2015 Bar Exam Suggested Answers in

Remedial Law by the UP Law Complex

February 15, 2019

XI.

The Ombudsman found probable cause to charge with plunder d probable cause to charge with
plunder the provincial governor, vice governor, treasurer, budget officer, and accountant. An
Information for plunder was filed with the Sandiganbayan against the provincial officials except
for the treasurer who was granted immunity when he agreed to cooperate with the Ombudsman
in the prosecution of the case. Immediately, the governor filed with the Sandiganbayan a petition
for certiorari against the Ombudsman claiming there was grave abuse of discretion in excluding
the treasurer from the Information.

(A) Was the remedy taken by the governor correct? (2%)

(B) Will the writ of mandamus lie to compel the Ombudsman to include the treasurer in the
Information? (3%)

(C) Can the Special Prosecutor move for the discharge of the budget officer to corroborate the
testimony of the treasurer in the course of presenting its evidence. (2%)

SUGGESTED ANSWER

(A) No, the remedy taken by the Governor is not correct. The petition for certiorari is a remedy
that is only available when there is no plain, speedy and adequate remedy under the ordinary
course of law; hence, the Governor should have filed a Motion for Reconsideration. Besides,
there is no showing that the Ombudsman committed grave abuse of discretion in granting
immunity to the treasurer who agreed to cooperate in the prosecution of the case.

(B) No. Mandamus will not lie to compel the Ombudsman to include the treasurer in the
Information. In matters involving the exercise of judgment and discretion, mandamus may only
be resorted to in order to compel respondent tribunal, corporation, board, officer or person to
take action, but it cannot be used to direct the manner or the particular way discretion is to be
exercised, or to compel the retraction or reversal of an action already taken in the exercise of
judgment or discretion (Ampatuan, Jr. v. Secretary De Lima, G.R. No. 197291, April 3, 2013).

Evidently, the Ombudsman’s act of granting the treasurer immunity from prosecution under such
terms and conditions as it may deter mine (Section 17, R.A. 6770) is a discretionary duty that
may not be compelled by the extraordinary writ of mandamus.
(C) No. The special Prosecutor cannot move for the discharge of the budget officer to become a
State witness since his testimony is only corroborative to the testimony of the treasurer. Under
Section 17, Rule 119, the Court upon motion of the prosecution before resting its case, may
direct one or more of the accused to be discharged with their consent so that they may be
witnesses for the State, provided the following requisites are satisfied: (a) there is absolute
necessity for the testimony of the accused whose discharge is requested; (b) there is no other
direct evidence available for the proper prosecution of the offense committed, except the
testimony of said accused; (c) the testimony of said accused can be substantially corroborated in
its material points; (d) said accused does not appear to be the most guilty; and (e) said accused
has not at any time been convicted of any offense involving moral turpitude. Absolute necessity
exists for the testimony of an accused sought to be discharged when he or she alone has
knowledge of the crime. In more concrete terms, necessity is not present when the testimony
would simply corroborate or otherwise strengthen the prosecution’s evidence. The requirement
of absolute necessity for the testimony of a state witness depends on the circumstances of each
case regardless of the number of the participating conspirators (Manuel J. Jimenez, Jr., v. People
of the Philippines, G.R. No. 209195, September 17, 2014).

ALTERNATIVE ANSWER

(A) The remedy taken by the Governor is correct. A petition for Certiorari under Rule 65 is the
appropriate remedy if the Ombudsman committed grave abuse of discretion in granting
immunity to the treasurer who agreed to cooperate in the prosecution of the case.

(C) No, the special Prosecutor cannot move for the discharge of the budget officer to become a
State witness. The Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control, and upon authority of the
Ombudsman (Uy v. Sandiganbayan, G.R. No 105965 70, March 20, 2001). Accordingly, in the
absence of any express delegation and authority from the Ombudsman, the Special Prosecutor
does not have the power to move for the discharge of the budget officer to corroborate the
testimony of the treasurer in the course of presenting its evidence (Section 11 (3), R.A. 6770).

XIV.

Pedro was charged with theft for stealing Juan’s cellphone worth 0000.00. Prosecutor Marilag at
the pre-trial submitted the judicial affidavit of Juan attaching the receipt for the purchase of the
cellphone to prove civil liability. She also submitted the judicial affidavit of Mario, an
eyewitness who narrated therein how Pedro stole Juan’s cellphone. At the trial, Pedro’s lawyer
objected to the prosecution’s use of judicial affidavits of her witnesses considering the imposable
penalty on the offense with which his client was charged.

(A) Is Pedro’s lawyer correct in objecting to the judicial affidavit of Mario? (2%)

(B) Is Pedro’s lawyer correct in objecting to the judicial affidavit of Juan? (2%)

At the conclusion of the prosecution’s presentation of evidence, Prosecutor Marilag orally

offered the receipt attached to Juan’s judicial affidavit, which the court admitted over the
objection of Pedro’s lawyer. After Pedro’s presentation of his evidence, the court rendered judg.
ment finding him guilty as charged and holding him civilly liable for P20,000.00 Pedro’s lawyer
seasonably filed a motion for reconsideration of the decision asserting that the court erred in
awarding the civil liability on the basis of Juan’s judicial affidavit, a documentary evidence
which Prosecutor Marilag failed to orally offer.

(C) is the motion for reconsideration meritorious? (2%)

SUGGESTED ANSWER

(A) Yes, Pedro’s lawyer is correct in objecting to the judicial affidavit of Mario. The Judicial
Affidavit Rules shall apply only to criminal actions where the maximum of the imposable
penalty does not exceed six years (Section 9 (a) (1) of A.M. No. 12-8-8-SC or the Judicial
Affidavit Rule). Here, the maximum impossible penalty for the crime of theft of a cell phone
worth P20,000.00 is prision mayor in its minimum to medium periods, or six years and one day
to eight years and one day. Thus, Pedro’s lawyer is correct in objecting to the judicial affidavit of
Mario.

[Note: The Committee respectfully recommends that the examinees be given full credit to any
answer given to the question, because the specific imposable penalties for crimes or offenses
charged are not included in the 2015 BAR Examination Syllabus in Remedial Law).

(B) No, Pedro’s lawyer is not correct in objecting to the judicial affidavit of

Juan because the Judicial Affidavit Rules apply with respect to the civil aspect of the actions,
regardless of the penalties involved (Section 9 of A.M. No. 12-8-8-SC or the Judicial Affidavit
Rule). Here, the judicial affidavit of Juan was offered to prove the civil liability of Pedro. Thus,
the objection of Pedro’s lawyer to the judicial affidavit of Juan is not correct.

(C) No. The motion for reconsideration is not meritorious. The judicial

affidavit is not required to be orally offered as separate documentary evidence, because it is filed
in lieu of the direct testimony of the witness. It is offered, at the time the witness is called to
testify, and any objection to it should have been made at the time the witness was presented
(Sections 6 and 8, A.M. No. 12-8-8-SC or the Judicial Affidavit Rule). Since the receipt attached
to the judicial affidavit was orally offered, there was enough basis for the court to award civil
liability.

ALTERNATIVE ANSWER (C) Yes the motion for reconsideration is meritorious The Judicial
Affidavit Rules require an oral offer of evidence upon the termination of the testimony of the last
witness (Section 8, AMNO, 12-8-8-SCO the Judicial Affidavit Rule).

XVI

AA, a twelve-year old girl, while walking alone met BB, a teenage boy who befriended her.
Later, BB brought AA to a nearby shanty where he raped her. The Information for rape filed
against BB states:

“On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this Honorable
Court, the accused, a minor, fifteen (15) years old with lewd design and by means of force,
violence and intimidation, did then and there, willfully, unlawfully and feloniously had sexual
intercourse with AA, A minor, twelve (12) years old, against the latter’s will and consent.”

At the trial, the prosecutor called to the witness stand AA as his first witness and manifested that
he be allowed to ask leading questions in conducting his direct examination pursuant to the Rule
on the Examination of a Child Witness. BB’s counsel objected on the ground that the prosecutor
has not conducted a competency examination on the witness, a requirement before the rule cited
can be applied in the case.

(A) Is BB’s counsel correct? (3%)

In order to obviate the counsel’s argument on the competency of AA as prosecution witness, the
judge motu proprio conducted his voir dire examination on AA.

(B) Was the action taken by the judge proper? (2%)

After the prosecution has rested its case, BB’s counsel filed with leave a demurrer to evidence,
seeking the dismissal of the case on the ground that the prosecutor failed to present any evidence
on BB’s minority as alleged in the Information.

(C) Should the court grant the demurrer? (3%)

SUGGESTED ANSWER

(A) No. BB’s counsel is not correct. Every child is presumed qualified to be a witness (Sec. 6,
Rule on Examination of Child Witness [RECW]). To rebut the presumption of competence
enjoyed by a child, the burden of proof lies on the party challenging his competence (Sec. 6 of
A.M. No. 005-07-SC or the Rules on Examination of Child Witness). Here, AA, a 12-year old
child witness who is presumed to be competent, may be asked leading questions by the
prosecutor in conducting his direct examination pursuant to the RECW and the Revised Rules on
Criminal Procedure (People v. Santos, G.R. No. 171452, October 17, 2008).

(B) Yes, the judge may motu proprio conduct his voir dire examination on AA. Under the Rules
on Examination of Child Witness, the court shall conduct a competency examination of a child,
motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the
ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court (Sec. 6 of A.M. No. 005-07-SC or the Rules on
Examination of Child Witness).

[Note: The Committee respectfully recommends that the examiner be more liberal in checking the
answers to the question because the term voir dire examination is not normally used under the
rules on evidence in the Philippines).

(C) No, the court should not grant the demurrer. While it was alleged in the information that BB
was a minor at the time of the commission of the offense, the failure of the prosecutor to present
evidence to prove his minority is not a basis for the granting of the demurrer, because minority of
the accused is not an element of the crime of rape. Be that as it may, the Court should not
consider minority in rendering the decision. After all, the failure of the prosecutor to prove the
minority of AA may only affect the imposable penalty but may not absolve him from criminal
liability.