I.

a) The legal yardstick in determining whether usage has become customary

international law is expressed in the maxim opinio juris sive necessitatis or
opinio juris for short. What does the maxim mean? (3%)

b) Under international law, differentiate "hard law" from "soft law". (3%)

ANSWER:

A.

Opinio juris sive necessitatis ("an opinion of law or necessity") or simply

opinio juris' ("an opinion of law") is the belief that an action was carried out
because it was a legal obligation.

B.

Hard Law: arises from treaties, regulations, community method. Soft Law:
not obligatory, no sanction, no uniformity, not justiciable.

II.

May a treaty violate international law? If your answer is in the affirmative,

explain when such may happen. If your answer is in the negative, explain
why. (5%)

ANSWER:

A treaty cannot violate an international law. A treaty presupposes a contract

conforming to all the attributes of an international agreement, characterized
by mutuality. A violation if any, will be on the implementation aspect which is
whether its subsequent enforcement is in accord with the standards of
international law.

III.

The President alone without the concurrence of the Senate abrogated a

treaty. Assume that the other country-party to the treaty is agreeable to the
abrogation provided it complies with the Philippine Constitution. If a case
involving the validity of the treaty abrogation is brought to the Supreme
Court, how should it be resolved? (6%)

ANSWER:

The Supreme Court should declare the treaty abrogation invalid.

While the Constitution is silent on whether a treaty abrogation shall require

the concurrence of the Senate to make it valid and effective, the treaty-
ratifying power of Senate carries with it the power to concur a treaty
abrogated by the President by way of necessary implication.

Under the doctrine of incorporation, a treaty duly ratified by the Senate and
recognized as such by the contracting State shall form an integral part of the
law of the land. The President alone cannot effect the repeal of a law of the
land formed by a joint action of the executive and legislative branches,
whether the law be a statute or a treaty. To abrogate a treaty, the
President’s action must be approved by the Senate.

IV.

Congress passed a law authorizing the National Housing Authority (NHA) to

expropriate or acquire private property for the redevelopment of slum areas,
as well as to lease or resell the property to private developers to carry out
the redevelopment plan. Pursuant to the law, the NHA acquired all the
properties within a targeted badly blighted area in San Nicolas, Manila,
except a well-maintained drug and convenience store that poses no blight or
health problem itself. Thereafter, NHA sold all the properties it has thus far
acquired to a private realty company for redevelopment. Thus, the NHA
initiated expropriation proceedings against the store owner who protested
that his property could not be taken because it is not residential or slum
housing. He also contended that his property is being condemned for a
private purpose, not a public one, noting the NHA's sale of the entire area
except his property to a private party. If you were the judge, how would you
decide the case? (6%)

ANSWER:
If I were the judge, I would rule against NHA.

Since the law authorizes NHA to acquire all the properties with the San
Nicolas area without a clear cut distinctions or boundaries upon which NHA
will act, the law is void for failure to comply with "Completeness" test.

Through the law, NHA is giving a wide latitude of discretion. The law is not
complete because it does not specify which properties to expropriate.

V.

Having received tips that the accused was selling narcotics, two police
officers forced open the door of his room. Finding him sitting partly dressed
on the side of the bed, the officers spied two capsules on the night stand
beside the bed. When asked, "Are these yours?", the accused seized the
capsules and put them in his mouth. A struggle ensued, in the course of
which the officers pounced on the accused but failed to extract the capsules.
The officers handcuffed the accused, took him to a hospital where at their
direction, a doctor forced an emetic solution through a tube into accused's
stomach against his will. This process induced vomiting. In the vomited
matter were found two capsules which proved to contain heroin. In the
criminal case, the chief evidence against the accused was the two capsules.

a) As counsel for the accused, what constitutional rights will you invoke in his
defense? (4%)

b) How should the court decide the case? (3%)

ANSWER:

a) The constitutional right against warrantless arrests and seizures. It is clear

that the accused was arrested and the capsules seized without a valid
warrant of arrest issued personally by a judge. Even the circumstances
permissible by jurisprudence that would have otherwise made the
warrantless arrests and seizures of the accused valid, namely: (1) arrests in
flagrante delicto, (2) arrests effected in hot pursuit, (3) arrests of escaped
prisoners, and, (4) entrapment operation, are not shown in the case at bar.

b) As the arrest of the accused was illegal, it follows that the search
conducted by the police was also unlawful and the capsules forcibly expelled
from his stomach was therefore inadmissible as evidence against him.
Hence, the case should be dismissed.

VI.

The Philippine National Police (PNP) issued a circular to all its members
directed at the style and length of a male police officers' hair, sideburns and
moustaches, as well as the size of their waistlines. It prohibits beards,
goatees and waistlines over 38 inches, except for medical reasons. Some
police officers questioned the validity of the circular, claiming that it violated
their right to liberty under the Constitution. Resolve the controversy. (6%)

ANSWER:

The circular is valid and constitutional.

Under the Fit and proper rule, a government agency may promulgate rules
and regulation as may deem fit and proper for a public servant to discharge
his duties efficiently and effectively.

VII

JC, a major in the Armed Forces of the Philippines, is facing prosecution

before the Regional Trial Court of Quezon City for the murder of his neighbor
whom he suspected to have molested his (JC's) 15-year old daughter.

a) Is JC entitled to bail? Why or why not? (3%)

b) Assume that upon being arraigned, JC entered a plea of guilty and was
allowed to present evidence to prove mitigating circumstances. JC then
testified to the effect that he stabbed the deceased in self-defense because
the latter was strangling him and that he voluntarily surrendered to the
authorities. Subsequently, the trial court rendered a decision acquitting JC.
Would an appeal by the prosecution from the decision of acquittal violate JC's
right against double jeopardy? Why or why not? (3%)

ANSWER:
Yes, the prosecution may appeal from the decision of acquittal rendered by
the RTC.

Again, under the Revised Rules of Criminal Procedure, any party may appeal
from the judgment or final order of a criminal court, except when the
accused will be placed in double jeopardy.

In the instant case, JC will not be placed in double jeopardy because he had
no valid plea. One of the requisites to constitute double jeopardy is that
there must be a valid plea. The fact that he was allowed to present evidence
to prove mitigating circumstances and he testified for an incomplete self-
defense and for a voluntary surrender to the authorities has the effect of
vacating his plea of guilt. Therefore, there was actually no standing plea for
JC. As a consequence, JC cannot invoke double when the prosecution appeal
from his judgment of acquittal.

VIII.

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

ANSWER:

The grant is valid. To hold otherwise would mean to violate the time-honored
principle of separation of powers between the co-equal branches of the
government. The scope of application of the presidential prerogative of
granting executive clemency lies within the discretion of the President. In
fact, any and all public officers (as pointed out by Atty. Macka) in whatever
branches of the government may be given executive clemency. To this
effect, other branches of the government, the judiciary in particular, may not
substitute, review, or abrogate, much less, declare a certain grant of
executive clemency by the president invalid, and thus consequently
embarrass a co-equal branch. Be it noted that the nature of such power is a
prerogative one---a privilege granted by the constitution.
However, although it is valid, the same may not be given effect, and
therefore, unenforceable. This is only the way to pass upon the propriety of
such grant---to declare it without effect as against the judiciary and to refuse
to recognize its validity or invalidity.

IX.

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

a) Abdul now consults you if he can still run for Vice-Governor of Tawi-Tawi in
the forthcoming May 2010 elections on the premise that he could not be
considered as having served a Vice-Governor from 2004-2007 because he
was not duly elected to the post, as he assumed office merely as a
presumptive winner and that presumption was later overturned when the
COMELEC decided with finality that he had lost in the May 2004 elections.
What will be your advice? (3%)

b) Abdul also consults you whether his politcal party can validly nominate his
wife as substitute candidate for Vice-Governor of Tawi-Tawi in May 2010
elections in case disqualifies him and denies due course to or cancels his
certificate of candidacy in lieu of a false material representation therein.
What will be your advice? (3%)

ANSWER:

a.) I will advise Abdul that he cannot anymore run for Vice-Governor. he is
considered as having served the 2004-2007 term. His assumption of
office and his continuous exercise of the functions thereof from start to
finish of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.
His full term from 2004-2007 could not be simply discounted on the
basis that he was not duly elected thereto on account of void
proclamation because it would have iniquitous effect producing
 outright injustice and inequality as it rewards a legally disqualified and
repudiated loser with a crown of victory. (Ong vs. Alegre, January
23,2006)

b.) I will advise him that he cannot be substituted by his wife as a

candidate because a candidate whose certificate of candidacy has
been cancelled or not given due course cannot be substituted by
another of the same political party.
A person without a valid certificate of candidacy cannot be considered
a candidate in much the same way as any person who has not filed any
certificate of candidacy at all cannot, by any stretch of the imagination,
be a candidate at all. (Ong vs. Alegre, January 23, 2006)

X.

The 1st Legislative District of South Cotabato is composed of General Santos

and three municipalities including Polomolok. During the canvassing
proceedings before the District Board of Canvassers in connection with the
2007 congressional elections, candidate MP objected the the certificate of
canvass for Polomolok on the ground that it was obviously manufactured,
submiting as evidence the affidavit of a mayoralty candidate of Polomolok.
The certificate of canvass for General Santos was likewise objected to by MP
on the basis of the confirmed report of the local NAMFREL that ten election
returns from non-existent precincts were included in the certificate. MP
moved that the certifcate of canvass for General Santos be corrected to
exclude the results from the non-existent precincts. The District Board of
Canvassers denied both objections and ruled to include the certificate of
canvass. May MP appeal the rulings to the COMELEC? Explain. (6%)

ANSWER:

It appears that the certificate of canvass being objected to by the MP

contained manifest errors (election returns from non-existent precincts were
included in the canvass and election returns were tampered with). These are
issues that may be raised in a pre-proclamation controversy. According to
the law, any candidate like the MP in the instant case, who was aggrieved by
the order of the Board of Canvassers to include the contested certificate of
canvass, may appeal the same to the COMELEC within 24 hours from
promulgation of the said order.
XI.

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

operation of law. Accordingly, Benito, the highest ranking member of the
Sangguniang Panlalawigan was elevated to the position of Vice-Governor. By
the elevation of Benito to the office of the Vice-Governor, a vacancy in the
Sangguniang Panlalawigan was created. How should the vacancy be filled?
(3%)

ANSWER:

----------------------------------------

XII.

The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer
among three (3) employees of the city considered for the said position. Prior
to said promotion, Amelia had been an Assistant City Treasurer for ten (10)
years, that is, even before she married the City Mayor. Should the Civil
Service Commission approve the promotional appointment of Amelia? Why
or why not? (6%)

ANSWER:

The Civil Service Commission should not approve the promotional

appointment of Amelia because a mayor is not authorized by law to make
such appointment. Under the Local Government Code of 1991, only the
Secretary of Finance has the statutory authority to appoint a treasurer from
a list of at least three ranking, eligible recommendees of the mayor.

Even if, for the sake of argument, that the mayor merely recommended his
wife Amelia for appointment, her promotional appointment would still be
invalid because the mayor, as a recommending authority, is barred by law
from recommending his relative within the fourth civil degree of
consanguinity or affinity for appointment in the career service of the local
government.
XIII.

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

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

ANSWER:

The law is unconstitutional.

Under the constitution, Article VIII, Sec 5 - Supreme Court have the powers to
Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

Clearly the law promulgated by Congress encroach to the rule making power
of the Supreme Court.

XIV.

In 1963, Congress passed a law creating a government-owned corporation

named Manila War Memorial Commission (MWMC), with the primary function
of overseeing the construction of a massive memorial in the heart of Manila
to commemorate the victims of the 1945 Battle of Manila.

The MWMC charter provided an initial appropriation of P1,000,000,

empowered the corporation to raise funds in its own name, and set aside a
parcel of land in Malate for the memorial site. The charter set the corporate
life of MWMC at 50 years with a proviso that Congress may not abolish
MWMC until after the completion of the memorial.
Forty-five (45) years later, the memorial was only 1/3 complete, and the
memorial site itself had long been overrun by squatters. Congress enacted a
law abolishing the MWMC and requiring that the funds raised by it be
remitted to the National Treasury. The MWMC challenged the validity of the
law, arguing that under its charter its mandate is to complete the memorial
no matter how long it takes. Decide with reasons. (6%)

ANSWER:

I believe that there is a contract as well as obligation.

Based on facts presented:

In 1963, Congress passed a law creating a government-owned corporation

named Manila War Memorial Commission (MWMC), with the primary function
of overseeing the construction of a massive memorial in the heart of Manila
to commemorate the victims of the 1945 Battle of Manila.

The rationale behind for passing a law and to create the MWMC is to obliged
such government-owned corporation to render service for the construction of
such massive memorial tenement.

Under Art. 1156. An obligation is a juridical necessity to give, to do or not to

do.

Under Art. 1157. Obligations arise from:

(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.

Under Art. 1158. Obligations derived from law are not presumed. Only those
expressly determined in this Code or in special laws are demandable, and
shall be regulated by the precepts of the law which establishes them; and as
to what has not been foreseen.

Under Art. 1305. A contract is a meeting of minds between two persons

whereby one binds himself, with respect to the other, to give something or to
render some service
The MWMC charter provided an initial appropriation of P1,000,000,
empowered the corporation to raise funds in its own name, and set aside a
parcel of land in Malate for the memorial site. The charter set the corporate
life of MWMC at 50 years with a proviso that Congress may not abolish
MWMC until after the completion of the memorial.

Under Art. 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they
are not contrary to law, morals, good customs, public order, or public policy.

XV.

The principal of Jaena High School, a public school, wrote a letter to the
parents and guardians of all the school's pupils, informing them that the
school was willing to provide religious instruction to its Catholic students
during class hours, through a Catholic priest. However, students who wish to
avail of such religious instruction needed to secure the consent of their
parents and guardians in writing.

a) Does the offer violate the constitutional prohibition against the

establishment of religion? (3%)

b) The parents of evangelical Christian students, upon learning of the offer,

demanded that they too be entitled to have their children instructed in their
own religious faith during class hours. The principal, a devout Catholic,
rejected the request. As counsel for the parents of the evangelical student,
how would you argue in support of their position? (3%)

ANSWER:

a) No, it does not violate the non-establishment clause. The Constitution

provides that at the option of of the parents, the school may be
allowed to teach religion during class hours approved by religious
authorities to which the child belongs. [this is in Art. XIV Sec. 3(3) of
course i didnt cite the provision and nde verbatim pgkksulat ko ]
 b) As counsel for the parents, i would argue that the Constitution
recognizes the right of the parents to establish and maintain the family
in accordance with their religious convictions ad demands of
responsible parenthood. [e2 nman this is found in Art. XV Sec. 3(1)]

XVI.

Nationwide protests have erupted over rising gas prices, including disruptive
demonstrations in many universities throughout the country. The Metro
Manila State University, a public university, adopted a university-wide
circular prohibiting public mass demonstrations and rallies within the
campus. Offended by the circular, militant students spread word that on the
following Friday, all students were to wear black T-shirts as a symbol of their
protest both against high gas prices and the university ban on
demonstrations. The effort was only moderately successful, with around 30%
of the students heeding the call. Nonetheless, university officials were
outraged and compelled the student leaders to explain why they should not
be expelled for violating the circular against demonstrations.

The student leaders approached you for legal advice. They contended that
they should not be expelled since they did not violate the circular, their
protest action being neither a demonstration nor a rally since all they did
was wear black T-shirts. What would you advice the students? (6%)

ANSWER:

I would advise the students to retort that they are merely exercising their
freedom of expression. They in fact did not join any demonstrations or
violent protests. They merely exercised a constitutional right against
something which they consider repressive

XVII.
As a reaction to the rice shortage and the dearth of mining engineers.
Congress passed a law requiring graduates of public science high schools
henceforth to take up agriculture or mining engineering as their college
course. Several students protested invoking their freedom to choose their
profession. Is the law constitutional? (6%)

ANSWER:
The law is invalid as it singles out and deprives graduates of public science
high schools from exercising the right to select a profession or course of
study guaranteed by the Constitution.

In addition, the law in effect affords class privilege to those students who are
not graduates of public science high school which the Constitution forbids
under the equal protection clause.