BAR QUESTIONS 2005-POLITICAL LAW

[grifter]

Political law Bar Examination 2005


- I –


(a)The present Constitution introduced the concepts and processes of Initiative and Referendum. Compare and differentiate one from the other. (3%)

Suggested answer:

Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. Under the 1987 Constitution, the people through initiative can propose amendments to the Constitution upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose. (Sec. 3, RA No. 6735 [1989]).

On the other hand, the Local Government Code (RA No. 7160) defines local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance (Sec. 120) and local referendum as the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the Sanggunian. (Sec. 126)

(b)To give the much needed help to the Province of Aurora which was devastated by typhoons and torrential rains, the President declared it in a "state of calamity." Give at least four (4) legal effects of such declaration. (4%)

Suggested answer:

Declaration of a state of calamity produces, inter alia, these legal effects within the Province of Aurora —

1.Automatic Price Control — under R.A. No. 7581, The Price Act;
2.Authorization for the importation of rice under RA No. 8178, The Agricultural Tarrification Act;
3.Automatic appropriation under RA No. 7160 is available for unforeseen expenditures arising from the occurrence of calamities in areas declared to be in a state of calamity;
4.Local government units may enact a supplemental budget for supplies and materials or payment of services to prevent danger to or loss of life or property, under R.A. No. 7160;
5.Entitlement to hazard allowance for Public Health Workers (under RA No. 7305, Magna Carta for Public Health Workers), who shall be compensated hazard allowances equivalent to at least twenty-five percent (25%) of the monthly basic salary of health workers receiving salary grade 19 and below, and five percent (5%) for health workers with salary grade 20 and above;
6.Entitlement to hazard allowance for science and technological personnel of the government under RA No. 8439; and

7.A crime committed during the state of calamity will be considered aggravated under Art. 14, par. 7 of the Revised Penal Code.


(c) Enumerate the rights of the coastal state in the exclusive economic zone. (3%)

Alternative answer.

In the exclusive economic zone, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds in an area not extending more than 200 nautical miles beyond the baseline from which the territorial sea is measured. Other rights include the production of energy from the water, currents and winds, the establishment and use of artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment. (Art. 56, U.N. Convention on the Law of the Sea)

Alternative answer:

Sovereign Rights — for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed and subsoil and the superjacent waters, and with regard to other activities such as the production of energy from the water, currents and winds in an area not extending more than 200 nautical miles beyond the baseline from which the territorial sea is measured. (See Art. 56, UNCLOS)

Jurisdiction, inter alia, with regard to:

(1)the establishment and use of artificial islands, installations and structures;

(2)marine scientific research; and

(3)the protection and preservation of the marine environment.


-II-

(1) Police Officer Henry Magiting of the Narcotics Section of the Western Police District applied for a search warrant in the Regional Trial Court of Manila for violation of Section 11, Article II (Possession of Prohibited Drugs) of Republic Act (R.A.) No. 9165 (Comprehensive Dangerous Drugs Act of 2002) for the search and seizure of heroin in the cabin of the Captain of the MSS Seastar, a foreign-registered vessel which was moored at the South Harbor, Manila, its port of destination.

Based on the affidavits of the applicant's witnesses who were crew members of the vessel, they saw a box containing ten (10) kilograms of heroin under the bed in the Captain's cabin. The RTC found probable cause for the issuance of a search warrant; nevertheless, it denied the application on the ground that Philippine courts have no criminal jurisdiction over violations of R.A. No. 9165 committed on foreign-registered vessels found in Philippine waters.

Is the ruling of the court correct? Support your answer with reasons. (5%)


Alternative answer:

The court's ruling is not correct. The foreign-registered vessel was not in transit. It was moored in South Harbor, Manila, its port of destination. Hence, any crime committed on board said vessel, like possession of heroin, is triable by our courts (U.S. v. Ah Sing, G.R. No. 13005, October 10, 1917), except if the crime involves the internal management of the vessel.

Alternative answer:

The RTC may assert its jurisdiction over the case by invoking the territorial principle, which provides that crimes committed within a state's territorial boundaries and persons within that territory, either permanently or temporarily, are subject to the application of local law. Jurisdiction may also be asserted on the basis of the universality principle, which confers upon all states the right to exercise jurisdiction over delicta juris gentium or international crimes, such as the international traffic narcotics. The possession of 10 kgs. of heroin constitutes commercial quantity and therefore qualifies as trafficking of narcotics.

Consequently, the denial of the search warrant should have been anchored on the failure of the court to conduct personal examination of the witnesses to the crime in order to establish probable cause, as required by Sections 3 and 4 of Rule 126. In any event, there is no showing that the requisite quantum of probable cause was established by mere reference to the affidavits and other documentary evidence presented.

(2)The Philippines and Australia entered into a Treaty of Extradition concurred in by the Senate of the Philippines on September 10,1990. Both governments have notified each other that the requirements for the entry into force of the Treaty have been complied with. It took effect in 1990.

The Australian government is requesting the Philippine government to extradite its citizen, Gibson, who has committed in his country the indictable offense of Obtaining Property by Deception in 1985. The said offense is among those enumerated as extraditable in the Treaty.

For his defense, Gibson asserts that the retroactive application of the extradition treaty amounts to an ex post facto law. Rule on Gibson's contention. (5%)

Suggested answer:

Gibson is incorrect. In Wright v. Court of Appeals, G.R. No. 113213, August 15,1994, it was held that the retroactive application of the Treaty of Extradition does not violate the prohibition against ex post facto laws, because the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provided for extraradition of persons wanted for offenses already committed at the time the treaty was ratified.

-III-

(1) Italy, through its Ambassador, entered into a contract with Abad for the maintenance and repair of specified equipment at its Embassy and Ambassador's Residence, such as air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps. It was stipulated that the agreement shall be effective for a period of four years and automatically renewed unless cancelled. Further, it provided that any suit arising from the contract shall be filed with the proper courts in the City of Manila.

Claiming that the Maintenance Contract was unilaterally, baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador before a court in the City of Manila. Among the defenses, they raised were "sovereign immunity" and "diplomatic immunity." (5%)

(a)As counsel of Abad, refute the defenses of "sovereign immunity" and "diplomatic immunity" raised by the State of Italy and its Ambassador.

Suggested answer:

As counsel for Abad, I will argue that sovereign immunity will not lie as it is an established rule that when a State enters into a contract, it waives its immunity and allows itself to be sued. Moreover, there is a provision in the contract that any suit arising therefrom shall be filed with the proper courts of the City of Manila. On the issue of diplomatic immunity, I will assert that the act of the Ambassador unilaterally terminating the agreement is tortuous and done with malice and bad faith and not a sovereign or diplomatic function.

(b)At any rate, what should be the court's ruling on the said defenses?

Suggested answer:

The court should rule against said defenses. The maintenance contract and repair of the Embassy and Ambassador's Residence is a contract in jus imperii, because such repair of said buildings is indispensable to the performance of the official functions of the Government of Italy. Hence, the contract is in pursuit of a sovereign activity in which case, it cannot be deemed to have waived its immunity from suit.

On the matter of whether or not the Ambassador may be sued, Article 31 of the Vienna Convention on Diplomatic Relations provides that a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving state except if the act performed is outside his official functions, in accordance with the principle of functional necessity. In this case, the act of entering into the contract by the Ambassador was part of his official functions and thus, he is entitled to diplomatic immunity. (Republic of Indonesia v. Vinzons, G.R. No. 154705, June 26, 2003)


(2) Adams and Baker are American citizens residing in the Philippines. Adams befriended Baker and became a frequent visitor at his house. One day, Adams arrived with 30 members of the Philippine National Police, armed with a Search Warrant authorizing the search of Baker's house and its premises for dangerous drugs being trafficked to the United States of America.

The search purportedly yielded positive results, and Baker was charged with Violation of the Dangerous Drugs Act. Adams was the prosecution's principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker was acquitted.

Baker then sued Adams for damages for filing trumped-up charges against him. Among the defenses raised by Adams is that he has diplomatic immunity, conformably with the Vienna Convention on Diplomatic Relations. He presented Diplomatic Notes from the American Embassy stating that he is an agent of the United States Drug Enforcement Agency tasked with "conducting surveillance operations" on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S. It was also stated that after having ascertained the target, Adams would then inform the Philippine narcotic agents to make the actual arrest. (5%)

(a) As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of defendant Adams' diplomatic immunity from suit.




Suggested answer:


As counsel for Baker, I would argue that Adams is not a diplomatic agent considering that he is not a head of mission nor is he part of the diplomatic staff that is accorded diplomatic rank. Thus, the suit should not be dismissed as Adams has no diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

(b) As counsel of defendant Adams, argue for the dismissal of the complaint.

As counsel for Adams, I would argue that he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country with the approval of the Philippine government. Under the doctrine of State Immunity from Suit, if the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Adams may not be a diplomatic agent but the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of Adams and thus he is entitled to the defense of state immunity from suit. (Minucher v. CA, G.R. No. 142396, February 11, 2003)


-IV-

(1) Squatters and vendors have put up structures in an area intended for a People's Park, which are impeding the flow of traffic in the adjoining highway. Mayor Cruz gave notice for the structures to be removed, and the area vacated within a month, or else, face demolition and ejectment. The occupants filed a case with the Commission on Human Rights (CHR) to stop the Mayor's move.

The CHR then issued an "order to desist" against Mayor Cruz with warning that he would be held in contempt should he fail to comply with the desistance order. When the allotted time lapsed, Mayor Cruz caused the demolition and removal of the structures. Accordingly, the CHR cited him for contempt. (5%)

(a) What is your concept of Human Rights? Does this case involve violations of human rights within the scope of the CHR's jurisdiction?

Suggested answer:

Under the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, the scope of human rights includes "those that relate to an individual's social, economic, cultural, political and civil relations... along with what is generally considered to be his inherent and inalienable rights, encompassing almost all aspects of life." In the case at bar, the land adjoins a busy national highway and the construction of the squatter shanties impedes the flow of traffic. The consequent danger to life and limb cannot be ignored. It is paradoxical that a right which is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Based on the circumstances obtaining in this instance, the CHR order for demolition do not fall within the compartment of human rights violations involving civil and political rights intended by the Constitution. (Simon v. Commission on Human Rights, G.R. No. 100150, January 5, 1994)

(b)Can the CHR issue an "order to desist" or restraining order?

Suggested answer:

The CHR may not issue an "order to desist" or restraining order. The constitutional provision directing the CHR to provide for preventive measures to those whose human rights have been violated or need protection may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the Constitution would have expressly said so. Jurisdiction is conferred only by the Constitution or by law. It is never derived by implication. (Export Processing Zone Authority v. Commission on Human Rights, G.R. No. 101476, April 14 1992)

(c)Is the CHR empowered to declare Mayor Cruz in contempt? Does it have contempt powers at all?

Suggested answer:

The CHR does not possess adjudicative functions and therefore on its own, is not empowered to declare Mayor Cruz in contempt for issuing the "order to desist." However, under the 1987 Constitution, the CHR is constitutionally authorized, in the exercise of its investigative functions, to "adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR, in the course of an investigation, may only cite or hold any person in contempt and impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. (Carino v. Commission on Human Rights, G.R. No. 96681, December 2, 1991)

(2)In March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the Commission on Elections. Santos immediately took his oath and assumed office. While his appointment was promptly submitted to the Commission on Appointments for confirmation, it was not acted upon and Congress again adjourned. In June 2001, the President extended a second ad interim appointment to Santos for the same position with the same term, and this appointment was again submitted to the Commission on Appointments for confirmation. Santos took his oath anew and performed the functions of his office.

Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the validity of Santos' appointment.

Resolve the following issues: (5%)

(a) Does Santos' assumption of office on the basis of the ad interim appointments issued by the President amount to a temporary appointment which is prohibited by Section 1(2), Article DI-C of the Constitution?

Alternative answer:

No, Santos' appointment does not amount to a temporary aPpointment. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission °n Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission °n Appointments or until the next adjournment of Congress. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

Alternative answer:

An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L-65439, November 13, 1985)


(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos, were his second ad interim appointment and subsequent assumption of office to the same position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the Constitution?

Suggested answer:

No, the second ad interim appointment and subsequent assumption of office does not violate the Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution does not apply to by-passed ad interim appointments. It can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. To hold otherwise will lead to absurdities and negate the President's power to make ad interim appointments. {Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

[pinkalou]

Resource Persons:
Dean Pacifico A. Agabin
Dean Andres D. Bautista
Dean Mariano F. Magsalin, Jr.
Dean Antonio D. Nachura
Dean Raymundo T. Pandan, Jr.
Dean Jose M. Roy III

- I -

(a)The present Constitution introduced the concepts and processes of Initiative and Referendum. Compare and differentiate one from the other. (3%)

Suggested answer:

Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. Under the 1987 Constitution, the people through initiative can propose amendments to the Constitution upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose. (Sec. 3, RA No. 6735 [1989]).

On the other hand, the Local Government Code (RA No. 7160) defines local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance (Sec. 120) and local referendum as the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the Sanggunian. (Sec. 126)

(b)To give the much needed help to the Province of Aurora which was devastated by typhoons and torrential rains, the President declared it in a "state of calamity." Give at least four (4) legal effects of such declaration. (4%)

Suggested answer:

Declaration of a state of calamity produces, inter alia, these legal effects within the Province of Aurora —
1.Automatic Price Control — under R.A. No. 7581, The Price Act;
2.Authorization for the importation of rice under RA No. 8178, The Agricultural Tarrification Act;
3.Automatic appropriation under RA No. 7160 is available for unforeseen expenditures arising from the occurrence of calamities in areas declared to be in a state of calamity;
4.Local government units may enact a supplemental budget for supplies and materials or payment of services to prevent danger to or loss of life or property, under R.A. No. 7160;
5.Entitlement to hazard allowance for Public Health Workers (under RA No. 7305, Magna Carta for Public Health Workers), who shall be compensated hazard allowances equivalent to at least twenty-five percent (25%) of the monthly basic salary of health workers receiving salary grade 19 and below, and five percent (5%) for health workers with salary grade 20 and above;
6.Entitlement to hazard allowance for science and technological personnel of the government under RA No. 8439; and
7.A crime committed during the state of calamity will be considered aggravated under Art. 14, par. 7 of the Revised Penal Code.

(c) Enumerate the rights of the coastal state in the exclusive economic zone. (3%)

Alternative answer.

In the exclusive economic zone, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds in an area not extending more than 200 nautical miles beyond the baseline from which the territorial sea is measured. Other rights include the production of energy from the water, currents and winds, the establishment and use of artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment. (Art. 56, U.N. Convention on the Law of the Sea)

Alternative answer:

Sovereign Rights — for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed and subsoil and the superjacent waters, and with regard to other activities such as the production of energy from the water, currents and winds in an area not extending more than 200 nautical miles beyond the baseline from which the territorial sea is measured. (See Art. 56, UNCLOS)

Jurisdiction, inter alia, with regard to:
(1)the establishment and use of artificial islands, installations and structures;
(2)marine scientific research; and
(3)the protection and preservation of the marine environment.



-II-

(1) Police Officer Henry Magiting of the Narcotics Section of the Western Police District applied for a search warrant in the Regional Trial Court of Manila for violation of Section 11, Article II (Possession of Prohibited Drugs) of Republic Act (R.A.) No. 9165 (Comprehensive Dangerous Drugs Act of 2002) for the search and seizure of heroin in the cabin of the Captain of the MSS Seastar, a foreign-registered vessel which was moored at the South Harbor, Manila, its port of destination.
Based on the affidavits of the applicant's witnesses who were crew members of the vessel, they saw a box containing ten (10) kilograms of heroin under the bed in the Captain's cabin. The RTC found probable cause for the issuance of a search warrant; nevertheless, it denied the application on the ground that Philippine courts have no criminal jurisdiction over violations of R.A. No. 9165 committed on foreign-registered vessels found in Philippine waters.

Is the ruling of the court correct? Support your answer with reasons. (5%)

Alternative answer:

The court's ruling is not correct. The foreign-registered vessel was not in transit. It was moored in South Harbor, Manila, its port of destination. Hence, any crime committed on board said vessel, like possession of heroin, is triable by our courts (U.S. v. Ah Sing, G.R. No. 13005, October 10, 1917), except if the crime involves the internal management of the vessel.

Alternative answer:

The RTC may assert its jurisdiction over the case by invoking the territorial principle, which provides that crimes committed within a state's territorial boundaries and persons within that territory, either permanently or temporarily, are subject to the application of local law. Jurisdiction may also be asserted on the basis of the universality principle, which confers upon all states the right to exercise jurisdiction over delicta juris gentium or international crimes, such as the international traffic narcotics. The possession of 10 kgs. of heroin constitutes commercial quantity and therefore qualifies as trafficking of narcotics.

Consequently, the denial of the search warrant should have been anchored on the failure of the court to conduct personal examination of the witnesses to the crime in order to establish probable cause, as required by Sections 3 and 4 of Rule 126. In any event, there is no showing that the requisite quantum of probable cause was established by mere reference to the affidavits and other documentary evidence presented.

(2)The Philippines and Australia entered into a Treaty of Extradition concurred in by the Senate of the Philippines on September 10,1990. Both governments have notified each other that the requirements for the entry into force of the Treaty have been complied with. It took effect in 1990.

The Australian government is requesting the Philippine government to extradite its citizen, Gibson, who has committed in his country the indictable offense of Obtaining Property by Deception in 1985. The said offense is among those enumerated as extraditable in the Treaty.

For his defense, Gibson asserts that the retroactive application of the extradition treaty amounts to an ex post facto law. Rule on Gibson's contention. (5%)

Suggested answer:

Gibson is incorrect. In Wright v. Court of Appeals, G.R. No. 113213, August 15,1994, it was held that the retroactive application of the Treaty of Extradition does not violate the prohibition against ex post facto laws, because the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. It merely provided for extraradition of persons wanted for offenses already committed at the time the treaty was ratified.




-III-

(1) Italy, through its Ambassador, entered into a contract with Abad for the maintenance and repair of specified equipment at its Embassy and Ambassador's Residence, such as air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps. It was stipulated that the agreement shall be effective for a period of four years and automatically renewed unless cancelled. Further, it provided that any suit arising from the contract shall be filed with the proper courts in the City of Manila.

Claiming that the Maintenance Contract was unilaterally, baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador before a court in the City of Manila. Among the defenses, they raised were "sovereign immunity" and "diplomatic immunity." (5%)

(a)As counsel of Abad, refute the defenses of "sovereign immunity" and "diplomatic immunity" raised by the State of Italy and its Ambassador.

Suggested answer:

As counsel for Abad, I will argue that sovereign immunity will not lie as it is an established rule that when a State enters into a contract, it waives its immunity and allows itself to be sued. Moreover, there is a provision in the contract that any suit arising therefrom shall be filed with the proper courts of the City of Manila. On the issue of diplomatic immunity, I will assert that the act of the Ambassador unilaterally terminating the agreement is tortuous and done with malice and bad faith and not a sovereign or diplomatic function.

(b)At any rate, what should be the court's ruling on the said defenses?

Suggested answer:

The court should rule against said defenses. The maintenance contract and repair of the Embassy and Ambassador's Residence is a contract in jus imperii, because such repair of said buildings is indispensable to the performance of the official functions of the Government of Italy. Hence, the contract is in pursuit of a sovereign activity in which case, it cannot be deemed to have waived its immunity from suit.

On the matter of whether or not the Ambassador may be sued, Article 31 of the Vienna Convention on Diplomatic Relations
provides that a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving state except if the act performed is outside his official functions, in accordance with the principle of functional necessity. In this case, the act of entering into the contract by the Ambassador was part of his official functions and thus, he is entitled to diplomatic immunity. (Republic of Indonesia v. Vinzons, G.R. No. 154705, June 26, 2003)

(2) Adams and Baker are American citizens residing in the Philippines. Adams befriended Baker and became a frequent visitor at his house. One day, Adams arrived with 30 members of the Philippine National Police, armed with a Search Warrant authorizing the search of Baker's house and its premises for dangerous drugs being trafficked to the United States of America.

The search purportedly yielded positive results, and Baker was charged with Violation of the Dangerous Drugs Act. Adams was the prosecution's principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker was acquitted.
Baker then sued Adams for damages for filing trumped-up charges against him. Among the defenses raised by Adams is that he has diplomatic immunity, conformably with the Vienna Convention on Diplomatic Relations. He presented Diplomatic Notes from the American Embassy stating that he is an agent of the United States Drug Enforcement Agency tasked with "conducting surveillance operations" on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S. It was also stated that after having ascertained the target, Adams would then inform the Philippine narcotic agents to make the actual arrest. (5%)

(a) As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of defendant Adams' diplomatic immunity from suit.

Suggested answer:

As counsel for Baker, I would argue that Adams is not a diplomatic agent considering that he is not a head of mission nor is he part of the diplomatic staff that is accorded diplomatic rank. Thus, the suit should not be dismissed as Adams has no diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

(b) As counsel of defendant Adams, argue for the dismissal of the complaint.

As counsel for Adams, I would argue that he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country with the approval of the Philippine government. Under the doctrine of State Immunity from Suit, if the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Adams may not be a diplomatic agent but the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of Adams and thus he is entitled to the defense of state immunity from suit. (Minucher v. CA, G.R. No. 142396, February 11, 2003)

[pinkalou]

-IV-

(1) Squatters and vendors have put up structures in an area intended for a People's Park, which are impeding the flow of traffic in the adjoining highway. Mayor Cruz gave notice for the structures to be removed, and the area vacated within a month, or else, face demolition and ejectment. The occupants filed a case with the Commission on Human Rights (CHR) to stop the Mayor's move.

The CHR then issued an "order to desist" against Mayor Cruz with warning that he would be held in contempt should he fail to comply with the desistance order. When the allotted time lapsed, Mayor Cruz caused the demolition and removal of the structures. Accordingly, the CHR cited him for contempt. (5%)

(a) What is your concept of Human Rights? Does this case involve violations of human rights within the scope of the CHR's jurisdiction?

Suggested answer:

Under the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, the scope of human rights includes "those that relate to an individual's social, economic, cultural, political and civil relations... along with what is generally considered to be his inherent and inalienable rights, encompassing almost all aspects of life." In the case at bar, the land adjoins a busy national highway and the construction of the squatter shanties impedes the flow of traffic. The consequent danger to life and limb cannot be ignored. It is paradoxical that a right which is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Based on the circumstances obtaining in this instance, the CHR order for demolition do not fall within the compartment of human rights violations involving civil and political rights intended by the Constitution. (Simon v. Commission on Human Rights, G.R. No. 100150, January 5, 1994)

(b)Can the CHR issue an "order to desist" or restraining order?

Suggested answer:

The CHR may not issue an "order to desist" or restraining order. The constitutional provision directing the CHR to provide for preventive measures to those whose human rights have been violated or need protection may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the Constitution would have expressly said so. Jurisdiction is conferred only by the Constitution or by law. It is never derived by implication. (Export Processing Zone Authority v. Commission on Human Rights, G.R. No. 101476, April 14 1992)

(c)Is the CHR empowered to declare Mayor Cruz in contempt? Does it have contempt powers at all?

Suggested answer:

The CHR does not possess adjudicative functions and therefore on its own, is not empowered to declare Mayor Cruz in contempt for issuing the "order to desist." However, under the 1987 Constitution, the CHR is constitutionally authorized, in the exercise of its investigative functions, to "adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR, in the course of an investigation, may only cite or hold any person in contempt and impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court. (Carino v. Commission on Human Rights, G.R. No. 96681, December 2, 1991)

(2)In March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the Commission on Elections. Santos immediately took his oath and assumed office. While his appointment was promptly submitted to the Commission on Appointments for confirmation, it was not acted upon and Congress again adjourned. In June 2001, the President extended a second ad interim appointment to Santos for the same position with the same term, and this appointment was again submitted to the Commission on Appointments for confirmation. Santos took his oath anew and performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the validity of Santos' appointment.

Resolve the following issues: (5%)

(a) Does Santos' assumption of office on the basis of the ad interim appointments issued by the President amount to a temporary appointment which is prohibited by Section 1(2), Article DI-C of the Constitution?

Alternative answer:

No, Santos' appointment does not amount to a temporary aPpointment. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission °n Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission °n Appointments or until the next adjournment of Congress. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly (Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)

Alternative answer:

An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L-65439, November 13, 1985)

(b) Assuming the legality of the first ad interim appointment and assumption of office by Santos, were his second ad interim appointment and subsequent assumption of office to the same position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the Constitution?

Suggested answer:

No, the second ad interim appointment and subsequent assumption of office does not violate the Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution does not apply to by-passed ad interim appointments. It can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. To hold otherwise will lead to absurdities and negate the President's power to make ad interim appointments. {Matibag v. Benipayo, G.R. No. 149036, April 2, 2002)



-V-

(1) Bruno still had several years to serve on his sentence when he was conditionally pardoned by the President. Among the conditions imposed was that he would "not again violate any of the penal laws of the Philippines." Bruno accepted all of the conditions and was released. Shortly thereafter, Bruno was charged with 20 counts of estafa. He was then incarcerated to serve the unexpired portion of his sentence following the revocation by the President, of the pardon.

Bruno's family filed a petition for habeas corpus, alleging that it was error to have him recommitted as the charges were false, in fact, half of them were already dismissed.

Resolve the petition with reasons. (4%) Suggested answer:

The petition should not be given due course. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. The acceptance thereof by the convict or prisoner carried with it the authority or power of the Executive to determine whether a condition or conditions of the pardon has or have been violated. Where the President opts to revoke the conditional pardon given, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, is a purely executive act, not subject to judicial scrutiny. (Torres v. Gonzales, G.R. No. 76872, July 23, 1987)

(2) Ricardo was elected Dean of the College of Education in a State University for a term of five (5) years unless sooner terminated. Many were not pleased with his performance. To appease those critical of him, the President created a new position, that of Special Assistant to the President with the rank of Dean, without reduction in salary, and appointed Ricardo to said position in the interest of the service. Contemporaneously, the University President appointed Santos as Acting Dean in place of Ricardo. (5%)

(a) Does the phrase "unless sooner terminated" mean that the position of Ricardo is terminable at will?

Alternative answer:

No, the term "unless sooner terminated" could not mean that his position is terminable at will. Security of tenure means that dismissal should only be for cause, as provided by law and not otherwise. (Palmera v. CSC, G.R. No. 110168, August 4, 1994)

Alternative answer:

No, his position is not terminable at will. Ricardo's contract of employment has a fixed term of five years. It is not an appointment in an acting capacity or as officer-in-charge. A college dean appointed with a term cannot be separated without cause. Ricardo, with a definite term of employment, may not thus be removed except for cause. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18,1970)

(b) Was Ricardo removed from his position as Dean of the College of Education or merely transferred to the position of Special Assistant to the President? Explain.

Suggested answer:

Ricardo was removed from his position as dean. Having an appointment with a fixed term, he cannot, without his consent, be transferred before the end of his term. He cannot be asked to give up his post nor appointed as dean of another college, much less transferred to another position even if it be dignified with a dean's rank. More than this, the transfer was a demotion because deanship in a university, being an academic position which requires learning, ability and scholarship, is more exalted than that of a special assistant who merely assists the President, as the title indicates. The special assistant does not make authoritative decisions unlike the dean who does so in his own name and responsibility. The position of dean is created by law, while the special assistant is not so provided by law; it was a creation of the university president. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18, 1970)

(3) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose Palacpac with violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer the complaint to the Supreme Court to determine whether an administrative aspect was involved in the said case. The Ombudsman denied the motion on the ground that no administrative case against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in his office.

State with reasons whether the Ombudsman's ruling is correct. (4%)

Suggested answer:

The Ombudsman's ruling is not correct. Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with exclusive administrative supervision over all courts and its personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether an administrative aspect is involved therein. {Judge Jose Caoibes v. Ombudsman, G.R. No. 132177, July 19, 2001)




-VI-

(1) The two accepted tests to determine whether or not there is a valid delegation of legislative power are the Completeness Test and the Sufficient Standard Test. Explain each. (4%)

Alternative answer:

Under the Completeness Test, a law must be complete in all its terms and provisions when it leaves the legislature that nothing is left to the judgment of the delegate. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. However, a delegation of power to make the laws which necessarily involves a discretion as to what it shall be may not constitutionally be done. (Edit v. Ericta, G.R. No. L-32096, October 24, 1970)

Under the Sufficiency of Standards Test, the statute must not only define a fundamental legislative policy, mark its limits and boundaries, and specify the public agency to exercise the legislative power. It must also indicate the circumstances under which the legislative command is to be effected. To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. (Free Telephone Workers Union v. Minister of Labor, G.R. No. L-58184, October 30, 1981)

Alternative answer:

Completeness Test. The law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it. (See US v. Ang Tang Ho, G.R. No. L-17122, February 27, 1922)

Sufficient Standard Test. A sufficient standard is intended to map out the boundaries of the delegate's authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected; intended to prevent a total transference of legislative power from the legislature to the delegate. The standard is usually indicated in the law delegating legislative power. (See Ynot v. Intermediate Appellate Court, G.R. No. 74457, March 20, 1987)

(2) Section 32 of Republic Act No. 4670 (The Magna Carta for Public School Teachers) reads:
Sec. 32. Penal Provision. — A person who shall willfully interfere with, restrain or coerce any teacher in the exercise of his rights guaranteed by this Act or who shall in any other manner commit any act to defeat any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court.

Is the proviso granting the court the authority to impose a penalty or imprisonment in its discretion constitutional? Explain briefly. (4%)

Suggested answer:

The proviso is unconstitutional. Section 32 of R.A. No. 4670 provides for an indeterminable period of imprisonment, with neither a minimum nor a maximum duration having been set by the legislative authority. The courts are thus given wide latitude of discretion to fix the term of imprisonment, without even the benefit of any sufficient standard, such that the duration thereof may range, in the words of respondent judge, from one minute to the life span of the accused. This cannot be allowed. It vests in the courts a power and a duty essentially legislative in nature and which, as applied to this case, does violence to the rules on separation of powers as well as the non-delegability of legislative powers. (People v. Judge Dacuycuy, G.R. No. L-45127, May 5, 1989)




-VII-

(1) State with reason(s) whether bail is a matter of right or a matter of discretion in the following cases: (4%)

(a)The imposable penalty for the crime charged is reelusion perpetua and the accused is a minor;

Suggested answer:

If the accused is a minor where the imposable penalty for the crime charged is reclusion perpetua, bail would be a matter of right. Under Article 68 of the Revised Penal Code, when the offender is a minor under eighteen years of age, he is entitled to a penalty, depending on his age, lower by one or two degrees than that prescribed by law for the crime committed. The Constitution withholds the guaranty of bail from one who is accused of a capital offense where the evidence of guilt is strong. The obvious reason is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be a minor who by law cannot be sentenced to death. (Bravo v. Borja, G.R. No. L-65228, February 18, 1985)

(b)The imposable penalty for the crime charged is life imprisonment and the accused is a minor;

Alternative answer:

If the accused is a minor and the imposable penalty for the crime charged is life imprisonment, bail would not be a matter of right. In the instant case, assuming that evidence of guilt strong, bail shall be denied as the privileged mitigating circumstance of minority is not available for violation of special laws penalized by life imprisonment.

Alternative answer:

Although the Constitution mentions only reelusion perpetua, Rule 114 of the Rules of Court adds life imprisonment, and therefore, applying the Pro Reo doctrine, bail would still be a matter °f right, since it is favorable to the accused.

(c)The accused has been convicted of homicide on a charge of murder and sentenced to suffer an indeterminate Penalty of from eight ( years and one (1) day of prision mayor, as minimum, to twelve (12) years and four (4) months of reclusion temporal, as maximum.

Suggested answer:

If the accused has been convicted of homicide on a charge of murder and sentenced to suffer imprisonment of from 8 to 12 years, bail is a matter of discretion. Under Rule 114, Sec. 5, par. 1 of the Rules of Court, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail may be filed and acted upon by the appellate court. Admission to bail is discretionary.

(2) State with reason(s) which of the following is a government agency or a government instrumentality:

(a)Department of Public Works and Highways;
(b)Bangko Sentral ng Pilipinas;
(c)Philippine Ports Authority;
(d)Land Transportation Office;
(e)Land Bank of the Philippines. (5%)

Suggested answer:

An instrumentality refers to any agency of the national government not integrated within the departmental framework, vested with special functions or jurisdiction by law, with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. (Iron and Steel Authority v. Court of Appeals, G.R. No. 102976, October 25, 1995)

Agency under the administrative code is any department, bureau, office, commission, authority or officer of the national government, authorized by law or executive order to make rules, issue licenses, grant rights or privileges, and adjudicate cases; research institutions with respect to licensing functions; government corporations with respect to functions regulating private rights, privileges, occupation or business, and officials in the exercise of the disciplinary powers as provided by law.

There is no practical distinction between an instrumentality and agency, for all intents and purposes. A distinction, however, may be made with respect to those entities possessing a separate charter created by statute.

a.DPWH is an agency. It does not possess a separate charter.
b.BSP is an instrumentality because it was incorporated under the new Central Bank Law (R.A. No. 7653)
c.PPA can be defined as both an instrumentality and an agency because it was incorporated by special law and it has its own charter, yet it is integrated with the DOTC.
d.LTO is an agency. It is an office of the DOTC.
e.LBP is an instrumentality having a charter under a special law and is a government financial institution (GFI) independent of any department of government.




-VIII-

(1) Mariano was arrested by the NBI as a suspect in the shopping mall bombings. Advised of his rights, Mariano asked for the assistance of his relative, Atty. Santos. The NBI noticed that Atty. Santos was inexperienced, incompetent and inattentive. Deeming him unsuited to protect the rights of Mariano, the NBI dismissed Atty. Santos. Appointed in his place was Atty. Barroso, a bar topnotcher who was in the premises visiting a relative. Atty. Barroso ably assisted Mariano when the latter gave a statement. However, Mariano assailed the investigation claiming that he was deprived of counsel of his choice.
Was the NBI correct in dismissing Atty. Santos and appointing Atty. Barroso in his stead? Is Mariano's statement, made with the assistance of Atty. Barroso, admissible in evidence? (5%)

Alternative answer:

The NBI was not correct in dismissing Atty. Santos and appointing Atty. Barroso in his stead. Article III, Section 12(1) of the 1987 Constitution requires that a person under investigation for the commission of an offense shall have no less than "competent and independent counsel preferably of his own choice." This is meant to stress the primacy accorded to the voluntariness of the choice, Under the uniquely stressful conditions of a custodial investigation. Thus, the lawyer called to be present during such investigation should be as far as reasonably possible, the choice of the individual undergoing questioning. The appointment of Atty. Barroso is questionable because he was visiting a relative working in the NBI and thus his independence is doubtful. Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. Considering that Mariano was deprived of counsel of his own choice, the statement is inadmissible in evidence. (People v. Januario, G.R. No. 98252, February 7,1997)

Alternative answer:

The NBI was correct in dismissing Atty. Santos as he was incompetent. The 1987 Constitution requires counsel to be competent and independent. Atty. Barroso, being a bar topnotcher ably assisted Mariano and there is no showing that his having a relative in the NBI affected his independence. Moreover, the accused has the final choice of counsel as he may reject the one chosen for him and ask for another. A lawyer provided by the investigators is deemed engaged by the accused where he raises no objection against the lawyer during the course of the investigation, and the accused thereafter subscribes to the truth of his statement before the swearing officer. Thus, once the prosecution shows there was compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue. A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency which are not present in this case. Accordingly, the statement is admissible. (People v. Jerez, G.R. No. 114385, January 29,199

(2) Emilio had long suspected that Alvin, his employee, had been passing trade secrets to his competitor, Randy, but he had no proof. One day, Emilio broke open the desk of Alvin and discovered a letter wherein Randy thanked Alvin for having passed on to him vital trade secrets of Emilio. Enclosed in the letter was a check for P50,000.00 drawn against the account of Randy and payable to Alvin. Emilio then dismissed Alvin from his employment. Emilio's proof of Alvin's perfidy are the said letter and check which are objected to as inadmissible for having been obtained through an illegal search. Alvin filed a suit assailing his dismissal.

Rule on the admissibility of the letter and check. (5%)

Alternative answer:

As held in People v. Marti (G.R. No. 81561, January 18, 1991), the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Thus, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individuals, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. Accordingly, the letter and check are admissible in evidence. (Waterous Drug Corp. v. NLRC, G.R. No. 113271, October 16, 1997)

Alternative answer:

The letter is inadmissible in evidence. The constitutional injunction declaring the privacy of communication and correspondence to be inviolable is no less applicable simply because it is the employer who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order from the court or when public safety or order requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. (Zulueta v. Court of Appeals, G.R. No. 107383, February 20,1996)

[pinkalou]

-V-

(1) Bruno still had several years to serve on his sentence when he was conditionally pardoned by the President. Among the conditions imposed was that he would "not again violate any of the penal laws of the Philippines." Bruno accepted all of the conditions and was released. Shortly thereafter, Bruno was charged with 20 counts of estafa. He was then incarcerated to serve the unexpired portion of his sentence following the revocation by the President, of the pardon.

Bruno's family filed a petition for habeas corpus, alleging that it was error to have him recommitted as the charges were false, in fact, half of them were already dismissed.

Resolve the petition with reasons. (4%) Suggested answer:

The petition should not be given due course. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. The acceptance thereof by the convict or prisoner carried with it the authority or power of the Executive to determine whether a condition or conditions of the pardon has or have been violated. Where the President opts to revoke the conditional pardon given, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, is a purely executive act, not subject to judicial scrutiny. (Torres v. Gonzales, G.R. No. 76872, July 23, 1987)

(2) Ricardo was elected Dean of the College of Education in a State University for a term of five (5) years unless sooner terminated. Many were not pleased with his performance. To appease those critical of him, the President created a new position, that of Special Assistant to the President with the rank of Dean, without reduction in salary, and appointed Ricardo to said position in the interest of the service. Contemporaneously, the University President appointed Santos as Acting Dean in place of Ricardo. (5%)

(a) Does the phrase "unless sooner terminated" mean that the position of Ricardo is terminable at will?

Alternative answer:

No, the term "unless sooner terminated" could not mean that his position is terminable at will. Security of tenure means that dismissal should only be for cause, as provided by law and not otherwise. (Palmera v. CSC, G.R. No. 110168, August 4, 1994)

Alternative answer:

No, his position is not terminable at will. Ricardo's contract of employment has a fixed term of five years. It is not an appointment in an acting capacity or as officer-in-charge. A college dean appointed with a term cannot be separated without cause. Ricardo, with a definite term of employment, may not thus be removed except for cause. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18,1970)

(b) Was Ricardo removed from his position as Dean of the College of Education or merely transferred to the position of Special Assistant to the President? Explain.

Suggested answer:

Ricardo was removed from his position as dean. Having an appointment with a fixed term, he cannot, without his consent, be transferred before the end of his term. He cannot be asked to give up his post nor appointed as dean of another college, much less transferred to another position even if it be dignified with a dean's rank. More than this, the transfer was a demotion because deanship in a university, being an academic position which requires learning, ability and scholarship, is more exalted than that of a special assistant who merely assists the President, as the title indicates. The special assistant does not make authoritative decisions unlike the dean who does so in his own name and responsibility. The position of dean is created by law, while the special assistant is not so provided by law; it was a creation of the university president. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18, 1970)

(3) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose Palacpac with violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer the complaint to the Supreme Court to determine whether an administrative aspect was involved in the said case. The Ombudsman denied the motion on the ground that no administrative case against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in his office.

State with reasons whether the Ombudsman's ruling is correct. (4%)

Suggested answer:

The Ombudsman's ruling is not correct. Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with exclusive administrative supervision over all courts and its personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether an administrative aspect is involved therein. {Judge Jose Caoibes v. Ombudsman, G.R. No. 132177, July 19, 2001)

-VI-

(1) The two accepted tests to determine whether or not there is a valid delegation of legislative power are the Completeness Test and the Sufficient Standard Test. Explain each. (4%)

Alternative answer:

Under the Completeness Test, a law must be complete in all its terms and provisions when it leaves the legislature that nothing is left to the judgment of the delegate. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. However, a delegation of power to make the laws which necessarily involves a discretion as to what it shall be may not constitutionally be done. (Edit v. Ericta, G.R. No. L-32096, October 24, 1970)

Under the Sufficiency of Standards Test, the statute must not only define a fundamental legislative policy, mark its limits and boundaries, and specify the public agency to exercise the legislative power. It must also indicate the circumstances under which the legislative command is to be effected. To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. (Free Telephone Workers Union v. Minister of Labor, G.R. No. L-58184, October 30, 1981)

Alternative answer:

Completeness Test. The law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it. (See US v. Ang Tang Ho, G.R. No. L-17122, February 27, 1922)

Sufficient Standard Test. A sufficient standard is intended to map out the boundaries of the delegate's authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected; intended to prevent a total transference of legislative power from the legislature to the delegate. The standard is usually indicated in the law delegating legislative power. (See Ynot v. Intermediate Appellate Court, G.R. No. 74457, March 20, 1987)

(2) Section 32 of Republic Act No. 4670 (The Magna Carta for Public School Teachers) reads:
Sec. 32. Penal Provision. — A person who shall willfully interfere with, restrain or coerce any teacher in the exercise of his rights guaranteed by this Act or who shall in any other manner commit any act to defeat any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court.

Is the proviso granting the court the authority to impose a penalty or imprisonment in its discretion constitutional? Explain briefly. (4%)

Suggested answer:

The proviso is unconstitutional. Section 32 of R.A. No. 4670 provides for an indeterminable period of imprisonment, with neither a minimum nor a maximum duration having been set by the legislative authority. The courts are thus given wide latitude of discretion to fix the term of imprisonment, without even the benefit of any sufficient standard, such that the duration thereof may range, in the words of respondent judge, from one minute to the life span of the accused. This cannot be allowed. It vests in the courts a power and a duty essentially legislative in nature and which, as applied to this case, does violence to the rules on separation of powers as well as the non-delegability of legislative powers. (People v. Judge Dacuycuy, G.R. No. L-45127, May 5, 1989)

-VII-

(1) State with reason(s) whether bail is a matter of right or a matter of discretion in the following cases: (4%)

(a)The imposable penalty for the crime charged is reclusion perpetua and the accused is a minor;



Suggested answer:


If the accused is a minor where the imposable penalty for the crime charged is reclusion perpetua, bail would be a matter of right. Under Article 68 of the Revised Penal Code, when the offender is a minor under eighteen years of age, he is entitled to a penalty, depending on his age, lower by one or two degrees than that prescribed by law for the crime committed. The Constitution withholds the guaranty of bail from one who is accused of a capital offense where the evidence of guilt is strong. The obvious reason is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be a minor who by law cannot be sentenced to death. (Bravo v. Borja, G.R. No. L-65228, February 18, 1985)


(b)The imposable penalty for the crime charged is life imprisonment and the accused is a minor;

Alternative answer:

If the accused is a minor and the imposable penalty for the crime charged is life imprisonment, bail would not be a matter of right. In the instant case, assuming that evidence of guilt strong, bail shall be denied as the privileged mitigating circumstance of minority is not available for violation of special laws penalized by life imprisonment.

Alternative answer:

Although the Constitution mentions only reelusion perpetua, Rule 114 of the Rules of Court adds life imprisonment, and therefore, applying the Pro Reo doctrine, bail would still be a matter °f right, since it is favorable to the accused.


(c)The accused has been convicted of homicide on a charge of murder and sentenced to suffer an indeterminate Penalty of from eight ( years and one (1) day of prision mayor, as minimum, to twelve (12) years and four (4) months of reclusion temporal, as maximum.

Suggested answer:

If the accused has been convicted of homicide on a charge of murder and sentenced to suffer imprisonment of from 8 to 12 years, bail is a matter of discretion. Under Rule 114, Sec. 5, par. 1 of the Rules of Court, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail may be filed and acted upon by the appellate court. Admission to bail is discretionary.

(2) State with reason(s) which of the following is a government agency or a government instrumentality:

(a)Department of Public Works and Highways;

(b)Bangko Sentral ng Pilipinas;

(c)Philippine Ports Authority;

(d)Land Transportation Office;

(e)Land Bank of the Philippines. (5%)


Suggested answer:

An instrumentality refers to any agency of the national government not integrated within the departmental framework, vested with special functions or jurisdiction by law, with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. (Iron and Steel Authority v. Court of Appeals, G.R. No. 102976, October 25, 1995)

Agency under the administrative code is any department, bureau, office, commission, authority or officer of the national government, authorized by law or executive order to make rules, issue licenses, grant rights or privileges, and adjudicate cases; research institutions with respect to licensing functions; government corporations with respect to functions regulating private rights, privileges, occupation or business, and officials in the exercise of the disciplinary powers as provided by law.


There is no practical distinction between an instrumentality and agency, for all intents and purposes. A distinction, however, may be made with respect to those entities possessing a separate charter created by statute.


a.DPWH is an agency. It does not possess a separate charter.

b.BSP is an instrumentality because it was incorporated under the new Central Bank Law (R.A. No. 7653)

c.PPA can be defined as both an instrumentality and an agency because it was incorporated by special law and it has its own charter, yet it is integrated with the DOTC.

d.LTO is an agency. It is an office of the DOTC.

e.LBP is an instrumentality having a charter under a special law and is a government financial institution (GFI) independent of any department of government.

-VIII-

(1) Mariano was arrested by the NBI as a suspect in the shopping mall bombings. Advised of his rights, Mariano asked for the assistance of his relative, Atty. Santos. The NBI noticed that Atty. Santos was inexperienced, incompetent and inattentive. Deeming him unsuited to protect the rights of Mariano, the NBI dismissed Atty. Santos. Appointed in his place was Atty. Barroso, a bar topnotcher who was in the premises visiting a relative. Atty. Barroso ably assisted Mariano when the latter gave a statement. However, Mariano assailed the investigation claiming that he was deprived of counsel of his choice.

Was the NBI correct in dismissing Atty. Santos and appointing Atty. Barroso in his stead? Is Mariano's statement, made with the assistance of Atty. Barroso, admissible in evidence? (5%)

Alternative answer:

The NBI was not correct in dismissing Atty. Santos and appointing Atty. Barroso in his stead. Article III, Section 12(1) of the 1987 Constitution requires that a person under investigation for the commission of an offense shall have no less than "competent and independent counsel preferably of his own choice." This is meant to stress the primacy accorded to the voluntariness of the choice, Under the uniquely stressful conditions of a custodial investigation. Thus, the lawyer called to be present during such investigation should be as far as reasonably possible, the choice of the individual undergoing questioning. The appointment of Atty. Barroso is questionable because he was visiting a relative working in the NBI and thus his independence is doubtful. Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. Considering that Mariano was deprived of counsel of his own choice, the statement is inadmissible in evidence. (People v. Januario, G.R. No. 98252, February 7,1997)

Alternative answer:

The NBI was correct in dismissing Atty. Santos as he was incompetent. The 1987 Constitution requires counsel to be competent and independent. Atty. Barroso, being a bar topnotcher ably assisted Mariano and there is no showing that his having a relative in the NBI affected his independence. Moreover, the accused has the final choice of counsel as he may reject the one chosen for him and ask for another. A lawyer provided by the investigators is deemed engaged by the accused where he raises no objection against the lawyer during the course of the investigation, and the accused thereafter subscribes to the truth of his statement before the swearing officer. Thus, once the prosecution shows there was compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue. A confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency which are not present in this case. Accordingly, the statement is admissible. (People v. Jerez, G.R. No. 114385, January 29,199

(2) Emilio had long suspected that Alvin, his employee, had been passing trade secrets to his competitor, Randy, but he had no proof. One day, Emilio broke open the desk of Alvin and discovered a letter wherein Randy thanked Alvin for having passed on to him vital trade secrets of Emilio. Enclosed in the letter was a check for P50,000.00 drawn against the account of Randy and payable to Alvin. Emilio then dismissed Alvin from his employment. Emilio's proof of Alvin's perfidy are the said letter and check which are objected to as inadmissible for having been obtained through an illegal search. Alvin filed a suit assailing his dismissal.


Rule on the admissibility of the letter and check. (5%)


Alternative answer:

As held in People v. Marti (G.R. No. 81561, January 18, 1991), the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Thus, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individuals, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. Accordingly, the letter and check are admissible in evidence. (Waterous Drug Corp. v. NLRC, G.R. No. 113271, October 16, 1997)

Alternative answer:

The letter is inadmissible in evidence. The constitutional injunction declaring the privacy of communication and correspondence to be inviolable is no less applicable simply because it is the employer who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order from the court or when public safety or order requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. (Zulueta v. Court of Appeals, G.R. No. 107383, February 20,1996)


- IX –

(1.) In the May 8, 1995 elections for local officials whose terms were to commence on June 30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of Governor of Laguna. He won, but his qualifications as an elected official was questioned. It is admitted that he is a repatriated Filipino citizen and a resident of the Province of Laguna. To be qualified for the office to which a local official has been elected, when at the latest should he be:

(a) A Filipino Citizen? Explain.
(b) A resident of the locality? Explain.(5%)
(2.) Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995 and 1998. He fully served his first two terms, and during his third term, the municipality was converted into the component City of Tuba. The said charter provided for a hold-over and so without interregnum Manuel went on to serve as the Mayor of the City of Tuba.
In the 2001 elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed, though, that he had already served for three consecutive terms as elected Mayor when Tuba was still a municipality. He also stated in his certificate of candidacy that he is running for the position of Mayor for the first time now that Tuba is a city. Reyes, an adversary, ran against Manuel and petitioned that he be disqualified because he had already served for three consecutive terms as Mayor. The petition was not timely acted upon, and Manuel was proclaimed the winner with 20,000 votes over the 10,000 votes received by Reyes as the only other candidate. It was only after Manuel took his oath and assumed office that the COMELEC ruled that he was disqualified for having ran and served for three consecutive terms.
(a) As lawyer of Manuel, present the possible arguments to prevent his disqualification and removal.

(b) How would you rule on whether or not Manuel is eligible to run as Mayor of the newly-created City of Tuba immediately after having already served for three (3) consecutive terms as Mayor of the Municipality of Tuba?
(c) Assuming that Manuel is not an eligible candidate, rebut Reyes' claim that he should be proclaimed as winner having received the next higher number of votes. (5%)

- X –

(1.) There was a boundary dispute between Dueñas, a municipality, and Passi, an independent component city, both of the same province. State how the two local government units should settle their boundary dispute. (5%)

(2.) The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution No. 1 authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina as site for its municipal sports center. This was approved by the Mayor. However, the Sangguniang Panlalawigan of Ilocos Sur disapproved the Resolution as there might still be other available lots in Santa for a sports center. Nonetheless, the Municipality of Santa, through its Mayor, filed a complaint for eminent domain. Christina opposed this on the following grounds: (a) the Municipality of Santa has no power to expropriate; (b) Resolution No. 1 has been voided since the Sangguniang Panlalawigan disapproved it for being arbitrary; and (c) the Municipality of Santa has other and better lots for that purpose.Resolve the case with reasons. (5%)

NOTHING FOLLOWS.

[pinkalou]

BAR EXAMINATION 2006
POLITICAL AND PUBLIC INTERNATIONAL LAW

3 September 2006 8 A.M. - 12 Noon
INSTRUCTIONS

This questionnaire consists of ten (10) numbers contained in seven (7) pages. Read each question very carefully. Answer legibly, clearly, and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same page and immediately succeeding pages until completed. Do not repeat the question. A mere "Yes" or "No" answer without any corresponding discussion will not be given any credit.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!


Signed ANGELINA S. GUTIERREZ
Chairperson
20006 Bar Examination Committee
PLEASE CHECK THE NUMBER OF PAGES IN THIS SET
WARNING: NOT FOR SALE OR UNAUTHORIZED USE

POLITICAL AND PUBLIC INTERNATIONAL LAW

- I -

What do you mean by the "Calling-out Power" of the President under Section 18, Article VII of the Constitution? 5%

On February 24, 2006, President Gloria Macapagal-Arroyo issued Proclamation No.1017 declaring a state of national emergency. Is this Proclamation constitutional? Explain. 2.5%

During the effectivity of this Proclamation, Gener, Lito, and Bong were arrested by the police for acts of terrorism. Is the arrest legal? Explain. 2.5%

- II -

The Samahan Ng Mga Mahihirap (SM) filed with the Office of the City Mayor" of Manila an application for a permit to hold a rally on Mendiola Street on September 5, 2006 from 10:00 a.m. to 3:00 p.m. to protest the political killings of journalists. However, the City Mayor denied their application on the ground that a rally at the time and place applied for will block the traffic in the San Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio, which has been designated a Freedom Park, as venue for the rally.

Does the SM have a remedy to contest the denial of its application for a permit? 2.5%

How should a wage distortion be settled?

Does the availability of a Freedom Park justify the denial of SM's application for a permit? 2.5%

Assuming that despite the denial of SM's application for a permit, its members hold a rally, prompting the police to arrest them. '- Are the arrests without judicial warrants lawful? 2.5%

- III -

The President issued Proclamation No.1018 placing the Philippines under Martial Law on the ground that a rebellion staged by lawless elements is endangering the public safety .Pursuant to the Proclamation, suspected rebels were arrested and detained and military tribunals were set up to try them. Robert dela Cruz, a citizen, filed with the Supreme Court a petition questioning the validity of Proclamation No.1018.

Does Robert have a standing to challenge Proclamation No.1018? Explain. 2.5%

In the same suit, the Solicitor General contends that under the Constitution, the President as Commander-in-Chief, determines whether the exigency has arisen requiring the exercise of his power to declare Martial Law and that his determination is conclusive upon the courts. How should the Supreme Court rule? 2.5%

The Solicitor General argues that, in any event, the determination of whether the rebellion poses dangers to public safety involves a question of fact and the Supreme Court is not a trier of facts. What should be the ruling of the Court? 2.5%

Finally, the Solicitor General maintains that the President reported to Congress such proclamation of Martial Law, but Congress did not revoke the proclamation. What is the effect of the inaction of Congress on the suit brought by Robert to the Supreme Court? 2.5%

- IV -

State whether or not the following laws are constitutional. Explain briefly.

A law prohibiting Chinese citizens from engaging in retail trade. 2%

A law denying persons charged with crimes punishable by reclusion perpetua or death the right to bail. 2%

A law fixing the terms of local elective officials, other than barangay officials, to 6 years. 2%

A law changing the design of the Philippine flag. 2%

A law creating a state corporation to exploit, develop, and utilize compressed natural gas. 2%

- V -

What is the function of the Senate Electoral Tribunal and the House of Representatives Electoral Tribunal? 2.5%

What is the composition of each? 2.5%

Differentiate an election protest from an action for quo warranto. 2.5%

What is a quasi-judicial body or agency? 2.5%

- VI -

a) What is the principal identifying feature of a presidential form of government? Explain. 2.5%

b) What are the essential characteristics of a parliamentary form of government? 2.5%

What Constitutional provisions institutionalize the principle of civilian supremacy? 2.5%

Does a Permit to Carry Firearm Outside Residence (PTCFOR) constitute a property right protected by the Constitution? 2.5%

- VII -

Select the best answer and explain.

An accused's right against self-incrimination is violated in the following cases: 5%

When he is ordered by the trial court to undergo a paraffin test to prove he is guilty of murder;

When he is compelled to produce his bankbooks to be used as evidence against his father charged with plunder;

When he is ordered to produce a sample of his handwriting to be used as evidence that he is the author of a letter wherein he agreed to kill the victim;

When the president of a corporation is subpoenaed to produce certain documents as proofs he is guilty of illegal recruitment.

The legislature may abolish this body: 5%

Commission on Appointments

Ombudsman

Judicial and Bar Council

Court of Tax Appeals

Commission on Audit

- VIII -

Atty. Emily Go, a legitimate daughter of a Chinese father and a Filipino mother, was born in 1945. At 21, she elected Philippine citizenship and studied law. She passed the bar examinations and engaged in private practice for many years. The Judicial and Bar Council nominated her as a candidate for the position of Associate Justice of the Supreme Court. But her nomination is being contested by Atty .Juris Castillo, also an aspirant to the position. She claims that Atty. Emily Go is not a natural-born citizen, hence, not qualified to be appointed to the Supreme Court. Is this contention correct? 5%

Atty. Richard Chua was born in 1964. He is a legitimate son of a Chinese father and a Filipino mother. His father became a naturalized Filipino citizen when Atty .Chua was still a minor . Eventually, he studied law and was allowed by the Supreme Court to take the bar examinations, subject to his submission to the Supreme Court proof of his Philippine citizenship. Although he never complied with such requirement, Atty. Chua practiced law for many years until one Noel Eugenio filed with the Supreme Court a complaint for disbarment against him on the ground that he is not a Filipino citizen. He then filed with the Bureau of Immigration an affidavit electing Philippine citizenship. Noel contested it claiming it was filed many years after Atty. Chua reached the age of majority. Will Atty. Chua be disbarred? Explain. 5%

- IX -

Where is the seat of the International Court of Justice? 1%

How many are its members? 1 %

What is the term of their office? 1 %

Who is its incumbent president? 1 %

What is his/her nationality? 1 %

In 1980, the United States filed with the International Court of Justice a complaint against Iran alleging that the latter is detaining American diplomats in violation of International Law. Explain how the International Court of Justice can acquire jurisdiction over these contending countries. 5%

- X -

How is state sovereignty defined in International Law? 2.5%

Is state sovereignty absolute? 2.5%

What is the principle of auto-limitation? 2.5%

What is the relationship between reciprocity and the principle of auto-limitation? 2.5%

NOTHING FOLLOWS.

[pinkalou]

BAR EXAMINATION 2007
POLITICAL AND PUBLIC INTERNATIONAL LAW

2 September 2007 8 A.M. - 12 Noon
INSTRUCTIONS
This questionnaire consists of ten (10) numbers contained in eight (8) pages. Read each question very carefully. Answer legibly, clearly, and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same page and immediately succeeding pages until completed. Do not repeat the question. A mere "Yes" or "No" answer without any corresponding discussion will not be given any credit.
HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!
Signed ADOLFO S. AZCUNA
Chairperson
2007 Bar Examination Committee
PLEASE CHECK THE NUMBER OF PAGES IN THIS SET
WARNING: NOT FOR SALE OR UNAUTHORIZED USE
POLITICAL AND PUBLIC INTERNATIONAL LAW
INSTRUCTION: YOU WILL BE GIVEN CREDIT FOR YOUR KNOWLEDGE OF LEGAL DOCTRINE AND FOR THE QUALITY OF YOUR LEGAL REASONING.
- I -
(10 POINTS)
True or False. Briefly explain your answer.
a. For purposes of communication and instruction! the official languages of the Philippines, until otherwise provided by law, are Filipino and English.
b. The 1987 Constitution has increased the scope of academic freedom recognized under the previous Constitution.
- II -
(10 POINTS)
The City Mayor issues an Executive Order declaring that the city promotes responsible parenthood and upholds natural family planning. He prohibits all hospitals operated by the city from prescribing the use of artificial methods of contraception, including condoms, pills, intrauterine devices and surgical sterilization. As a result, poor women in his city lost their access to affordable family planning programs. Private clinics! however, continue to render family planning counsel and devices to paying clients.
a. Is the Executive Order in any way constitutionally infirm? Explain.
b. Is the Philippines in breach of any obligation under international law? Explain.
c. May the Commission on Human Rights order the Mayor to stop the implementation of the Executive Order? Explain.
- III -
(10 POINTS)
Lawrence is a Filipino computer expert based in Manila who invented a virus that destroys all the files stored in a computer. Assume that in May 2005, this virus spread all over the world and caused $50 million in damage to property in the United States, and that in June 2005, he was criminally charged before United States courts under their anti-hacker law. Assume that in July 2005, the Philippines adopted its own anti-hacker law, to strengthen existing sanctions already provided against damage to property. The United States has requested the Philippines to extradite him to US courts under the RP-US Extradition Treaty.
a. Is the Philippines under an obligation to extradite Lawrence? State the applicable rule and its rationale.
b. Assume that the extradition request was made after the Philippines adopted its anti-hacker legislation. Will that change your answer?
- IV -
(10 POINTS)
In 1993, historians confirmed that during World War II, "comfort women" were forced into serving the Japanese military. These women were either abducted or lured by false promises of jobs as cooks or waitresses, and eventually forced against their will to have sex with Japanese soldiers on a daily basis during the course of the war, and often suffered from severe beatings and venereal diseases. The Japanese government contends that the "comfort stations" were run as "onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese military. There were many Filipina "comfort women."
a. Name at least one basic principle or norm of international humanitarian law that was violated by the Japanese military in the treatment of the "comfort women."
b. The surviving Filipina "comfort women" demand that the Japanese government apologize and pay them compensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that ended the state of war between Japan and the Allied Forces -all the injured states, including the Philippines, received war reparations and, in return, waived all claims against Japan arising from the war. Is that a valid defense?
c. The surviving Filipina "comfort women" sue the Japanese government for damages before Philippine courts. Will that case prosper?
- V -
(10 POINTS)
The Destilleria Felipe Segundo is famous for its 15-year old rum, which it has produced and marketed successfully for the past 70 years. Its latest commercial advertisement uses the line: "Nakalikim ka na ba ng kinse anyos?" Very soon, activist groups promoting women's and children's rights were up in arms against the advertisement.
a. All advertising companies in the Philippines have formed an association, the Philippine Advertising Council, and have agreed to abide by all the ethicalguidelines and decisions by the Council. In response to the protests, the Council orders the pull-out of the "kinse anyos" advertising campaign. Can Destilleria Felipe Segundo claim that its constitutional rights are thus infringed?
b. One of the militant groups, the Amazing Amazonas, call on all government-owned and controlled corporations (GOCC) to boycott any newspaper, radio or TV station that carries the "kinse anyos" advertisements. They call on all government nominees in sequestered corporations to block any advertising funds allocated for any such newspaper, radio or TV station. Can the GOCCs and sequestered corporations validly comply?
- VI -
(10 POINTS)
True or False. Briefly explain your answer.
a. An amendment to the Constitution shall be valid upon a vote of three-fourths of all the Members of the Congress.
b. All public officers and employees shall take an oath to uphold and defend the Constitution .
- VII -
(10 POINTS)
Batas Pambansa 880, the Public Assembly Law of 1985, regulates the conduct of all protest rallies in the Philippines.
a. Salakay, Bayan! held a protest rally and planned to march from Quezon City to Luneta in Manila. They received a permit from the Mayor of Quezon City, but not from the Mayor of Manila. They were able to march in Quezon City and up to the boundary separating it from the City of Manila. Three meters after crossing the boundary, the Manila Police stopped them for posing a danger to pubHc safety. Was this a valid exercise of police power?
b. The security police of the Southern Luzon Expressway spotted a caravan of 20 vehicles, with paper banners taped on their sides and protesting graft and corruption in government. They were driving at 50 kilometers per hour in a 40-90 kilometers per hour zone. Some banners had been blown off by the wind, and posed a hazard to other motorists. They were stopped by the security police. The protesters then proceeded to march instead, sandwiched between the caravan vehicles. They were also stopped by the security force. May the security police validly stop the vehicles and the marchers?
- VIII -
(10 POINTS)
The Provincial Governor of Bataan requested the Department of Budget and Management (DBM) to release its Internal Revenue Allocation (IRA) of P100 million for the current budget year. However, the General Appropriations Act provided that the IRA may be released on Iy if the province meets certain conditions as determined by an Oversight Council created by the President.
a. Is this requirement valid?
b. The Provincial Governor is a party-mate of the President. May the Bataan Representative instead file a petition to compel the DBM to release the funds?
- IX -
(10 POINTS)
The Department of Education (DepEd) requires that any school applying for a tuition fee increase must, as a condition for the increase, offer full tuition scholarships to students from low-income families. The Sagrada Familia Elementary School is a Catholic school and has applied for a tuition fee increase. Under this regulation by the DepEd, it will end up giving tuition scholarships to a total of 21 students next year. At a cost of P50,OOO per student, the school will lose a total of P1.05 million for next year.
a. Is this DepEd requirement valid?
b. If instead the DepEd requires a full tuition scholarship for the highest ranking students in each grade, determined solely on the basis of academic grades and rank, will the DepEd requirement be valid?
- X -
(10 POINTS)
The Supreme Court has provided a formula for allocating seats for party-list representatives.
a. The twenty percent allocation - the combined number of all party-Iist congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list;
b. The two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives;
c. The three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats; and
d. The first-party rule - additional seats which a qualified party is entitled to shall be determined in relation to the total number of votes garnered by the party with the highest number of votes.
For each of these rules, state the constitutional or legal basis, if any, and the purpose.
NOTHING FOLLOWS.
The Lawphil Project - Arellano Law Foundation