1981 BAR EXAMINATION

Question No. 1

How tenable is the assertion that the 1973 Constitution is not in force and effect and is not the
fundamental law of the land, but that, the 1935 Constitution was suspended by the establishment of an suthoritarian
regime by the Commander-in-Chief of the Armed Forces after the procalamation of martial law and was once
more operative with the lifting of martial law on January 17, 1981?

Explain briefly.

Answer

The assertion is untenable. In Occena v. COMELEC, G.R. 56350, April 2, 1981, the Supreme COurt
adverted to its decision in Javellana v. Executive Secretary, 50 SCRA 30 (1973), in which, after dismissing the
several petition to enjoin enforcement of the 1973 Constitution on the ground that it had not been validly ratified
it was held: “This being the vote of the majority, there is no further judicial obstacle to the ne Constitution being
considered in force and effect”. Such a statement served a useful purpose to clear the atmosphere by making it
manifest that the Constitution came into force and effect on January 17, 1973. Since then, there has been popular
acquiescence and the Supreme Court itself has invariably applied the present Constitution.

Nor is there any basis for the claim that the 1935 Constitution was suspended upon the proclamation of
martial law and, therefore, became once more effective upon the lifting of martial law on January 17, 1981. As
held in Mitra v COMELEC, G.R. No. L-56503, April 4 1981, even during the period of martial law the judiciary
performed its functions and discharged its responsibility. The court passed upon the transcendental issues arising
from the proclamation of martiallaw and in one case, Dumlao v. COMELEC, 95 SCRA 392 (1980), even nullified
a portion of a statute making the filing of charges of subversion, insurrection or rebellion before civil courts or
military tribunals prima facie evidence of such facts. There can be no justification then for the reckless assertion
that upon the proclamation of martial law and while it was in force, constitutionalism, in terms of the exercise of
the power of judicial review and respect for individual rights, no longer hel sway in the Philippines.

Question No. 2

A bill was presented to the Batasang Pambansa providing for a uniform franchise tax of 3% of the gross
earnings of electric and telephone utilities. The journal showed that the Batasang Pambansa approved a tax of 5%
of gross earnings, but the bill authenticated by the Speaker and signed by the President showed that the tax was
only 3%. The stenographic notes of the proceedings indicated that the motion increase the tax to 5% ws voted
down.

As the Bureau of Internal Revenue was collecting a tax at 5%, the franchise holders questoned the
assessment. The Speaker and the President declined to comment and issued statements that they were leaving the
matter to the Courts.

Decide the case giving reasons.

Answer

The franchise holders cannot be made to pay more than 3% of their gross earning as provided by law,
and as shown by the enrolled copy of the bill which the President signed into law. The enrolled copy of the bill
imports absolute verity and is binding on the courts. In Casco Phil. Chemical Co. v. Gimenez, 117 Phil 363 (1963),
the statute fixed a uniform margin fee of 25% on foreign exchange transactions except with respect to the
importation of urea formaldehyde. But a resolution of the Monetary Board of the Central Bank granted exemption
from the payment of the fee in case of separate importation of urea and formaldehyde. The auditor general refused
to approve the exemptions pursuant to this resolution, prompting the petitioner to raise the question to the Supreme
Court.Petitioner contended that the bill approved in Congress granted exemption to “urea and formaldehyde” as
separate elements. It argued that the intention of congress was to exempt these essential elements, rather than the
finished product. The Supreme Court that the enrolled copy of the bill, which used the term “urea formaldehyde”
was conclusive. If there was a mistake in the printing, it was pointed out, the remedy was by amendment or
curative legislation, not by judicial decree.
 It is true that in Astoraga v. Villegas, 56 SCRA 714 (1974), the journal was relied upon in determining
whether the bill which the President had signed into law was approved by Congress, and as the journal showed
that the bill did not embody did not embody the amendments of the Senate, the Court held the statute never to
have become a law. It is to be noted, however, that in that case, the President of the Senate, upon discovering that
the enrolled copy of the bill did not contain the Senate amendments, invalidated his signature and, when the
Presidnet of the Philippines was informed, he in turn withdrew his signature. There was, therefore, no enrolled
bill to consider in that case. Thus, the question in the Astoraga case is different, namely whether the bill became
a law. On the other hand, the question here is which of the two conflicting versions is correct. Necessarily, the
one certified by the presiding officer of the Batasang Pambansa must control.

However, credit may be given to an answer that the journal entries should prevail over the enrolled copy
of the bill on the basis of the statement in Astoraga v. Villegas that the journal is a document required by the
Constitution to be kept by the legislature.

Question No. 3

The Minister of Natural Resources affirmed the decision of the Director of Mines in a case for specific
performance of a mining contract filed by “A” against “B”. Instead of appealing to the President, “B” the losing
party, appealed to the Prime Miniser, who reversed the decision of the MInister of Natural Resources. Is the Prime
Minister authorized under the 1981 amendments to the Constitution to review the decision of the Minister of
Natural Resources? Explain your answer.

Answer

The Prime Minister has no authority under the constitution to reverse a decision of a head of a cabinet,
his authority being limited to supervision. (Const., art IX, sec. 10). There is a distinction between supervision and
control. Supervision means overseeing or to see that subordinate officers perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former for that of the latter, (Mondano
v. Silvosa, 97 Phil. 143 (1995)). Since a review of the decision of the Minister of natural Resources may call for
the substitution of his judgment, it is clear that such review can be exercised only by the President who under
article VII, sec. 8 is vested with the control of ministries.

Question No. 4

The Court of First Instance of Rizal found “X” guilty of murder and imposed upon him the death penalty.
The sentence was affirmed by the Supreme Court. Upon the remand of the case for execution on June 10, the trial
court set the execution on June 10, 1980. On June 9, 1980, the President granted a reprieve ending on July 10,
1980.

On July 8, 1980, the trial court granted another reprieve of three months from July 10, 1980 in order to
give the accused the opportunity to present evidence that the real murdered had confessed and that his conviction
was a case of mistaken identity.

Is the order of the trial court valid? Why?

Answer

It is submitted that the order granting reprieve is void. In People v. Vera, 65 Phil. 65 (1937)the court
distinguished between reprieve and suspension of sentence. Reprieve is the postponement of the execution of
sentence to a day certain, while suspension is for an indefinite time. The power to grant reprieve is conferred by
the Constitution on the President (Art. VII, sec 11). It, therefore, cannot be exercised by the courts. What the latter
may be authorized by statute to exercise would be the power to suspend sentence by probation or otherwise.
Furthermore, the Court of First Instance of Rizal cannot suspend the sentence here since decision has become
final and executory and, therefore, it is beyond the power of the court to reopen the case.

Question No. 5

Section 291 of the National Internal Revenue Code of 1977 provides:

 “No court shall have authority to grant an injunction to restrain the collection of any internal revenue tax, fee
or charge imposed by this Code.”

Is this provision unconstitutional for being an undue encroachment by the legislative branch on judicial
powers and prerogatives? Explain briefly.

Answer

The power to enjoin the collection of taxes is not given to the courts; therefore the statute in this case
cannot be said to be an impairment of the powers and prerogatives of courts. No government could exist that
permitted its collection to be delayed by a very litigous man or very embarassed man, to whom delay was more
important than the payment of costs. (Sarasola v. Trinidad, 40 Phil. 252 (1919)). Where a taxpayer is permitted to
pay the amount demanded under protest and then maintain an action at law to recover the amount paid or so much
of it as was illegally exacted, this is ordinarily regarded as adequate remedy. In Churchill v. Rafferty, 32 Phil. 580
(1915), it was therefore held that a law denying the power to enjoin the collection of taxes was valid (a) because
jurisdiction was never conferred on courts to enjoin the colection of taxes and (b) because the taxpayer has an
adequate remedy under the law. (See also David v. Ramos 90 Phil. 351 (1951)).

Question No. 6

The President of the Philippines went on a state visit to Malaysia. while there, he was informed that five
bills passed by the Batasang Pambansa had to be acted upon by him as they had been submitted to him 29 days
before. So, on the 30th day, he went to the Philippine Embassy in Kuala Lumpur and vetoed one of the bills and
approved three of the bills. The fifth bill was neither vetoed nor signed into law.

(a) Was the veto by the President valid?

(b) Was the approval of the three bills valid?

(c) Did the fifth bill become a law?

Reason out each of your answer.

Answer

(a) The veto is valid and effective. While art VIII, sec 20 (1) requires that the vetoed bill should be
returned to the Batasang Pambansa together with the President’s objections, so that if the legislature wishes, it
may reconsider the bill and repass it over the President’s veto by the vote of two-thirds of all its members, this
requirement may be complied with later, outside the thrity day period provided in the Constitution.

(b) The approval of the three bills is valid. The Philippine Embassy in Malaysia is an extension of
Philippne Territory and certainly the President can sign the bills passed by the Batasang Pambansa in that office.

(c) Yes, the fifth bill became a law pursuant to art VIII, sec. 20 (1) which provides that if the President
does not act on a bill passed by the Batasang Pambansa within thirty days after it is presented to him, it shall
become a law as if he had signed it.

Question 7

“X”, a civilian, was tried before and convicted by a military commission of the crime of kidnapping. He
was sentenced to die by firing squad. The President affirmed the decison.