𝗕𝗔𝗥 𝗘𝗫𝗔𝗠 𝗤𝗨𝗘𝗦𝗧𝗜𝗢𝗡𝗦
Describe the following maritime regimes under UNCLOS (2015 Bar
Exam) :
(a) 𝗧𝗲𝗿𝗿𝗶𝘁𝗼𝗿𝗶𝗮𝗹 𝘀𝗲𝗮
According to UNCLOS, the territorial sea can be defined as the area
which extends up to 12 nautical miles from the baseline of a country’s
coastal state. The territorial sea is under the jurisdiction of that particular
country; however, foreign ships (both merchant and military) ships are
allowed passage through it.
(b) 𝗖𝗼𝗻𝘁𝗶𝗴𝘂𝗼𝘂𝘀 𝘇𝗼𝗻𝗲
Extends up to 12 nautical miles from the territorial sea. Although
technically, not part of the territory of the State, the coastal State may
exercise limited jurisdiction over the contiguous zone, to prevent
infringement of customs, fiscal, immigration or sanitary laws.
(c) 𝗘𝘅𝗰𝗹𝘂𝘀𝗶𝘃𝗲 𝗘𝗰𝗼𝗻𝗼𝗺𝗶𝗰 𝗭𝗼𝗻𝗲
Extends up to 200 nautical miles from the low water mark or the
baselines, as the case may be. Technically, the area beyond the
territorial sea is not part of the territory of the State, but the coastal State
may exercise sovereign rights over economic resources of the sea,
seabed, subsoil, although other States shall have freedom of navigation
and over-flight, to lay submarine cables and pipelines, and other lawful
uses. States with overlapping exclusive economic zones are enjoined to
enter into the appropriate treaty for the joint exploitation and utilization of
the resources in the area.
(d) 𝗖𝗼𝗻𝘁𝗶𝗻𝗲𝗻𝘁𝗮𝗹 𝘀𝗵𝗲𝗹𝗳
it comprises the sea-bed and the subsoil of the submarine areas that
extend beyond its territorial sea throughout the natural prolongation of its
land territory to the outer edge of the continental margin, or to a distance
of 200 miles from the baselines from which the territorial sea is measured
where the outer edge of the continental margin does not extend up to
that distance.
TAXATION LAW
1. REQUISITES OF A VALID TAX (1) for a public purpose (2) rule of
taxation should be uniform (3) the person or property taxed is within the
jurisdiction of the taxing authority (4) assessment and collection is in
consonance with the due process clause (5) The tax must not infringe on
the inherent and constitutional limitations of the power of taxation.
2. Jurisdiction over subject and objects:
a) Tax laws cannot operate beyond a State’s territorial limits.
b) The government cannot tax a particular object of taxation which is not
within its territorial jurisdiction.
c) Property outside ones jurisdiction does not receive any protection of
the State.
d) If a law is passed by Congress, it must always see to it that the object
or subject of taxation is within the territorial jurisdiction of the taxing
authority
What is the rule on delegation of powers?
The rule on delegation of powers is potestas delegata non delegari
potest – what has been delegated cannot be delegated
Why is there a prohibition against further delegation of powers?
The prohibition against further delegation is based upon the ethical
principle that the delegated power constitutes not only a right but a duty
to be performed by the delegate through the instrumentality of his own
judgment and not through the intervening mind of another.
In Belgica vs. Ochoa, the validity of Congress’ pork barrel was tackled.
The Priority Development Assistance Fund (PDAF) was integrated in the
General Appropriations Act (GAA). It provided P200 M for each Senator
and P70 M for each Congressman, to be used under their own discretion
as to the projects to be implemented, who will implement, and who
should be the beneficiaries.
The SC ruled that the pork barrel was unconstitutional. One reason was
that the lump sum nature of PDAF violated the non-delegability of
legislative power, the power of appropriation was delegated to Congress.
How does the government perform its prime duty to serve and protect the
people?
In order to perform its prime duty to serve the people. Article III, Section
4 provides that the Government may call upon the citizens to render
specific services
What is an enrolled bill?
An enrolled bill is the official copy of approved legislation and bears the
certification of the presiding officers of the legislative body. The enrolled
bill is conclusive upon the courts as regards the tenor of the measure
passed by Congress and approved by the President. (over statements so
entered in the Journal) [Except where the matter is required to be
entered in the journal, e.g. yeas and nays on the final reading, or on any
question at request (Phil Pol Law, by I. Cruz 2002, p. 137)] If there has
been any mistake in the printing of a bill xxx the remedy is by
amendment or curative legislation, not by judicial decree. (Casco
Philippine Chemical Co. vs. Gimenez, L-17931, 7 SCRA 347, February
23, 1963)
Explain the enrolled bill doctrine
In the case of acts of the Legislature, when there is in existence a copy
signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such acts and of the due enactment
thereof.
This theory is based mainly on “the respect due to co-equal and
independent departments” which requires the judicial department “to
accept as having passed Congress, all bills authenticated in the manner
stated.” Thus, it has also been stated in other cases that if the attestation
is absent and the same is not required for the validity of a statute, the
courts may resort to the journals and other records of Congress for proof
of its due enactment. (Astorga vs. Villegas, G.R. No. L-23475, April 30,
1974)
Must all members of Congress under the party-list system be
marginalized and underrepresented?
No.
In Ang Baging Bayani vs, COMELEC, it has been held that only those
Filipinos who are marginalized and underrepresented may become
members of Congress under the party-list system.
However, the requirement of being marginalized and underrepresented
was clarified to be limited to sectors that are, by their nature,
economically “marginalized and underrepresented.” Labor peasants,
fisherfolk, urban poor, indigenous cultural communities, handicapped,
veterans, overseas workers and other similar sectors.” (Atong Paglaum,
Inc. vs. COMELEC.)
Does the constitution ban all types of contraceptives?
No. The constitution only bans abortifacients and abortion. Any other
contraceptives is allowed.
In Imbong vs. Ochoa, petitioners were assailing the constitutionality of
the Responsible Parenthood and Reproductive Health Act of 2021 (RA
10354)
The Supreme Court declared certain sections of the law as
unconstitutional. It explained that the section which added the qualifier
“primarily” in defining abortifacients and contraceptives, redefined
abortifacients as something that only “primarily” induces abortion in
effect, the word “primarily” would allow contraceptives which are actually
abortifacient, although only in a secondary manner.
Can conduct be considered as speech?
Yes. In Diocese of Bacolod vs. COMELEC, petitioners posted a tarpaulin
which classified the members of Congress that voted in favor of the
Reproductive Health Law as “Team Patay”. A notice from COMELEC
ordered the removal thereof, stating that the tarpaulin was an election
propaganda.
The Supreme Court declared that the act of the COMELEC was
unconstitutional. In explaining that the tarpaulins were in the exercise of
the freedom of speech, it was stated that speech is not limited to vocal
communication. Conduct is treated as a form of speech sometimes
referred to as “symbolic speech, such that “when speech and non-
speech” elements are combined in the same course of conduct, the
“communicative element” of the conduct may be sufficient to bring into
play the right to freedom of expression. (J. Leonen)
What is an incompatible office?
An incompatible office is one which may not be held by the legislator
during his tenure in Congress. (Section 13, Article VI).
The Supreme Court pronounced that psychological incapacity is not a
medical but a legal concept. It refers to a personal condition that
prevents a spouse to comply with fundamental marital obligations only in
relation to a specific partner that may exist at the time of the marriage but
may have revealed through behavior subsequent to the ceremony. It
need not be a mental or personality disorder. It need not be a permanent
and incurable condition, Therefore, the testimony of psychologist or
psychiatrist is not mandatory in all cases. The totality of the evidence
must show clear and convincing evidence to cause the declaration of
nullity of marriage. (Tan-Andal vs. Andal, G.R. No. 196359, May 12,
2021)
1. What is the Doctrine of State immunity?
2. Does State immunity stem from the Constitution?
3. What is the basis of State immunity?
4. What is the sociological propensity of the doctrine of state immunity?
5. When are acts of a public officer not imputable to the State?
6. What is the extent of the immunity of the President?
7. What are the instances when the State is sued?
8. What is the test to determine if the suit is against the State?
9. Is State immunity absolute?
10. Enumerate exceptions to the rule that actions against the Republic
are "suits against the State.”
11. What are the forms of consent?
12. Is a recommendation to indemnify the victims by a fact-finding
committee created to investigate the particular incident, tantamount to
consent to be sued?
13. What is the general law providing for the standing consent of the
State to be sued?
14. Does Act No. 8030 cover delicts and quasi-delicts?
15. Explain the phrase "which could serve as a basis of civil actions
against private parties" in Act No. 8030.
16. How may a State give its consent to be sued impliedly?
17. Is implied consent to be sued the same as waiver of State immunity?
18. When is there a waiver of State immunity?
19. When is a filing of a complaint not a waiver of State immunity?
20. How is a waiver of State immunity interpreted?
21. Can the President waive State immunity?
22. Is failure to raise State immunity as a defense an implied waiver of
immunity?
23. Does State immunity apply with foreign States?
24. Why do foreign States enjoy immunity?
25. Under International law, what are the two theories on State
immunity?
26. Does State immunity extend to officers of the foreign State?
27. Who determines whether that a state or instrumentality is entitled to
sovereign or diplomatic immunity?
28. Is the determination of State or diplomatic immunity by the executive
branch conclusive?
29. Distinguish an incorporated agency from an unincorporated agency.
30. What is the test of suability for government agencies?
31. Does an unincorporated agency primarily performing governmental
functions lose its immunity by performing incidental proprietary / business
functions?
32. What are the two class of corporations? Explain.
33. Are all private corporations subject to suit?
34. If a state owns stock in a private corporation, will it be immune from
suit?
35. Are GOCCs with special /original charters subject to suit?
36. Are LGUs immune from suit?
37. What is the charter of the LGUs?
38. Are LGUs unincorporated or incorporated?
39. When the State gives its consent to be sued does it mean that it
consents to the execution of the judgment?
40. What is necessary before private parties can execute a judgement
against the State?
41. Can public funds be garnished by the court?
42. Why is it that public funds cannot be garnished?
43. Can funds of incorporated agencies be garnished?
44. Can funds of unincorporated agencies be garnished?
45. Can a judgment creditor attach the salaries of an employee an
unincorporated agency?
46. Can funds of GOCCs without original / special charter (a.k.a. GOCCS
created under general law / Corporation Code) be garnished?
47. Are the funds of LGUs subject to garnishment?
48. When are funds public in character?
49. What if the LGU fund was already earmarked, may it be subject to
garnishment?
50. What is required before funds of the LGU may be subject to
garnishment?
51. In case a LGU refuses to issue an ordinance appropriating funds for
the judgment against it, what is the remedy?
52. Is the remedy of mandamus available against the National
Government.
KINDS OF INITIATIVE
[1] Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
[2] Initiative on statutes which refers to a petition proposing to enact a
national legislation; and
[3] Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution
or ordinance.
(Section 3[a.1, a.2, a.3], Republic Act No. 6735)
According to the Supreme Court through Justice Leonen in Jadewell
Parking Systems Corp. vs. Lidua, Sr., G.R. No. 169588, October 7,
2013, the filing of complaint involving violation of ordinance for
preliminary investigation will not interrupt the running of 2-month
prescription. The provision in the Rules on Criminal Procedure regarding
the interruption of prescription by institution of criminal action is not
applicable to violation of ordinance because case involving this crime is
covered by the Rules on Summary Procedure.
It is however submitted that the Jadewell principle is only applicable to
crime punishable by an ordinance and not to a felony (e.g. slight physical
injuries or unjust vexation) under the Revised Penal Code, which is
covered by the Rules on Summary Procedure.
The prescription of offense covered by an ordinance is governed by Act
No. 3326, which provides that “the prescription shall be interrupted when
the proceedings are instituted against the guilty person.” According to
Jadewell case, the word “proceedings” in Act No. 3326 pertains to
judicial proceeding. In sum, only the institution of judicial proceeding for
violation of ordinance or the filling of information in court interrupts the
running of prescription.
On the other hand, prescription of felony is governed by Article 91 of the
Revised Penal Code, which provides “the period of prescription shall be
interrupted by the filing of the complaint or information.” According to the
case of Francisco vs. CA, G.R. No. L-45674, May 30, 1983, the filling of
complaint for preliminary investigation if the fiscal’s office interrupts the
running of prescription of simple slander because Article 91 does not
distinguish whether the complaint is filed in the Office of the Prosecutor
for preliminary investigation or in court for action on the merits. It should
be noted that simple slander is covered by the Rules on Summary
Procedure.
In People vs. Bautista, G.R. NO. 168641, April 27, 2007, the Supreme
Court applied the Francisco principle to slight physical injuries, which is
also covered by the Rules on Summary Procedure.
The Supreme Court in Jadewell case is not sitting En Banc, and thus, it
cannot abandon the principle in Francisco case. Under Section 5 of
Article VIII, of the Constitution, no doctrine or principle of law laid down
by the court in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc. Moreover,
Jadewell case is interpreting Act 3326 and not Article 91 of the Revised
Penal Code, which is the governing law on prescription of felony.
Another point to consider is that the interpretation of the Supreme Court
in several cases as to the word “proceedings” in Act No. 3326 in
connection with prescription of offense punishable under special law is
different to that in the Jadewell case. According to the case of SEC vs.
Interport Resources Corporation, G.R. No. 135808, October 6, 2008, the
term “proceedings” in the said law is either executive or judicial. In sum,
the institution of executive proceedings or the filing of complaint for
preliminary investigation interrupts the running of prescription of crime
under special law.
In People vs. Pangilinan, G.R. No. 152662, June 13, 2012,
Panaguiton vs. Department of Justice, G.R. No. 167571, November 25,
2008, Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65,
September 11, 2013, and People vs. Romualdez and Sandiganbayan,
G.R. No. 166510, April 29, 2009 reaffirmed the Interport Resources
case.
It is worthy to note that in Pangilinan case, and Panaguiton case, the
crime involved is violation of BP Blg. 22. This crime is covered by the
Rules on Summary Procedure, and yet, the Supreme Court ruled that the
filing of complaint in the fiscal office interrupts the running of prescription.
Again, the Jadewell case cannot abandon the principle in Pangilinan
case and Panaguiton case since the Supreme Court is not sitting En
Banc. In fact, in the case of People vs. Lee, G.R. No. 234618,
September 16, 2019, the Supreme Court said that Jadewell did not
abandon the doctrine in Pangilinan. Jadewell presents a different factual
milieu as the issue involved therein was the prescriptive period for
violation of a city ordinance, unlike here as well as in the Pangilinan and
other above-mentioned related cases, where the issue refers to
prescription of actions pertaining to violation of a special law.
The Jadewell case is a controversial case. It made an interpretation of
Act No. 3326 different from that in Interport Resources case and other
cases simply because an ordinance is covered by the rules on Summary
Procedure. The Jadewell case reaffirmed the Zaldivia principle, which
provides that the filing of complaint in the fiscal office interrupts the
running of prescription while Interport Resources case and other cases
abandoned that principle. At any rate, the Supreme Court in the Jadewell
case has already spoken that the filing of complaint for preliminary
investigation will not interrupt the running of prescription of violation of
ordinance. But such principle in the Jadewell must be confined to
violation of ordinance, and not to felonies under the Revised Penal Code
or offenses under special law such as BP Blg. 22, regardless of whether
they are covered by the Rules on Summary Procedure or not.
DEPORTATION POWER
Expulsion of aliens is a police measure, having for its object the purging
of the State of obnoxious foreigners. It is a preventive, not a penal
process, and it can not be substituted for criminal prosecution and
punishment by judicial procedure. Every government has the implied or
inherent right to deport or expel from its territory objectionable aliens,
whenever it is deemed necessary for the public good.
(Cameron Forbes v. Tiaco, G.R. No. L-6157, 30 July 1910)
Plain View Doctrine
The plain view doctrine applies when the following requisites concur:
a) The law enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which he can
view a particular area;
b) The discovery of evidence in plain view is inadvertent;
c) It is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject to
seizure;
The law enforcement officer must lawfully make an initial intrusion
or properly be in a position from which he can particularly view the
area. In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused. The object
must be open to eye and hand and its discovery inadvertent. (De
Villa vs. People, G.R. No. 224039, September 11, 2019)
Three tests of judicial scrutiny to determine the reasonableness of
classifications:
1) The Rational Basis Test – that a statute must reasonably relate
to the purpose of the law. It is said to be the least intensive of
the 3 tests developed to decide equal protection cases. It is
applied if the case does not involve a classification historically
characterized as suspect, such as race or nationality or a
fundamental right protected by the Constitution.
2) The intermediate scrutiny test – If an equal protection case
involves quasi-suspect classifications, such as sex or
illegitimacy, the intermediate scrutiny test or the middle-tier
judicial scrutiny is applied. To be a valid classification under this
test, the classification MUST SERVE IMPORTANT
GOVERNMENTAL OBJECTIVES AND MUST BE
SUBSTANTIALY RELATED TO THE ACHIEVEMENT OF
THOSE OBJECTIVES.
3) The Strict Scrutiny Test – The most intensive of these levels of
scrutiny. It is applied when the case involves a suspect
classification, such as race or nationality, or a fundamental right
protected by the Constitution. It requires that the classification
serve a compelling state interest and is necessary to achieve
such interest. (MORE Electric and Power Corporation vs. Panay
Electric Company, Inc., G.R. No. 248061, 15 September 2020)
AS APPLIED CHALLENGE
In relation to locus standi, the “as applied challenge” embodies the rule
that one can challenge the constitutionality of a statute only if he asserts
a violation of his own rights. The rule prohibits one from challenging the
constitutionality of a statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition
against third-party standing (SPARK vs. Quezon City, et al. G.R. No.
225442, August 08, 2017)
FACIAL CHALLENGE
A facial invalidation is an examination of the entire law, pinpointing its
flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence
may cause others not before the court to refrain from constitutionally
protected speech or activities.
VOID-FOR-VAGUENESS DOCTRINE
It states that a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily
gues at its meaning and differ as to its application, violates the first
essential of due process of law (Estrada vs. Sandiganbayan, G.R. No.
148560, November 19, 2001)
OVERBREADTH DOCTRINE
Under this doctrine, a proper governmental purpose, constitutionally
subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.
Put differently, an overbroad law or statute needlessly restricts even
constitutionally-protected rights. On the other hand, a law or statute
suffers from vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and
differ as to its application. (Nicolas-Lewis vs. COMELEC, G.R. No.
223705, August 14, 2019)
OPERATIVE FACT DOCTRINE
It recognizes the existence and validity of a legal provision prior to its
being declared as unconstitutional and hence, legitimizes otherwise
invalid acts done pursuant thereto because of considerations of
practicality and fairness. In this regard, certain acts done pursuant to a
legal provision which was just recently declared as unconstitutional by
the Court cannot be anymore undone because not only would it be highly
impractical to do so, but more so, unfair to those who have relied on the
said legal provision prior to the time it was struck down (Film
Development Council of the Philippines vs. Colon Heritage Realty
Corporation, et al. G.R. No. 203754, October 15, 2019)
DOCTRINE OF NECESSARY IMPLICATION
Accordingly, following the doctrine of necessary implication, this grant of
express power to formulate implementing rules and regulations must
necessarily include the power to amend, revise, alter or repeal the
same. This is to allow administrative agencies the needed flexibility in
formulating and adjusting the details and manner by which they are to
implement the provisions of a law, in order to make them more
responsive to the times. (Alyansa Para sa Bagong Pilipinas, Inc. vs.
Energy Regulatory Commission, et al., G.R. No. 227670, May 03, 2019)
UNGAB DOCTRINE
The Supreme Court held that while there can be no civil action to enforce
collection before the assessment procedures provided in the Tax Code
have been followed, there is no requirement for the precise computation
and assessment of the tax before there can be a criminal prosecution
under the Tax Code (Ungab vs. Cusi, G.R. No. L-41919-24, May 30,
1980)
It follows that, under the Ungab Doctrine, the filing of the criminal
complaint for fraudulent tax evasion would be proper even without a
previous assessment of the correct tax. (CIR, et al. vs. CA, et al. G.R.
No. 119322, June 04, 1996)
DOCTRINE OF IMPRESCRIPTIBILITY
As a rule, taxes are imprescriptible as they are the lifeblood of the
government. However, tax statutes may provide for statute of limitations
(Dimaampao, J. Tax Principles and Remedies, Fourth Edition, Rex
Printing Company)
It follows that in the absence of express statutory provision, the right of
the government to assess unpaid taxes is imprescriptible (CIR vs. Ayala
Securities Corporation, G.R. No. L-29485, 21 November 1980)
BOAC DOCTRINE
It is one which laid down the rule that for the source of income to be
considered as coming from the Philippines, it is sufficient that the income
is derived from the activity within the Philippines. In BOAC’s case, the
sale of tickets in the Philippines is the activity that produces the income.
However, under Section 28 (A)(3), the test is the origin of passengers or
cargo, respective of the place of sale and the place of payment.
(Commissioner of Internal Revenue vs. British Overseas Airways
Corporation (BOAC) 149 SCRA 397, 1987)
DOCTRINE OF MOBILIA SEQUUNTUR PERSONA
The situs of personal property wherever it was actually kept or located
was held to be at the domicile of its owner, following the age-old doctrine
of mobilia sequuntur personam.
COHAN RULE
A common law rule whereby taxpayers, when unable to produce records
of actual expenditures, may rely on reasonable estimates provided there
is some factual basis for it. Absolute certainty in such matters is usually
impossible and is not necessary; the Board should make as close an
approximation as it can, bearing heavily if it chooses upon the taxpayer
whose exactitude is of his own making (Cohan vs. Commission, 39 F. 2d
540 (2d Cir. 1930)
RULE-MAKING AUTHORITY OF SECRETARY OF FINANCE (Section
244 of TRAIN Law. The Secretary of Finance, upon recommendation of
the Commissioner, shall promulgate all needful rules and regulations for
the effective enforcement of the Tax Code. However, all issuances must
not override, but must remain consistent and in harmony with the law
they seek to apply and implement. (Ing Bank N.V. vs. Commissioner f
Internal Revenue, G.R. No. 167679, April 20, 2016)
