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Suggested Answers to the Bar Exam Questions 2008 on Political Law

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.
-Ia. 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
SUGGESTED
If
I
were

case?
the

judge,

would

decide

(6%)
the

case

in

favour

of

ANSWER:
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.
-VHaving 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 JCs 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)
(2)
(3)

valid
court
arraignment

complaint
of

and
competent
and

valid

information
jurisdiction
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 Abduls 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.
-XThe 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 preproclamation 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 Tshirt 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 selfexecuting, 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.