Suggested Answers to the Bar Exam

Questions 2008 on Political Law

on 9:54 AM in Bar Exams
2
DISCLAIMER: This is self-practice. I compared my own answers to those put
up at the Bar Exams Forum and also checked them for legal sources. Subject
to amendment.

-I-
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%)

SUGGESTED ANSWER:
a. The maxim opinion juris sive necessitates or opinion juris for short, literally
“opinion as to law or necessity,” refers to the belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.
It is that psychological element that comprises one of the two factors in the
classic formulation in international law that sees those customary rules as
binding. (Mijares vs. Javier, G.R. No. 139325, April 12, 2005)

Opinio juris means that a rule is being followed by states because they
consider it obligatory to comply with such rules (Pharmaceutical and Heath
Care Association of the Philippines vs. Health Secretary, G.R. No. 173034,
Oct. 9, 2007)

b. The term “hard law” in international law refers to legally binding

obligations demand faithful compliance from the states. On the other hand,
“soft law” refers to those set of international rules that lack features like
obligation, uniformity, justiciability, sanctions, and/or an enforcement staff.

SEE: http://www.law.wisc.edu/facstaff/trubek/HybridityPaperApril2005.pdf
http://www.accessmylibrary.com/coms2/summary_0286-651632_ITM

Suggested answers from the Bar Exams Forum.

- 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%)

I have no idea.

Suggested answer from the Bar Exams Forum.

- 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 theSupreme Court, how should it be
resolved? (6%)
SUGGESTED ANSWER:
The Constitution is silent on the abrogation of a treaty. However, treaties
become part of the law of the land through transformation pursuant to Art.
VII, Sec. 21 of the Constitution which provides for Senate concurrence by at
least 2/3 votes of all its members (Pharmaceutical and Health Care
Association of the Philippines vs. Health Secretary, G.R. No. 173034, Oct. 9,
2007). Assuming in the present case that the treaty in question has been
concurred in by Congress when it was entered into, such a treaty now
becomes part of our laws. Thus, it can only be amended or repealed by a
subsequent law (Ichong vs. Hernandez, G.R. No. L-7995, May 31, 1957) and
the President cannot unilaterally abrogate it without concurrence from the
same Senate that upheld its validity.

Suggested answers from the Bar Exams Forum.

- 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 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%)

SUGGESTED ANSWER:
If I were the judge, I would decide the case in favour of NHA.

As to the question of whether or not the property, which poses no blight or

health problem, could be taken, the answer is yes. In the exercise of the
power of eminent domain, the state does not concern itself with whether the
property is noxious or not. The only requisites to consider are that the taking
of private property is necessary for public use and that the same is done with
payment of just compensation.

As to the question of whether the property is condemned for a private

purpose, the answer is no. Under the expanded concept, “public use” is no
longer confined to direct benefit to a large number of people but also indirect
public benefit or advantage, including in particular urban land reform and
housing (Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989).

Suggested answers from the Bar Exams Forum.

-V-

Having received tips 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 a
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 officer pounced on the accused,
took him to a hospital where at their direction, a doctor forced an
emetic solution though a tube into the 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%)

SUGGESTED ANSWER:
a. As counsel for the accused, the constitutional rights I will invoke in his
defense are his (1) right to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures, (2) his right to be
informed of his right to remain silent and to have competent and
independent counsel, preferably of his own choice, and (3) his right against
the use of torture, violence, force, intimidation, or any other means that
vitiate the free will.

As a rule, a search or arrest is illegal if it is not under authority of a warrant.

Whether or not the case falls under the exceptions to the requirement of a
warrant, the prosecution has the burden to prove the same. The custodial
rights of the accused were also violated because at the time the police
officers questioned him about the capsules, he was already effectively under
their control and custody. There was no showing that the accused was even
read his rights under the Miranda Doctrine. And finally, the use of an emetic
solution by the doctor at the direction of the police officers against the will of
the accused, amounted to the use of force that vitiated his free will.

b. The court should decide in favour of the accused. The police officers were
not armed with either a search warrant or a warrant of arrest when they
entered. None of the recognized exceptions are present.

The accused was not in flagrante delicto when they caught him. The
exception of “hot pursuit” also does not apply because the twin elements of
time and proximity are not present. There was no urgency and the police
officers had no personal knowledge of the facts and circumstances of the
commission of the crime, having only received a tip from an anonymous
source.

As to the search, it is invalid. The “plain view” doctrine does not apply
because the requisite of prior valid intrusion is not present. The police
officers had no business to be where they were when they made the search.
Even if there was prior valid intrusion, the seizure could not be justified as
"plain view" because the illegal nature of the capsules was not immediately
apparent (People vs. Go, G.R. No. 144639, Sept. 12, 2003). Neither is the
case one for search incidental to a lawful arrest. The arrest is not lawful in
this case because the police officers were neither armed with a warrant nor
is it one covered under a valid warrantless arrest.

Such being the case, all evidence obtained by the illegal search is
inadmissible in evidence.

- VI -

The Philippine National Police (PNP) issued a circular to all its

members directed at the style and length of 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 reason. Some police officers questioned
the validity of the circular, claiming that it violated their right to
liberty under the Constitution. Resolve the controversy. (6%)
SUGGESTED ANSWER:
No person may be deprived of his right to life, liberty and property without
due process of law. There are two kinds of due process – procedural and
substantive. The circular in the present case violates the second kind.

The requisites of substantive due process are: (1) it must be for the purpose
of general welfare; and (2) the means used to enforce it must be reasonably
necessary to accomplish the purpose. In the given situation, the circular is
justified because its purpose is to ensure that police officers are fit and
proper to perform their duties and efficiently.

However, a law must not only have a lawful subject, the means used must
also be lawful. In the given case, the circular tries to address the problem of
physical fitness of PNP members by prohibiting waistlines over 38 inches,
except for medical reasons. The implication is that members must start
taking care of their body through exercise and proper diet. There is no
problem with this. However, the prohibition of beards and goatees is another
matter. There is no causal connection between the means used – the
prohibition of beards and goatees – and the purpose of the law – to improve
the police force. Having a beard or a goatee has nothing at all to do with the
task of a policeman to enforce the law.

Suggested answers from the Bar Exams Forum.

- VII -

JC, a major in the Armed Forces of t\he Philippine, 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%)

SUGGESTED ANSWER:
a. Yes. Under the Constitution, all persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable (Sec. 13, Art. III). For as long as the
person is under custody of law or is otherwise deprived of his liberty, this
right is available.

While ordinarily, a military man is not entitled to bail when facing charges
before the court martial, the present case does not fall under the exception
for the reason that JC’s case is prosecuted before a regular court – Regional
Trial Court. In this instance, JC has the right to put up bail and it is just up to
the court to determine whether the evidence of guilt is strong, in which case
a hearing is needed and the prosecution must be allowed to present its
evidence.

b. Yes. There is double jeopardy when (1) there is a first jeopardy which is (2)
terminated either by conviction, acquittal or dismissal other than upon the
merits without the express consent of the accused and (3) there is a second
jeopardy for the same offense. The requisites for first jeopardy to attach are
as follows:
(1) valid complaint and information
(2) court of competent jurisdiction
(3) arraignment and valid plea

All the requisites of first jeopardy are present in the given situation. Proving
self-defense later on in the trial did not negate the validity of his plea. The
fact remains that there was a plea of guilty validly entered and it was not
deemed withdrawn by proving self-defense. The case was terminated by a
judgment of acquittal. An appeal by the prosecution therefore would
constitute a double jeopardy.

Suggested answers from the Bar Exams Forum.

- VIII -

ST, a Regional Trial Court judge who falsified his Certificate of

Service, was found liable by the Supreme Court for serious
misconduct and inefficiency, and meted the penalty of suspension
form office for 6 months. Subsequently, ST filed a petition for
executive clemency with the Office of the President. The Executive
Secretary, acting on said petition issued a resolution granting ST
executive clemency. Is the grant of executive clemency valid? Why
or why not? (6%)

SUGGESTED ANSWER:

The grant of executive clemency is not valid. While the grant of executive
clemency to any person is discretionary upon the President, this power being
an executive prerogative, such power cannot be deemed to include even
administrative cases involving members of the judiciary, in view of the
Doctrine of Separation of Powers.

NOTE: Assuming it is valid, can it be enforced without violating the Doctrine

of Separation of Powers?

Suggested answers from the Bar Exams Forum.

- IX -

Abdul ran and won in the May 2001, 2004 and 2007 elections for
Vice-Governor of Tawi-Tawi. After being proclaimed Vice-Governor in
the 2004 elections, his opponent, Khalil, filed an election protest
before the Commission on Election. Ruling with finalty on the
protest, the COMELEC declared Khalil as the duly elected Vice-
Governor though the decision was promulgated only in 2007, when
Abdul had fully served his 2004-2007 term and was in fact already
on his 2007-2010 term as Vice Governor.

a. Abdul now consults you if the can still run for Vice-Governor of
Tawi-Tawi in the forthcoming May 2010 election on the premise that
he could not be considered as having served as 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 COMELEC decided with
finality that had lost in the May 2004 elections. What will be your
advice? (3%)
b. Abdul also consults you whether his political party can validly
nominate his wife as subtitute candidate for Vice-Mayor of Tawi-Tawi
in May 2010 elections in case the COMELEC disqualifies him and
denies due course to or cancels his certificate of candidacy in view
of a false material representation therein. What will be your advice?
(3%)

SUGGESTED ANSWER:
a. I will advise Abdul that he can no longer run for Vice-Governor of Tawi-Tawi
because to do so would violate the three-term limit under the Constitution.
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, notwithstanding the subsequent nullification of his
proclamation. There was actually no interruption or break in the continuity of
Abdul’s service respecting he 2004-2007 term (Ong vs. Alegre, G.R. No.
163295, Jan. 23, 2006).

b. I will advise him that his political party cannot validly nominate his wife as
a substitute candidate. There is no rule allowing substitution where a
candidate is excluded not only by disqualification but also by denial and
cancellation of his certificate of candidacy. A person without a valid
certificate of candidacy cannot be considered a candidate, much the same as
one who has no certificate of candidacy is not a candidate. Substitution
presupposes that the person to be substituted is a candidate. Because Abdul
is not a candidate in the sense that he does not have a valid certificate of
candidacy, then it follows that he cannot be substituted (Ong vs. Alegre, G.R.
No. 163295, Jan. 23, 2006).

Suggested answers from the Bar Exams Forum.

-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 election,
candidate MP objected to the certificate of canvass for Polomolok on
the ground that it was obviously manufactured, submitting 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
10 election returns from non-existent precincts were included in the
certificate. MP moved that the certificate of canvass for General
Santos be corrected to exclude the result 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%)

SUGGESTED ANSWER:
No. The case pertains to a pre-proclamation controversy. Specifically, it
alleges that the certificate of canvass was obviously manufactured and
election returns from non-existent precincts were included in the certificate.

In a pre-proclamation controversy, the Comelec, as a rule, is restricted to an

examination of the election returns and is without jurisdiction to go beyond
or behind them and investigate election irregularities. By their very nature,
pre-proclamation controversies are to be resolved in summary proceedings
without need to present evidence aliunde and certainly without having to go
through voluminous documents and subjecting them to meticulous technical
examinations which take up considerable time (Belac v. Comelec, G.R. No.
145802, April 4, 2001).

EDIT: While the Comelec has exclusive jurisdiction over all pre-
proclamation controversies, candidates are prohibited in the
presidential, vice-presidential, senatorial and congressional
elections from filing pre-proclamation controversies. The exception
to the exception is if the action is one for correction of manifest
errors in the certificate of canvass or election returns even in
elections for president, vice-president and members of the House
for the simple reason that the correction of manifest error will not
prolong the process of canvassing nor delay the proclamation of the
winner in the election (Sandoval vs. Comelec, G.R. No. 133842, Jan.
25, 2000).

But this is not present in the given case. MP based his objections to
the certificate of canvass on evidence aliunde -- i.e. affidavit of the
mayoralty candidate and report from the NAMFREL. Obviously, the
error is not manifest on the election returns. Therefore, appeal to
the Comelec will not lie.

- XI -

On August 8, 2008 the Governor of Bohol died and Vice-Governor

Cesar succeeded him 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 Vice-Governor, a vacancy in the Sangguniang
Panlalawigan was created.
How should the vacancy be filled? (3%)

See Sec. 45, LGC

Suggested answer from the Bar Exams Forum.

- XII -

The Mayor of San Jose City appointed his wife, Amelia, as City
Treasurer from among tree (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%)

Suggested answer from the Bar Exams Forum.

- XIII -

Congress enacted a law establishing the right to trial by jury of an

accused charged with a felony or offense punishable with reclusion
perpetua or life imprisonment. The law provides for the qualification
of prospective jury member, the guidelines to be observed by the
judge and the lawyers in jury selection including the grounds for
challenging the selection of jury member, and the methodology for
jury deliberations. Is the law constitutional? Explain fully. (7%)

SUGGESTED ANSWER:
No. The law encroaches upon the power of the judiciary to settle
controversies. The Constitution provides that the judicial power shall be
vested in one Supreme Court and in such lower courts as may be established
by law (Sec. 1, Art. VIII). A jury is a body of peers that determines questions
of facts. Determination of questions of facts is part of judicial power. While
Congress has the power to define, prescribe, and apportion the jurisdiction of
the various courts (Sec. 2, Art. VIII), it cannot allocate judicial power to a jury,
which is not a court.

Granting arguendo, that a jury is a court, Congress has no power to prescribe

for the qualification of prospective jury members as well as guidelines to be
observed by the judge and the lawyers in jury selection. Section 2, Article VIII
specifically states that the Supreme Court cannot be deprived of its
jurisdiction over cases enumerated in Section 5 of the same Article, among
which, is the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all
courts.

Suggested answers from the Bar Exams Forum.

- 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 victim 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 reason. (6%)

SUGGESTED ANSWER:
It is a basic principle in administrative law that the power to create
necessarily includes the power to destroy. MWMC was created by a law
passed by Congress in 1963. It cannot be disputed therefore that as MWMC
was created by law, it can be abolished by the legislature. This is not
withstanding the provision in its charter that it shall not be abolished until
after the completion of the memorial. The power to abolish is inherent in the
power to create. This is especially true when the purpose for which the office
was created has not been accomplished despite the lapse of many years.
The legislature may exercise its inherent power to destroy an office, which it
created in the first place, if only for the greater good of reducing waste in
government.

Suggested answers from the Bar Exams Forum.

- 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 wished 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 students, how would you argue in
support of their position? (3%)

SUGGESTED ANSWER:
a. No. Optional religious instruction is one of the exceptions to the non-
establishment of religion recognized under the Constitution itself. For this
exception to be valid, the following requisites must concur: (1) written
consent of the parents or guardians must be secured; (b) it must be done
within school hours; and (3) it must be at no additional cost to the
Government. For as long as these requisites are present, then it is valid (Sec.
3(3), Art. XIV).

b. As counsel for the parents of the evangelical students, I would invoke the
right to equal protection under the laws. The act of the principal in rejecting
the request is unreasonably discriminatory. He has no right to draw a
distinction between Catholics and Evangelical Christians when it comes to
granting optional religious instruction because the Constitution itself does
not make such classification. For as long as the requisites for optional
religious instruction to be allowed are present, then there is no reason not to
allow the same, regardless of the particular religious denomination involved.

Suggested answers from the Bar Exams Forum.

- XVI -

Nationwide protest 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-shirt as a symbols 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 students
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
demonstrator nor a rally since all they did was wear black T-shirts.
What would you advise the students? (6%)

SUGGESTED ANSWER:
The wearing of black shirts is an exercise of freedom of expression and not
necessarily freedom of assembly. Regardless of the distinction, in both cases,
the Constitutional guaranty includes freedom from prior restraint and
freedom from subsequent liability.

There are three tests to determine whether or not there was valid
government interference: (1) dangerous tendency rule; (2) balancing of
interest test; and (3) clear and present danger test. In the Philippine
jurisdiction, we adhere to the clear and present danger test (ABS-CBN
Broadcasting Corp. vs. Comelec, G.R. No. 133486, Jan. 28, 2000). This test
simply means that there is clear and present danger of a substantive evil
which the State has the right to prevent.

Applying the clear and present danger test, the protest conducted by the
students was only moderately successful and the wearing of black shirts was
neither tumultuous nor disruptive. Thus, the substantive evil which the
school authorities were trying to suppress did not even occur. Therefore, the
prohibition imposed by the circular violates freedom from prior restraint
while the threat of expulsion by the school authorities violates freedom from
subsequent liability.

SEE ALSO: University of San Carlos case.

- XVII -

As a reaction to the rice shortage and the dearth of mining

engineers, Congress passed a law requiring graduates of public
science high school 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%)

SUGGESTED ANSWER:
No. The law unreasonably restricts free access to education by all citizens.
More specifically, it violates the right of the students to select a profession or
course of study. The only restriction to this right is fair, reasonable and
equitable admission and academic requirements. Such a restriction can only
be raised by the academe exercising its own right to academic freedom, and
not by the government (Article XIV).

NOTE: Are the provisions under this article self-executing? As a rule,

Constitutional provisions are deemed self-executing, with some exceptions
like Article II which are mere declaration of policies and principles. Is the law
a valid exercise of police power by the State? If so, was there proper
observance of due process, both procedural and substantive?

SEE ALSO: Education Act of 1989

NOTHING FOLLOWS.