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.
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.
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 Thus, it can only be amended or repealed by a subsequent law (Ichong vs. Hernandez, G.R. No. L-7995, May 31, 1957) and the President cannot unilaterally abrogate it without concurrence from the same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.
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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).
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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.
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.
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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.
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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?
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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).
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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.
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.
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.
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.
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.
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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.
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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.
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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.
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
