Law Dictionary

Question B.17, Political Law, 2019 Bar Exam

Notice: The following suggested answers simulate those that a bar examinee may provide as an answer to a bar exam question. Thus, specific citations (i.e., republic acts, articles/sections, jurisprudence, etc.) are not provided because it is not required in the bar exam. For purposes other than answering the bar exam, please be reminded that proper referencing or legal citation is required.

Question B.17, Political Law, 2019 Bar Exam

In 2014, Congress enacted an appropriation law containing a provision that gives individual legislators the discretion to determine, post-enactment, how much funds would go to a specific project or beneficiary which they themselves also determine. Consequently, disbursements were made in the interim pursuant thereto.

Eventually, Mr. Z filed a petition questioning the constitutionality of the statutory provision on the grounds that it violates the separation of powers principle.

On the other hand, certain Congressman argued that there was nothing wrong with the provision because, after all, the power to appropriate belongs to Congress.

(a) Rule on the arguments of the parties. (2.5%)

(b) Assuming that the provision is declared unconstitutional, should the disbursements made pursuant thereto be returned in light of the doctrine of operative fact? Explain. (2.5%)

Suggested Answer:

(a) Petition should be granted. Answer

Under the 1987 Constitution and jurisprudence, the separation of powers is a fundamental principle in our system of government. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. Rule

In the case at bar, the questioned law violates the separation of powers as it granted the Legislature the authority to enforce the law. However, such power to execute the law is exclusively with the Executive. Apply

Thus, the petition should be granted on the ground that the law violates the principle of separation of powers. Conclusion

(b) No. Answer

Under the operative fact doctrine, a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. Accordingly, the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. Rule

In the case at bar, disbursements were already made in the interim and hence a fait accompli. Such effects need not be disturbed following the operative fact doctrine. Apply

Thus, the disbursement made need not be returned. Conclusion

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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