Saturday, November 11, 2017

First Sunday: Labor Law Questions (2017)

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%)

a. There are two accepted tests in the determination of the existence of employer-employee relationship. The first one is the economic dependence test (Francisco v. NLRC). The second one, which is the one most consistently used by the Supreme Court, is the right of control test which requires the presence of four elements.

b. Applying either the economic dependence test or the right of control test, a jeepney driver under the boundary system is a mere lessee of the jeepney. However, the Supreme Court held that this conclusion is inconsistent with the policy of protection in favor of labor and the law on public convenience. Adjudging said driver as a mere lessee is tantamount to tolerating a circumvention of the law on certificates of public convenience.


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 of 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 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 (283) of the Labor Code despite the illegality of their strike? Explain your answer. (2%)



XIV.

Pursuant to his power under Sec. 278(9) (263(g)) of the Labor Code, the Secretary of Labor assumed jurisdiction over the 3-day old strike Armor Steel Plates Inc., one of the country's bigger manufacture 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%)

Second Sunday: Civil Law Questions (2017)

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.

a. Did Alice and Bernadette enter into a contract of sale of the lot covered by TCT No. 12345? Explain your answer. (4%)
b. 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%)




Saturday, November 4, 2017

First Sunday: Political Law Questions (2017)

I.

A priority thrust of the Administration is the change of 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 briefly explain why? (3%)

II.

A.

Under the doctrine of immunity from suit, the State cannot be sued without 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 the public officials in the performance of their official duties. May such officials be sued nonetheless to prevent or to undo their oppressive or illegal acts, or to compel them to act? Explain your answer. (3%)

C.

Do governement-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. After five years, State A finds that the more progressive State B did not go to the aid of State A when it was threatened y 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.

a. May State A now unilaterally withdraw from its mutual defense treaty with State B? Explain your answer. (2.5%)

b. What is the difference between the principles of pacto sunt servanda and rebus sic stantibus in international law? (2.5%)

c. Are the principles of pacto sunt servanda and rebus sic stantibus relevant 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.

A.

What is the pardoning power of the President under Art. VIII, Sec. 19 of the Constitution?

Is the exercise of the power absolute? (4%)

B.

Distinguish pardon from amnesty. (4%)


V. 

a. What is the right of legation, and how is it undertaken between states? Explain your answer. (2%)

b. Under this right, may a country like Malaysia insist that the Philippines establishes a consulate in Sabah to look after the welfare of the Flipino 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 P3,000,000.00 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, he 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 validity exercise his power under the 1987 Constitution to transfer funds from the savings of the Executive Department, and make a cross-border transfer of P3,000,000.00 to the COMELEC by way of augmentation? Is your answer the same if the transfer is treated as an 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 te USA. Sec. 21 of the Philippine Bill o of 1902 provided that "all valuable mineral deposits in public lands int eh Philippine Islands, both surveyed and unsurveyed, are hereby declared to be free and open to 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 for agricultural lands. Sec. 2, Art. XII of the 1987 Constitution contains a similar prohibition, and proclaims that all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests, or timber, wildlife, 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 owner to 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 the treaty between two State parties for the surrender by the requested State to the custody of the requesting State of a fugitive criminal residing int he former. However, extradition depends on the application of two principles -- the principle of specialty and the dual criminality principle. Explain these principles. (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.

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

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

B.

Sec. 26 (2), Art. VI of the Constitution provides 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 (Commission on Elections), 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 the 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 hman rights abuses, and in proceedings seeking the privilege of the writ of amparo. 

a. What are the elements to be established in order to hold the superior or commander liable under the doctrine of command responsibility? (4%)

b. 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 Presidnet requested his friend, Pastor Roy, to devote his ministry to them. The President would pay Pastor Roy a monthly stipend of P50,000.00 from his discretionary fund, and would also erect a modest house of worship in the locality in the area of the latter's choice.

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


XV. 

A. 

According to 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 initatied against the same official more than once within  a period of one year."

What constitutes initiation of impeachment proceedings under the provisions? (3%)


Thursday, October 12, 2017

NORMA DEL SOCORRO V. WILSEM CASE DIGEST - CIVIL LAW

DEL SOCORRO VS. WILSEM                                                 G.R. No. 193707 December 10, 2014

FACTS:

Norma A. Del Socorro and Ernst Van Wilsem contracted marriage in Holland. They were blessed with a son named Roderigo Norjo Van Wilsem. Unfortunately, their marriage bond ended by virtue of a Divorce Decree issued by the appropriate Court of Holland. Thereafter, Norma and her son came home to the Philippines. According to Norma, Ernst made a promise to provide monthly support to their son. However, since the arrival of petitioner and her son in the Philippines, Ernst never gave support to Roderigo. Respondent remarried again a Filipina and resides again the Philippines particulary in Cebu where the petitioner also resides. Norma filed a complaint against Ernst for violation of R.A. No. 9262 for the latters unjust refusal to support his minor child with petitioner. The trial court dismissed the complaint since the facts charged in the information do not constitute an offense with respect to the accused, he being an alien

ISSUES:

1. Does a foreign national have an obligation to support his minor child under the Philippine law?
2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified failure to support his minor child.

RULING:

1. YES. While it is true that Respondent Ernst is a citizen of Holland or the Netherlands, we agree with the RTC that he is subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support to his child, as well as the consequences of his failure to do so. This does not, however, mean that Ernst is not obliged to support Normas son altogether. In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. In the present case, Ernst hastily concludes that being a national of the Netherlands, he is governed by such laws on the matter of provision of and capacity to support. While Ernst pleaded the laws of the Netherlands in advancing his position that he is not obliged to support his son, he never proved the same. It is incumbent upon Ernst to plead and prove that the national law of the Netherlands does not impose upon the parents the obligation to support their child. Foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws. Applying the foregoing, even if the laws of the Netherlands neither enforce a parents obligation to support his child nor penalize the non-compliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.

2. YES. The court has jurisdiction over the offense (R.A 9262) because the foreigner is living here in the Philippines and committed the offense here.

VALINO V. ADRIANO CASE DIGEST - CIVIL LAW

VALINO VS. ADRIANO                                                                       G.R. No. 182894   April 22, 2014

FACTS:

Atty. Adriano married Rosario Adriano, herein respondent, on November 15, 1955. The two begot 2 sons, 3 daughters, and adopted one child. Their marriage failed. Thus, the two lived separately. A year later, Atty. Adriano found a new love life, one of his former clients, named Fe Valino, herein petitioner, where they live together as common law partners. Despite such situation, Atty. Adriano continued to provide financial support to Rosario and their children.

The husband died due to acute emphysema, a lung disease. At the time of husband’s death, the first wife and children were having their Christmas vacation in the US. Due to this, the common law wife, Valino, facilitated the funeral of Atty. Adriano. The legal wife requested the common law wife to delay the internment for them to pay their last respect to his dead husband. However,her request was not heeded. They buried Adriano at the mausoleum of the family of Valino at the Manila Memorial Park. Respondents were not able to attend the interment.

The legal family, having been deprived of the last chance to view the remains of Atty. Adriano, filed a suit against the common law wife. In their claim that the deceased did not wished to be buried in Manila Memorial Park.

In her defense, the common law wife countered that she and the deceased were living together for more than 20 years, and claims that she has the better right to make decisions concerning the burial of Atty. Adriano.

RTC dismissed respondents (legal wife) petition. On the ground that it would not serve any useful purpose and so he (Atty. Adriano) should be spared and respected.

CA reversed and set aside the RTC decision and directed Valino to have the remains of Atty. Adriano exhumed at the expense of respondents.

Hence, the common law wife appealed to the SC.

ISSUE:

Who between Rosario and Valino is entitled to the remains of Atty. Adriano.

RULING:

Under the law, the right and duty to make funeral arrangements is the surviving legal wife.
Article 30 provides:

The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. 

Art. 199. Also provides that whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)

Further, Article 308 of the Civil Code provides:
No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in Articles 294 and 305.

In this connection, Section 1103 of the Revised Administrative Code provides:

Section 1103. Persons charged with the duty of burial. The immediate duty of burying the body of a deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons herein below specified:

(a) If the deceased was a married man or woman, the duty of the burial shall devolve upon the surviving spouse if he or she possesses sufficient means to pay the necessary expenses.


The fact that she was living separately from her husband and was in the United States when he died has no controlling significance. To say that Rosario had, in effect, waived or renounced, expressly or impliedly, her right and duty to make arrangements for the funeral of her deceased husband is baseless. The right and duty to make funeral arrangements, like any other right, will not be considered as having been waived or renounced, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent to that end. While there was disaffection between Atty. Adriano and Rosario and their children when he was still alive, the Court also recognizes that human compassion, more often than not, opens the door to mercy and forgiveness once a family member joins his Creator. Notably, it is an undisputed fact that the respondents wasted no time in making frantic pleas to Valino for the delay of the interment for a few days so they could attend the service and view the remains of the deceased. As soon as they came to know about Atty. Adrianos death in the morning of December 19, 1992 (December 20, 1992 in the Philippines), the respondents immediately contacted Valino and the Arlington Memorial Chapel to express their request, but to no avail.

LLORENTE VS. COURT OF APPEALS CASE DIGEST - CIVIL LAW


LLORENTE VS. CA                                                                  G.R. No. 124371 , November 23, 2000

FACTS:

In 1927, Lorenzo Llorente, then a Filipino, was enlisted in the U.S. Navy. In 1937, he and Paula Llorente got married in Camarines Sur. In 1943, Lorenzo became an American citizen.

In 1945, Lorenzo returned to the Philippines for a vacation. He discovered that Paula was already living illicitly with Ceferino Llorente, a brother of Lorenzo and the two even have a son. 

Lorenzo then refused to live with Paula. He also refused to give her monetary support. Eventually, Lorenzo and Paula agreed in writing that Lorenzo shall not criminally charge Paula if the she will agree to waive all monetary support from Lorenzo. Later, Lorenzo returned to the US.

In 1951, Lorenzo filed a divorce proceeding against Paula in California. Paula was represented by an American counsel. The divorce was granted and in 1952, the divorce became final.

Lorenzo returned to the Philippines. In 1958, Lorenzo married Alicia Fortuno. They had three children.

In 1981, Lorenzo executed his last will and testament where he left all his estate to Alicia and their children and left nothing for Paula. In 1983, Lorenzo went to the court for the will’s probate and to have Alicia as the administratrix of his property. In 1985, before the probate proceeding can be terminated, Lorenzo died. Later, Paula filed a petition for letters of administration over Lorenzo’s estate.

RTC ruled that Lorenzo’s marriage with Alicia is void because the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void.

The CA affirmed the trial court decision.

ISSUES:

Whether or not Lorenzo’s divorce abroad should be recognized in the Philippines.


HELD:

YES. It is undisputed by Paula Llorente that Lorenzo became an American citizen in 1943. Hence, when he obtained the divorce decree in 1952, he is already an American citizen.

 Article 15 of the Civil Code provides, Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

Since Lorenzo was no longer a Filipino, Philippine laws relating to family rights, duties, or status are no longer applicable to him. Therefore, the divorce decree he obtained abroad must be respected. The rule is: aliens may obtain divorces abroad, provided they are valid according to their national law.

However, this case was still remanded to the lower court so as for the latter to determine the effects of the divorce as to the successional rights of Lorenzo and his heirs.

Regarding on the issue of Lorenzo’s last will and testament, it must be respected because he is an alien and is not covered by our laws on succession. However, since the will was submitted to our courts for probate, then the case was remanded to the lower court where the foreign law must be alleged in order to prove the validity of the will.