UNIVERSITY OF NEGROS OCCIDENTAL-RECOLETOS SCHOOL OF LAW
[email protected] 2015 QUIZZER IN POLITICAL & PUBLIC INTERNATIONAL LAW1 BY Dean J. P. VILLASOR2 I What is the Royal Prerogative of Dishonesty? ANSWER: The “Royal Prerogative of Dishonesty” is a general principle of law which provides that the state cannot be sued without its consent. It is based on the very essence of sovereignty. Known as the state immunity against suit doctrine, it is derisively called the “Royal Prerogative of Dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. Historically, monarchs held absolute power as the sovereign of the people. In modern times, the sovereign power resides in the people , through the State. In political law theory, to sue the state would be suing the people as the sovereign power of the state. A state cannot be sued without its consent on the logical and practical ground that there can be no legal right as against the authority which makes the law on which that right depends. The doctrine applies to foreign governments because of the sovereign equality of all states. Sovereign immunity is enjoyed by other States under the public international law principle of PAR IN PAREM NON HABET IMPERIUM. The head of State, who is deemed the personification of the State, is inviolable and therefore enjoys immunity from suit. II What is the state policy on agrarian reform, rural development and natural resources reform? ANSWER: Section 21 of Article II of the Constitution provides that the State shall promote comprehensive rural development and agrarian reform. The Social Justice Clause of the Constitution under Article XIII further encapsulates the state policy on agrarian reform and natural resources reform: Sec. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners, The State shall further provide incentives for voluntary land-sharing. Sec. 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers’ organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services. Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. Compiled by Dean J. P. Villasor from Justice Nachura’s Outline/Reviewer in Political Law (2009), decisions promulgated by the Supreme Court, the 1987 Constitution and his own notes on Political and Public International Law. Updated on 21 October 2015. 2 BSBA (University of the Philippines, Diliman, Quezon City); LLB (University of the Philippines, Diliman, Quezon City); MSc (London School of Economics, London, England) 1
2 Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. Sec. 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice. III A court interpreter in the trial court was found to be living-in with a separated man without the benefit of marriage, but the arrangement had the blessing of her religion, which was Jehovah’s Witnesses. Charged with immorality and threatened with dismissal, she pleads religious freedom. Is the court interpreter guilty of immorality, which warrants dismissal from service in the judiciary? ANSWER: No, she is not guilty of immorality on the ground that being a member of Jehovah’s Witnesses, she is guaranteed the free exercise of her religion which includes an arrangement to live-in with a separate man without the benefit of marriage, an arrangement which is allowed by the Jehovah’s Witnesses. In Estrada v. Escritor (A.M. No. P-02-1651, 4 August 2003 and 22 June 2006), the Supreme Court, through then Senior Associate Justice and now Chief Justice Reynato S. Puno, held that in this particular case and under these distinct circumstances, respondent Soledad Escritor’s conjugal arrangement cannot be penalized as she had made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognized that state interests must be upheld in order that freedoms – including religious freedom – may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such compelling state interest exists, man must be allowed to subscribe to the Infinite. The administrative complaint against Soledad Escritor was thus dismissed. In the case at bar, the constitutional guarantee of the freedom of religion clause under Section 5 of Article III and under the Supreme Court ruling in Estrada v. Escritor renders the court interpreter not guilty of immorality, being a member of Jehovah’s Witnesses. IV Ephraim, Seraphim and Cherubim were required to participate compulsorily by their school in flag ceremonies. They refused to participate citing it was against their religion as members of Jehovah’s Witnesses. They were charged with violation of the Flag Salute Law. Can the school of Ephraim, Seraphim and Cherubim compel them to participate in the flag ceremony of their school? ANSWER: No, the school cannot compel them to participate in flag ceremonies in their school as this would be violative of their right to the free exercise of their religion, as members of the Jehovah’s Witnesses. In Ebralinag v. Superintendent of Schools of Cebu (219 SCRA 256 [1993]), the Supreme Court ruled that the freedom of religion clause under Section 5 of Article III of the Constitution requires that protesting members be exempted from the operation of the Flag Salute Law. As protesting members of Jehovah’s Witnesses, Ephraim, Seraphim and Cherubim are exempted from the operation of the Flag Salute Law, which causes an abridgment of the free exercise of their religion. V a) What are the instances when warrantless searches may be effected? ANSWER: A warrantless search may be effected in the following cases: 1. 2. 3. 4. 5. 6. 7.
Searches incident to a lawful arrest; Searches of moving vehicles; Searches of prohibited articles in plain view; Enforcement of customs laws; Consented searches; Stop and frisk (Terry v. Ohio, 392 U.S. 1 [1968] as adopted in Malacat v. Court of Appeals, 283 SCRA 159 [1997] and People v. Montilla, 285 SCRA 703 [1998]); Routine searches at borders and ports of entry (U.S. v. Ramsey, 431 U.S. 606 [1977]); and
3 8.
Searches of businesses in the exercise of visitorial powers to enforce police regulations (New York v. Burger, 482 U.S. 691 [1987]).
b) What is the stop-and-frisk rule? ANSWER: The stop-and-frisk rule or the Terry patdown (Terry search) is a valid stop and search measure employed by law enforcement officers without a search warrant. This is justified when conducted by police officers on the bases of prior confidential information which were reasonably corroborated by other attendant matters as laid down in the landmark U.S. Supreme Court decision of Terry v. Ohio, 392 U.S. 1 [1968]. Terry v. Ohio defines the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity may be afoot. c) Law enforcement officers of the Philippine Drug Enforcement Agency were assigned on surveillance of the vicinity of a cemetery where the sale and use of dangerous drugs are rampant. A man with reddish eyes was walking unsteadily moving towards them but veered away when he sensed the presence of policemen. They approached him, introduced themselves as police officers and asked him what he had clenched in his hand. As he kept mum, the policemen pried his hand open and found a sachet of shabu, a dangerous drug. Accordingly charged in the Regional Trial Court, the accused objected to the admission in evidence of the dangerous drug because it was the result of an illegal search and seizure. Rule on the objection. ANSWER: The objection should be denied on the ground that the dangerous drug was based on reasonable suspicion and the result of a stop and search measure employed by law enforcement officers in accordance with the “stop and frisk” doctrine enunciated in Terry v. Ohio (392 U.S. 1 [1968]). The case at bar has similar facts to Manalili v. Court of Appeals (280 SCRA 400 [1997]), where the accused had red eyes and was walking unsteadily in a place known as a hang-out of drug addicts. The police officers had sufficient reason based on reasonable suspicion to stop the accused and frisk him. Since shabu was actually found during the investigation, it could be seized without the need for a search warrant. VI Dino has a telephone line with an extension. One day, Dino was talking to Lino over the telephone, Dino conspired with his friend Rino, who was at the end of the extension line listening to Dino’s telephone conversation with Lino in order to overhear and tape-record the conversation wherein Lino confidentially admitted that with evident premeditation, he killed Mino for having cheated him in their business partnership. Lino was not aware that the telephone conversation was being tape-recorded. In the criminal case against Lino for murder, is the tape-recorded conversation containing the admission of Lino admissible in evidence? ANSWER: No, the tape-recorded conversation is not admissible. As held in Salcedo-Ortañez v. Court of Appeals (235 SCRA 111 [1994]), Republic Act No. 4200 makes the tape-recording of a telephone conversation done without the authorization of all the parties to the conversation violated the guarantee of privacy of communications enunciated in Section 3, Article III of the Constitution. VII Is certification of food as halal, that is, suitable for consumption by Muslims according to their religious belief, a religious exercise? ANSWER: Yes, the certification of food as halal to make it suitable for consumption by Muslims according to their religious belief is an exercise of freedom of religion under Section 5, Article III of the Constitution as ruled by the Supreme Court in Islamic Da’wah Council of the Philippines v. Executive Secretary (G.R. No. 153888, 9 July 2003). Hence, a government agency such as the Office of Muslim Affairs may not perform the function of halal certification of food, as this is a religious exercise and is protected under freedom of religion clause which provides that “no law shall be made…prohibiting the free exercise of religion” (Section 5, Article III of the Constitution). VIII Are government workers allowed to strike? ANSWER: No, government workers are not given the right to strike as held in the case of SSS Employees Association v. Court of Appeals (175 SCRA 686). However, they may form or join employees associations under the freedom of association clause of the Constitution.
4 IX a) What is the doctrine of incorporation? ANSWER: The doctrine of incorporation is enshrined in Section 2, Article II of the Constitution which provides that “the Philippines adopts the generally accepted principles of international law as part of the law of the land.” The generally accepted principles of international law are incorporated into Philippine law without need of an enabling statute from Congress. b) On December 28, 2000, the Philippines signed the Rome Statute of the International Criminal Court, through a member of the Philippine Mission to the United Nations. The President of the Philippines, however, did not ratify the treaty. May the Executive Secretary and the Department of Foreign Affairs be compelled by mandamus to transmit to the Senate a copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President? ANSWER: No, the Executive Secretary and the Department of Foreign Affairs cannot be compelled by mandamus because it is beyond the jurisdiction of the Court to compel the executive branch of the government to transmit the signed text of the Rome Statute to the Senate without the signature of the President. In Pimentel v. Office of the Executive Secretary (G.R. No. 158088, 6 July 2005), the Supreme Court held that under the Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate, or having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, the decision is within the competence of the President alone, which cannot be encroached by the courts through a writ of mandamus. X Is a provision of law in the General Appropriations Act which set aside an amount for the Countryside Development Fund or “pork barrel” valid or not? ANSWER: The Countryside Development Fund or “pork barrel” is valid and so is the provision in the General Appropriations Act which set aside an amount to be used for “infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries” as proposed and identified by officials concerned. The officials concerned were all Congressmen, Senators and the Vice President who were each allocated an amount. In the case of Philippine Constitution Association v. Enriquez (235 SCRA 506), the Supreme Court upheld the validity of said provision of law as not an encroachment into legislative power since Congress itself had specified the uses of the fund and that the power given to the enumerated officials was merely recommendatory to the President who would approve or disapprove the same. XI The Department of Education (DepEd) requires that any school applying for a tuition fee increase must, as a condition for the increase, offer full tuition scholarships to students from low-income families. The Sagrada Familia Elementary School is a Catholic school and has applied for a tuition fee increase. Under this regulation by the DepEd, it will end up giving tuition scholarships to a total of 21 students next year. At a cost of P50,000 per student, the school will lose a total of P1.05 million for next year. a) Is this DepEd requirement valid? ANSWER: No. This DepEd requirement is not valid because it would constitute a deprivation of property without due process of law. The law is confiscatory as it unduly shifts the burden of providing for the welfare of the poor to the private sector. The objective may be laudable but the means would be arbitrary and unreasonable. (Quezon City v. Judge Ericta, G.R. No. 34195, 24 June 1983) b) If instead the DepEd requires a full tuition scholarship for the highest ranking students in each grade, determined solely on the basis of academic grades and rank, will the DepEd requirement be valid? ANSWER: No, this would not make any difference in my answer as this would still constitute a deprivation of property without due process of law. (Balacuit v. Court of First Instance, G.R. No. 38429, 30 June 1988)
5 XII The Provincial Governor of Batanes requested the Department of Budget and Management (DBM) to release its Internal Revenue Allocation (IRA) of P100 million for the current budget year. However, the General Appropriations Act provided that the IRA may be released only if the province meets certain conditions as determined by an Oversight Council created by the President. a) Is this requirement valid? ANSWER: No, this requirement is not valid. Under the Constitution, it is provided that “local government units (LGUs) shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” As held in the case of Alternative Center for Organizational Reforms and Development, et al. v. Zamora (G.R. No. 144256, 8 June 2005), a basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and “shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.” b) The Provincial Governor is a party mate of the President. May the Batanes Representative instead file a petition to compel the DBM to release the funds? ANSWER: Yes, the Batanes Representative may file a petition for mandamus to compel the release of funds as a suit may lie against a public officer to compel the performance of a ministerial function or duty required by law. A congressman from a particular LGU may validly have standing to demand that the IRA for his province be released in accordance with the Constitution and the Local Government Code. As a representative of his province, he has a responsibility towards his constituencies who can expect no less than faithful compliance with the Constitution. Moreover, the issue presented could be characterized as involving transcendental importance to the people and the local government units which had been guaranteed greater local autonomy. XIII Armed with high-powered ammunitions and explosives, some three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police (PNP). In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and General Order No. 4, both declaring “a state of rebellion” and calling out the Armed Forces to suppress the rebellion. Mamamayan tanging Lakas ng Bayan (MALAKAS), a cause-oriented group advocating the protection of civil liberties, filed an action before the Supreme Court questioning Proclamation No. 427 and General Order No. 4, questioning both the state of rebellion and the calling out power of the President. a) Is the declaration of a state of rebellion and the exercise of the President’s calling out power a valid exercise of the President’s executive powers? Explain fully. ANSWER: Yes. The President in calling out the armed forces and in declaring a state of rebellion, validly exercises her powers as Chief Executive and Commander-in-Chief of the Armed Forces of the Philippines. In calling out the armed forces to prevent or suppress lawless violence, invasion or rebellion, as the public safety requires it, the declaration of a state of rebellion is an utter superfluity. The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. In Sanlakas v. Executive Secretary (G.R. No. 159085, 3 February 2004), the Supreme Court held that in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Court’s mandate is to probe only into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written. Should there be any “confusion” generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, as the dissenters in Lacson v. Perez (G.R. No. 147780, May 10, 2001, 357 SCRA 757, 762) correctly pointed out, the mere declaration of a state of rebellion cannot diminish or violate
6 constitutionally protected rights. Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus, then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. At any rate, the presidential issuances themselves call for the suppression of the rebellion “with due regard to constitutional rights.” b) Can the military and police authorities conduct warrantless arrests of persons in a state of rebellion? ANSWER: No, military and police authorities may resort to warrantless arrests of persons suspected of rebellion if the circumstances warrant and in accordance with Section 5, Rule 113 of the Rules of Court, regardless of whether the President has declared a state of rebellion or not. In Lacson vs. Perez, supra, majority of the Court held that “[i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a “state of rebellion.” In other words, a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present. *Additional notes on the calling out power of the President and the declaration of a state of rebellion under Sanlakas v. Executive Secretary, supra: It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis. The above provision grants the President, as Commander-in-Chief, a “sequence” of “graduated power[s].” From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, “[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that ‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’” Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion. Note that the Constitution vests the President not only with Commander-in-Chief powers but, first and foremost, with Executive powers. XIV a) Romy Lagunilla was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lagunilla ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Jose Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. Both parties appealed to the Commission on Elections (COMELEC). The COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lagunilla. Subsequently, the COMELEC issued a writ of execution ordering Longganiza to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term. In the May 11, 1998 elections Lagunilla again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lagunilla from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, Lagunilla was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lagunilla had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lagunilla's assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998. Is the COMELEC correct in disqualifying Lagunilla from assuming the office of Mayor? Romy Lagunilla was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales in the 1998 and 2001 elections. In the May 2004 elections Lagunilla ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 2004 was however contested by his then opponent Jose Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a 2006 decision declared a failure of elections.
7 Both parties appealed to the Commission on Elections (COMELEC). The COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lagunilla. Subsequently, the COMELEC issued a writ of execution ordering Longganiza to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term. In the May 2007 elections Lagunilla again filed his certificate of candidacy for mayor of San Antonio. On April 2007 his opponent Eufemio Muli timely filed a petition to disqualify Lagunilla from running for mayor of San Antonio in the 2007 elections on the ground that he had served three consecutive terms in the same post. On May 2007 Lagunilla was proclaimed winner. On that same month, the First Division of the COMELEC issued a resolution granting the petition for disqualification upon a finding that Lagunilla had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lagunilla's assumption of office by virtue of his proclamation in May 2004 although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. Is the COMELEC correct in disqualifying Lagunilla from assuming the office of Mayor? ANSWER: No, the COMELEC is not correct in disqualifying Lagunilla from assuming the office of Mayor of San Antonio, Zambales in 1998 since he cannot be considered as having been duly elected to the post in the May 1995 elections and because he did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office, that is, the protest of his opponent was upheld whereby Lagunilla was ousted from the office of mayor by the COMELEC. In Lonzanida v. Commission on Elections, G.R. No. 135150, 28 July 1999, a case with the same or similar facts and circumstances as the instant case, the Supreme Court held that the two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. In the present case, Lagunilla did not serve as mayor from May 1995 to March 1998 because he is not duly elected to the post. He merely assumed office as the presumptive winner which was subsequently overturned by the COMELEC when it decided with finality that Lagunilla lost in the May 1995 elections. He is therefore not deemed to have served three consecutive terms due to the interruption in the May 1995 elections where he lost the election. The COMELEC was therefore not correct in disqualifying Lagunilla from assuming the office of Mayor of San Antonio, Zambales in 1998 since he cannot be considered as having been duly elected to the post in the May 1995 elections. He did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. b) In the May 1998 elections, Jimmy Pedro and Bruce Vera were elected Governor and ViceGovernor of Misamis Oriental, respectively. Upon the death of Jimmy Pedro as provincial governor, ViceGovernor Bruce Vera succeeded as governor and served for the remaining portion of the term of office. In the May 2001 elections, Bruce Vera ran and won as governor for the full term. In the May 2004 elections Vera ran and won for reelection as governor. In the May 2007 elections, Vera filed his certificate of candidacy for the same position as governor, but his rival gubernatorial candidate sought his disqualification alleging violation of the three term limit for local elective officials provided for in the Constitution and the Local Government Code. Will the disqualification case prosper? ANSWER: No, the disqualification case will not prosper because Bruce Vera is still eligible to run for a third term. In Borja v. Commission on Elections (G.R. No. 133495, 3 September 1998), the three term limit imposed on a local official is to be understood to refer to terms for which the official concerned was elected. Thus, a person who was elected Vice Mayor in 1988 and who, because of the death of the Mayor, became Mayor in 1989, may still be eligible to run for the position of Mayor in 1998, even if elected as such in 1992 and 1995. By analogy, the Borja case can apply to the case of a Vice-Governor who succeeds the provincial Governor, such as in the case at bar. Hence, Vera can run for governor in the May 2007 elections because he served his first term only in 2004, which was the term for which he was first elected. Succeeding to the position of governor from vice-governor does not count as a term for which the official concerned (Vera) was
8 elected. The application of the three term limit as enunciated in Borja starts in 2004, the term for which Governor Vera was first elected to serve his term as governor. NOTE: In Adormeo v. Commission on Elections (G.R. No. 147927, 4 February 2002), the Court held that it is not enough that an individual has served three consecutive terms in an elective local office. He must also have been elected to the same position for the same number of times before the disqualification can apply. c) Joe Wong was born in Sagay, Negros Occidental, of Filipino parents, in 1970. In 1990, he enlisted in the United States Air Force. He took an oath of allegiance to the United States. In 1997, he became a naturalized American. In February 2005, he returned to Sagay and by December of that same year, he took an oath of allegiance to the Philippines to comply with the requirement under Rep. Act No. 2430. During the 2007 elections, he ran and won as Congressman of the first district of Negros Occidental where he has resided since February 2005. Is he qualified to run for Congressman of the first district of Negros Occidental? ANSWER: Yes, Joe Wong is qualified to run for Congressman of the first district of Negros Occidental because he reacquired the status of a natural-born Filipino citizen by complying with the requirements under Rep. Act No. 2430 for a valid repatriation. In Bengzon v. House of Representatives Electoral Tribunal, G.R. No. 142840, 17 May 2001, the Court held that a former natural born Filipino citizen who became a naturalized American may reacquire his citizenship as a natural born Filipino by complying with the requirement under Rep. Act No. 2430, that of taking an oath of allegiance to the Philippines, which constitutes an act of valid repatriation. The act of repatriation allows the person to recover or return to, his original status before he lost his Philippine citizenship. Thus, respondent Cruz in Bengzon, a former natural born Filipino citizen who lost his Philippine citizenship when he enlisted in the United States Marine Corps, was deemed to have recovered his natural born status when he reacquired Filipino citizenship through repatriation. In the present case, Joe Wong complied with the requirements under Rep. Act No. 2430 for a valid repatriation, which is an oath of allegiance to the Philippines, thus enabling him to reacquire his status as a natural born Filipino. Joe Wong is therefore eligible to run for Congressman of the first district of Negros Occidental. d) Congress enacted Rep. Act No. 9189, otherwise known as the Overseas Absentee Voting Act of 2003. MAKISIG, a cause-oriented group concerned with reforming the Philippine electoral system, challenged the constitutionality of the law, specifically, Section 5 (d) of Rep. Act No. 9189. Section 5 (d) provides that among those disqualified to vote is an immigrant or a permanent resident (of another country) who is recognized as such in the host country, unless he/she executes an affidavit declaring that he/she shall resume actual, physical, permanent residence in the Philippines not later than three years from approval of his/her registration under the said Act, and that he/she had not applied for citizenship in another country. Is this law constitutional? ANSWER: Yes, because the spirit and intent of Congress in enacting Rep. Act No. 9189 is to enfranchise overseas qualified Filipinos. In Macalintal v. Commission on Elections (G.R. No. 157013, 10 July 2003), the Supreme Court ruled that inasmuch as the essence of Rep. Act No. 9189 is to enfranchise overseas qualified Filipinos, the Court should take a holistic view of the pertinent provisions of both the Constitution and Rep. Act No. 9189. The law was enacted in faithful obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution, which states that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have exercised its function as defined in Article VI of the Constitution. Rep. Act No. 9189 is therefore constitutional. XV The Samahan ng mga Periodista sa Pilipinas (SPP) filed with the Office of the Mayor of the City of Manila an application for persons to hold a rally on Mendiola Street on September 5, 2006 from 10 am to 3 pm to protest the political killings of journalists. However, the Mayor of Manila denied their application on the ground that a rally at the time and place applied for will block the traffic in the San Miguel and Quiapo districts. He suggested the Liwasang Bonifacio, which has been designated a freedom park, as venue for the rally. a) Does the SPP have a remedy to contest the denial of its application for a rally permit? ANSWER: Yes, SPP has a remedy. Under B.P. Blg. 880, otherwise known as the Public Assembly Act of 1985, in the event of denial of the application for a permit, the applicant may contest the decision in an appropriate court of law. The court must decide within twenty four (24) hours from the date of filing of the case. Said decision may be appealed to the appropriate court within forty eight (48) hours after receipt of the same. In all cases, any decision may be appealed to the Supreme Court. (Bayan Muna v. Ermita, G.R. No. 169838, 25 April 2006)
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b) Does the availability of a freedom park justify the denial of SPP’s application for a rally permit? ANSWER: No, the availability of a freedom park does not justify the denial of the permit. It does imply that no permits are required for activities in freedom parks. Under B.P. Blg. 880, the denial may be justified only if there is a clear and present danger to public order, public safety, public convenience, public morals or public health. (Bayan Muna v. Ermita, supra) c) Does the requirement to apply for a permit to hold a rally constitute prior restraint? ANSWER: No. the requirement for a permit to hold a rally is not a prior restraint on freedom of speech and assembly. The Supreme Court has held in Bayan Muna v. Ermita, supra, that the permit requirement is valid, referring to it as regulation of the time, place, and manner of holding public assemblies, but not the content of the speech itself. Thus, there is no prior restraint, since the content of the speech is not relevant to the regulation. d) Assuming that despite the denial of SPP’s application for a rally permit, its members hold a rally, prompting the police to arrest them. Are the warrantless arrests lawful? ANSWER: No, the arrests are unlawful because what is prohibited and penalized under Sec. 13 (a) and 14 (a) of B.P. Blg. 880 is “the holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned…Provided, however, that no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly.” Thus, only the leader or organizer of the rally without a permit may be arrested without a warrant while the members may not be arrested, as they cannot be punished or held criminally liable for attending the rally. However, under Sec. 12 of B.P. Blg. 880, when the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. XVI a) What is the Calling-Out Power of the President? ANSWER: Under Section 18, Article VII of the Constitution, whenever it becomes necessary, the President, as Commander-in-Chief, may call out the armed forces to aid him in preventing or suppressing lawless violence, invasion or rebellion. b) On February 24, 2006, the President issued Proclamation 1017 declaring a state of national emergency. Is this Proclamation constitutional? ANSWER: The proclamation is constitutional insofar as it constitutes a call by the President for the Armed Forces of the Philippines to prevent or suppress lawless violence as this is sustained by Section 18, Article VII of the Constitution. However, Presidential Proclamation 1017’s provisions giving the President express or implied power (1) to issue decrees; (2) to direct the Armed Forces of the Philippines to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. Likewise, under Section 17, Article XII of the Constitution, the President, in the absence of legislation, cannot take over privately-owned public utilities and businesses affected with the public interest. (David v. Arroyo, G.R. No. 171396, 3 May 2006) c) During the effectivity of Proclamation No. 1017, Jim, Jam and Jon were arrested by the police for acts of terrorism. Is the arrest legal? ANSWER: The arrest, apparently done without a valid warrant, is illegal. However, a warrantless arrest would be valid if those accused are caught committing crimes en flagrante delicto. On the other hand, if the arrest is made pursuant to a valid warrant, then it is lawful. The term “acts of terrorism” has not been legally defined and made punishable by Congress in any law enacted until 24 February 2006. No law has been enacted to guide the law enforcement agents, and eventually the courts, to determine the limits in making arrests for the commission of said acts of terrorism. ( David v. Arroyo, supra) XVII The President issued Proclamation No. 1081 placing the Philippines under a state of martial law on the ground that a rebellion staged by lawless elements is endangering the public safety. Pursuant to the Proclamation, suspected rebels were arrested and detained and military tribunals were set up to try them.
10 Jose Cruz, a citizen of the Philippines, filed with the Supreme Court a petition questioning the validity of Proclamation No. 1081. a) Does Jose have standing to challenge Proclamation No. 1081? ANSWER: Yes, Jose has standing. Under Section 17, Article VIII of the Constitution, the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law. As a Filipino citizen, therefore, Jose may file the petition questioning Proclamation No. 1081. b) In the same action, the Solicitor General contends that under the Constitution, the President as Commander-in-Chief determines whether the exigency has arisen requiring the exercise of his power to declare martial law and that his determination is conclusive upon the courts. Rule on this contention. courts.
ANSWER: The Supreme Court should rule that his determination is not conclusive upon the
The Constitution allows a citizen, in an appropriate proceeding, to file a petition questioning the sufficiency of the factual basis of said proclamation. Moreover, the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitate safeguards by Congress and review by the Supreme Court. This doctrine is clearly laid down in Integrated Bar of the Philippines v. Zamora (G.R. No. 141284, 15 August 2000). c) The Solicitor General argues that, in any event, the determination of whether the rebellion poses danger to public safety involves a question of fact and the Supreme Court is not a trier of facts. Rule on this contention. ANSWER: Under Section 1, paragraph 2, Article VIII of the Constitution, judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable – the problem being one of legality or validity, not its wisdom. Section 18 of Article VII specifically grants the Supreme Court the power to review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law. Thus, in the matter of such declaration, two conditions must concur as enunciated in Integrated Bar of the Philippines v. Zamora, supra: (1) there must be an actual invasion or rebellion; and (2) public safety must require it. The Supreme Court cannot renege on its constitutional duty to determine whether or not the said factual conditions exist. d) The Solicitor General maintains that the President reported to Congress such proclamation of martial law, but Congress did not revoke the proclamation. What is the effect of the inaction of Congress on the suit brought by Jose to the Supreme Court? ANSWER: The inaction of Congress has no effect on the suit brought by Jose to the Supreme Court as Section 18, Article VII of the Constitution provides for checks on the President’s power to declare martial law to be exercised separately by Congress and the Supreme Court. Under this provision, the duration of martial law shall not exceed sixty (60) days but Congress has the power to revoke the proclamation or extend the period. On the other hand, the Supreme Court has the power to review the said proclamation and promulgate its decision thereon within thirty (30) days from its filing. XVIII The Secretary of Justice and the National Telecommunications Commission (NTC) issued press statements prohibiting the public broadcast of the Hello, Garci discs. Do these acts constitute prior restraint? ANSWER: Yes, the prohibition issued by the Secretary of Justice and the National Telecommunications Commission are acts which constitute prior restraint, thus violating the constitutional guarantee of freedom of speech and of the press under Section 4, Article III of the Constitution. In the case of Chavez v. Gonzales, G.R. No. 168338, 15 February 2008, respondent Secretary of Justice Raul Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media to prevent the broadcast over radio stations of the Hello, Garci discs. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the
11 prohibition on prior restraint. The press statements are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. The acts of the Secretary of Justice and the National Telecommunications Commission, specifically the press statements issued against the public broadcast of the Hello, Garci discs over radio stations constitute prior restraint and an abridgment of the constitutional guarantees of freedom of speech and of the press. XIX What are the kinds and sizes of private lands which former natural born citizens of the Philippines are allowed to acquire? ANSWER: Under Republic Act No. 8179, which added Section 10 to Republic Act No. 7042 or the Foreign Investments Act of 1991, former natural born citizens of the Philippines are allowed to be transferees of private lands, urban or rural, with the following maximum sizes: 5,000 square meters for urban land, and 3 hectares for rural land. The purposes allowed are for business or other purposes. (previously, only for residential purposes) XX Does the Ombudsman have administrative disciplinary jurisdiction over judges? ANSWER: No, the Ombudsman does not have administrative disciplinary jurisdiction over judges as this would violate the doctrine of separation of powers between the executive and judicial branches of government. An investigation conducted by the Ombudsman on a complaint against a judge who allegedly falsified his certificate of service encroaches into the Supreme Court’s power of administrative supervision over all courts and its personnel in violation of the doctrine of separation of powers. Section 6, Article VIII of the Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. This was the ruling laid down in Maceda v. Vasquez (221 SCRA 464 [1993]). In Maceda v. Vasquez, the Supreme Court ruled that where a criminal complaint against a judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the Supreme Court for determination whether said judge or court employee had acted within the scope of their administrative duties. XXI a)
What is the doctrine of primary jurisdiction?
ANSWER: The doctrine of primary jurisdiction, also referred to as the doctrine of prior resort or the doctrine of primary administrative jurisdiction, states that no resort to the courts may be made before resort to an administrative body, which has competence or jurisdiction vested upon such administrative body to act upon a matter, shall have acted upon the same. b)
What is the doctrine of exhaustion of administrative remedies?
ANSWER: The doctrine of exhaustion of administrative remedies means that when an adequate remedy is available within the Executive Department, a litigant must first exhaust this remedy before he can resort to the courts. The purpose of the doctrine is to enable the administrative agencies to correct themselves if they have committed an error. c) What are the exceptions to the application of the doctrine of exhaustion of administrative remedies?
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ANSWER: The following are the exceptions to the application of the doctrine of exhaustion of administrative remedies: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.
The question involved is purely legal; The administrative body is in estoppel; The act complained of is patently illegal; There is an urgent need for judicial intervention; The claim involved is small; Grave and irreparable injury will be suffered; There is no other plain, speedy and adequate remedy; Strong public interest is involved; The subject of the controversy is private law; The case involves a quo warranto proceeding; The party was denied due process; The decision is that of a Department Secretary (applying the doctrine of qualified political agency); Resort to administrative remedies would be futile; There is unreasonable delay; The action involves recovery of physical possession of public land; The party is poor; and The law provides for immediate resort to the court. XXII
What are the primary and subsidiary sources of international law? Give an illustration of each. ANSWER: Under Article 38 of the Statute of the International Court of Justice, the primary sources of international law are the following: 1. 2. 3.
International conventions, examples of which are the Vienna Convention on the Law of Treaties and the United Nations Convention on the Law of the Sea; International customs, examples of which are cabotage, the prohibition against slavery, and the prohibition against torture; General principles of law recognized by civilized nations, examples of which are prescription, res judicata and due process.
The subsidiary sources of international law are judicial decisions, subject to the provisions of Article 59, examples of which are the decisions of the International Court of Justice in the Anglo-Norwegian Fisheries Case and Nicaragua v. United States, and the teachings of the most highly qualified publicists of various nations, examples of which are Human Rights in International Law by Lauterpacht and International Law by Oppenheim-Lauterpacht. XXIII a) What is the concept of the exclusive economic zone under the 1982 United Nations Convention on the Law of the Sea? ANSWER: The exclusive economic zone under the 1982 United Nations Convention on the Law of the Sea is an area beyond and adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines from which the territorial sea is measured. The coastal State has the following rights in its exclusive economic zone: 1. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; 2. Jurisdiction as provided in the relevant provisions of the Convention with regard to: i) the establishment and use of artificial islands, installations and structures; ii) marine scientific research; and iii) the protection and preservation of the marine environment; 3. Other rights and duties provided for in the Convention. (Article 56 of the United Nations Convention on the Law of the Sea) b) What is the archipelagic principle? ANSWER: An archipelago is a body of water studded with islands. The archipelagic principle states that an archipelago, which is a body of water studded with islands, or islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. The outermost points of the archipelago are connected with straight baselines. The archipelagic principle serves a two-fold purpose: (1) economic reasons; (2) national security. The main purpose of the archipelagic principle is to protect the territorial interests of an archipelago.
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The Philippine archipelago is that body of water studded with islands which is delineated in the Treaty of Paris of December 10, 1898, as modified by the Treaty of Washington of November 7, 1900 and the Treaty of Great Britain of January 2, 1930. These are the same treaties which delineated Philippine territory in Article I of the Constitution. ALTERNATIVE ANSWER: The archipelagic principle (or archipelagic doctrine) is a principle in international law which views a body of water studded with islands, or islands surrounded with water, as a unity of islands and waters together forming one integrated unit. It applies the straight baselines method in connecting the outermost points of the archipelago with straight baselines. The waters enclosed on the landward side of the drawing of straight baselines are to be regarded as internal waters, in accordance with Article I of the Constitution. The archipelagic principle is adopted in the 1987 Constitution when it provides that, “[t]he national territory comprises the Philippine archipelago, with all the islands and waters embraced therein” and that “the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” The archipelagic principle (or archipelagic doctrine) has a two-fold purpose: (1) economic purpose; and (2) national security. The main purpose of the archipelagic principle is to protect the territorial interests (also known as the territorial integrity of an archipelago. If we follow the old rule of international law, it is possible that between the islands, there would be high seas if the distance between such islands is more than 24 miles. Thus, foreign vessels would be able to enter at will, anytime. c) What is the extent of the Philippine claim to its aerial domain, territorial sea, the seabed, the subsoil, the insular shelves and other submarine areas? ANSWER: The Philippines lays claim to them to the extent recognized by international law. The definition of these areas and right of the Philippines over these areas are provided for in customary and conventional international law. For instance, the Philippine claim to parts of the seas, the seabed, the subsoil and the insular shelves are subject to the 1982 United Nations Convention on the Law of the Sea to which the Philippines is a signatory. As to the airspace, the Philippine claims sovereignty over the airspace above its land mass and territorial sea up to the height where the outer space begins. The Philippines also adheres to the Chicago Convention on International Civil Aviation of 1944. d) What is the special claim made by the Philippines with respect to the “waters around, between and connecting the islands of the archipelago? ANSWER: The special claim made by the Philippines treats the “waters around, between and connecting the islands of the archipelago” as internal waters. The Philippines can exercise full sovereignty and control over these internal waters. e) What is the other element of the archipelagic principle? ANSWER: The other element is the straight baselines method of delineating the territorial sea. This consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent form the general direction of the coast. These baselines divide the internal waters from the territorial waters of an archipelago. f) Is the Philippine position on the archipelagic principle consistent with the archipelagic principle under the 1982 United Nations Convention on the Law of the Sea? ANSWER: The Philippine position on the archipelagic principle deviates from the archipelagic principle under the 1982 United Nations Convention on the Law of the Sea in the concept of “archipelagic waters.” The vast areas of water between islands which the Philippines (under the Constitution) considers as internal waters, and thus not subject to the right of innocent passage. On the other hand, the 1982 Law of the Sea Convention treats archipelagic waters subject to the right of archipelagic sea lanes passage, which is a right similar to innocent passage through passages designated by the archipelago concerned. To recognize the concept of archipelagic waters and the right of archipelagic sea lanes passage under the 1982 United Nations Convention on the Law of the Sea would compromise the national security of the Philippines. g) Has the Philippines recognized this distinction? ANSWER: No, since it is contrary to what Article I of the Constitution states about these waters being internal waters. For this reason, the Philippines ratified the 1982 United Nations Convention on the Law of the Sea with reservation. The reservation of the Philippines to the Law of the Sea Convention was articulated by Senator Arturo Tolentino. h) What is the basis of the Philippine claim to a part of the Spratly Islands? ANSWER: It is based on Article I of the Constitution which states” “all other territories over which the Philippines has sovereignty or jurisdiction.” Under Presidential Decree No. 1596, the Philippines claimed that the Kalayaan Group of Islands as part of the Philippine territory stating that “while other states have laid claims to some of these areas, their
14 respective claims have lapsed by abandonment and cannot prevail over that of the Philippines on legal, historical and equitable grounds. Under both international law and constitutional law, the legal basis of the Philippine claim to the Kalayaan Islands is that these islands are terra nullius, which reinforces the Philippine right to effective occupation of these unoccupied island territory. XXIV Distinguish International Human Rights Law from International Humanitarian Law. ANSWER: International human rights law is a system of laws at the domestic, regional and international levels, designed to promote human rights. Human rights law is made up of various international human rights instruments which are binding to its parties (nation-states that have ratified the treaty). The three main instruments of international human rights are the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights. These three instruments comprise the International Bill of Rights. A new generation of human rights beyond civil, political, economic, social and cultural rights have also been recognized. These include: Group and collective rights, the right to self-determination, the right to economic and social development, the right to a healthy environment, the right to natural resources, the right to communicate and communication rights, the right to participation in cultural heritage, and the rights to intergenerational equity and sustainability. These evolving human rights principles are expressed in many progressive documents of international law, including the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration on Environment and Development, and other pieces of generally aspirational "soft law." Because of the principle of sovereignty and the preponderance of would-be offender nations, these rights have been hard to enact in legally binding documents. In principle human rights law is enforced on a domestic level and nation states that ratify human rights treaties commit themselves to enact domestic human rights legislations. On the other hand, international humanitarian law refers to International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law.” It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. The law is mandatory for nations bound by the appropriate treaties. There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. International humanitarian law is applicable during times of armed conflict while international human rights law is applicable in both times of peace and times of armed conflict. While the Geneva and Hague Conventions on the Laws of War are the governing treaties of international humanitarian law, it is the International Bill of Rights that governs respect and dignity of the basic, inherent and inalienable human rights embodied in international human rights law. XXV What is the doctrine of operative facts? ANSWER: The doctrine of operative facts states that before a law was declared unconstitutional, its actual existence must be taken into account, and whatever was done or performed while the law was in operation should be recognized as valid. (Rieta v. People, 436 SCRA 273 [2004]) Under the operative facts doctrine, the law is recognized as unconstitutional, but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is unconstitutional. (League of Cities and Municipalities of the Philippines v. COMELEC, G.R. No. 176951, 24 April 2010) In keeping with the demands of equity, the Supreme Court can apply the operative fact doctrine to acts and consequences that resulted from the reliance not only on a law or executive act which is quasilegislative in nature but also on decisions or orders of the executive branch which were later nullified. (Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council, G.R. No. 171101, 22 November 2011) XXVI What is the doctrine of necessary implication?
15 ANSWER: The doctrine of necessary implication states that every statute is understood by implication to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. (Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor, 312 SCRA 104 [1999]) XXVII Distinguish the overbreadth doctrine from the void-for-vagueness doctrine. ANSWER: The overbreadth doctrine states that a governmental purpose may not be achieved by means of a statute which is unnecessarily broad, and therefore invades the area of protected freedom. On the other hand, a statute is vague when it forbids or requires the doing of an act in terms so vague that men of common intelligence cannot necessarily guess at its meaning and differ as to its application. A statute is therefore void for being vague. (Estrada v. Sandiganbayan, 369 SCRA 394 [20011]) XXVIII What is a heckler’s veto? ANSWER: A heckler’s veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. In Feiner v. New York (340 U.S. 315 [1951]), the United States Supreme Court held that held that police officers acted within their power in arresting a speaker if the arrest was "motivated solely by a proper concern for the preservation of order and protection of the general welfare.” A constitutional law professor from the University of Chicago Law School, Judge Harry Kalven, Jr., reputedly coined the term “heckler’s veto.” A prime example of a heckler’s veto involves that of demonstrators/rallyists, as the reacting party, causing a speech, given by the acting party, to be terminated in order to preserve peace and order, as well as protect the general welfare. XXIX a)
What is the strict scrutiny test or standard of judicial review?
ANSWER: The strict scrutiny test is a standard of judicial review for determining the quality and the amount of governmental interest brough to justify the regulation of fundamental freedoms The focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. It is used for laws dealing with freedom of the mind or restricting the political process. (White Light Corporation v. City of Manila, G.R. No. 122846, 20 January 2009) b)
What is the intermediate review test or standard of judicial review?
ANSWER: The intermediate review test is a standard of judicial review that is satisfied when it is shown that a classification or legislation is substantially related to an important government objective. The availability of less restrictive alternatives is considered. (White Light Corporation v. City of Manila, supra) c)
What is the rational basis test or standard of judicial review?
ANSWER: The rational basis test, or deferential review, is satisfied when it is shown that the legislative classification is rationally related to achieving some legitimate State interest. In the areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. (British-American Tobacco v. Camacho, G.R. No. 163583, 15 April 2009) XXX What is the Stewardship Doctrine? ANSWER: The Stewardship Doctrine states that private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owners. As a mere steward, the individual must exercise his rights to the property not for his own exclusive and selfish benefit but for the good of the entire community or nation (Mataas na Lupa Tenants Association v. Dimayuga, G.R. No. 32049, 25 June 1984)
