legislative journal.

May the Senate President disregard the enrolled bill doctrine and consider his signature as invalid and of no effect? (2.5%)

May the President thereafter withdraw his signature? Explain your answer. (2.5%)

B.

Sec. 26(2), Art. VI of the Constitution provide that no bill passed by either House of Congress shall become a law unless it has passed three readings on separate days and printed copies of it in its final form have been distributed to the Members of the House three days before its passage.

Is there an exception to the provision? Explain your answer. (3%)

XI.

Sec. 17, Art. VI of the Constitution establishes an Electoral Tribunal for each of the Houses of Congress, and makes each Electoral Tribunal “the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.” On the other hand, Sec. 2(1).C Art. IX of the Constitution grants to the COMELEC the power to enforce and administer all laws and regulations “relative to the conduct of an election, plebiscite, initiative, referendum, and recall.”

Considering that there is no concurrence of jurisdiction between the Electoral Tribunals and the COMELEC, state when the jurisdiction of the Electoral Tribunals begins, and the COMELEC’s jurisdiction ends. Explain your answer. (4%)

XII.

The Congress establishes by law Philippine Funds, Inc., a private corporation, to receive foreign donations coming from abroad during national and local calamities and disasters, and to enable the unhampered and speedy disbursements of the donations through the mere action of its Board of Directors. Thereby, delays in the release of the donated funds occasioned by the stringent rules of procurement would be avoided. Also, the releases would not come under the jurisdiction of the Commission on Audit (COA).

A. Is the law establishing Philippine Funds, Inc., constitutional? Explain your answer. (3%)

B. Can the Congress pass the law that would exempt foreign grants from the jurisdiction of the COA. Explain your answer. (3%)

XIII.

Command responsibility pertains to the responsibility of commanders for crimes committed by subordinate members of the  armed forces or other persons subject to their control in international wars or domestic conflicts. The doctrine has now found application in civil actions for human rights abuses, and in proceedings seeking the privilege of the writ of amparo.What are the elements to be established in order to hold the superior or commander liable under the doctrine of command responsibility? (4%)

A. May the doctrine of command responsibility apply to the President for the abuses of the armed forces (AFP and PNP) given his unique role as the commander-in-chief of all the armed forces? Explain your answer. (4%)

XIV.

To fulfill a campaign promise to the poor folk in a far-flung area in Mindanao, the President requested his friend, Pastor Roy, to devote his ministry to them. The President would pay Pastor Roy a monthly stipend of P50,000 from his discretionary fund, and would also erect a modest house of worship in the locality in an area of the latter’s choice.

Does the President thereby violate any provisions of the Constitution? Explain your answer. (3%)

XV.

A. According the Sec. 3, Art. VIII of the Constitution, the Judiciary shall enjoy fiscal autonomy. What does the term “fiscal autonomy” signify? Explain your answer. (3%)

B. May a complaint for disbarment against the Ombudsman prosper during her incumbency? Explain your answer. (3%)

C. Sec. 3, Art. XI of the Constitution states that “[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year.” What constitutes initiation of impeachment proceedings under the provision? (3%)

*** END OF EXAMINATION***

 

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[Chief Justice Maria Lourdes Sereno’s commencement address before the Ateneo de Manila University, May 26, 2017.]

Thirty seven years ago, dear Loyolans, I stood in your place, about to take a place of honor and privilege as a graduate of Ateneo.

Three years later, Ninoy Aquino would be assassinated; by 1986, the dictator Marcos would flee the country. But on my graduation day in 1980, it was difficult to be certain of a future outside of martial law. I was at once optimistic and fearful. Optimistic about my career prospects as any Atenean would be, but fearful lest the long nights of martial law overshadowing our country never end.

I had actually prepared to talk with you in a more lighthearted and general manner on themes of justice, democracy and what it means to be an Atenean, but the declaration of Martial Law and the suspension of the writ of habeas corpus in Mindanao this Tuesday impressed upon me a more urgent and specific subject matter. So yesterday I discarded my prepared speech and resolved that today I would try to address the questions that must be in your minds and those of your parents. I thought it behooved me to give you a lens through which you could view present events and make decisions regarding your participation in the making of Philippine history.

Allow me to guess at the questions in your mind: Will this Martial Law declaration bring back the human rights violations and the depredations that characterized the martial law regime of 1972? Will investors leave the country? Will young people still have enough good jobs? Will our labor force be squeezed into more painful contortions of diaspora? Will our voices still be heard? The answer, my dear graduates, is “It depends.”

Our hopes for the future depend on whether the Executive Department, led by the President, the leadership and the entirety of the Armed Forces of the Philippines and the Philippine National Police, Department of Justice officials and prosecutors, the Chief Public Attorney and her public defenders will take sufficient care to abide by the Constitution and the laws even while Martial Law is in place. It depends on whether there will be abuse of the awesome powers that Martial Law gives the Armed Forces and the police.

It also depends on whether Congress and the Supreme Court will exercise their review powers appropriately over the declaration of Martial Law and the suspension of the privilege of writ of habeas corpus; and whether both houses of Congress and all courts will continue to function normally and well.

It also depends on whether certain independent constitutional bodies, namely the Ombudsman, the Commission on Human Rights, and the Commission on Audit will persist in discharging their proper functions.

Finally, it depends on whether you, my fellow Ateneans, together with the rest of the Filipino population, do your part to ensure that this declaration of Martial Law does not imperil your future.

Allow me to clarify that the powers to declare Martial Law and suspend the privilege of the writ of habeas corpus are expressly granted President Duterte under the Constitution. When properly implemented, this should not by itself unduly burden our country. This power was granted to allow the President to resolve the situation “in case of invasion or rebellion, when the public safety requires it.” There may be questions before the Supreme Court regarding whether this can be extended to encompass situations akin to invasion or rebellion, and what circumstances constitute rebellion, but we will not venture into that for now. Suffice it to say that the Martial Law power is an immense power that can be used for good, to solve defined emergencies; but all earthly powers when abused can result in oppression.

If the Martial Law power is expressly granted the President, why are there fears expressed in some quarters regarding the declaration of President Duterte?

You must understand the history of a previous declaration of martial law, which occurred over forty years ago at the height of President Marcos’ power. Former Chief Justice Claudio Teehankee in Dizon v Eduardo described September 22, 1972 – the night Marcos announced Martial Law – as a dark evening when military authorities moved throughout the city to arrest and detain journalists and members of the opposition, upon orders of the President-turned dictator. Over the next two decades, enemies of the Marcos regime “disappeared,” were tortured or summarily executed.

The fears stoked by the terms “Martial Law” and “suspension of the writ of habeas corpus,” are therefore not surprising. But we must remember that these apprehensions were created by former President Marcos and the martial law that followed his 1972 declaration. If President Duterte and the aforementioned government authorities avoid the gross historical sins of Mister Marcos and his agents, then our country might reap the benefits of the legitimate use of the provisions on Martial Law in the 1987 Constitution.

You see, the 1987 Constitution in clear and unmistakable language rejects and absolutely prohibits the particular kind of martial law that began in our country in September of 1972. What do I mean by this? Allow me to refer to the decisions of our Supreme Court and other tribunals regarding the essential characteristics of the martial law dominating our country following its 1972 proclamation.

First, that period was characterized by widespread human rights violations in the form of murders, rape and other forms of torture, forced disappearances, arbitrary arrests and illegal detention, and forced isolation or hamletting of villages.

In the case of Mijares v. Ranada, the Supreme Court described the deep damage dealt to our institutions and the very fabric of our society as follows:

“Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confines of the restored rule of law.”

Perhaps the most specific recount of the human rights atrocities during the Martial Law period beginning in 1972 can be found in a U.S. Decision, specifically that of the Hawaiian District Court in the case of In Re: Estate Of Ferdinand E. Marcos Human Rights Litigation, Celsa Hilao, et. al v. Estate Of Ferdinand E. Marcos. The case was a class action brought by victims or victims’ family members against the Estate of Marcos, seeking compensation for torture, disappearance or summary execution. The court made findings of human rights violations including numerous forms of torture such as beatings while blindfolded, rape and sexual assault, electric shock, and solitary confinement. The court noted:

“All of these forms of torture were used during “tactical interrogation,” attempting to elicit information from detainees concerning opposition to the MARCOS government. The more the detainees resisted, whether purposefully or out of lack of knowledge, the more serious the torture used.”

Second, the period of martial law that began in September of 1972 was likewise characterized by its heretofore unprecedented scale of plunder.

The case of Presidential Commission on Good Government v. Peña described the rule of Marcos as a “well-entrenched plundering regime of twenty years,” with respect to  “the ill-gotten wealth which rightfully belongs to the Republic although pillaged and plundered in the name of dummy or front companies, in several known instances carried out with the bold and mercenary, if not reckless, cooperation and assistance of members of the bar as supposed nominees.” The Supreme Court in that case “noted the magnitude of the regime’s organized pillage and the ingenuity of the plunderers and pillagers with the assistance of experts and the best legal minds in the market.” The ill-gotten assets identified so far by both the Presidential Commission on Good Governance and the Solicitor General are valued at approximately 5 billion US dollars.

Third, the martial law following the proclamation of 1972 was extremely oppressive, concentrating power only in Mister Marcos and his group. At one point, the Supreme Court, quoting Chief Justice Teehankee, characterized the time as “a return to the lese majeste when the voice of the King was the voice of God so that those touched by his absolute powers could only pray that the King acted prudently and wisely.” The dictator amassed so much power as the Commander-in-Chief, that he was able to take “absolute command of the nation and… the people could only trust that he would not fail them.”

We know what happened. Marcos failed our people. Those of us who were alive at the time bore witness to the human rights atrocities and the corruption caused by such absolute power.

Fourth, the martial law period of 1972 put the Philippines in an economic tailspin that saw us go from the second most vibrant economy in Asia to its sick man. In Marcos v. Manglapus, the Supreme Court noted that excessive foreign borrowing during the Marcos regime stagnated development and became one of the root causes of widespread poverty, leaving the economy in a precarious state. In Republic v. Sandiganbayan, the Court described the economic havoc created by the authoritarian regime in this manner:

At the time that the government of former President Marcos was driven from power, the country’s debt was over twenty-six billion US dollars; and the indications were that “illegally acquired wealth” of the deposed president alone, not counting that of his relatives and cronies, was in the aggregate amount of from five to ten billion US dollars, the bulk of it being deposited and hidden abroad.”

These are only a few excerpts from some of the many decisions of the highest court of the land that memorialize for all of history the atrocities committed during the era heralded by the 1972 declaration of martial law. They may not be the most heart-rending of accounts due to the necessary haste with which I compiled them, but I encourage you to do further reading on these and similar cases. These excerpts together with unrefuted historical accounts are a testament to our country’s resolve to never again allow ourselves to return to those dark and terrible times.

Thus the 1987 Constitution clearly says:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

As we face the days following President Duterte’s declaration of martial law in Mindanao, it behooves us to ask what we can do in the present, with the time that is given to us, to ensure that the horrors of martial law that followed the 1972 declaration do not happen again.

For if being an Atenean means anything, it is that each of us — individually, and as a member of the Ateneo as an institution — bears a great deal of responsibility for the well-being of this country. And this responsibility entails leading not by possessing power for power’s sake, but by sacrificial example, by dying to ourselves and taking up our crosses daily. If power is to be granted to an Atenean, then such power must be exercised the way Christ exercised his leadership, by being a servant first, to the Father, and to His brothers and sisters.

These are times when everything that can be shaken is being shaken, when institutions are being challenged to their very foundations, and basic ideas of decency and human dignity are being violated with great impunity. These are times more than any other that will sorely test the Atenean’s capacity to distinguish right from wrong and the Atenean’s ability to act in service of what is right, and true, and good.

Do not be discouraged, for you are well-equipped for the challenges of these times. You only need to look within and around you and reflect on the Atenean principles inculcated in you over the years –

Magis, or the constant pursuit of improvement and excellence, for difficult times require extraordinary people.

AMDG! For the greater glory of God — for these are times when our faith will be tested, our paths will be dark and full of shadows, and only by surrendering all our actions to God may we continue towards the light.

One Big Fight! More than a cheer used in our basketball games, One Big Fight embodies the wholehearted passion and dedication that must fuel all our actions.

But the most fundamental Atenean value today is that of being a person for others. To be an Atenean is to serve — compassionately, selflessly, with unceasing dedication. To be an Atenean is to constantly continue the work of addressing others’ needs; to think broadly, not merely in terms of impact on one’s self, but impact on one’s community and country. To be an Atenean is to deeply and completely understand that it is in service to others that our lives take on their full meaning. To be an Atenean is to forsake a life of self-centered safety for a life of service.

To be a person for others is to commit to a just and noble cause greater than oneself.

Given the present day, when the possibility of history repeating itself looms imminent, no cause requires your commitment as much as the cause of human rights, justice, and democracy, themes you have aptly chosen.

For today, people’s fundamental human rights and freedoms, the core of our democracy, face grave and blatant threats. The culture of impunity is on the rise. People are pressured to favor the easy choice over the right choice: expediency over due process; convenient labeling over fairness; the unlawful termination of human life over rehabilitation.

You need to make a stand, dear Ateneans. And to make a stand you must act. More than merely ruminating on the idea of justice, I call on each of you to confront the common injustices of our society and seek to address them. I urge you to speak out with truth even against the overwhelming tide of popular opinion and reach out to the oppressed and disenfranchised. When you face threats to the sanctity of human rights or the stability of our democracy, give your all to protect these freedoms. Give your all to protect our nation and our people.

Stand up and give One Big Fight. As I stated in my speech to the lawyers in the Integrated Bar of the Philippines National Convention last March 23, we are not fighting a person or an establishment but a culture, a pattern that pervades our society today. It is a pattern of apathy, rage, and despair: one that began when people learned to tolerate wrong, stopped hoping, and ceased caring.

I understand that the task before you is immense, but I have no doubt you are more than up to the challenge. For you have been honed over your years in the Ateneo to fulfill your calling in extraordinary ways.

That is why I do not feel only hope when I look at you – my heart is filled with grateful gladness. Throughout the countless calamities that have struck the country, Ateneans have always been among the first to respond and help. Unstintingly and without hesitation, Ateneans have reached out, time and time again, to complete strangers — giving of themselves to people they may never even meet.

Last year, when the history of our nation was subjected to attempts at revision, you were among the first to speak up. I saw young men and women from the Ateneo spill out into the streets, furious and indignant, speaking up against this distortion of our history and reaching out to show fellow Filipinos that they were not alone. As a fellow Atenean, I understood that this passionate outpouring of righteous anger sprang from a deep understanding of what it means to be a person for others.

Know that being a person for others and standing for human rights, justice, and democracy are one and the same. To stand for human rights is to value others’ freedoms as much as you value your own. To stand for justice is to oppose any attempts to value one group’s freedoms more than those of others. To stand for democracy is to love your country and your people so fully that you will act to ensure democratic processes are followed despite great personal cost. To stand for all of these is to sacrifice yourself so that others may know freedom, safety, and all the fullness of life.

Know that you are not alone. You will not be alone. Have the courage to stand.

My prayers are with you, young Ateneans. As you face this crossroad and move on to a new chapter of your lives, may the Lord bless and keep you; may He make His face shine on you and be gracious to you; may the Lord turn His face towards you and give you peace.

Mabuhay kayo, class of 2017! Make us proud!

http://newsinfo.inquirer.net/899852/full-text-cj-sereno-these-are-times-when-everything-that-can-be-shaken-is-being-shaken

 

 

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[Chief Justice Maria Lourdes Sereno’s commencement address before the Ateneo de Manila University, May 26, 2017.]

Thirty seven years ago, dear Loyolans, I stood in your place, about to take a place of honor and privilege as a graduate of Ateneo.

Three years later, Ninoy Aquino would be assassinated; by 1986, the dictator Marcos would flee the country. But on my graduation day in 1980, it was difficult to be certain of a future outside of martial law. I was at once optimistic and fearful. Optimistic about my career prospects as any Atenean would be, but fearful lest the long nights of martial law overshadowing our country never end.

I had actually prepared to talk with you in a more lighthearted and general manner on themes of justice, democracy and what it means to be an Atenean, but the declaration of Martial Law and the suspension of the writ of habeas corpus in Mindanao this Tuesday impressed upon me a more urgent and specific subject matter. So yesterday I discarded my prepared speech and resolved that today I would try to address the questions that must be in your minds and those of your parents. I thought it behooved me to give you a lens through which you could view present events and make decisions regarding your participation in the making of Philippine history.

Allow me to guess at the questions in your mind: Will this Martial Law declaration bring back the human rights violations and the depredations that characterized the martial law regime of 1972? Will investors leave the country? Will young people still have enough good jobs? Will our labor force be squeezed into more painful contortions of diaspora? Will our voices still be heard? The answer, my dear graduates, is “It depends.”

Our hopes for the future depend on whether the Executive Department, led by the President, the leadership and the entirety of the Armed Forces of the Philippines and the Philippine National Police, Department of Justice officials and prosecutors, the Chief Public Attorney and her public defenders will take sufficient care to abide by the Constitution and the laws even while Martial Law is in place. It depends on whether there will be abuse of the awesome powers that Martial Law gives the Armed Forces and the police.

It also depends on whether Congress and the Supreme Court will exercise their review powers appropriately over the declaration of Martial Law and the suspension of the privilege of writ of habeas corpus; and whether both houses of Congress and all courts will continue to function normally and well.

It also depends on whether certain independent constitutional bodies, namely the Ombudsman, the Commission on Human Rights, and the Commission on Audit will persist in discharging their proper functions.

Finally, it depends on whether you, my fellow Ateneans, together with the rest of the Filipino population, do your part to ensure that this declaration of Martial Law does not imperil your future.

Allow me to clarify that the powers to declare Martial Law and suspend the privilege of the writ of habeas corpus are expressly granted President Duterte under the Constitution. When properly implemented, this should not by itself unduly burden our country. This power was granted to allow the President to resolve the situation “in case of invasion or rebellion, when the public safety requires it.” There may be questions before the Supreme Court regarding whether this can be extended to encompass situations akin to invasion or rebellion, and what circumstances constitute rebellion, but we will not venture into that for now. Suffice it to say that the Martial Law power is an immense power that can be used for good, to solve defined emergencies; but all earthly powers when abused can result in oppression.

If the Martial Law power is expressly granted the President, why are there fears expressed in some quarters regarding the declaration of President Duterte?

You must understand the history of a previous declaration of martial law, which occurred over forty years ago at the height of President Marcos’ power. Former Chief Justice Claudio Teehankee in Dizon v Eduardo described September 22, 1972 – the night Marcos announced Martial Law – as a dark evening when military authorities moved throughout the city to arrest and detain journalists and members of the opposition, upon orders of the President-turned dictator. Over the next two decades, enemies of the Marcos regime “disappeared,” were tortured or summarily executed.

The fears stoked by the terms “Martial Law” and “suspension of the writ of habeas corpus,” are therefore not surprising. But we must remember that these apprehensions were created by former President Marcos and the martial law that followed his 1972 declaration. If President Duterte and the aforementioned government authorities avoid the gross historical sins of Mister Marcos and his agents, then our country might reap the benefits of the legitimate use of the provisions on Martial Law in the 1987 Constitution.

You see, the 1987 Constitution in clear and unmistakable language rejects and absolutely prohibits the particular kind of martial law that began in our country in September of 1972. What do I mean by this? Allow me to refer to the decisions of our Supreme Court and other tribunals regarding the essential characteristics of the martial law dominating our country following its 1972 proclamation.

First, that period was characterized by widespread human rights violations in the form of murders, rape and other forms of torture, forced disappearances, arbitrary arrests and illegal detention, and forced isolation or hamletting of villages.

In the case of Mijares v. Ranada, the Supreme Court described the deep damage dealt to our institutions and the very fabric of our society as follows:

“Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its bitter crop. While the restoration of freedom and the fundamental structures and processes of democracy have been much lauded, according to a significant number, the changes, however, have not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial law period. The cries of justice for the tortured, the murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule. The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous past has to involve the award of reparations due within the confines of the restored rule of law.”

Perhaps the most specific recount of the human rights atrocities during the Martial Law period beginning in 1972 can be found in a U.S. Decision, specifically that of the Hawaiian District Court in the case of In Re: Estate Of Ferdinand E. Marcos Human Rights Litigation, Celsa Hilao, et. al v. Estate Of Ferdinand E. Marcos. The case was a class action brought by victims or victims’ family members against the Estate of Marcos, seeking compensation for torture, disappearance or summary execution. The court made findings of human rights violations including numerous forms of torture such as beatings while blindfolded, rape and sexual assault, electric shock, and solitary confinement. The court noted:

“All of these forms of torture were used during “tactical interrogation,” attempting to elicit information from detainees concerning opposition to the MARCOS government. The more the detainees resisted, whether purposefully or out of lack of knowledge, the more serious the torture used.”

Second, the period of martial law that began in September of 1972 was likewise characterized by its heretofore unprecedented scale of plunder.

The case of Presidential Commission on Good Government v. Peña described the rule of Marcos as a “well-entrenched plundering regime of twenty years,” with respect to  “the ill-gotten wealth which rightfully belongs to the Republic although pillaged and plundered in the name of dummy or front companies, in several known instances carried out with the bold and mercenary, if not reckless, cooperation and assistance of members of the bar as supposed nominees.” The Supreme Court in that case “noted the magnitude of the regime’s organized pillage and the ingenuity of the plunderers and pillagers with the assistance of experts and the best legal minds in the market.” The ill-gotten assets identified so far by both the Presidential Commission on Good Governance and the Solicitor General are valued at approximately 5 billion US dollars.

Third, the martial law following the proclamation of 1972 was extremely oppressive, concentrating power only in Mister Marcos and his group. At one point, the Supreme Court, quoting Chief Justice Teehankee, characterized the time as “a return to the lese majeste when the voice of the King was the voice of God so that those touched by his absolute powers could only pray that the King acted prudently and wisely.” The dictator amassed so much power as the Commander-in-Chief, that he was able to take “absolute command of the nation and… the people could only trust that he would not fail them.”

We know what happened. Marcos failed our people. Those of us who were alive at the time bore witness to the human rights atrocities and the corruption caused by such absolute power.

Fourth, the martial law period of 1972 put the Philippines in an economic tailspin that saw us go from the second most vibrant economy in Asia to its sick man. In Marcos v. Manglapus, the Supreme Court noted that excessive foreign borrowing during the Marcos regime stagnated development and became one of the root causes of widespread poverty, leaving the economy in a precarious state. In Republic v. Sandiganbayan, the Court described the economic havoc created by the authoritarian regime in this manner:

At the time that the government of former President Marcos was driven from power, the country’s debt was over twenty-six billion US dollars; and the indications were that “illegally acquired wealth” of the deposed president alone, not counting that of his relatives and cronies, was in the aggregate amount of from five to ten billion US dollars, the bulk of it being deposited and hidden abroad.”

These are only a few excerpts from some of the many decisions of the highest court of the land that memorialize for all of history the atrocities committed during the era heralded by the 1972 declaration of martial law. They may not be the most heart-rending of accounts due to the necessary haste with which I compiled them, but I encourage you to do further reading on these and similar cases. These excerpts together with unrefuted historical accounts are a testament to our country’s resolve to never again allow ourselves to return to those dark and terrible times.

Thus the 1987 Constitution clearly says:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

As we face the days following President Duterte’s declaration of martial law in Mindanao, it behooves us to ask what we can do in the present, with the time that is given to us, to ensure that the horrors of martial law that followed the 1972 declaration do not happen again.

For if being an Atenean means anything, it is that each of us — individually, and as a member of the Ateneo as an institution — bears a great deal of responsibility for the well-being of this country. And this responsibility entails leading not by possessing power for power’s sake, but by sacrificial example, by dying to ourselves and taking up our crosses daily. If power is to be granted to an Atenean, then such power must be exercised the way Christ exercised his leadership, by being a servant first, to the Father, and to His brothers and sisters.

These are times when everything that can be shaken is being shaken, when institutions are being challenged to their very foundations, and basic ideas of decency and human dignity are being violated with great impunity. These are times more than any other that will sorely test the Atenean’s capacity to distinguish right from wrong and the Atenean’s ability to act in service of what is right, and true, and good.

Do not be discouraged, for you are well-equipped for the challenges of these times. You only need to look within and around you and reflect on the Atenean principles inculcated in you over the years –

Magis, or the constant pursuit of improvement and excellence, for difficult times require extraordinary people.

AMDG! For the greater glory of God — for these are times when our faith will be tested, our paths will be dark and full of shadows, and only by surrendering all our actions to God may we continue towards the light.

One Big Fight! More than a cheer used in our basketball games, One Big Fight embodies the wholehearted passion and dedication that must fuel all our actions.

But the most fundamental Atenean value today is that of being a person for others. To be an Atenean is to serve — compassionately, selflessly, with unceasing dedication. To be an Atenean is to constantly continue the work of addressing others’ needs; to think broadly, not merely in terms of impact on one’s self, but impact on one’s community and country. To be an Atenean is to deeply and completely understand that it is in service to others that our lives take on their full meaning. To be an Atenean is to forsake a life of self-centered safety for a life of service.

To be a person for others is to commit to a just and noble cause greater than oneself.

Given the present day, when the possibility of history repeating itself looms imminent, no cause requires your commitment as much as the cause of human rights, justice, and democracy, themes you have aptly chosen.

For today, people’s fundamental human rights and freedoms, the core of our democracy, face grave and blatant threats. The culture of impunity is on the rise. People are pressured to favor the easy choice over the right choice: expediency over due process; convenient labeling over fairness; the unlawful termination of human life over rehabilitation.

You need to make a stand, dear Ateneans. And to make a stand you must act. More than merely ruminating on the idea of justice, I call on each of you to confront the common injustices of our society and seek to address them. I urge you to speak out with truth even against the overwhelming tide of popular opinion and reach out to the oppressed and disenfranchised. When you face threats to the sanctity of human rights or the stability of our democracy, give your all to protect these freedoms. Give your all to protect our nation and our people.

Stand up and give One Big Fight. As I stated in my speech to the lawyers in the Integrated Bar of the Philippines National Convention last March 23, we are not fighting a person or an establishment but a culture, a pattern that pervades our society today. It is a pattern of apathy, rage, and despair: one that began when people learned to tolerate wrong, stopped hoping, and ceased caring.

I understand that the task before you is immense, but I have no doubt you are more than up to the challenge. For you have been honed over your years in the Ateneo to fulfill your calling in extraordinary ways.

That is why I do not feel only hope when I look at you – my heart is filled with grateful gladness. Throughout the countless calamities that have struck the country, Ateneans have always been among the first to respond and help. Unstintingly and without hesitation, Ateneans have reached out, time and time again, to complete strangers — giving of themselves to people they may never even meet.

Last year, when the history of our nation was subjected to attempts at revision, you were among the first to speak up. I saw young men and women from the Ateneo spill out into the streets, furious and indignant, speaking up against this distortion of our history and reaching out to show fellow Filipinos that they were not alone. As a fellow Atenean, I understood that this passionate outpouring of righteous anger sprang from a deep understanding of what it means to be a person for others.

Know that being a person for others and standing for human rights, justice, and democracy are one and the same. To stand for human rights is to value others’ freedoms as much as you value your own. To stand for justice is to oppose any attempts to value one group’s freedoms more than those of others. To stand for democracy is to love your country and your people so fully that you will act to ensure democratic processes are followed despite great personal cost. To stand for all of these is to sacrifice yourself so that others may know freedom, safety, and all the fullness of life.

Know that you are not alone. You will not be alone. Have the courage to stand.

My prayers are with you, young Ateneans. As you face this crossroad and move on to a new chapter of your lives, may the Lord bless and keep you; may He make His face shine on you and be gracious to you; may the Lord turn His face towards you and give you peace.

Mabuhay kayo, class of 2017! Make us proud!

http://newsinfo.inquirer.net/899852/full-text-cj-sereno-these-are-times-when-everything-that-can-be-shaken-is-being-shaken