Poli 2017 Bar Q And A Pdf.doc

2017 POLITICAL AND PUBLIC INTERNATIONAL LAW BAR QUESTIONS AND ANSWERS Question: A priority thrust of the Administration is the change of the form og government from unitary to federal. The change can be effected only through constitutional amendment or revision. (a) What are the methods of amending the Constitution? Explain briefly each method. (b) Cite at least three provisions of the Constitution that need to be amended or revised to effect the change from unitary to federal,a nd briefly explain why. Suggested Answer: (a) The Constitution may be amended or revised by the vote of at least three-fourths of all the Members of Congress acting as a Constituent Assembly, by way of a proposal (Article XVII, Sec. 1(1) of the 1987 Constitution) Any amendment or revision under this provision shall be valid upon ratification by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days or later than 90 days after the approval of the amendment or revision (Article XVII, Sec. 4 of the 1987 Constitution) The Constitution may also be amended or revised by a Constitutional Convention. Congress may, by the vote of at least two-thirds of all its members, call a Constitutional Convention, or by a majority vote of all its Members subject to the electorate the calling of a Constitutional Convention (Article XVII, Sec. 3 of the 1987 Constitution). Any amendment or revision under this provision shall be valid in the same manner as in Article XVII, Sec. 1(1) of the 1987 Constitution. Amendments to the Constitution may be directly proposed by the people through initiative upon petition of at least 12% of the registered voters, and at least 3% of the registered voters in every legislative district must be represented (Article XVII, Sec. 2 of the 1987 Constitution). The people cannot propose revisions and may propose only amendments. The petition must be signed by the required number of people, and the full text of the proposed amendments must be embodied in the petition (Lambino v. COMELEC, G.R. Nos. 174153 & 174299, October 25, 2006, 503 SCRA 1650) (b) Examples of provisions that need to be amended or revised to effect the change from unitary to federal: 1. Article X, Sec. 3 must be omitted because the legislature will no longer define the scope of the powers of the government. 2. Article X, Sec. 4 will have to be omitted. The President will no longer have the power of supervision over local governments. 3. Article X, Sec. 5 must be omitted. Congress will no longer be allowed to impose limitations on the power of taxation of local governments. Question: A. Under the doctrine of immunity from suit, the State cannot be sued without its consent. How may the consent be given by the State? Explain your answer.

B. The doctrine of immunity from suit in favor of the State extends to public officials in the performance of their official duties. May such officials be sued nonetheless to prevent or to undo their oppressive or illegal acts, or to compel them to act? Explain your answer. C. Do government-owned or -controlled corporations also enjoy the immunity from suit? Explain your answer. Suggested Answer: A. The State may be sued, with its consent, either expressly or impliedly. Only Congress can give a written waiver of immunity from suit in the from of a law (United States v. Guinto, G.R. Nos. 76607, 79470, 80018 & 80258, February 26, 1990, 182 SCRA 664; Republic v. Feliciano, G.R. No. L-70853, March 12, 1987, 148 SCRA 424). If a government agency undertakes a proprietary function, it waives its immunity from suit. When the Philippines Tourism Authority entered into a contract for the construction of a golf course, it engaged in a proprietary function (Philippine Tourism Auhtority v. Philippine Golf Development and Equipment, Inc., G.R. No. 176628, March 19, 2012, 668 SCRA 408) B. Public officials may be sued if they acted oppressively or illegally in the performance of their duties. A suit against a public officer who acted illegally is not a suit against the state (Aberca v. Ver, G.R. No. 69866, April 15, 1988, 160 SCRA 590) A public official may be compelled to act through a writ of mandamus. The main objective of mandamus is to compel the performance of a ministerial duty on the part of the respondent official; however, the writ does not issue to control or review the exercise of discretion or to compel a course fo conduct. The writ of prohibition can also be availed of, as it is an extraordinary writ which can be directed against a public officer ordering said officer to desist from further proceedings when said proceedings are without or in excess of said officer's jurisdiction, or are accompanied with grave abuse of discretion. (Rule 65, Revised Rules of Court) Lastly, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity from official actions (Vinzons-Chato v. Fortune Tobacco Corp., G.R. No. 141309, June 19, 2007, 525 SCRA 11). C. A government-owned or controlled corporation may be sued. A suit against it is not a suit against the State, because it has a separate juridical personlaity (Social Security Systems v. Court of Appeals, G.R. No. L-41299, February 21, 1983, 120 SCRA 707) Question: State A and State B, two sovereign states, enter into a 10-year mutual defense treaty. After five years, State A finds that the more progressive State B did not go to the aid of State A when it was threatened by its strong neighbor State C. State B reasoned that it had to be prudent and deliberate in reacting to State C because of their existing trade treaties. (a) May State A now unilaterally withdraw from its mutual defense traty with State B? Explain your answer (b) What is the difference between the principles of pacta sunt servanda and rebus sic stantibus in international law? (c) Are the principles of pacta sunt servanda and rebus sic stantibus relevant in the treaty relations

between State A and State B? What about in the treaty relations between State B and State C? Explain your answer. Suggested Answer: (a) State A may unilaterally withdraw from the mutual defense treaty. State B committed a material breach of the treaty by failing to come to the aid of State A (Art. 60 (i) of the Vienna Convention on the Law of Treaties; Kolb, The Law of Treaties, p. 220; Aust, Modern Treaty Law and Practice, pp. 236237). (b) Pacta sunt servanda means that every treaty in force is binding upon the States who are parties to it, and States must perform their obligations in good faith (Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August 19, 2013, 704 SCRA 216). Rebus sic stantibus means that a fundamental change of circumstances, which occurred with regard to those existing at the time of the conclusion of a treaty and which was not foreseen by the parties may not be invoked for withdrawing from a treaty unless their existence constituted an essential basis of the consent of the parties and their effect is to radically transfrom the extent of the obligations still to be performed (Article 62 of the Vienna Convention on the Law of Treaties). (c) Yes. Pacta sunt servanda was what bound State A and State B to comply with their obligations under their mutual defense treaty, despite the existing trade agreements between State B and State C. Article 62 of the Vienna Convention on the Law of Treaties, which enunciates the doctrine of rebus sic stantibus, on the other hand, can be invoked by State B as the reason why it did not comply with its mutual defense treaty—a treaty is concluded with the implied condition that it is intended to be binding only as long as there is no vital change in the circumstances. To State B, compliance with the treaty would jeopardize its vital trade development. Because of this unforseen change of circumstances combined with State B's non-compliance with its obligations under the treaty in good faith, State A may now opt to unilaterally withdraw from the treaty. Question: (A) What is the pardoning power of the President under Art. VIII, Sec. 19 of the Constitution? Is the exercise of the power absolute? (B) Distinguish pardon from amnesty. Suggested Answer: (A) Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations and pardons, and remit fine and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress (Article VII, Sec. 19 of the 1987 Constitution) No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission (Article IX-C, Sec. 5 of the 1987 Constitution) The only instance in which the President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Any act of Congress would by way of statute cannot operate to delimit the pardoning power of the President (Risos-Vidal v. COMELC, G.R. No. 206666, January 21, 2015)

(B) 1. Pardon can be given only after final conviction; amnesty can be given any time and even before the filing of a criminal case. 2. Pardon looks forward; amnesty looks backward, as if the accused never committed a crime. 3. Pardon is given to individuals; amnesty is given to a class of persons. 4. Pardon is givel for all criminal offenses; amnesty is given for political offenses. 5. Pardon does not require the concurrence of Congress; Amnesty requires the concurrence of Congress. 6. Pardon must be proven, because it is a private act; amnesty need not be proven, because it is a public act (Barrioquinto v. Fernandez, G.R. No. L-1278, January 21, 1949, 82 Phils. 642) Question: (a) What is the right of legislation, and how is it undertaken between states? Explain your answer. (b) Under this right, may a country like Malaysia insist that the Philippines establishes a consulate in Sabah to look after the welfare of the Filipino migrants in the area? Explain your answer. Suggested Answer: (a) The right of legislation is the right accorded to a State to be represented by an ambassador or diplomatic agent in another State (Coquia and Defensor-Santiago, International Law and World Organizations, p. 289). (b) Malaysia cannot insist that the Philippines establish a consulate in Sabah. Article 2 of the Diplomatic Convention procides: “the establishement of diplomatic mission takes placeby mutual consent”. A State may conduct its diplomatic relations with another State without establishing a diplomatic mission (Magallona, Fundamentals of Public International Law, p. 91) Question: (A) The President appoints the Vice President as his Administration's Housing Czar, a position that requires the appointee to sit in the Cabinet. Although the appointment of the members of the Cabinet requires confirmation by the Commission on Appointment (CA), the Office of the President does not submit the appointment to the CA. May the Vice President validly sit in the Cabinet? (B) The Exceutive Department has accumulated substantial savings from its appropriations. Needing P3,000,000.00 for the conduct of a plebiscite for the creation of a new city but has no funds appropriated soon by the Congress for the purpose, the COMELEC requests the President to transfer funds from the savings of the Executive Department in orer to avoid a delay in the holding of the plebiscite. May the President validly exercise his his power under the 1987 Constitution to transfer funds from the savings of the Executive Department, and make a cross-border transfer of P3,000,000.00 to the COMELEC by way of augmentation? Is your answer the same if the transfer is treated as aid to the COMELEC? Explain your answer. Suggested Answer: (A) The Vice President may validly sit in the Cabinet even if he was not confirmed by the Commission on Appointments. Under Article VII, Sec. 3 of the Constitution, the appointment of the Vice President a cabinet member requires no confirmation (Araullo v. Aquino III, G.R. No. 209287, July 1 2014, 728 SCRA 1). (B)

The President may not transfer savings to the Commission on Elections as aid. The

constitutional prohibition against the transfer of appropriations to other branches of government or Constitutional Commission applies for whatever reason (Araullo v. Aquino III, G.R. No. 209287, July 1, 2014, 728 SCRA 1) Question: Give the limitations on the power of the Congress to enact the General Appropriations Act? Explain your answer. Suggested Answer: Sections 24 and 25 of Article VI provide the limitations on the power of Congress to enact General Appropriations Acts. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments (Article VI, Sec. 24 of the 1987 Constitution). The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, consent, and manner of preparation of the budget shall be prescribed by law. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. A special appropriations bill shall specify the prupose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposed therein (Article VI, Sec. 25 of the 1987 Constitution). No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Seante, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other times of their respective appropriations (Article VI, Sec. 25 of the 1987 Constitution) Discretionary funds appropriated for particular officials shall be disbursed only for public porposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceeding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress (Article VI, Sec. 25 of the 1987 Constitution). Question: A bank acquired a larg tract of land as the highest bidder in the foreclosure sale of the mortgaged assets of its borrower. It appears that the land has been originally registered under the Torrens system in 1922 pursuant to the provisions of the Philippine Bill of 1902, the organic act of the Philippine Islands as a colony of the USA. Sec. 21 of the Philippine Bill of 1902 provided that “all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase, and the land in which they are found to occupation and purchase, bu citizens of the United States, or of said Islands.” Sec. 27 of the law declared that a holder of the mineral claim so located was entitled to all the minerals that lie

within his claim, but he could not mine outside the boundary lines of his claim. The 1935 Constitution expressly prohibited the alienation of natural resources except agricultural lands. Sec. 2, Article XII of the 1987 Constitution contains a similar prohibition, and proclaims that all lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. The provision enunciates the Regalian Doctrine. May the Government, on the basis of the Regalian Doctrine enunciated in the constitutional provisions, deny th ebank its right as owner to the mineral resources underneath the surface of its property as recognized unde rthe Philippine Bill of 1902? Explain your answer. Suggested Answer: The governmen cannot deny the bank its right as owner of the mineral resources underneath the surface of the property. The minig rights acquired under Philippine Bill of 1902 before the effectivity of the 1935 Constitution were vested rights that cannot be impaired by the Government (Yinhu Bicol Minig Corporation v. Trans-Asia Oil and Energy Development Corporation, G.R. No. 207942, January 12, 2015, 745 SCRA 154). Question: A. Ambassador Robert of State Alpha committed a very serious crime while he headed his foreign mission in the Philippines, Is he subject to arrest by Philippine authorities? Explain your answer. B. Extradition is the process pursuant to a treaty between two State parties for the surrender by the requested State to the custody of the requesting State of a fugitive criminal residing in the former. However, extradition depends on the application of two principles --- the principle of specialty and the dual criminality principle. Explain these principles. C. The President signs an agreement with his counterpart in another country involving reciprocity in the treatment of each country's nationals residing in the other's territory. However, he does not submit the agreement to the Senate for concurrence. Sec. 21, Art. VII of the Constitution provides that no treaty or international agreement shall be valid and effective without such concurrence. Is the agreement signed by the President effective despite the lack of Senate concurrence? Explain your answer. Suggested Answer: A. In accordance with the Convention on the Protection and Punishment of Crimes Against International Protected Persons Including Diplomatic Agents, the Philippines has the obligation to either extradite or prosecute Ambassador Robert of State Alpha (Magallona, Fundamentals of Public International Law, p. 68) B. The principle of specialty means that the State requesting extradition from another State is required to specify the crime as provided in the extradition treaty for which the fugitive or the accused is to be extradited and to be tried only for the offense specified in the extradition treaty (Magallona, Fundamentals of Public International Law, p. 572). The principle of dual criminilaty requires that the crime for which extradition is sought must be recognized as a crime by both the requiring State and the State to which the fugitives or the accused has fled (Magallona, Fundamentals fo Public International Law, p. 578) C.

The agreement signed by the President is effective even if the Senate did not concur in it. The

agreement is in the nature of an executive agreement and need not be submitted to the Senate for concurrence in its ratification (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, January 12, 2016, 779 SCRA 241). Question: A. Under the enrolled bill doctrine, the signing of a bill by both the Speaker of the House of Representatives and the President of the Senate and the certification by the secretaries of both House of Congress that the bill was passed on a certain date are conclusive on the bill's due enactmnt. Assuming there is a conflict between the enrolled bill and legislative journal, to the effect that the enrolled bill signed by the Senate President and eventually approved by the President turned out to be different from what the Seante actually passed as reflected in the legislative journal. (a) May the Senate President disregard the enrolled bill doctrine and consider his signature as invalid and of no effect? (b) Mat the President thereafter withdraw his signature? Explain your answer. B. Sec. 26(2), Art. VI of the Constitution provides that no bill passed b wither House of Congress shall become a law unless it has passed three readings on separate days and printed copies of it in its final form have been distributed to the Members of the House three days before its passage. Is there an exception to the provision? Explain your answer. Suggested Answer: A. (a) The Senate President may withdraw his signature from the bill since it was not actually the bill what was approved by Congress, so there was no enrolled bill to speak of(Astorga v. Villegas, G.R. No. L-23475, April 30, 1974, 56 SCRA 714) (b) Yes, he can because of the prior withdrawal of the signature of the Senate President and Speaker; accordingly, there could be no “enrolled bill” that could have been validly approved (Astorga v. Villegas, G.R. No. L-23475, April 30, 1974, 56 SCRA 714). B. The exception to this provision is when the President certifies to the necessity of its immediate enactment to meet a public calamity or necessity (Artcile VI, Sec. 27(i) of the 1987 Philippine Constitution; and Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994, 235 SCRA 630). Question: Sec. 17, Art. VI of the Constitution establishes an Electoral Tribunal for each of the House of Congress, and makes each Electoral Tribunal “the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.” On the other hand, Sec. 2(1), C (Commission on Elections), Art. IX of the Constitution grants to the COMELC the power to enforce and administer all laws and regulations “relative to the conduct of an election, plebiscite, initiative, refernedum, and recall.” Considering that there is no concurrence of jurisdiction between the Electoral Tribunals and the COMELEC, state when the jurisdiction pf the Electoral Tribunals begins, and the COMELEC's jurisdiction ends. Explain your answer. Suggested Answer:

To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office (Reyes v. COMELEC, G.R. No. 207264, Otober 22, 2013, 699 SCRA 522). Once a winning candidate has been proclaimed and taken his oath, and assumed office as a Member of the House of Representatives, the jurisdiction of the Commission on Elections over the election contest ends, and the jurisdiction of the House of Representatives Electoral Tribunal begins (Vinzons-Chato v. COMELEC, G.R. No. 172131, April 2, 2007). Question: The Congress establishes by law Philippine Funds, Inc., a private corporation to receive foreign donations coming from abroad during national and local calamities and disasters, and to enable the unhampered and speedy disbursements of the donations through the mere action of its Board of directors. Thereby, delays in the release of the donated funds occasioned by the stringent rules of procurement would be avoided. Also, the releases would not come under the jurisdiction of the Commission of Audit (COA). (a) Is the law establishing Philippine funds, Inc. constitutional? Explain your answer. (b) Can the Congress pass the law that wold exempt the foreign grants from the jurisdiction of the COA? Explain your answer. Suggested Answer: (a) The establishment of Philippine Funds, Inc. is valid. It was created to enable the speedy dusbursements of donations of calamities and disasters. Public purpose is no longer restricted to traditional government functions (Petitioner-Organization v. Executive Secretary, G.R. Nos. 147036-37 & 147811, April 10,2012, 269 SCRA 49). (b) Congress cannot exempt the foreign grants from the jurisdiction of the Commission on Audit. Its jurisdiction extends to all government-owned or controlled corporations, includin those funded by donations through the Government (Art. IX-D, Sec. 3 of the 1987 Philippine constitution; and the Petitioner-corporation v. Executive Secretary, G.R.Nos. 147036-37 & 147811, April 10, 2012, 269 SCRA 49). Question: Command responsibility pertains to the responsibility of the commanders for crimes committed by subordinatine members of the armed forces or other persons subject to their control in international wars or domestic conflicts. The doctrine has now found application in civil actions for human rights abuses and in proveedings seeking the privilege of the writ of amparo. (a) What are the elements to be established in order to hold the superior or commader liable under the doctrine of command responsibility? (4%) (b) May the doctrine of command responsibility apply to the President for the abuses of the arned forces (AFP and PNP) given his unique role as the commander-in-chief of all the armed forces? Explain your answer. Suggested Answer: (a) The doctrine of command responsibility can be invoked to determine the author who is accountable for, and has the duty to address the dosappearance and harassment complained of to enable the courts to devise remedial measures that may be appropriate under the premises to protect their rights covered by the writ of amparo. To hold someone liable under the doctrine of command

responsibility, the following elements must obtain: (1) the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; (2) the superior knew of had reason to know that the crime was about to be or had been committed; and (3) the superior failed to take the necessary and reasonable measures to prevent the crimina; acts or punish the perpetrators thereof (Rodriguez v. Macapagal-Arroyo, G.R. No. 191805, November 15, 2011, 660 SCRA 843). (b) The president, being the commander-in-chief of all armed forces, necessarily possesses contro; over the military tha qualifies him as a superior within the purview of the command responsibility doctrine. The incumbent President is immune from suit during his incumbency. The I,,unity, however, exists only during the incumbency of the President. Once jis or her term has ended, he or she may be held accountable under this doctrine (Rodriguez v. Macapagal-Arroyo, G.R. No. 191805, November 15, 2011, 660 SCRA 843). Question: To fulfill a campaign promise to the poor folk ina far flung area in Mindanao, the President requested his friend, Pastor Roy, to devote his ministry to them. The President would pay Pastor Roy a monthly stipend of P50,000.00 from his discretionary fund, and would also erect a modest house of worship in the locality in an area of the latter's choice. Does the President thereby violate any provisions of the Constitution? Explain your answer. (3%) Suggested Answer: The President violated Sec. 29 (2), Article VI of the Constitution. Public money can be given to Pastor Roy only when he is assigned to the armed forces, a penal institution, or government orphanage or leprosarium. No public money can be given for the benefit of the church for the construction of a house of worship. Alternative Answer: The President violated Sec. 5 of Article III of the Constitution, also known as the nonestablishment clause, which states that no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. Such payment of a monthly stipend and the erection of the house is a preference which falls under this prohibition. Question: A. According to Sec. 3, Art. VIII of the Constitution, the Judiciary shall enjoy fiscal autonomy. What does the term fiscal autonomy signify? Explain your answer. (3%) B. May a complaint for disbarment against the Ombudsman prosper during the incumbency? Explain your answer. (3%) C. Art. XI of the Constitution states that “[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year.” What constitutes initiation of impeachment proceedings unde the provision? (3%) Suggested Answer: A. The fiscal autonomy of the Judiciary means that the appropriation for the Judiciary may not be reduced by congress below the amount appropriated for the previous year, and after approvalm shall be

automatically and regularly released (Article VIII, Sec. 3 of the 1987 Constitution). Fiscal autonomy authorizes the Supreme Court to levy, assess and collect fees, and to determine how its funds should be utilized (Bengzon v. Drilon, G.R. No.103524, April 15, 1992, 208 SCRA 133). B. A complaint for disbarment cannot be filed against an Ombudsman during her incumbency. Article XI, Sec. 8 of the 1987 Philippine Constitution imposes membership of the Philippine Bar as a qualification to be a an Ombudsman. The Ombudsman is removable only by impeachment. If the Pmbudsman were to be disbarred, he would be removed from office without undergoing impeachment (Article XI, Section 2 of the 1987 Philippine Constitution). C. Initiation of impeachment proceedings under Article XI, Sec. 3 of the Consitution starts with the filing of the complaint. The initiation of the impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which has already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution (Francisco v. House of Representatives, G. R. NO. 160261, November 10, 2003, 415 SCRA 44).