2010 BAR EXAMINATIONS

POLITICAL AND PUBLIC INTERNATIONAL LAW

5 September 2010 8 A.M. - 12 NN.

INSTRUCTIONS This questionnaire is in TWO (2) PARTS: Part I with sixteen (16) questions (numbered I to XVI), contained in eight (8) pages; and Part II with eleven (11) questions (numbered XVII to XXVII), contained in four (4) pages, for a total number of twelve (12) pages. Write your answers to Part I and Part II in the corresponding portions indicated in the booklet. Begin your answer to each numbered question on a separate page; an answer to a subquestion under the same number may be written continuously on the same page and succeeding pages until completed. Answer the question directly and concisely. Do not repeat the question. Write legibly. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!! ______________________________ CONCHITA CARPIO MORALES Chairperson 2010 Bar Examinations Committee PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12)

PAGES (INCLUDING THIS PAGE). WARNING: NOT FOR SALE OR UNAUTHORIZED USE
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PART I

I The dictatorial regime of President A of the Republic of Gordon was toppled by a combined force led by Gen. Abe, former royal guards and the secessionist Gordon Peoples Army. The new government constituted a Truth and Reconciliation Commission to look into the serious crimes committed under President As regime. After the hearings, the Commission recommended that an amnesty law be passed to cover even those involved in mass killings of members of indigenous groups who opposed President A. International human rights groups argued that the proposed amnesty law is contrary to international law. Decide with reasons. (4%)

II

Compare and contrast the jurisdiction of the International Criminal Court and International Court of Justice. (3%)

III A, a British photojournalist, was covering the violent protests of the Thai Red-Shirts Movement in Bangkok. Despite warnings given by the Thai Prime Minister to foreigners, specially journalists, A moved around the Thai capital. In the course of his coverage, he was killed with a stray bullet which was later identified as having come from the ranks of the Red-Shirts. The wife of A sought relief from Thai authorities but was refused assistance.
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A. Is there state responsibility on the part of Thailand? (2%) B. What is the appropriate remedy available to the victims family under international law? (3%)

IV Choose the statement which appropriately completes the opening phrase: A State which resorts to retorsion in international law A. must ensure that all states consent to its act. B. cannot curtail migration from the offending state. C. can expel the nationals of the offending state.

D. should apply proportionate response within appreciable limit. E. None of the above. Explain your answer. (2%)

V Congresswoman A is a co-owner of an industrial estate in Sta. Rosa, Laguna which she had declared in her Statement of Assets and Liabilities. A member of her political party authored a bill which would provide a 5-year development plan for all industrial estates in the Southern Tagalog Region to attract investors. The plan included an appropriation of 2 billion pesos for construction of roads around the estates. When the bill finally became law, a civil society watchdog questioned the constitutionality of the law as it obviously benefitted Congresswoman As industrial estate. Decide with reasons. (3%)

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VI The Poverty Alleviation and Assistance Act was passed to enhance the capacity of the most marginalized families nationwide. A financial assistance scheme called conditional cash transfers was initially funded 500 million pesos by Congress. One of the provisions of the law gave the JointCongressional Oversight Committee authority to screen the list of beneficiary families initially determined by the Secretary of

Department of Social Welfare and Development pursuant to the Department implementing rules. Mang Pandoy, a resident of Smokey Mountain in Tondo, questioned the authority of the Committee. A. Does Mang Pandoy have legal standing to question the law? (2%) B. Is the grant of authority to the Oversight Committee to screen beneficiaries constitutional? (3%) Decide with reasons. VII True or False. A. A proclamation of a state of emergency is sufficient to allow the President to take over any public utility. (0.5%) B. A treaty which provides tax exemption needs no concurrence by a majority of all the Members of the Congress. (0.5%)

VIII Distinguish presidential communications privilege from deliberative process privilege. (3%)

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IX The League of Filipino Political Scientists (LFPS) organized an international conference on the human rights situation in Myanmar at the Central Luzon State University (CLSU). An exiled Myanmar professor Sung Kui, critical of the military government in Myanmar, was invited as keynote speaker. The Secretary of Foreign Affairs informed the President of the regional and national security implications of having Prof. Kui address the conference. The President thereupon instructed the immigration authorities to prevent the entry of Prof. Kui into Philippine territory. The chancellor of CLSU argued that the instruction violates the Constitution. Decide with reasons. (4%)

X A, the wife of an alleged victim of enforced disappearance, applied for the issuance of a Writ of Amparo before a Regional Trial Court in Tarlac. Upon motion of A, the court issued inspection and production orders addressed to the AFP Chief of Staff to allow entry at Camp Aquino and permit the copying of relevant documents, including the list of detainees, if any. Accompanied by court-designated Commission on Human Rights (CHR) lawyers, A took photographs of a suspected isolation cell where her husband was allegedly seen being held for three days and tortured before he finally disappeared. The CHR lawyers requested one Lt. Valdez for a photocopy of the master plan of Camp Aquino and to confirm in writing that he had custody of the master plan. Lt. Valdez objected on the ground that it may violate his right against self-incrimination. Decide with reasons. (4%)

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XI Which statement best completes the following phrase: Freedom from torture is a right A. subject to derogation when national security is threatened. B. confined only during custodial investigation. C. which is non-derogable both during peacetime and in a situation of armed conflict. D. both (a) and (b) E. none of the above. (1%)

XII A witnessed two hooded men with baseball bats enter the house of their next door neighbor B. After a few seconds, he heard B shouting, Huwag Pilo babayaran kita agad. Then A saw the two hooded men hitting B until the latter fell lifeless. The assailants escaped using a yellow motorcycle with a fireball sticker on it toward the direction of an exclusive village nearby. A reported the incident to PO1 Nuval. The following day, PO1

Nuval saw the motorcycle parked in the garage of a house at Sta. Ines Street inside the exclusive village. He inquired with the caretaker as to who owned the motorcycle. The caretaker named the brothers Pilo and Ramon Maradona who were then outside the country. PO1 Nuval insisted on getting inside the garage. Out of fear, the caretaker allowed him. PO1 Nuval took 2 ski masks and 2 bats beside the motorcycle. Was the search valid? What about the seizure? Decide with reasons. (4%)
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XIII True or False. A. A valid and definite offer to buy a property is a pre-requisite to expropriation initiated by a local government unit. (0.5%) B. Re-classification of land by a local government unit may be done through a resolution. (0.5%) C. Boundary disputes between and among municipalities in the same province may be filed immediately with the Regional Trial Court. (0.5%) D. The Metropolitan Manila Development Authority is authorized to confiscate a drivers license in the enforcement of traffic regulations. (0.5%)

XIV ABC operates an industrial waste processing plant within

Laoag City. Occasionally, whenever fluid substances are released through a nearby creek, obnoxious odor is emitted causing dizziness among residents in Barangay La Paz. On complaint of the Punong Barangay, the City Mayor wrote ABC demanding that it abate the nuisance. This was ignored. An invitation to attend a hearing called by the Sangguniang Panlungsod was also declined by the president of ABC. The city government thereupon issued a cease and desist order to stop the operations of the plant, prompting ABC to file a petition for injunction before the Regional Trial Court, arguing that the city government did not have any power to abate the alleged nuisance. Decide with reasons. (3%)

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XV True or False. A. A person who occupies an office that is defectively created is a de facto officer. (0.5%) B. The rule on nepotism does not apply to designations made in favor of a relative of the authority making a designation. (0.5%) C. A discretionary duty of a public officer is never delegable. (0.5%) D. Acquisition of civil service eligibility during tenure of a temporary appointee does not automatically translate to a permanent appointment. (0.5%)

XVI Rudy Domingo, 38 years old, natural-born Filipino and a resident of the Philippines since birth, is a Manila-based entrepreneur who runs KABAKA, a coalition of peoples organizations from fisherfolk communities. KABAKAs operations consist of empowering fisherfolk leaders through livelihood projects and trainings on good governance. The Dutch Foundation for Global Initiatives, a private organization registered in The Netherlands, receives a huge subsidy from the Dutch Foreign Ministry, which, in turn is allocated worldwide to the Foundations partners like KABAKA. Rudy seeks to register KABAKA as a party-list with himself as a nominee of the coalition. Will KABAKA and Rudy be qualified as a partylist and a nominee, respectively? Decide with reasons. (4%)

- END OF PART I Political and Public International Law 12 Page 9 of

PART II XVII During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a PNP checkpoint for carrying highpowered firearms in his car. He was charged and convicted for violation of the COMELEC gun ban. He did not appeal his conviction and instead applied for executive clemency. Acting on the favorable recommendation of the Board of Pardons and Parole, the President granted him pardon. Is he eligible to run again for an elective position? Explain briefly. (5%)

XVIII The House Committee on Appropriations conducted an inquiry in aid of legislation into alleged irregular and anomalous disbursements of the Countrywide Development Fund (CDF) and Congressional Initiative Allocation (CIA) of Congressmen as exposed by X, a Division Chief of the Department of Budget and Management (DBM). Implicated in the questionable disbursements are high officials of the Palace. The House Committee summoned X and the DBM Secretary to appear and testify. X refused to appear, while the Secretary appeared but refused to testify invoking executive privilege. A. May X be compelled to appear and testify? If yes, what sanction may be imposed on him? (2%) B. Is the Budget Secretary shielded by executive privilege from responding to the inquiries of the House Committee? Explain briefly. If the answer is no, is there any sanction that may be imposed upon him? (3%)

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XIX To instill religious awareness in the students of Doa Trinidad High School, a public school in Bulacan, the ParentTeachers Association of the school contributed funds for the construction of a grotto and a chapel where ecumenical religious

services and seminars are being held after school hours. The use of the school grounds for these purposes was questioned by a parent who does not belong to any religious group. As his complaint was not addressed by the school officials, he filed an administrative complaint against the principal before the DECS. Is the principal liable? Explain briefly. (5%)

XX Define/explain the following: A. Doctrine of operative facts (1%) B. De facto municipal corporation (1%) C. Municipal corporation by estoppel (1%) D. Doctrine of necessary implication (1%) E. Principle of holdover (1%)

XXI The Sangguniang Panlungsod of Pasay City passed an ordinance requiring all disco pub owners to have all their hospitality girls tested for the AIDS virus. Both disco pub owners and the hospitality girls assailed the validity of the ordinance for being violative of their constitutional rights to privacy and to freely choose a calling or business. Is the ordinance valid? Explain. (5%)
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XXII Governor Diy was serving his third term when he lost his governorship in a recall election. A. Who shall succeed Governor Diy in his office as Governor? (1%) B. Can Governor Diy run again as governor in the next election? (2%) C. Can Governor Diy refuse to run in the recall election and instead resign from his position as governor? (2%)

XXIII A was a career Ambassador when he accepted an ad interim appointment as Cabinet Member. The Commission on Appointments bypassed his ad interim appointment, however, and he was not re-appointed. Can he re-assume his position as career Ambassador? (5%)

XXIV Compare and contrast overbreadth doctrine from void-forvagueness doctrine. (5%)
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XXV A. What is the rotational scheme of appointments in the COMELEC? (2%) B. What are the two conditions for its workability? (2%) C. To what other constitutional offices does the rotational scheme of appointments apply? (2%)

XXVI Distinguish between pocket veto and item veto. (2%)

XXVII What is the concept of association under international law? (2%)

- NOTHING FOLLOWS -

RETURN THIS QUESTIONNAIRE WITH YOUR NOTEBOOK 2010 BAR EXAMINATIONS

LABOR AND SOCIAL LEGISLATION

5 September 2010 2 P.M. 5 P.M. INSTRUCTIONS This questionnaire is in TWO (2) PARTS: Part I with thirteen (13) questions (numbered I to XIII), contained in seven (7) pages; and Part II with twelve (12) questions (numbered XIVXXV), contained in six (6) pages, for a total number of thirteen (13) pages. Write your answers to Part I and Part II in the corresponding portions indicated in the booklet. Begin your answer to each numbered question on a separate page; an answer to a subquestion under the same number may be written continuously on the same page and succeeding pages until completed. Answer the question directly and concisely. Do not repeat the question. Write legibly. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!! ______________________________ CONCHITA CARPIO MORALES Chairperson 2010 Bar Examinations Committee PLEASE CHECK THAT THIS SET CONTAINS

THIRTEEN (13) PAGES (INCLUDING THIS PAGE). WARNING: NOT FOR SALE OR UNAUTHORIZED USE
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PART I

I TRUE OR FALSE. Explain your answer briefly. 1. Deeds of release, waivers and quitclaims are always valid and binding. (2%) 2. The relations between employer and employee are purely contractual in nature. (2%) 3. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed. (2%)

II A. Distinguish the terms conciliation, mediation and arbitration. (3%) B. Differentiate surface bargaining from blue-sky bargaining. (2%) III

A, single, has been an active member of the Social Security System for the past 20 months. She became pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to deliver the baby through caesarean section because of some complications. Can A claim maternity benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled? (3%)

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IV A, a worker at ABC Company, was on leave with pay on March 31, 2010. He reported for work on April 1 and 2, Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled to holiday pay for the two successive holidays? Explain. (3%) V Company XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues, also active union members and/or officers. Labor Union KMJ, a rival labor union seeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation of the registration of RFLU on the

ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? Explain. (3%) VI A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was submitted to the National Conciliation and Mediation Board on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work premises, thus paralyzing the business operations of the company. A was dismissed from employment as a consequence of the strike.
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A. Was the strike legal? Explain. (3%) B. Was As dismissal valid? Why or why not? (3%)

VII A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy Shipping Company (SSC). His employment contract provided that he would serve

on board the Almieda II for eight (8) months with a monthly salary of US$450. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and un-prescribed drugs on board the ship. The undertaking provided that: (1) disciplinary action including dismissal would be taken against anyone in possession of the prohibited substances or who is impaired by the use of any of these substances, and (2) to enforce the policy, random test sampling would be done on all those on board the ship. On his third month of service while the Almieda II was docked at a foreign port, a random drug test was conducted on all members of the crew and A tested positive for marijuana. He was given a copy of the drug test result. In compliance with the companys directive, he submitted his written explanation which the company did not find satisfactory. A month later, he was repatriated to the Philippines. Upon arrival in the Philippines, A filed with the National Labor Relations Commission (NLRC) a complaint against the agency and the principal for illegal dismissal with a claim for salaries for the unexpired portion of his contract. A. Was As dismissal valid? Explain. (3%) B. Is his claim for salaries for the unexpired portion of his contract tenable? Explain. (3%)
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VIII

ABC company and U labor union have been negotiating for a new Collective Bargaining Agreement (CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which provided for the grant of midyear bonus to all company employees had already expired. Are the employees entitled to be paid their midyear bonus? Explain your answer. (3%)

IX A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called As attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with coemployees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice? (3%)

X A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked to join the XYZ Cooperative Employees Association. He seeks your advice on whether he can join the association. What advice will you give him? (3%)

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XI Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily resign from the company. A was one of those who availed of the option. On October 5, 2007, he was paid separation benefits equivalent to seven (7) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim. A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its business. XYZ, Inc., however, continued its business under a different company name, he claimed. Rule on whether the quitclaim executed by A is valid or not. Explain. (3%) XII On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises, Inc. through its Philippine manning agency XYZ. Under the standard employment contract of the Philippine Overseas Employment Administration (POEA), his employment was to commence upon his actual departure from the port in the point of hire, Manila, from where he would take a flight to the USA to join the cruise ship MS Carnegie.

However, more than three months after A secured his exit clearance from the POEA for his supposed departure on January 15, 2009, XYZ still had not deployed him for no valid reason. Is A entitled to relief? Explain. (3%)

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XIII A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiated with the company. XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its members but A insists that he has no obligation to pay said dues and fees because he is not a member of XYZEU and he has not issued an authorization to allow the collection. Explain whether his claim is meritorious. (3%)

- END OF PART I
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PART II

XIV After working from 10 a.m. to 5 p.m. on a Thursday as one of 5,000 employees in a beer factory, A hurried home to catch the early evening news and have dinner with his family. At around 10 p.m. of the same day, the plant manager called and ordered A to fill in for C who missed the second shift. A. May A validly refuse the plant managers directive? Explain. (2%) B. Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on Friday, may the company argue that, since he was two hours late in coming to work on Thursday morning, he should only be paid for work rendered from 1 a.m. to 2 a.m.? Explain? (3%) XV Samahang Manggagawa ng Terracota, a union of supervisory employees at Terracota Inc., recently admitted a member of the companys managerial staff, A, into the union ranks. A. Should A be a member of the supervisory union? Explain. (2%) B. Assuming that A is ineligible to join the union, should the registration of Samahang Manggagawa ng Terracota be

cancelled? Explain. (3%)

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XVI On the first day of collective bargaining negotiations between rank-and-file Union A and B Bus Company, the former proposed a P45/day increase. The company insisted that ground rules for negotiations should first be established, to which the union agreed. After agreeing on ground rules on the second day, the union representatives reiterated their proposal for a wage increase. When company representatives suggested a discussion of political provisions in the Collective Bargaining Agreement as stipulated in the ground rules, union members went on mass leave the next day to participate in a whole-day prayer rally in front of the company building. A. The company filed a petition for assumption of jurisdiction with the Secretary of Labor and Employment. The Union opposed the petition, arguing that it did not intend to stage a strike. Should the petition be granted? Explain. (2%) B. The Union contended that assuming that the mass leave will be considered as a strike, the same was valid because of the refusal of the company to discuss the economic provisions of the CBA. Rule on the contention. (2%) C. Union member AA, a pastor who headed the prayer rally, was served a notice of termination by management after it filed the petition for assumption of jurisdiction. May the

company validly terminate AA? Explain. (2%) XVII A was hired to work in a sugar plantation performing such tasks as weeding, cutting and loading canes, planting cane points, fertilizing and cleaning the drainage. Because his daily presence in the field was not required, A also worked as a houseboy at the house of the plantation owner. For the next planting season, the owner decided not to hire A as a plantation worker but as a houseboy instead. Furious, A filed a case for illegal dismissal against the plantation owner. Decide with reason. (3%)
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XVIII Flight attendant A, five feet and six inches tall, weighing 170 pounds ended up weighing 220 pounds in two years. Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline that set a 147-pound limit for As height, management sent A a notice to shape up or ship out within 60 days. At the end of the 60-day period, A reduced her weight to 205 pounds. The company finally served her a Notice of Administration Charge for violation of company standards on weight requirements. Should A be dismissed? Explain. (3%)

XIX Several employees and members of Union A were terminated

by Western Phone Co. on the ground of redundancy. After complying with the necessary requirements, the Union staged a strike and picketed the premises of the company. The management then filed a petition for the Secretary of Labor and Employment to assume jurisdiction over the dispute. Without the benefit of a hearing, the Secretary issued an Order to assume jurisdiction and for the parties to revert to the status quo ante litem. A. Was the order to assume jurisdiction legal? Explain. (2%) B. Under the same set of facts the Secretary instead issued an Order directing all striking workers to return to work within 24 hours, except those who were terminated due to redundancy. Was the Order legal? Explain. (3%)

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XX A, a driver for a bus company, sued his employer for nonpayment of commutable service incentive leave credits upon his resignation after five years of employment. The bus company argued that A was not entitled to service incentive leave since he was considered a field personnel and was paid on commission basis and that, in any event, his claim had prescribed. If you were the Labor Arbiter, how would you rule? Explain. (6%)

XXI A was approached for possible overseas deployment to Dubai by X, an interviewer of job applicants for Alpha Personnel Services, Inc., an overseas recruitment agency. X required A to submit certain documents (passport, NBI clearance, medical certificate) and to pay P25,000 as processing fee. Upon payment of the said amount to the agency cashier, A wasadvised to wait for his visa. After five months, A visited the office of Alpha Personnel Services, Inc. during which X told him that he could no longer be deployed for employment abroad. A was informed by the Philippine Overseas Employment Administration (POEA) that while Alpha Personnel Services, Inc. was a licensed agency, X was not registered as its employee, contrary to POEA Rules and Regulations. Under POEA Rules and Regulations, the obligation to register personnel with the POEA belongs to the officers of a recruitment agency. A. May X be held criminally liable for illegal recruitment? Explain. (2%) B. May the officers having control, management or direction of Alpha Personnel Services, Inc. be held criminally liable for illegal recruitment? Explain. (3%)

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XXII A was recruited to work abroad by Speedy Recruitment Agency as a technician for a Saudi Arabian construction firm,

with a monthly salary of $650.00. When she got to the construction site, the employer compelled her to sign another contract that referred her to another employer for a salary of $350.00. She worked for the second employer and was paid $350.00 until her two-year contract expired. Upon her return to the Philippines, she filed a case against the agency and the two employers. May the agency validly raise the defense that it was not privy to the transfer of A to the second employer? Explain. (3%)

XXIII A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of wages before the NLRC, alleging that he was paid below the minimum wage. The employer denied any underpayment, arguing that based on long standing, unwritten policy, the Hotel provided food and lodging to its housekeeping employees, the costs of which were partly shouldered by it and the balance was charged to the employees. The employees corresponding share in the costs was thus deducted from their wages. The employer concluded that such valid deduction naturally resulted in the payment of wages below the prescribed minimum. If you were the Labor Arbiter, how would you rule? Explain. (3%)

XXIV Rank-and-file workers from Peacock Feathers, a company with 120 employees, registered their independent labor organization with the Department of Labor and Employment (DOLE) Regional Office. Management countered with a petition to cancel the unions registration on the ground that the minutes

of ratification of the union constitution and by-laws submitted to the DOLE were fraudulent. Specifically, management presented affidavits of ten (10) out of forty (40) individuals named in the list
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of union members who participated in the ratification, alleging that they were not present at the supposed January 1, 2010 meeting held for the purpose. The union argued that the stated date of the meeting should have read January 11, 2010, instead of January 1, 2010, and that, at any rate, the other thirty (30) union members were enough to register a union. Decide with reason. (3%)

XXV Company C, a toy manufacturer, decided to ban the use of cell phones in the factory premises. In the pertinent Memorandum, management explained that too much texting and phone-calling by employees disrupted company operations. Two employees- members of Union X were terminated from employment due to violation of the memorandum-policy. The union countered with a prohibitory injunction case (with prayer for the issuance of a temporary restraining order) filed with the Regional Trial Court, challenging the validity and constitutionality of the cell phone ban. The company filed a motion to dismiss, arguing that the case should be referred to the grievance machinery pursuant to an existing Collective Bargaining Agreement with Union X, and eventually to Voluntary Arbitration. Is the company correct? Explain. (3%) - NOTHING FOLLOWS -

RETURN THIS QUESTIONNAIRE WITH YOUR NOTEBOOK 2010 BAR EXAMINATIONS

CIVIL LAW
12 September 2010 NN. INSTRUCTIONS There is only one Examiner in Civil Law. Hence, the following questionnaire consists of only ONE PART with sixteen (16) questions (numbered I to XVI), contained in eleven (11) pages. Begin your answer to each numbered question on a separate page; an answer to a sub-question/s under the same number may be written continuously on the same page and succeeding pages until completed. Answer the questions directly and concisely. Do not repeat the question. Write legibly. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!! _____________________________ CONCHITA CARPIO MORALES Chairperson 2010 Bar Examinations Committee PLEASE CHECK THAT THIS SET CONTAINS ELEVEN 8 A.M. 12

(11) PAGES (INCLUDING THIS PAGE). WARNING: NOT FOR SALE OR UNAUTHORIZED USE
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I True or False. A. Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse, the latter may re-marry by proving only that the foreign spouse has obtained a divorce against her or him abroad. (1%) B. X, a widower, died leaving a will stating that the house and lot where he lived cannot be partitioned for as long as the youngest of his four children desires to stay there. As coheirs and co-owners, the other three may demand partition anytime. (1%)

II Multiple choice. A. A had a 4-storey building which was constructed by Engineer B. After five years, the building developed cracks and its stairway eventually gave way and collapsed, resulting to injuries to some lessees. Who should the lessees sue for damages? (1%)

1. A, the owner 2. B, the engineer 3. both A & B

B. O, owner of Lot A, learning that Japanese soldiers may have buried gold and other treasures at the adjoining vacant Lot B belonging to spouses X & Y, excavated in Lot B where she succeeded in unearthing gold and precious stones. How will the treasures found by O be divided? (1%)
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1. 100% to O as finder 2. 50% to O and 50% to the spouses X and Y 3. 50% to O and 50% to the state 4. None of the above C. A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of land valued at P1 million. B was, however, out of the country at the time. For the donation to be valid, (1%) 1. B may e-mail A accepting the donation. 2. The donation may be accepted by Bs father with whom he lives. 3. B can accept the donation anytime convenient to him. 4. Bs mother who has a general power of attorney may

accept the donation for him. 5. None of the above is sufficient to make Bs acceptance valid D. A executed a 5-page notarial will before a notary public and three witnesses. All of them signed each and every page of the will. One of the witnesses was B, the father of one of the legatees to the will. What is the effect of B being a witness to the will? (1%) 1. The will is invalidated 2. The will is valid and effective 3. The legacy given to Bs child is not valid
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III Define, Enumerate or Explain. (2% each) A. What is the difference between guaranty and suretyship? B. Define quasi tort. Who are the persons liable under quasi torts and what are the defenses available to them? C. Give at least two reasons why a court may assume jurisdiction over a conflict of laws case.

IV Spouses B and G begot two offsprings. Albeit they had serious personality differences, the spouses continued to live under one roof. B begot a son by another woman. G also begot a daughter by another man. A. If G gives the surname of B to her daughter by another man, what can B do to protect their legitimate children's interests? Explain. (5%) B. If B acquiesces to the use of his surname by Gs daughter by another man, what is/are the consequence/s? Explain. (5%)

V G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B. During the pendency of the case, the couple entered into a compromise agreement to dissolve their absolute community of property. B ceded his right to their house and lot and all his shares in two business firms to G and their two children, aged 18 and 19.
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B also opened a bank account in the amount of P3 million in the name of the two children to answer for their educational expenses until they finish their college degrees. For her part, G undertook to shoulder the day-to-day living expenses and upkeep of the children. The Court approved the spouses agreement on September 8, 2000.

A. Suppose the business firms suffered reverses, rendering G unable to support herself and the children. Can G still ask for support pendente lite from B? Explain. (3%) B. Suppose in late 2004 the two children had squandered the P3 million fund for their education before they could obtain their college degrees, can they ask for more support from B? Explain. (3%)

VI Gigolo entered into an agreement with Majorette for her to carry in her womb his baby via in vitro fertilization. Gigolo undertook to underwrite Majorettes pre-natal expenses as well as those attendant to her delivery. Gigolo would thereafter pay Majorette P2 million and, in return, she would give custody of the baby to him. After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2 million, she engages your services as her lawyer to regain custody of the baby. A. What legal action can you file on behalf of Majorette? Explain. (2.5%) B. Can Gigolo demand from Majorette the return of the P2 million if he returns the baby? Explain. (2.5%) C. Who of the two can exercise parental authority over the child? Explain. (2.5%)
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D. Is the child entitled to support and inheritance from Gigolo? Explain. (2.5%)

VII G and B were married on July 3, 1989. On March 4, 2001, the marriage, which bore no offspring, was declared void ab initio under Article 36 of the Family Code. At the time of the dissolution of the marriage, the couple possessed the following properties: a house and lot acquired by B on August 3, 1988, one third (1/3) of the purchase price (representing downpayment) of which he paid; one third (1/3) was paid by G on February 14, 1990 out of a cash gift given to her by her parents on her graduation on April 6, 1989; and the balance was paid out of the spouses joint income; and an apartment unit donated to B by an uncle on June 19, 1987. A. Who owns the foregoing properties? Explain. (5%) B. If G and B had married on July 3, 1987 and their marriage was dissolved in 2007, who owns the properties? Explain. (5%)

VIII Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of their marriage, Rex begot a child by another woman. He is now 10 years of age. On Leas discovery of Rexs fathering a child by another

woman, she filed a petition for legal separation which was granted.
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Rex now wants to adopt his illegitimate child. A. Whose consent is needed for Rexs adoption of his illegitimate child? (2.5%) B. If there was no legal separation, can Rex still adopt his illegitimate child? Explain. (2.5%)

IX Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she named Laurie. At 26, Patrice married American citizen John who brought her to live with him in the United States of America. John at once signified his willingness to adopt Laurie. Can John file the petition for adoption? If yes, what are the requirements? If no, why? (5%)

X In 1997, B and G started living together without the benefit of marriage. The relationship produced one offspring, Venus. The couple acquired a residential lot in Paraaque. After four (4) years or in 2001, G having completed her 4-year college degree as a full- time student, she and B contracted marriage

without a license. The marriage of B and G was, two years later, declared null and void due to the absence of a marriage license. A. If you were the judge who declared the nullity of the marriage, to whom would you award the lot? Explain briefly. (3%) B. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)
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XI The spouses Peter and Paula had three (3) children. Paula later obtained a judgment of nullity of marriage. Their absolute community of property having been dissolved, they delivered P1 million to each of their 3 children as their presumptive legitimes. Peter later re-married and had two (2) children by his second wife Marie. Peter and Marie, having successfully engaged in business, acquired real properties. Peter later died intestate. A. Who are Peters legal heirs and how will his estate be divided among them? (5%) B. What is the effect of the receipt by Peters 3 children by his first marriage of their presumptive legitimes on their right to inherit following Peters death? (5%)

XII On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove to school a car, a gift from his parents. On even date, as his class was scheduled to go on a field trip, his teacher requested him to accommodate in his car, as he did, four (4) of his classmates because the van rented by the school was too crowded. On the way to a museum which the students were scheduled to visit, Rozanno made a wrong maneuver, causing a collision with a jeepney. One of his classmates died. He and the three (3) others were badly injured. A. Who is liable for the death of Rozannos classmate and the injuries suffered by Rozanno and his 3 other classmates? Explain. (2%) B. How about the damage to the jeepney? Explain. (2%)
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C. Under the same facts, except the date of occurrence of the incident, this time in mid-1994, what would be your answer? Explain. (2%)

XIII Franz was the owner of Lot E which was surrounded by four (4) lots one of which Lot C he also owned. He promised Ava that if she bought Lot E, he would give her a right of way in Lot C. Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in Lot C.

Ava cultivated Lot E and used the right of way granted by Franz. Ava later found gainful employment abroad. On her return after more than 10 years, the right of way was no longer available to her because Franz had in the meantime sold Lot C to Julia who had it fenced. A. Does Ava have a right to demand from Julia the activation of her right of way? Explain. (2.5%) B. Assuming Ava opts to demand a right of way from any of the owners of Lots A, B, and D, can she do that? Explain. (2.5%)

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XIV Primo owns a pet iguana which he keeps in a man-made pond enclosed by a fence situated in his residential lot. A typhoon

knocked down the fence of the pond and the iguana crawled out of the gate of Primos residence. N, a neighbor who was passing by, started throwing stones at the iguana, drawing the iguana to move toward him. N panicked and ran but tripped on something and suffered a broken leg. Is anyone liable for Ns injuries? Explain. (4%)

XV A, B, and C entered into a partnership to operate a restaurant business. When the restaurant had gone past break-even stage and started to garner considerable profits, C died. A and B continued the business without dissolving the partnership. They in fact opened a branch of the restaurant, incurring obligations in the process. Creditors started demanding for the payment of their obligations. A. Who are liable for the settlement of the partnerships obligations? Explain? (3%) B. What are the creditors recourse/s? Explain. (3%)

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XVI X was the owner of an unregistered parcel of land in Cabanatuan City. As she was abroad, she advised her sister Y via overseas call to sell the land and sign a contract of sale on her behalf.

Y thus sold the land to B1 on March 31, 2001 and executed a deed of absolute sale on behalf of X. B1 fully paid the purchase price. B2, unaware of the sale of the land to B1, signified to Y his interest to buy it but asked Y for her authority from X. Without informing X that she had sold the land to B1, Y sought X for a written authority to sell. X e-mailed Y an authority to sell the land. Y thereafter sold the land on May 1, 2001 to B2 on monthly installment basis for two years, the first installment to be paid at the end of May 2001. Who between B1 and B2 has a better right over the land? Explain. (5%)

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RETURN THIS QUESTIONNAIRE WITH YOUR NOTEBOOK 2010 BAR EXAMINATIONS

TAXATION
12 September 2010 2 P.M 5

P.M. INSTRUCTIONS This questionnaire is in TWO (2) PARTS: Part I with nine (9) questions (numbered I to IX), contained in five (5) pages; and Part II with nine (9) questions (numbered X to XVIII), contained in six (6) pages, for a total number of eleven (11) pages. Write your answers to Part I and Part II in the corresponding portions indicated in the booklet. Begin your answer to each numbered question on a separate page; an answer to a sub-question/s under the same number may be written continuously on the same page and succeeding pages until completed. Answer the questions directly and concisely. Do not repeat the question. Write legibly. HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE GOOD LUCK!!! ______________________________ CONCHITA CARPIO MORALES Chairperson 2010 Bar Examinations Committee PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THIS PAGE). WARNING: NOT FOR SALE OR UNAUTHORIZED USE

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PART I
I True or False. A. In civil cases involving the collection of internal revenue taxes, prescription is construed strictly against the government and liberally in favor of the taxpayer. (1%) B. In criminal cases involving tax offenses punishable under the National Internal Revenue Code (NIRC), prescription is construed strictly against the government. (1%) C. In criminal cases where the Court of Tax Appeals (CTA) has exclusive original jurisdiction, the right to file a separate civil action for the recovery of taxes may be reserved. (1%) D. Proceedings before the CTA in the exercise of its exclusive original jurisdiction are in the nature of trial de novo. (1%) E. Judgments, resolutions or orders of the Regional Trial Court in the exercise of its original jurisdiction involving criminal offenses arising from violations of the NIRC are appealable to the CTA, which shall hear the cases en banc. (1%) II A. What is the all events test? Explain briefly. (2%) B. What is the immediacy test? Explain briefly. (2%) C. What is the rational basis test? Explain briefly. (2%) D. What is the effect of the execution by a taxpayer of a waiver

of the statute of limitations on his defense of prescription? (2%)

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E. What is the basis for the computation of business tax on contractors under the Local Government Code? (2%) F. How are retiring businesses taxed under the Local Government Code? (2%) III Mirador, Inc., a domestic corporation, filed its Annual Income Tax Return for its taxable year 2008 on April 15, 2009. In the Return, it reflected an income tax overpayment of P1,000,000.00 and indicated its choice to carry-over the overpayment as an automatic tax credit against its income tax liabilities in subsequent years. On April 15, 2010, it filed its Annual Income Tax Return for its taxable year 2009 reflecting a taxable loss and an income tax overpayment for the current year 2009 in the amount of P500,000.00 and its income tax overpayment for the prior year 2008 of P1,000,000.00. In its 2009 Return, the corporation indicated its option to claim for refund the total income tax overpayment of P1,500,000.00 Choose which of the following statements is correct. A. Mirador, Inc. may claim as refund the total income tax overpayment of P1,500,000.00 reflected in its income tax return for its taxable year 2009;

B. It may claim as refund the amount of P500,000.00 representing its income tax overpayment for its taxable year 2009; or C. No amount may be claimed as refund. Explain the basis of your answer. (5%)

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IV On March 10, 2010, Continental, Inc. received a preliminary assessment notice (PAN) dated March 1, 2010 issued by the Commissioner of Internal Revenue (CIR) for deficiency income tax for its taxable year 2008. It failed to protest the PAN. The CIR thereupon issued a final assessment notice (FAN) with letter of demand on April 30, 2010. The FAN was received by the corporation on May 10, 2010, following which or on May 25, 2010, it filed its protest against it. The CIR denied the protest on the ground that the assessment had already become final and executory, the corporation having failed to protest the PAN. Is the CIR correct? Explain. (5%) V Does the Court of Appeals have the power to review compromise agreements forged by the Commissioner of Internal Revenue and a taxpayer? Explain. (5%)

VI Based on the Affidavit of the Commissioner of Internal Revenue (CIR), an Information for failure to file income tax return under Section 255 of the National Internal Revenue Code (NIRC) was filed by the Department of Justice (DOJ) with the Manila Regional Trial Court (RTC) against XX, a Manila resident. XX moved to quash the Information on the ground that the RTC has no jurisdiction in view of the absence of a formal deficiency tax assessment issued by the CIR. Is a prior assessment necessary before an Information for violation of Section 255 of the NIRC could be filed in court? Explain. (4%)

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VII What are the conditions that must be complied with before the Court of Tax Appeals may suspend the collection of national internal revenue taxes? (3%) VIII What is the rule on appeal from decisions of the Collector of Customs in protest and seizure cases? When is the decision of the Collector of Customs appealable to the Court of Tax Appeals? Explain. (5%)

IX On May 15, 2009, La Manga Trading Corporation received a deficiency business tax assessment of P1,500,000.00 from the Pasay City Treasurer. On June 30, 2009, the corporation contested the assessment by filing a written protest with the City Treasurer. On October 10, 2009, the corporation received a collection letter from the City Treasurer, drawing it to file on October 25, 2009 an appeal against the assessment before the Pasay Regional Trial Court (RTC). A. Was the protest of the corporation filed on time? Explain. (3%) B. Was the appeal with the Pasay RTC filed on time? Explain. (3%)

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PART II X True or False. (1% each) A. Gains realized by the investor upon redemption of shares of stock in a mutual fund company are exempt from income tax.

B. A corporation can claim the optional standard deduction equivalent to 40% of its gross sales or receipts, as the case may be. C. Premium payment for health insurance of an individual who is an employee in an amount of P2,500 per year may be deducted from gross income if his gross salary per year is not more than P250,000. D. The Tax Code allows an individual taxpayer to pay in two equal installments, the first installment to be paid at the time the return is filed, and the second on or before July 15 of the same year, if his tax due exceeds P2,000. E. An individual taxpayer can adopt either the calendar or fiscal period for purposes of filing his income tax return. F. The capitalization rules may be resorted to by the BIR in order to compel corporate taxpayers to declare dividends to their stockholders regularly. G. Informers reward is subject to a final withholding tax of 10%. H. A non-resident alien who stays in the Philippines for less than 180 days during the calendar year shall be entitled to personal exemption not to exceed the amount allowed to citizens of the Philippines by the country of which he is subject or citizen.

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XI

Are the following transactions subject to VAT? If yes, what is the applicable rate for each transaction. State the relevant authority/ies for your answer. A. Construction by XYZ Construction Co. of concrete barriers for the Asian Development Bank in Ortigas Center to prevent car bombs from ramming the ADB gates along ADB Avenue in Mandaluyong City. (3%) B. Call Center operated by a domestic enterprise in Makati that handles exclusively the reservations of a hotel chain which are all located in North America. The services are paid for in US$ and duly accounted for with the Bangko Sentral ng Pilipinas. (3%) C. Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)

XII Ferremaro, Inc., a manufacturer of handcrafted shoes, maintains its principal office in Cubao, Quezon City. It has branches/sales offices in Cebu and Davao. Its factory is located in Marikina City where most of its workers live. Its principal office in Quezon City is also a sales office. Sales of finished products for calendar year 2009 in the amount of P10 million were made at the following locations: i) Cebu branch 25% ii) Davao branch 15% iii) Quezon City branch Total

__60% 100%

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Where should the applicable local taxes on the shoes be paid? Explain. (3%)

XIII XYZ Shipping Corporation is a branch of an international shipping line with voyages between Manila and the West Coast of the U.S. The companys vessels load and unload cargoes at the Port of Manila, albeit it does not have a branch or sales office in Manila. All the bills of lading and invoices are issued by the branch office in Makati which is also the companys principal office. The City of Manila enacted an ordinance levying a 2% tax on gross receipts of shipping lines using the Port of Manila. Can the City Government of Manila legally impose said levy on the corporation? Explain. (3%)

XIV A inherited a two-storey building in Makati from his father, a real estate broker in the 60s. A group of Tibetan monks approached A and offered to lease the building in order to use it as a venue for their Buddhist rituals and ceremonies. A accepted the rental of P1 million for the whole year.

The following year, the City Assessor issued an assessment against A for non-payment of real property taxes. Is the assessor justified in assessing As deficiency real property taxes? Explain. (3%)

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XV Don Sebastian, single but head of the family, Filipino, and resident of Pasig City, died intestate on November 15, 2009. He left the following properties and interests:
House and lot (family home) in Pasig P 800,000

Vacation house and lot in Florida, USA 1,500,000 Agricultural land in Naic, Cavite which he inherited from his father 2,000,000 Car which is being used by his brother in Cavite 500,000

Proceeds of life insurance where he named his estate as irrevocable beneficiary 1,000,000 Household furnitures and appliances 1,000,000 Claims against a cousin who has assets of P10,000 and liabilities of P100,000 100,000 Shares of stock in ABC Corp, a domestic

enterprise

100,000

The expenses and charges on the estate are as follows:

Funeral Expenses P 250,000 Legal fees for the settlement of the estate 500,000 Medical expenses of last illness 600,000 Claims against the estate 300,000

The compulsory heirs of Don Sebastian approach you and seek your assistance in the settlement of his estate for which they
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have agreed to the above-stated professional fees. Specifically, they request you to explain and discuss with them the following questions. You oblige: A. What are the properties and interests that should be included in the computation of the gross estate of the decedent? Explain. (2.5%) B. What is the net taxable estate of the decedent? Explain. (2.5%) C. When is the due date for filing and payment of the applicable tax return and tax? Are these dates extendible? If so, under what conditions or requirements? (2.5%) D. If X, one of the compulsory heirs, renounces his share in the inheritance in favor of the other co-heirs, is there any tax implication of Xs renunciation? What about the other coheirs? (2.5%)

XVI A is a travelling salesman working full time for Nu Skin Products. He receives a monthly salary plus 3% commission on his sales in a Southern province where he is based. He regularly uses his own car to maximize his visits even to far flung areas. One fine day a group of militants seized his car. He was notified the following day by the police that the marines and the militants had a bloody encounter and his car was completely destroyed after a grenade hit it. A wants to file a claim for casualty loss. Explain the legal basis of your tax advice. (3%)

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XVII In 2009, Caruso, a resident Filipino citizen, received dividend income from a U.S.-based corporation which owns a chain of Filipino restaurants in the West Coast, U.S.A. The dividend remitted to Caruso is subject to U.S. withholding tax with respect to a non-resident alien like Caruso. A. What will be your advice to Caruso in order to lessen the impact of possible double taxation on the same income? (3%)

B. Would your answer in A. be the same if Caruso became a U.S. immigrant in 2008 and had become a non-resident Filipino citizen? Explain the difference in treatment for Philippine income tax purposes. (3%)

XVIII ABC, a domestic corporation, entered into a software license agreement with XYZ, a non-resident foreign corporation based in the U.S. Under the agreement which the parties forged in the U.S., XYZ granted ABC the right to use a computer system program and to avail of technical know-how relative to such program. In consideration for such rights, ABC agreed to pay 5% of the revenues it receives from customers who will use and apply the program in the Philippines. Discuss the tax implication of the transaction. (5%)

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