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a) The legal yardstick in determining whether usage has become customary international law is expressed in the maxim opinio juris sive necessitatis or opinio juris for short. What does the maxim mean? (3%) b) Under international law, differentiate "hard law" from "soft law". (3%)
ANSWER: A. Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris' ("an opinion of law") is the belief that an action was carried out because it was a legal obligation. B. Hard Law: arises from treaties, regulations, community method. Soft Law: not obligatory, no sanction, no uniformity, not justiciable.
II. May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why. (5%) ANSWER: A treaty cannot violate an international law. A treaty presupposes a contract conforming to all the attributes of an international agreement, characterized by mutuality. A violation if any, will be on the implementation aspect which is whether its subsequent enforcement is in accord with the standards of international law.
III. The President alone without the concurrence of the Senate abrogated a
treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved? (6%) ANSWER: The Supreme Court should declare the treaty abrogation invalid. While the Constitution is silent on whether a treaty abrogation shall require the concurrence of the Senate to make it valid and effective, the treatyratifying power of Senate carries with it the power to concur a treaty abrogated by the President by way of necessary implication. Under the doctrine of incorporation, a treaty duly ratified by the Senate and recognized as such by the contracting State shall form an integral part of the law of the land. The President alone cannot effect the repeal of a law of the land formed by a joint action of the executive and legislative branches, whether the law be a statute or a treaty. To abrogate a treaty, the President’s action must be approved by the Senate.
IV. Congress passed a law authorizing the National Housing Authority (NHA) to expropriate or acquire private property for the redevelopment of slum areas, as well as to lease or resell the property to private developers to carry out the redevelopment plan. Pursuant to the law, the NHA acquired all the properties within a targeted badly blighted area in San Nicolas, Manila, except a well-maintained drug and convenience store that poses no blight or health problem itself. Thereafter, NHA sold all the properties it has thus far acquired to a private realty company for redevelopment. Thus, the NHA initiated expropriation proceedings against the store owner who protested that his property could not be taken because it is not residential or slum housing. He also contended that his property is being condemned for a private purpose, not a public one, noting the NHA's sale of the entire area except his property to a private party. If you were the judge, how would you decide the case? (6%) ANSWER:
If I were the judge, I would rule against NHA. Since the law authorizes NHA to acquire all the properties with the San Nicolas area without a clear cut distinctions or boundaries upon which NHA will act, the law is void for failure to comply with "Completeness" test. Through the law, NHA is giving a wide latitude of discretion. The law is not complete because it does not specify which properties to expropriate.
V. Having received tips that the accused was selling narcotics, two police officers forced open the door of his room. Finding him sitting partly dressed on the side of the bed, the officers spied two capsules on the night stand beside the bed. When asked, "Are these yours?", the accused seized the capsules and put them in his mouth. A struggle ensued, in the course of which the officers pounced on the accused but failed to extract the capsules. The officers handcuffed the accused, took him to a hospital where at their direction, a doctor forced an emetic solution through a tube into accused's stomach against his will. This process induced vomiting. In the vomited matter were found two capsules which proved to contain heroin. In the criminal case, the chief evidence against the accused was the two capsules. a) As counsel for the accused, what constitutional rights will you invoke in his defense? (4%) b) How should the court decide the case? (3%) ANSWER: a) The constitutional right against warrantless arrests and seizures. It is clear that the accused was arrested and the capsules seized without a valid warrant of arrest issued personally by a judge. Even the circumstances permissible by jurisprudence that would have otherwise made the warrantless arrests and seizures of the accused valid, namely: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, (3) arrests of escaped prisoners, and, (4) entrapment operation, are not shown in the case at bar. b) As the arrest of the accused was illegal, it follows that the search conducted by the police was also unlawful and the capsules forcibly expelled
from his stomach was therefore inadmissible as evidence against him. Hence, the case should be dismissed.
VI. The Philippine National Police (PNP) issued a circular to all its members directed at the style and length of a male police officers' hair, sideburns and moustaches, as well as the size of their waistlines. It prohibits beards, goatees and waistlines over 38 inches, except for medical reasons. Some police officers questioned the validity of the circular, claiming that it violated their right to liberty under the Constitution. Resolve the controversy. (6%) ANSWER: The circular is valid and constitutional. Under the Fit and proper rule, a government agency may promulgate rules and regulation as may deem fit and proper for a public servant to discharge his duties efficiently and effectively.
VII JC, a major in the Armed Forces of the Philippines, is facing prosecution before the Regional Trial Court of Quezon City for the murder of his neighbor whom he suspected to have molested his (JC's) 15-year old daughter. a) Is JC entitled to bail? Why or why not? (3%) b) Assume that upon being arraigned, JC entered a plea of guilty and was allowed to present evidence to prove mitigating circumstances. JC then testified to the effect that he stabbed the deceased in self-defense because the latter was strangling him and that he voluntarily surrendered to the authorities. Subsequently, the trial court rendered a decision acquitting JC. Would an appeal by the prosecution from the decision of acquittal violate JC's right against double jeopardy? Why or why not? (3%) ANSWER:
Yes, the prosecution may appeal from the decision of acquittal rendered by the RTC. Again, under the Revised Rules of Criminal Procedure, any party may appeal from the judgment or final order of a criminal court, except when the accused will be placed in double jeopardy. In the instant case, JC will not be placed in double jeopardy because he had no valid plea. One of the requisites to constitute double jeopardy is that there must be a valid plea. The fact that he was allowed to present evidence to prove mitigating circumstances and he testified for an incomplete selfdefense and for a voluntary surrender to the authorities has the effect of vacating his plea of guilt. Therefore, there was actually no standing plea for JC. As a consequence, JC cannot invoke double when the prosecution appeal from his judgment of acquittal.
VIII. ST, a Regional Trial Court judge who falsified his Certificate of Service, was found liable by the Supreme Court for serious miconduct and inefficiency, and meted the penalty of suspension from office for 6 months. Subsequently, ST filed a petition for executive clemency with the Office of the President. The Executive Secretary, acting on the said petition issued a resolution granting ST executive clemency. Is the grant of executive clemency valid? Why or why not? (6%) ANSWER: The grant is valid. To hold otherwise would mean to violate the time-honored principle of separation of powers between the co-equal branches of the government. The scope of application of the presidential prerogative of granting executive clemency lies within the discretion of the President. In fact, any and all public officers (as pointed out by Atty. Macka) in whatever branches of the government may be given executive clemency. To this effect, other branches of the government, the judiciary in particular, may not substitute, review, or abrogate, much less, declare a certain grant of executive clemency by the president invalid, and thus consequently embarrass a co-equal branch. Be it noted that the nature of such power is a prerogative one---a privilege granted by the constitution.
However, although it is valid, the same may not be given effect, and therefore, unenforceable. This is only the way to pass upon the propriety of such grant---to declare it without effect as against the judiciary and to refuse to recognize its validity or invalidity.
IX. Abdul ran and won May 2001, 2004 and 2007 elections for Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor in 2004 elections, his opponent, Khalil, filed an election protest before the Commission on Elections. Ruling with finality on the protest, the COMELEC declared Khalil as duly elected Vice-Governor though the decision was promulgated only in 2007, when Abdul had wholly served 2004-2007 term and was in fact already on his 2007-2010 term as Vice-Governor. a) Abdul now consults you if he can still run for Vice-Governor of Tawi-Tawi in the forthcoming May 2010 elections on the premise that he could not be considered as having served a Vice-Governor from 2004-2007 because he was not duly elected to the post, as he assumed office merely as a presumptive winner and that presumption was later overturned when the COMELEC decided with finality that he had lost in the May 2004 elections. What will be your advice? (3%) b) Abdul also consults you whether his politcal party can validly nominate his wife as substitute candidate for Vice-Governor of Tawi-Tawi in May 2010 elections in case disqualifies him and denies due course to or cancels his certificate of candidacy in lieu of a false material representation therein. What will be your advice? (3%) ANSWER: a.) I will advise Abdul that he cannot anymore run for Vice-Governor. he is considered as having served the 2004-2007 term. His assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. His full term from 2004-2007 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effect producing
outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Ong vs. Alegre, January 23,2006)
b.) I will advise him that he cannot be substituted by his wife as a candidate because a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another of the same political party. A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all cannot, by any stretch of the imagination, be a candidate at all. (Ong vs. Alegre, January 23, 2006) X. The 1st Legislative District of South Cotabato is composed of General Santos and three municipalities including Polomolok. During the canvassing proceedings before the District Board of Canvassers in connection with the 2007 congressional elections, candidate MP objected the the certificate of canvass for Polomolok on the ground that it was obviously manufactured, submiting as evidence the affidavit of a mayoralty candidate of Polomolok. The certificate of canvass for General Santos was likewise objected to by MP on the basis of the confirmed report of the local NAMFREL that ten election returns from non-existent precincts were included in the certificate. MP moved that the certifcate of canvass for General Santos be corrected to exclude the results from the non-existent precincts. The District Board of Canvassers denied both objections and ruled to include the certificate of canvass. May MP appeal the rulings to the COMELEC? Explain. (6%) ANSWER: It appears that the certificate of canvass being objected to by the MP contained manifest errors (election returns from non-existent precincts were included in the canvass and election returns were tampered with). These are issues that may be raised in a pre-proclamation controversy. According to the law, any candidate like the MP in the instant case, who was aggrieved by the order of the Board of Canvassers to include the contested certificate of canvass, may appeal the same to the COMELEC within 24 hours from promulgation of the said order.
XI. On August 8, 2008, the Governor of Bohol died and Vice-Governor Cesar by operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang Panlalawigan was elevated to the position of Vice-Governor. By the elevation of Benito to the office of the Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created. How should the vacancy be filled? (3%) ANSWER: ----------------------------------------
XII. The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer among three (3) employees of the city considered for the said position. Prior to said promotion, Amelia had been an Assistant City Treasurer for ten (10) years, that is, even before she married the City Mayor. Should the Civil Service Commission approve the promotional appointment of Amelia? Why or why not? (6%) ANSWER: The Civil Service Commission should not approve the promotional appointment of Amelia because a mayor is not authorized by law to make such appointment. Under the Local Government Code of 1991, only the Secretary of Finance has the statutory authority to appoint a treasurer from a list of at least three ranking, eligible recommendees of the mayor. Even if, for the sake of argument, that the mayor merely recommended his wife Amelia for appointment, her promotional appointment would still be invalid because the mayor, as a recommending authority, is barred by law from recommending his relative within the fourth civil degree of consanguinity or affinity for appointment in the career service of the local government.
XIII. Congress enacted a law establishing the right to trial by jury of an accused charged with a felony or offense punishable by reclusion perpetua or life imprisonment. The law provides for the qualifications of prospective jury members, the guidelines to be observed by the judge and the lawyers in jury selection including the grounds for challenging the selection of jury members, and the methodology for jury deliberations. Is the law constitutional? Explain fully. (7%) ANSWER: The law is unconstitutional. Under the constitution, Article VIII, Sec 5 - Supreme Court have the powers to Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Clearly the law promulgated by Congress encroach to the rule making power of the Supreme Court.
XIV. In 1963, Congress passed a law creating a government-owned corporation named Manila War Memorial Commission (MWMC), with the primary function of overseeing the construction of a massive memorial in the heart of Manila to commemorate the victims of the 1945 Battle of Manila. The MWMC charter provided an initial appropriation of P1,000,000, empowered the corporation to raise funds in its own name, and set aside a parcel of land in Malate for the memorial site. The charter set the corporate life of MWMC at 50 years with a proviso that Congress may not abolish MWMC until after the completion of the memorial.
Forty-five (45) years later, the memorial was only 1/3 complete, and the memorial site itself had long been overrun by squatters. Congress enacted a law abolishing the MWMC and requiring that the funds raised by it be remitted to the National Treasury. The MWMC challenged the validity of the law, arguing that under its charter its mandate is to complete the memorial no matter how long it takes. Decide with reasons. (6%) ANSWER: I believe that there is a contract as well as obligation. Based on facts presented: In 1963, Congress passed a law creating a government-owned corporation named Manila War Memorial Commission (MWMC), with the primary function of overseeing the construction of a massive memorial in the heart of Manila to commemorate the victims of the 1945 Battle of Manila. The rationale behind for passing a law and to create the MWMC is to obliged such government-owned corporation to render service for the construction of such massive memorial tenement. Under Art. 1156. An obligation is a juridical necessity to give, to do or not to do. Under Art. 1157. Obligations arise from: (1) Law; (2) Contracts; (3) Quasi-contracts; (4) Acts or omissions punished by law; and (5) Quasi-delicts. Under Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen. Under Art. 1305. A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service
The MWMC charter provided an initial appropriation of P1,000,000, empowered the corporation to raise funds in its own name, and set aside a parcel of land in Malate for the memorial site. The charter set the corporate life of MWMC at 50 years with a proviso that Congress may not abolish MWMC until after the completion of the memorial.
Under Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.
XV. The principal of Jaena High School, a public school, wrote a letter to the parents and guardians of all the school's pupils, informing them that the school was willing to provide religious instruction to its Catholic students during class hours, through a Catholic priest. However, students who wish to avail of such religious instruction needed to secure the consent of their parents and guardians in writing. a) Does the offer violate the constitutional prohibition against the establishment of religion? (3%) b) The parents of evangelical Christian students, upon learning of the offer, demanded that they too be entitled to have their children instructed in their own religious faith during class hours. The principal, a devout Catholic, rejected the request. As counsel for the parents of the evangelical student, how would you argue in support of their position? (3%) ANSWER:
a) No, it does not violate the non-establishment clause. The Constitution
provides that at the option of of the parents, the school may be allowed to teach religion during class hours approved by religious authorities to which the child belongs. [this is in Art. XIV Sec. 3(3) of course i didnt cite the provision and nde verbatim pgkksulat ko ]
b) As counsel for the parents, i would argue that the Constitution recognizes the right of the parents to establish and maintain the family in accordance with their religious convictions ad demands of responsible parenthood. [e2 nman this is found in Art. XV Sec. 3(1)] XVI. Nationwide protests have erupted over rising gas prices, including disruptive demonstrations in many universities throughout the country. The Metro Manila State University, a public university, adopted a university-wide circular prohibiting public mass demonstrations and rallies within the campus. Offended by the circular, militant students spread word that on the following Friday, all students were to wear black T-shirts as a symbol of their protest both against high gas prices and the university ban on demonstrations. The effort was only moderately successful, with around 30% of the students heeding the call. Nonetheless, university officials were outraged and compelled the student leaders to explain why they should not be expelled for violating the circular against demonstrations. The student leaders approached you for legal advice. They contended that they should not be expelled since they did not violate the circular, their protest action being neither a demonstration nor a rally since all they did was wear black T-shirts. What would you advice the students? (6%) ANSWER: I would advise the students to retort that they are merely exercising their freedom of expression. They in fact did not join any demonstrations or violent protests. They merely exercised a constitutional right against something which they consider repressive
XVII. As a reaction to the rice shortage and the dearth of mining engineers. Congress passed a law requiring graduates of public science high schools henceforth to take up agriculture or mining engineering as their college course. Several students protested invoking their freedom to choose their profession. Is the law constitutional? (6%) ANSWER:
The law is invalid as it singles out and deprives graduates of public science high schools from exercising the right to select a profession or course of study guaranteed by the Constitution. In addition, the law in effect affords class privilege to those students who are not graduates of public science high school which the Constitution forbids under the equal protection clause.
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