[OPINION] About that election question in the bar exams

I took the bar exams 10 years ago. On our first Sunday, for negligible points, we were asked to discuss all pre- and post-election remedies and to identify the court, tribunal, or adjudicating body which had jurisdiction over them. What seemed to be a simple question was actually worth a novel if answered fully and completely. But as the bar exam was not just a test of knowledge but of one’s ability to answer strategically given the very limited time, I answered the question for what it was worth. In other words, di ko pinatulan!

While the bar exams mostly cover just the basics, there will always be one “out of this world” question or two. An examiner once asked what “hard” and “soft laws” were, to the shock of all the bar takers! But questions like these, to my mind, are just there to rattle or throw off the examiners, to test their creativity to invent answers to impossible questions, which is what real-life lawyering is really all about!

It would be a mistake to chase these “out of this world” questions and miss the basics during review. I always remind my barista friends that full and confident mastery of the basics would be enough to answer 85-90% of the bar exam questions.

Interestingly, last Sunday, November 3, seven of the 20 questions in political law were on election law! To those who made the mistake of neglecting election law either in law school or in review, then you must be feeling sorry by now.

(During my time at San Beda Law from 2005 to 2009, election law was a stand-alone subject, taught by no less than the legendary election lawyer and former Comelec chairman, Sixto Brillantes Jr, and now-Senator Leila de Lima, who, unknown to many, was an election law stalwart. Now, I’ve heard that election law has been collapsed and merged with administrative law and public corporations. In other schools, it is now being offered as a mere elective!)

I want to zero in on one question. The examinees were asked: 

B.19. Candidate X, a naturalized Filipino citizen, ran for Congressman from the Lone District of Batanes. After a close electoral contest, he won by a slim margin of 500 votes. His sole opponent Y filed an election protest before the Commission on Elections (COMELEC), claiming that X should be disqualified to run for said position because he is not a natural-born citizen. While the case was pending, X was proclaimed by the Provincial Election Supervisor of Batanes as the duly elected Congressman of the Province. 

(a) Distinguish between natural-born and naturalized citizens under the 1987 Constitution. (2%) 

(b) Is X qualified to run for Congress? Explain. (1%) 

(c) Did X’s proclamation divest the Comelec of its jurisdiction to decide the case and vest the House of Representatives Electoral Tribunal (HRET) jurisdiction? Explain. (2%)

While questions (a) and (b) are basic election law questions that can be answered immediately even without reading the problem, question (c) is another matter. There is, in fact, something iffy about it!

The first thing that came to my mind reading the question was: How can Y possibly file an election protest between canvassing and proclamation? Anyone who has attended a canvassing under the Automated Election System (AES) would know that proclamation instantaneously follows upon completion of the canvassing. There is even no opportunity to object, more so file a pleading! 

And assuming that he physically can, how can an election protest be filed before proclamation? The fact of proclamation is a jurisdictional fact in any election protest. 

A friend who is a Provincial Election Supervisor noted that a PES cannot proclaim a winning candidate. By law, only the Provincial Board of Canvassers (PBOC), of which he is just a member, can do so. So, here, the proclamation of X by the PES can be said to be void ab initio, thus, without any legal effect. From this point alone, question (c) may be promptly answered in the negative. No, the House of Representatives Electoral Tribunal (HRET) did not acquire jurisdiction over X’s qualification as his proclamation is void from the outset. 

Responding to question (c) this way would be the most convenient, but at the same time it will not fully address the rest of the facts in the question. It would also require one to have a really deep election knowledge or experience, which is something that should not expected from the examinees.

Assuming that the election protest seeking to disqualify X can hypothetically be filed before proclamation on the ground that he is not a natural-born citizen, this direction is also laid with traps. What defines the nature of a pleading is not its title but the relief it actually seeks. Thus, an election protest seeking a disqualification is effectively a Petition for Disqualification, over which Comelec has jurisdiction. Questions of jurisdiction and propriety of the ground (note that citizenship is not a ground for disqualification, but for quo warranto) are relegated as special or affirmative defenses, which the respondent may raise but will not prevent Comelec from acquiring jurisdiction.

To complicate it more, under Section 6 of Republic No. 6646 (The Electoral Reforms Law of 1987), Comelec has “residual jurisdiction over disqualifications. In other words, even if the jurisdiction of the HRET commences, Comelec’s jurisdiction over a disqualification proceeding is retained. So here is another “no” answer to question (c): No, Comelec cannot be divested of jurisdiction as it has residual jurisdiction in disqualification cases! Again, is this something we expect the baristas to know and to answer at 2%?  

The assumption of the statement in question (c) that X’s proclamation would “divest the Comelec of its jurisdiction to decide the case” is also problematic. The declarative statement rests on the assumption that Comelec has jurisdiction over election protests against members of the House of Representatives – which, of course, is wrong. However, if a barista would answer straight that Comelec doesn’t have jurisdiction over election protests involving members of the House but HRET, I submit that it should merit full points. 

What I can surmise is that, for a measly 2%, the examiner has presented an unreasonably complicated question that most lawyers and even judges would have difficulty answering. Many factual and legal assumptions are disappointingly wrong or misleading at the very least. Above all, it also lacks directional clarity. With so many unnecessary layers, how should it be attacked? Examinees deserve a better question. They deserve well-crafted questions that will test their knowledge and preparation, rather than one deliberately made complicated just to torment them. 

I could be nitpicking, but it's because I expect nothing less from the Supreme Court. This should rather be taken as a call for a proper process of formulating and selecting bar exam questions or an improvement to a current one, ensuring not only their accuracy and clarity but, above all, making them reasonable and at par with the expectation.

To law students, this bar exam is a lesson not to skip election laws. It might mean passing or failing your bar exams. 

To all the bar examinees, there are 3 more Sundays to go. I wish you good health, good luck, and fortitude to face all of them! May 2019 bar chairperson Justice Estela Perlas Bernabe and the rest of the Supreme Court be kind to you in the coming exams! – Rappler.com 

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.