The University of the Philippines

Law Debate and Moot Court Union

MALCOLM CUP 2017

Justice George A. Malcolm Constitutional Law
Moot Court Competition

PROBLEM

1. The City of San Andres, Metro Manila, passed City Ordinance No. 12, series of
2017 or the Enhanced Comprehensive Smoke Free Ordinance of the City of San
Andres, having been emboldened by the recent news that close to 1.1 million
Filipinos have quit smoking because of effective tobacco control policies, including
local ordinances established for the promotion and protection of public health.

2. The drafting of the said ordinance was guided by a city-wide survey

conducted by the City Health Office, with the technical assistance of the Department
of Health and World Health Organization Western Pacific Regional Office. Among the
findings, conclusions, and recommendations of the report are:

(at p. 67) The study shows that the morbidity and mortality statistics of the City of San
Andres closely mirror national statistics, including those morbidities and mortalities
attributable to tobacco use. In particular, almost half (49.5%) of adult males and
10.12% of adult females in the city are smokers; moreover, 22.5% of adults are daily
tobacco smokers: 39% for males and 8% for females. xxx xxx xxx

(at p. 123) Majority (70.5%) of all smokers surveyed in the City of San Andres
purchase tobacco products on a tingi basis through sidewalk vendors, takatak boys
(i.e., children who carry and sell cigarette products in the streets), sari-sari stores,
and similar establishments. The major reason cited by smokers for this practice is
affordability and ease of purchase, as compared to per pack sales. Another major
reason cited is to avoid the graphic depictions in the packages, which were noted to
be disgusting and off-putting. xxx xxx xxx

3. The ordinance was drafted in consultation with various community

stakeholders, including members of civil society, peoples organizations, trade and
commercial organizations, and community members. Representatives of the tobacco
industry attended hearings for the ordinance, where they voiced their concerns about
the legality of certain provisions. Pertinent provisions of the City of San Andres
Ordinance No. 12 are reproduced below:

Section 5. Prohibited Acts. The following acts are declared unlawful and
prohibited by this Ordinance:

xxx xxx xxx

i. Selling of tobacco products on a per stick basis, or in tobacco product packs

containing less than 20 sticks/pieces;
 j. Selling tobacco products removed from its original product packaging or without
the proper government-regulated and approved health warning;
k. Selling tobacco products by ambulant or street vendors, including other mobile
or temporary stalls, kiosks, stations, or units;

xxx xxx xxx

Section 9. Penalties. The following penalties shall apply:

xxx xxx xxx

d. Violation of Section 5 and 6.

i) On the first offense, a fine of One thousand pesos (PhP 1,000.00) or
one (1) month imprisonment or both at the discretion of the court.
ii) On the second offense, a fine of Three thousand pesos (PhP 3,000) or
two (2) months imprisonment or both at the discretion of the court.
iii) On the third and subsequent offenses, a fine of five thousand pesos
(PhP 5,000) or four (4) months imprisonment or both at the discretion of the
court.

xxx xxx xxx

Section 12. Citation Tickets. A citation ticket shall be issued to violators of any of
the provisions of this Ordinance. The citation ticket shall state, among others, the
name and address of the violator, the specific violation committed and the
corresponding administrative penalty. There shall be three copies of the citation
ticket. The first copy shall be endorsed to the Anti-Smoking Task Force Office, the
second copy shall be given to the violator, and the third copy shall be retained by the
apprehending enforcer.
The Philippine National Police and such other appropriate enforcers as
commissioned by the City Mayor through the Anti-Smoking Task Force shall have the
power to apprehend violators of this Ordinance, and issue citation tickets.
The City Mayor, through the Anti-Smoking Task Force, may deputize
barangay officials or representatives of the private sector, non-government
organizations, and government organizations in the strict implementation of these
rules and regulations and/or Ordinance, as the need arises.

xxx xxx xxx

Section 15. No Contest Provision. Any person liable mentioned in Section 5 of

this Ordinance, who is apprehended or cited for violation, does not wish to contest the
violation, and is willing to pay voluntarily the administrative penalty imposed upon him
or her prior to the filing of formal charges with the proper court, shall be allowed to
pay an administrative penalty of five hundred pesos (PhP 500.00) in the City
Treasurers Office to avoid being criminally prosecuted within three (3) days from
apprehension. Otherwise, the case shall be prosecuted in court.
All proceeds from payment of the herein penalty shall accrue to the Citys
Health Promotion Fund, which shall be used for the implementation of health
promotion activities and for financing smoking cessation counselling and other
tobacco control programs.

4. Shortly after being passed, Mr. Luciano W. King was caught by the Citys
Anti-Smoking Task Force selling cigarettes on a tingi basis in his sari-sari store, in
violation of 5(i) and 5(j) of City Ordinance No. 12. In particular, Mr. King was seen
selling three (3) sticks of a cigarette brand made by Tabacalera Nacional
Corporation. To avoid prosecution and for convenience, he accordingly paid PhP
500.00 at the Office of the City Treasurer pursuant to the Ordinances No Contest
Provision.

5. Mr. King was later approached by the Philippine Tobacco Research Institute
(PTRI)a private organization, which represents, expresses, and effects the opinion

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of the tobacco industry and tobacco farmers, and whose members include all the
major tobacco manufacturers and growers in the Philippinesto challenge Sections
5(i), 5(j), and 5(k) of the ordinance before the Regional Trial Court. The PTRI
released industry data showing that sales from cigarette products account for 30 to
45% of the monthly income of more than 500 San Andres City residents. For the
lowest income decile, income from cigarette sales account for as much as 34 to 55%
of a households monthly income. This was also cited in Mr. Kings pleadings.

6. In a press conference, Mr. King said that the so-called public health
measure is blind to social realities, especially to the poor and marginalized whose
livelihood will be destroyed by the overzealous provisions of the ordinance. He
added, in tears: Nauunawaan nating kailangang pangalagaan ang kalusugan ng
bawat mamamayan. Hindi ito lingid sa ating kaalaman. Nais nating protektahan ang
bawat isang taga-San Andres laban sa peligro ng paninigarilyo. Pero hindi naman po
yata tamang ganito karahas ang batas. Paano nalang ang mga mahihirap? Paano
naman ang mga walang ibang mapagkakakitaan? Wala na ba silang karapatang
maghanapbuhay? An unjust law is no law! The City of San Andres did not respond
to these pronouncements.

7. On February 14, 2017, the Regional Trial Court elevated the case to the
Supreme Court on pure questions of law. The Tabacalera Nacional Corporation, a
local tobacco manufacturer, which has a market share of 37% of all cigarette sales in
Metro Manila, thereafter, filed a Motion for Leave to Intervene with an attached
Comment-in-Intervention supporting Mr. Kings arguments. The company claimed
that it was a party-in-interest who stands to be affected by the ruling of the Supreme
Court on the legality and constitutionality of the Ordinance No. 12 because its
proprietary, commercial, and other rights are affected. The Citys counsel interposed
an objection to the said motion, opposing the same based on the corporations
alleged lack of substantial interest in the controversy.

8. On April 17, 2017, the Supreme Court issued the following Advisory:

For the orderly proceeding of the Oral Arguments in the case of King v. City of San
Andres scheduled on xxx xxx xxx, the parties are required to observe the following
guidelines:

Subject Coverage. The parties shall limit their presentation for oral argumentation on
the following issues:

A. Procedural Issues
1. Whether the petitioner has waived his standing to file the suit by availing of
the No Contest Provision (15) of San Andres City Ordinance No. 12, s. 17
(the Ordinance);
2. Whether substantial interest exists as regards Tabacalera Nacional
Corporation to support the admission of its Motion for Leave in Intervention.
B. Substantive Issues
1. Whether 5(i) and 5(j) of the Ordinance, prohibiting the per stick retail sale
of cigarette products, and 5(k), prohibiting sale by ambulant or itinerant
vendors of tobacco products, are ultra vires and contrary to law; and
2. Whether 5(i)-(k) of the Ordinance are unreasonable for being prohibitive,
arbitrary, oppressive, or confiscatory, in denial of due process.

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 The University of the Philippines
Law Debate and Moot Court Union

MALCOLM CUP 2017

Justice George A. Malcolm Constitutional Law
Moot Court Competition

RULES
1. The Justice George A. Malcolm Constitutional Law Moot Court Competition
(MALCOLM CUP) is a tournament sponsored by the UP Law Debate and Moot Court Union
(UP LDMU). The Malcolm Cup is open to all College of Law students without prior competitive
moot experience, currently enrolled for the second semester of the current academic year.

2. Each team may register for the Malcolm Cup by sending the names and class
schedules of each team members to up.ldmu@gmail.com by 24 April 2017. We will provide
the teams with basic materials and guides upon registration.

3. IMPORTANT DATES
a. Deadline for Clarifications 22 April 2017 (teams may send their queries
for clarifications up to that date)
b. Deadline for Memorials/Written Pleading 29 April 2017
c. Oral Rounds/Final Rounds To be announced

4. TEAM COMPOSITION
a. A team may consist of a minimum of two (2) and a maximum of four (4)
members.
b. No person may be a member of more than one (1) team, nor may any
member of a team discuss the problem or related substantive matters with any
member of a different team. Team members may only discuss the problem or related
substantive matters with members of their own team.
c. In the oral arguments, only two (2) team members may present arguments or
otherwise participate per round (all four (4) members may argue during the
competition, but only two (2) may argue in any particular round). All team members
may participate in any other aspect of the Competition, including practice rounds,
research, and drafting.
d. Only three (3) team members may sit at the counsel table during each round.
If there is a fourth member, he or she shall not sit with, nor communicate in anyway,
with his or her teammates during the round, even if the teammates are not arguing at
that particular moment. This rule will be strictly observed during the competition.
e. Students who have already participated or represented UP Law in any
external Moot Court Competition are NOT ELIGIBLE to join the Malcolm Cup. This
competition is strictly reserved for first-time mooters.

5. Memorials (Written Pleadings)

a. The pleadings are to be filed/addressed to the Supreme Court of the
Philippines.

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 b. Each team must submit briefs/memorials for BOTH Petitioner and
Respondent to the LDMU Competition Committee through email
(up.ldmu@gmail.com) by April 29, 2017, 11:59 p.m.
c. The word count for each memorial must NOT exceed 2,000 words,
excluding footnotes. Substantive discussions should not appear on the footnotes.
d. Except for the cover page or headings, the body of the pleading shall have
the following format: font size 12, Times New Roman, 1.5 spaced. Footnotes should
be size 10, Times New Roman, single spaced.
e. Nowhere in the pleading must the name of any team member or any
identifying mark appear.
f. The memorial shall be judged through blind review by a committee whose
composition shall be announced prior to the memorial deadline. The following criteria
shall apply: (i) Knowledge of Facts and Law 25 points; (ii) Proper and Articulate
Analysis 25 points; (iii) Extent and Use of Research 25 points; and (iv) Clarity,
Organization, Grammar, and Style 25 points.

6. Oral Arguments
a. Only the TOP FOUR (4) TEAMS based on the memorial scores shall proceed
to the oral pleading/arguments (semifinals rounds).
b. The date for the semifinal and final rounds will be scheduled based on the
availability of the qualifying teams.
c. Each team has a maximum of twenty-five (25) minutes of speaking time
(including rebuttal/surrebuttal) for both speakers, and each speaker must speak for
more than ten (10) minutes.
d. During the oral arguments, laptops, tablets, or other similar devices are not
permitted at the counsel table. The team may, however, bring written or printed notes.
e. The order of speaking is as follows: Petitioner (speaker 1) ! Petitioner
(speaker 2) ! Respondent (speaker 1) ! Respondent (speaker 2) ! Petitioner
(rebuttal) ! Respondent (surrebuttal)
f. The panel of judges shall be announced at least one (1) day prior to the
respective rounds.
g. The following criteria shall be used: (i) Knowledge of Law 25 points; (ii)
Knowledge of Facts 25 points; (iii) Questions and Answers 25 points; and (iv)
Style, Poise, Demeanor, Time Management 25 points.

7. For questions and concerns, please contact UP LDMU Vice President for
Membership Julienne Angela Yen del Rosario at 0905-493-9516 or
julienne.delrosario@gmail.com.

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