Saturday, October 17, 2009

Past bar questions: Things to note

This week I had occassion to read the questions that came out in the last bar examinations held in September until October.
For future bar examinees, there is something very important to be learned in studying or analyzing this year’s bar examination questions.
It is very important for future bar examinees to get hold of the latest decisions of the Supreme Court.
I saw some bar questions, whose answers can readily be provided by the very recent decisions of the high court.
This is where bar operations become handy.
The main task of bar operations is to try to make “analyzed guesses” as to possible questions that may come out in the bar.
I read for instance, the second bar question in political law.
The answer to the second bar question/s in political law is answered in the case of Rep. Jocelyn S. Limkaichong which was decided by the Supreme Court last April 1, 2009 [G.R. Nos. 1788831-32].
The second bar question in political law involved both constitutional law and election law.
To recall, there were a series of petitions seeking to disqualify Josy Limkaichong on account of her citizenship.
Notably, a sideshow, which became the main show of the Limkaichong case was the suspension of a recently retired Supreme Court justice from the practice of law.
The Limkaichong case became bar question no. 2 in political law.
The situational (bar) question (with sub-questions) goes:
“Despite lingering questions about his Filipino citizenship and
his one-year residence in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by law. His
opponent, Vito, hires you as lawyer to contest Gabriel’s candidacy.”
Question [A]: [a] Before election day, what action or actions will you institute against Gabriel, and before which court, commission or tribunal will you file such action/s? Reasons.

Even if the bar examinee forgot the election law provision and procedure, if the examinee read the Limkaichong case, the examinee would at least be able to answer by stating that the action to be taken is a petition for disqualification before the Comelec.
This was what Josy’s opponents did prior to the 2007 elections.
Question [c]: “If the action/s instituted should be dismissed with finality before the election, and Gabriel assumes office after being
proclaimed the winner in the election, can the issue of his
candidacy and/or citizenship and residence still be questioned? If
so, what action or actions may be filed and where? If not, why
Again this question can be answered with the guidance of the Limkaichong case.
The suggested answer would be 'yes'.
The issue of Gabriel’s candidacy , and/or citizenship and residence can still be questioned.
The action to be filed would be either be an election protest or quo warranto before the House of Representative Electoral Tribunal.
This should be the short and simple answer to the particular bar question.
If the bar examinee wants to beautify his answer, he can of course state that under Section 17 Article VI of the Constitution, the House Electoral Tribunal (HRET) shall be the sole judge of all contests relating to the election, returns, qualifications of their respective members.
In fact, this is the express ruling by the Supreme Court in the Limkaichong case.
The Court ruled: “after the proclamation of the winning candidate in the congressional elections, the remedy of those who may assail one’s eligibility/ineligibility/qualification/disqualification is to file before the HRET a petition for an election protest, or a petition for quo warranto”Also in the Supreme Court decision, the Court emphasized that the issue of citizenship is a 'continuing requirement'.
This means that a congressman must be a natural-born citizen not only during his election, but continues until the end of his tenure, the court ruled.
“Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time”, the court added.
By the way the Supreme Court has ruled with finality that Josy Limkaichong shall continue to sit as representative of the first district of Negros Oriental, notwithstanding any pendency of HRET proceedings challenging her citizenship.
The Supreme Court said: “The unseating of a Member of the House of Representatives should be exercised with great caution and after the proper proceedings for the ouster has been validly completed.”“For to arbitrarily unseat someone, who obtained the highest number of votes in the elections, and during the pendency of the proceedings determining one’s qualification or disqualification, would amount to disenfranchising the electorate in whom sovereignty resides,” the court said.
Thus, if there is any thing to be learned from reviewing these bar questions, it is the importance of keeping track of the latest rulings of the Supreme Court.
For all you know, the questions may just be derived from these recent rulings.

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