3. What is a quasi-judicial body or agency? (2.5%)
SUGGESTED ANSWER:
A quasi-judicial body or agency is an administrative body with the power to hear, determine or ascertain facts and decide rights, duties and obligations of the parties by the application of rules to the ascertained facts. By this power, quasi-judicial agencies are enabled to interpret and apply implementing rules and regulations promulgated by them and laws entrusted to their administration.
(3) State with reason(s) which of the following is a government agency or a government instrumentality:
Department of Public Works and Highways;
Bangko Sentral ng Pilipinas;
Philippine Ports Authority;
Land Transportation Office;
Land Bank of the Philippines. (5%)
SUGGESTED ANSWER:
An INSTRUMENTALITY refers to any agency of the national government not integrated within the departmental framework, vested with special functions or jurisdiction by law, with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. (Iron and Steel Authority v. Court of Appeals, G.R. No. 102976, October 25, 1995)
AGENCY under the administrative code is any department, bureau, office, commission, authority or officer of the national government, authorized by law or executive order to make rules, issue licenses, grant rights or privileges, and adjudicate cases; research institutions with respect to licensing functions; government corporations with respect to functions regulating private rights, privileges, occupation or business, and officials in the exercise of the disciplinary powers as provided by law.
There is NO PRACTICAL DISTINCTION between an instrumentality and agency, for all intents and purposes. A distinction, however, may be made with respect to those entities possessing a separate charter created by statute.
DPWH is an agency. It does not possess a separate charter.
BSP is an instrumentality because it was incorporated under the new Central Bank Law (R.A. No. 7653)
PPA can be defined as both an instrumentality and an agency because it was incorporated by special law and it has its own charter, yet it is integrated with the DOTC.
LTO is an agency. It is an office of the DOTC.
LBP is an instrumentality having a charter under a special law and is a government financial institution (GFI) independent of any department of government.
No III. -The Maritime Industry Authority (MARINA) issued new rules and regulations governing pilotage services and fees, and the conduct of pilots in Philippine ports. This it did without notice, hearing nor consultation with harbor pilots or their associations whose rights and activities are to be substantially affected. The harbor pilots then filed suit to have the new MARINA rules and regulations declared unconstitutional for having been issued without due process. Decide the case. (5%)
SUGGESTED ANSWER:
The issuance of the new rules and regulations violated due process. Under Section 9, Chapter II, Book VII of the Administrative Code of 1987, as far as practicable, before adopting proposed rules, an administrative agency should publish or circulate notices of the proposed rules and afford interested parties the opportunity to submit their views; and in the fixing of rates, no rule shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two weeks before the first hearing on them. In accordance with this provision, in Commissioner of Internal Revenue v CA, 261 SCRA 236 (1996), it was held that when an administrative rule substantially increases the burden of those directly affected, they should be accorded the chance to be heard before its issuance.
ALTERNATIVE ANSWER:
Submission of the rule to the University of the Philippines Law Center for publication is mandatory. Unless this requirement is complied with, the rule cannot be enforced.
No VI – The President abolished the Office of the Presidential Spokesman in Malacanang Palace and a long-standing Bureau under the Department of Interior and Local Governments. The employees of both offices assailed the action of the President for being an encroachment of legislative powers and thereby void. Was the contention of the employees correct? Explain.
SUGGESTED ANSWER:
The contention of the employees is not correct. As held in Buklod ng Kawaning EHB v. Zamora. 360 SCRA 718 [2001], Section 31, Book III of the Administrative Code of 1987 has delegated to the President continuing authority to reorganize the administrative structure of the Office of the President to achieve simplicity, economy and efficiency. Since this includes the power to abolish offices, the President can abolish the Office of the Presidential Spokesman, provided it is done in good faith. The President can also abolish the Bureau in the Department of Interior and Local Governments, provided it is done in good faith because the President has been granted continuing authority to reorganize the administrative structure of the National Government to effect economy and promote efficiency, and the powers include the abolition of government offices. (Presidential Decree No. 1416, as amended by Presidential Decree No. 1772; Larin v. The Executive Secretary. 280 SCRA 713 [1997]).
No. 3: Are government-owned or controlled corporations within the scope and meaning of the “Government of the Philippines”?
SUGGESTED ANSWER:
Section 2 of the Introductory Provision of the Administrative Code of 1987 defines the government of the Philippines as the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, same as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government.
Government owned or controlled corporation are within the scope and meaning of the Government of the Philippines if they are performing governmental or political functions.
No. 17: Apex Logging Co. and Batibot Logging Co. are adjacent timber concession holders in Isabela. Because of boundary conflicts, and mutual charges of incursions into their respective concession areas, the Bureau of Forestry ordered a survey to establish on the ground their common boundary. The Bureau of Forestry’s decision in effect favored Batibot. Apex appealed to the Department of Natural Resources and Environment and this department reversed the decision of the Bureau of Forestry and sustained Apex. It was the turn of Batibot to appeal to the Office of the President. The Office of the President through an Asst. Executive Secretary sustained the Department of Natural Resources arid Environment. On a motion for reconsideration by Batibot, however, an Asst. Executive Secretary other than the one who signed the decision affirming the decision of the Department of Natural Resources and Environment decided for Batibot, Dissatisfied with the Administrative action on the controversy. Apex filed an action with the Regional Trial Court against Batibot, the Director of Forestry, and the Asst. Executive Secretaries insisting that a judicial review of such divergent administrative decisions is necessary to determine the correct boundary line of the licensed areas in question.
Batibot moved to dismiss the action, but the Regional Trial Court denied the same and even enjoined enforcement of the decision of the Office of the President. Batibot’s motion for reconsideration was likewise denied.
Batibot then filed a petition for certiorari and prohibition to review and annul the orders of the Regional Trial Court. Do you believe the petition for certiorari and prohibition is meritorious? Why or why not?
SUGGESTED ANSWER:
The petition for certiorari and prohibition is meritorious, The order of the trial court must accordingly be set aside. As held in a similar case, Lianga Bay Logging Co. v. Enage, 152 SCRA 80 (1987), decisions of administrative officers should not be disturbed by the courts except when the former have acted without or in excess of their jurisdiction or with grave abuse of discretion. The mere suspicion of Apex that there were anomalies in the nonrelease of the first “decision” and its substitution of a new one by another Assistant Executive Secretary does not justify judicial review. Mere beliefs, suspicions and conjectures cannot overcome the presumption of regularity of official action.
No XIV Give the two (2) requisites for the judicial review of administrative decision/actions, that is, when is an administrative action ripe for Judicial review? (5%)
SUGGESTED ANSWER:
The following are the conditions for ripeness for judicial review of an administrative action:
1. The administrative action has already been fully completed and, therefore, is a final agency action; and
2. All administrative remedies have been exhausted. [Gonzales, Administrative Law, Rex Bookstore: Manila, p. 136 (1979)].
No. 8: On the basis of a verified report and confidential information that various electronic equipment, which were illegally imported into the Philippines, were found in the bodega of the Tikasan Corporation located at 1002 Binakayan St., Cebu City, the Collector of Customs of Cebu issued, in the morning of 2 January 1988, a Warrant of Seizure and Detention against the corporation for the seizure of the electronic equipment. The warrant particularly describes the electronic equipment and specifies the provisions of the Tariff and Customs Code which were violated by the importation.
The warrant was served and implemented in the afternoon of 2 January 1988 by Customs policemen who then seized the described equipment. The inventory of the seized articles was signed by the Secretary of the Tikasan Corporation. The following day, a hearing officer in the Office of the Collector of Customs conducted a hearing on the confiscation of the equipment.
Two days thereafter, the corporation filed with the Supreme Court a petition for certiorari, prohibition and mandamus to set aside the warrant, enjoin the Collector and his agents from further proceeding with the forfeiture hearing and to secure the return of the confiscated equipment, alleging therein that the warrant issued is null and void for the reason that, pursuant to Section 2 of Article III of the 1987 Constitution, only a judge may issue a search warrant. In his comment to the petition, the Collector of Customs, through the Office of the Solicitor General, contends that he is authorized under the Tariff and Custom Code to order the seizure of the equipment whose duties and taxes were not paid and that the corporation did not exhaust administrative remedies.
(a) Should the petition be granted? Decide.
(b) If the Court would sustain the contention of the Collector of Customs on the matter of exhaustion of administrative remedies, what is the administrative remedy available to the corporation?
(c) What are the exceptions to the rule on exhaustion of administrative remedies?
SUGGESTED ANSWER:
(a) No. No search warrant from court needed.
(b) As pointed out in Chia us. Acting Collector of Customs, 177 SCRA 753, the administrative remedy available under Section 2313 of the Tariff and Customs Code is to appeal to the Commissioner of Customs, from whose decision an appeal to the Court of Tax Appeals lies.
(c) The following are the exceptions to the doctrine of exhaustion of administrative remedies:
1. The case deals with private land;
2. The question involved is purely legal;
3. The case involves a quo warranto proceeding;
4. There is denial of due process;
5. The decision is patently illegal;
6. The aggrieved party will suffer irreparable injury;
7. There is estoppel;
8. Resort to administrative remedies would be futile;
9. The decision is that of a department head;
10. The law expressly provides for immediate judicial review;
11. Public interest is involved;
12. There was unreasonable delay in the administrative proceedings; and
13. The aggrieved party is poor.
No. 11: 1) Distinguish the doctrine of primary jurisdiction from the doctrine of exhaustion of administrative remedies.
2) Does the failure to exhaust administrative remedies before filing a case in court oust said court of jurisdiction to hear the case? Explain.
SUGGESTED ANSWER;
1) The doctrine of primary jurisdiction and the doctrine of exhaustion of administrative remedies both deal with the proper relationships between the courts and administrative agencies. The doctrine of exhaustion of administrative remedies applies where a claim is cognizable in the first instance by an administrative agency alone. Judicial interference is withheld until the administrative process has been completed. As stated in Industrial Enterprises, Inc. vs. Court of Appeals, 184 SCRA 426. The doctrine of primary jurisdiction applies where a case is within the concurrent jurisdiction of the court and an administrative agency but the determination of the case requires the technical expertise of the administrative agency. In such a case, although the matter is within the jurisdiction of the court, it must yield to the jurisdiction of the administrative case.
2) No, the failure to exhaust administrative remedies before filing a case in court does not oust the court of jurisdiction to hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384, the failure to exhaust administrative remedies does not affect the jurisdiction of the court but results in the lack of a cause of action, because a condition precedent that must be satisfied before action can be filed was not fulfilled.
No XIII.
a) Explain the doctrine of exhaustion of administrative remedies. (2%)
b) Give at least three (3) exceptions to its application. (3%)
SUGGESTED ANSWER:
A.) The doctrine of exhaustion of administrative remedies means that when an adequate remedy is available within the Executive Department, a litigant must first exhaust this remedy before he can resort to the courts. The purpose of the doctrine is to enable the administrative agencies to correct themselves if they have committed an error. (Rosales v. Court of Appeals, 165 SCRA 344 [19881)
B.) The following are the exceptions to the application of the doctrine of exhaustion of administrative remedies:
1. The question involved is purely legal;
2. The administrative body is in estoppel;
3. The act complained of is patently illegal;
4. There is an urgent need for Judicial intervention;
5. The claim involved is small;
6. Grave and irreparable injury will be suffered;
7. There is no other plain, speedy and adequate remedy;
8. Strong public interest is involved;
9. The subject of the controversy is private law;
10. The case involves a quo warranto proceeding (Sunville Timber Products, Inc. v. Abad. 206 SCRA 482 {1992);
11. The party was denied due process (Samahang Magbubukid ng Kapdula, Inc. v. Court of Appeals, 305 SCRA 147 [1999]);
12. The decision is that of a Department Secretary. (Nazareno v. Court of Appeals, G.R. No. 131641, February 23. 2000);
13. Resort to administrative remedies would be futile (University of the Philippines Board of Regents v. Rasul 200 SCRA 685 [1991]);
14. There is unreasonable delay (Republic v, Sandiganbayan, 301 SCRA 237 [1999]);
15. “The action involves recovery of physical possession of public land (Gabrito u. Court of Appeals, 167 SCRA 771 {1988]);
16. The party is poor (Sabello v. Department of Education, Culture and Sports, 180 SCRA 623 [1989]); and
17. The law provides for immediate resort to the court (Rulian v Valdez, 12 SCRA 501 [1964]).
{Note: The examinee should be given full credit if he gives three of the above-mentioned exceptions.}
(2-a-5) Distinguish: The Wilson doctrine and the Estrada doctrine regarding recognition of governments.
SUGGESTED ANSWER:
Under the WILSON DOCTRINE, recognition shall not be extended to any government established by revolution or internal violence until the freely elected representatives of the people have organized a constitutional government.
Under the ESTRADA DOCTRINE, the Mexican government declared that it would, as it saw fit, continue or terminate its diplomatic relations with any country in which a political upheaval had taken place and in so doing it would not pronounce judgment on the right of the foreign state to accept, maintain or replace its government. (Cruz, International Law, 2003 ed.) (In view of recent developments, the Wilson doctrine and the Estrada doctrine are no longer in the mainstream of public international law.)
No. 3: Reden, Jolan and Andy. Filipino tourists, were in Bosnia-Herzegovina when hostilities erupted between the Serbs and the Moslems. Penniless and caught in the crossfire, Reden, Jolan, and Andy, being retired generals, offered their services to the Moslems for a handsome, salary, which offer was accepted. When the Serbian National Guard approached Sarajevo, the Moslem civilian population spontaneously took up arms to resist the invading troops. Not finding time to organize, the Moslems wore armbands to identify themselves, vowing to observe the laws and customs of war. The three Filipinos fought side by side with the Moslems. The Serbs prevailed resulting in the capture of Reden, Jolan and Andy, and part of the civilian fighting force.
1) Are Reden, Jolan and Andy considered combatants thus entitled to treatment as prisoners of war?
2) Are the captured civilians likewise prisoners of war?
ANSWER:
1) Reden, Jolan and Andy are not combatants and are not entitled to treatment as prisoners of war, because they are mercenaries. Article 47 of the Protocol I to the Geneva Conventions of 1949 provides:
“A Mercenary shall not have the right to be combatant or a prisoner of war.”
Pursuant to Article 47 of Protocol I of the Geneva Conventions of 1949, Reden, Jolan, and Andy are mercenaries, because they were recruited to fight in an armed conflict, they in fact took direct part in the hostilities, they were motivated to take part in the hostilities essentially by the desire for private gain and in fact was promised a handsome salary by the Moslems, they were neither nationals of a party to the conflict nor residents of territory controlled by a party to the conflict, they are not members of the armed forces of a party to the conflict, and they were not sent by a state which is not a party to the conflict on official duty as members of its armed forces.
2) The captured civilians are prisoners of war. Under Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War, inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed forces, provided they carry arms openly and respect the laws and customs of war, are considered prisoners of war if they fall into the power of the enemy.
1. The Charter of the United Nations prohibits not only recourse to war but also resort to the use of force or threat. In the ardent desire to maintain peace, the Charter obliges members to settle their international disputes by peaceful means and to refrain in their international relations from the threat or use of force. The same Charter, however, recognizing perhaps the realities of international relations, allows the use of force in exceptional occasions.
Please state two occasions when the use of armed forces is allowed by the U.N. Charter.
SUGGESTED ANSWER:
1. Under art. 42 of the UN Charter, should the Security Council consider that pacific methods of settling disputes are inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of members of the UN.
2. Under art. 51 member states also have the inherent right of collective self defense if an armed attack occurs against a member state, until the Security Council has taken measures necessary to maintain international peace and security.
No XIV. At the Nuremberg trial of the Nazi war criminals at the end of the World War II. the defense argued on behalf of the German defendants that although a nation could not wage aggressive war without transgressing International law, it could use war as an Instrument of self-defense, and that the nation itself must be the sole judge of whether its actions were in self-defense. How would you meet the argument if you were a member of the Tribunal trying the case? [5%]
SUGGESTED ANSWER:
No rule of International law gives a state resorting to war allegedly in self-defense the right to determine with a legally conclusive effect the legality of such action.
The Judgment of the Nuremberg International Military Tribunal rejected the defense of the Nazi war criminals:
“But whether action taken under the claim of self-defense was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if international law is ever to be enforced.”
ALTERNATIVE ANSWER:
International law on self-defense cannot assume the nature of war. War requires “a declaration of war giving reasons” under the Hague Convention II of 1907. Precisely, the Nazi war criminalwere indicted before the Nuremberg Tribunal for violating this Convention and were found guilty.
Since the Nazi war criminal argued that war as self-defense is understood by them as meaning “that the nation itself must be the sole Judge of whether its action were in self-defense”, it is clear that what they had in mind in fact is “war as an instrument of national policy”, not self-defense as an objective right under International law.
Waging was as an instrument of national law is prohibited by the Pact of Paris of 1928 (Kellog – Braid Part) of which Germany was already a state party before the Second World War. Precisely, the German Reich was indicted before the Nuremberg Tribunal for violation of the Pact of Paris and the Nazi war criminals were found guilty of this as a war crime.
Hence, the argument is itself an admission of violation of international law.
No XIX. On October 13, 2001, members of Ali Baba, a political extremist organization based in and under the protection of Country X and espousing violence worldwide as a means of achieving its objectives, planted high-powered explosives and bombs at the International Trade Tower (ITT) in Jewel City in Country Y, a member of the United Nations. As a result of the bombing and the collapse of the 100-story twin towers, about 2,000 people, including women and children, were killed or injured, and billions of dollars in property were lost.
Immediately after the incident, Ali Baba, speaking through its leader Bin Derdandat, admitted and owned responsibility for the bombing of ITT, saying that it was done to pressure Country Y to release captured members of the terrorist group. Ali Baba threatened to repeat its terrorist acts against Country Y if the latter and its allies failed to accede to Ali Baba’s demands. In response, Country Y demanded that Country X surrender and deliver Bin Derdandat to the government authorities of Country Y for the purpose of trial and “in the name of justice.” Country X refused to accede to the demand of Country Y.
What action or actions can Country Y legally take against Ali Baba and Country X to stop the terrorist activities of Ali Baba and dissuade Country X from harboring and giving protection to the terrorist organization? Support your answer with reasons. (5%)
FIRST ALTERNATIVE ANSWER:
(1) Country Y may exercise the right of self-defense, as provided under Article 51 of the UN Charter “until the Security Council has taken measure necessary to maintain international peace and security”. Self-defense enables Country Y to use force against Country X as well as against the Ali Baba organization.
(2) It may bring the matter to the Security Council which may authorize sanctions against Country X, including measure invoking the use of force. Under Article 4 of the UN Charter, Country Y may use force against Country X as well as against the Ali Baba organization by authority of the UN Security Council.
SECOND ALTERNATIVE ANSWER:
Under the Security Council Resolution No. 1368, the terrorist attack of Ali Baba may be defined as a threat to peace, as it did in defining the September 11, 2001 attacks against the United States. The resolution authorizes military and other actions to respond to terrorist attacks. However, the use of military force must be proportionate and intended for the purpose of detaining the persons allegedly responsible for the crimes and to destroy military objectives used by the terrorists.
The fundamental principles of international humanitarian law should also be respected. Country Y cannot be granted sweeping discretionary powers that include the power to decide what states are behind the terrorist organizations. It is for the Security Council to decide whether force may be used against specific states and under what conditions the force may be used.
No. 19; The State of Nova, controlled by an authoritarian government, had unfriendly relations with its neighboring state, Ameria. Bresla, another neighboring state, had been shipping arms and ammunitions to Nova for use in attacking Arneria.
To forestall an attack, Ameria placed floating mines on the territorial waters surrounding Nova. Ameria supported a group of rebels organized to overthrow the government of Nova and to replace it with a friendly government.
Nova decided to file a case against Ameria in the International Court of Justice
1) On what grounds may Nova’s causes of action against Ameria be based?
2) On what grounds may Ameria move to dismiss the case with the ICJ?
3) Decide the case.
ANSWER:
1) If Nova and Ameria are members of the United Nations, Nova can premise its cause of action on a violation of Article 2(4) of the United Nations Charter, which requires members to refrain from the threat or use of force against the territorial integrity or political independence of any state. If either or both Nova or Ameria are not members of the United Nations, Nova may premise its cause of action on a violation of the non-use of force principle in customary international law which exists parallel to Article 2(4) of the United Nations Charter.
In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (1986 ICJ Rep. 14), the International Court of Justice considered the planting of mines by one state within the territorial waters of another as a violation of Article 2(4) of the United Nations Charter. If the support provided by Ameria to the rebels of Nova goes beyond the mere giving of monetary or psychological support but consists in the provision of arms and training, the acts of Ameria can be considered as indirect aggression amounting to another violation of Article 2(4).
In addition, even if the provision of support is not enough to consider the act a violation of the non-use of force principle, this is a violation of the principle of non-intervention in customary International law.
Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the United Nations Charter.
2) By virtue of the principle of sovereign immunity, no sovereign state can be made a party to a proceeding before the International Court of Justice unless it has given its consent. …
3) If jurisdiction over Ameria is established, the case should be decided in favor of Nova, because Ameria violated the principle against the use of force and the principle of non-Intervention. The defense of anticipatory self-defense cannot be sustained, because there is no showing that Nova had mobilized to such an extent that if Ameria were to wait for Nova to strike first it would not be able to retaliate.
However, if jurisdiction over Ameria is not established, the case should be decided in favor of Ameria because of the principle of sovereign immunity.