PART 1
Define the following terms:
(a) Jus cogens (2%)
SUGGESTED ANSWER:
A.1.
Jus cogens is “a peremptory norm of general international law accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character” (Article 53, Vienna Convention on the Law of Treaties).
(b) Principle of double criminality (2%)
SUGGESTED ANSWER:
The principle of double criminality requires that the crime. for which extradition is sought must be recognized as a crime by both the requiring State and the State to which the fugitives or the accused has fled (Magallona, Fundamentals of Public International Law, p. 578).
Alternative Answer:
The principle of double criminality applies when the laws of the Contracting States place the offence within the same category or denominate the offence by different terminology (Article 2, Australia-Philippines Extradition Treaty).
Alternative Answer:
The principle of double criminality applies when criminal investigation instituted by authorities of the requesting state or government charges the accused with an offense punishable under
the laws both of the requesting state or government and the Republic of the
the laws philippines by imprisonment or other form of relevant
extradition treaty or convention (Section 3, P.D. 1069).
(c) Act of State doctrine (2%)
SUGGESTED ANSWER:
The “act of state doctrine” is the recognition by a country of the legal and physical consequences of all acts of state in other countries. The doctrine recognizes the attributes and prerogatives of sovereignty. It recognizes that the world is composed of independent sovereigns, the sovereign power of each of which is exclusive within its own national territory [Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)].
Alternative Answer:
The acts of the head of state of expelling unauthorized aliens can be considered acts of the state. Deportation proceedings, governed by Sections 3735 to 39 of the Philippine Immigration Act of 1940, states that the power to deport aliens is an act of State, an act done by or under the authority of the sovereign power [Rosas v. Montor, G.R. No. 204105, October 14, 2015].
(d) Precautionary principle (2%)
SUGGESTED ANSWER:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation (Principle 15, The Rio Declaration on Environment and Development (1992)).
Alternative Answer:
When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it (Rule 20, Section 1, Rules of Procedure for Environmental Cases).
Alternative Answer:
The precautionary principle is to be applied “when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically” (Precautionary Principle: The Wingspread Statement).
Alternative Answer:
When these features uncertainty, the possibility of irreversible harm, and the possibility of serious harm – coincide, the case for the precautionary principle is strongest [ISAAA v. Greenpeace, G.R. No. 209271, December 8, 2015].
Alternative Answer:
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction (Article 3, Convention on Biological Diversity).
A.2.4
Under the United Nations Convention on the Law of the Sea (UNCLOS), what are the rights of the Philippines within the following areas:
(a) Contiguous zone (2%)
SUGGESTED ANSWER:
The Contiguous Zone is an intermediary zone between the territorial sea and the high seas extending enforcement jurisdiction of the coastal state to a maximum of 24 nautical miles from baselines for the purposes of preventing or punishing violations of customs, fiscal, immigration or sanitary (and thus residual national security) legislation (Article 33, UNCLOS).
(b) Exclusive economic zone (2%)
SUGGESTED ANSWER:
Under the EEZ, the coastal state retains exclusive sovereignty over exploring, exploiting and conserving all natural resources. It also has the right to construct and authorize and regulate the construction, operation and use of artificial islands, installations and structures for the purposes provided for in Article 56 and other economic purposes, installations and structures which may interfere with the exercise of the rights of the coastal State in the zone; it shall also have the exclusive jurisdiction over such artificial islands, installations, and structures, including jurisdiction with regard to customs, fiscal, health, safety, and immigration laws and regulations (Article 60, UNCLOS).
A.3.
The Humanitarian Services Society (HSS), an international non- government organization, assisted the displaced families of Tribe X who had to flee their home country in order to escape the systematic persecution conducted against them by their country’s ruling regime based on their cultural and religious beliefs. Fearing for their lives, some of these displaced families, with the help of HSS, were able to sail out into the sea on a boat with 15 passengers. An affiliate of HSS in the Philippines intervened on behalf of these displaced families, claiming that they are refugees under international law and hence, should not be expelled from our territory.
May the displaced families of Tribe X be considered as “refugees” under international law? Explain. (3%)
SUGGESTED ANSWER:
Yes, the displaced families of Tribe X can be considered as “refugees” under international law. The 1951 Convention Relating to the Status of Refugees, Article 1 (A), paragraph 2 defines a refugee as one owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In this case, the displaced families of Tribe X fled due to the systematic persecution conducted against them by their country’s regime based on their cultural and religious beliefs; hence they are refugees.
Alternative Answer:
No, the displaced families of Tribe X may be refused “refugee” status under international law if the country they want to enter to is not a signatory of the 1951 Convention Relating to the Status of Refugees.
A.4.
Mrs. W supplied the Philippine National Police (PNP) with uniforms every year. Last month, she and two (2) other officers of the PNP conspired to execute a “ghost purchase” covered by five (5) checks amounting to P200,000.00 each, or a total of P1,000,000.00. An investigating committee within the PNP, which was constituted to look into it, invited Mrs. W, among others, for an inquiry regarding the anomalous transaction. Mrs. W accepted the invitation but during the committee hearing, she stated that she will not answer any question unless she be provided with the assistance of a counsel, The PNP officials denied her request; hence, she no longer participated in the investigation.
(a) What is a custodial investigation? Under the 1987 Constitution, what are the rights of a person during custodial investigation? (3%)
SUGGESTED ANSWER:
Custodial investigation refers to any questioning initiated by law enforcement officers after a person has been taken into custody [People v. Basay, G.R. No. 86941, March 3, 1993].
The rights of a person under custodial investigation include the right to remain silent, the right to have competent and independent counsel preferably of his own choice, and the right to be informed of these rights (Article III, Section 12(1), 1987 Constitution).
(b) Was the PNP’s denial of Mrs. W’s request violative of her right to counsel in the proceedings conducted by the PNP? Explain.
SUGGESTED ANSWER:
No, PNP’s denial of Mrs W’s request is not violative of her right to counsel. Administrative proceedings need not be clothed with the attributes of a judicial proceeding. Thus, while desirable, the right to counsel is not available in administrative proceedings. Since the proceedings involved in this case is an investigation being conducted by a PNP committee, which is administrative and not a custodial investigation, Mrs. W. is not entitled to the assistance of counsel [Cudia v. The Superintendent of the PMA, G.R. No. 211362, February 24, 2015].
A.5.
At about 5:30 A.M. of September 15, 2019, Police Senior Inspector Officer A of the Manila Police District Station received a text message from an unidentified civilian informer that one Mr. Z would be meeting up later that morning with two (2) potential sellers of drugs at a nearby restaurant. As such, Officer A decided to hang around the said place immediately.
At about 9:15 A.M., two (2) male passengers, named X and Y, who were each carrying a travelling bag, alighted from a bus in front of the restaurant. A transport barker, serving as a lookout for Officer A, signaled to the latter that X and Y were “suspicious-looking.” As the two were about to enter the restaurant, Officer A stopped them and asked about the contents of their bags. Dissatisfied with their response that the bags contained only clothes, Officer A proceeded to search the bags and found packs of shabu therein. Thus, X and Y were arrested, and the drugs were seized from them. According to Officer A, a warrantless search was validly made pursuant to the stop and frisk rule; hence, the consequent seizure of the drugs was likewise valid.
(a) What is the stop and frisk rule? (2.5%)
SUGGESTED ANSWER:
The stop and frisk rule is an exception to the general rule against a search without a warrant. Where a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him [Manalili v. Court of Appeals, G.R. No. 113447, October 9, 1997].
(b) Was the stop and frisk rule validly invoked by Officer A? If not, what is the effect on the drugs seized as evidence? Explain. (2.5%)
SUGGESTED ANSWER:
No, the stop and frisk rule was not validly invoked by Officer A. A basic criterion to invoke the stop and frisk rule would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act. Officer A merely relied on a text message by an unidentified informer to conduct the search. The police officer should not adopt the suspicion initiated by another person. Personal knowledge is necessary to justify that the person suspected be stopped and reasonably searched. Anything less than this would be an infringement upon one’s basic right to security of one’s person and effects [Cogaed v. People, G.R. No. 200334, July 30, 2014].
A.6.
A committee of the Senate invited Mr. X and Mr. Y, the Secretary of Foreign Affairs and Secretary of Energy, respectively, as resource speakers for an inquiry in aid of legislation. Mr. X refused to attend, arguing that the Senate, not its committee, has the power to compel attendance. Meanwhile, Mr. Y attended the committee hearing but upon being asked about discussions made during a close-door cabinet meeting, he refused to answer invoking executive privilege. The committee members insisted that Mr. Y answer the question pursuant to the right of Congress to information from the executive branch.
(a) Based on his argument, is Mr. X’s non-appearance permissible? Explain. (2.5%)
SUGGESTED ANSWER:
No. Article VI, Section 21 of the 1987 Constitution specifically provides that “the Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.”
(b) Is Mr. Y’s refusal to answer based on executive privilege valid? Explain. (2.5%)
SUGGESTED ANSWER:
Yes, Mr. Y’s refusal is valid. The privilege includes “presidential conversations, correspondences, or discussions during closed-door Cabinet meetings.” The intention of the President to prevent leakage of information to the public is crystal clear because the discussions were made in a “closed-door meeting” [Sereno v. Committee on Trade and Related Matters, G.R. No. 175210, February 01, 2016].
Alternative Answer:
No. Only the President or the Executive Secretary by order of the President can invoke executive privilege [Senate of the Philippines Ermita, G.R. No. 169777, April 20, 2006]. Though executive privilege, may be extended through the Executive Secretary via an order, absent such formal extension of privilege in favor of Mr. Y, the cabinet secretary could not on his own authority invoke the privilege. (In all instances, there exists a presumption that inclines heavily against executive secrecy and in favor of disclosure.) [Neri v. Senate Committee on Accountability, G.R. No. 180643, September 4, 2008]
A.7.
The continuing threat to the security of the State in various parts of the country prompted the National Security Adviser of the President to adopt a “Comprehensive National Security Strategy (CNSS)” with the following components:
Component 1: During a state of emergency, the President, in the exercise of his power of general supervision, may delegate to the heads of local government units (LGUS), through an administrative issuance, the power to call-out the Armed Forces of the Philippines (AFP) for a more effective and immediate response to the ground situation; and
Component 2: In declaring Martial Law, the President, in a preemptive action and without waiting for the recommendation of the Secretary of National Defense and the AFP, may rely upon any intelligence information he may have gathered through other sources.
Disturbed by the strategy’s supposed infirmities, a concerned citizens’ organization raised the constitutionality of the two (2) components of the CNSS before the Supreme Court.
(a) Is component 1 of the CNSS constitutional? Explain. (2.5%)
SUGGESTED ANSWER:
No, component 1 of the CNSS is not constitutional. Inside the 1987 Constitution is a well-entrenched constitutional precept that One President means that there are certain acts which, by their very nature, may only be performed by the President as the Head of State. One of the acts is one inherent in the Commander-in-Chief powers of the President which is the calling out powers. This power is vested upon the President alone as an act of lesser gravity with the act of declaring martial law. As cited in Villena, there are constitutional powers and prerogatives of the Chief Executive of the Nation which cannot be used by any other person either through ratification or approval because it must be exercised by him in person [Kulayan v. Gov. Tan, G.R. No. 187298, July 03, 2012].
(b) Is component 2 of the CNSS constitutional? Explain. (2.5%)
SUGGESTED ANSWER:
Yes, component 2 of the CNSS is constitutional. A plain reading of Article VII, Section 18 of the Constitution shows that the President’s power to declare martial law is not subject to any condition except for the requirements of actual invasion or rebellion and that the public safety requires it. In Lagman v. Medialdea [G.R. No. 231658, July 4, 2017], the court ruled that even the recommendation of, or consultation with, the Secretary of National Defense, or other high- ranking military officials, is not a condition for the President to declare martial law. Therefore, it is only on the President and no other that the exercise of the powers of the Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed [Lagman v. Medialdea, G.R. No. 231658, July 4, 2017].
A.8.
Mayor X and his City Administrator, Y, are political buddies who assumed their respective offices in 2010. Sometime in January 2012, Y proposed to Mayor X the entry into a P5,000,000.00 loan agreement with ABC Foundation, a non-stock and non- profit organization in which the two had a long-standing personal involvement. The loan agreement was duly executed in the same year but was never authorized and approved by the Sangguniang Panlungsod. It was further found that the same constituted a fraudulent scheme to defraud the City Government.
Meanwhile, Mayor X won another term during the May 2013 as his City Administrator. A year elections and Y continued on after, or in May 2014, administrative charges for grave misconduct, serious dishonesty, and conduct prejudicial to the best interest of the service were filed against them before the Office of the Ombudsman. In his defense, Mayor X argued that his subsequent re-election in May 2013 absolved him from any administrative liability for any alleged anomalous activity during his first term in office. Y raised the same defense of condonation, having been retained by Mayor X as City Administrator for a second term.
On December 10, 2015, the Ombudsman rendered its ruling in the case, finding both Mayor X and Y administratively liable. Citing the Supreme Court’s decision in Carpio-Morales v. Court of Appeals (G.R. Nos. 217126-27, November 10, 2015), which was initially promulgated on November 10, 2015, the Ombudsman rejected their defense of condonation. With the motions for reconsideration of Mayor X and Y having been denied by the Ombudsman on March 10, 2016, they elevated the matter to the Court of Appeals.
(a) Did the Ombudsman err in not giving credence to the defense of condonation as raised by Mayor X? Explain, (2%).
SUGGESTED ANSWER:
Yes, the Ombudsman erred in not giving credence to the defense. Although Carpio-Morales v. Court of Appeals (G.R. Nos. 217126- 27, November 10, 2015) abandoned the condonation doctrine, the Supreme Court also pronounced that such ruling may not be applied retroactively, for the reason that judicial decisions applying or interpreting the laws or the Constitution, until reversed, shall form part of the legal system of the Philippines. Considering that the acts of Mayor X were committed in 2013, before the Carpio-Morales case, Mayor X can still validly invoke the condonation doctrine. [Office of the Ombudsman v. Vergara, G.R. No. 216871, December 6, 2017].
(b) How about Y? Can he validly invoke the condonation doctrine to absolve him of the charge? Explain. (3%)
SUGGESTED ANSWER:
No, the condonation doctrine only applies to elective officials. Y, being the City Administrator, is an appointive official and cannot therefore validly invoke the doctrine [Carpio-Morales y Court of Appeals, G.R. Nos. 217126-27, November 10, 2015].
A.9.
The unabated rise of criminality and the reported identification of delinquent children loitering in the wee hours of the night prompted City Z to implement a curfew ordinance. Minors unaccompanied or unsupervised on the streets by their parents or guardians between 10:00 P.M. to 5:00 A.M. may be apprehended by law enforcers subject to certain exclusive exceptions. These exceptions are: 1. minors running lawful errands, such as buying of medicines, using of telecommunications facilities for emergency purposes and the like; 2. night school students; and 3. minors working at night. Minors apprehended for violation of the curfew ordinance shall be required to undergo counseling, accompanied by their parents/guardians.
(a) Does the curfew ordinance violate the primary right and duty of parents to rear their children? Explain. (2.5%)
SUGGESTED ANSWER:
No, the curfew ordinance does not violate the primary right and duty of parents to rear their children. The principle of parens patriae states that the State has the duty of protecting the rights of persons or individuals who because of age or incapacity are in an unfavorable position. Thus, while parents have the primary role in child-rearing, it should be stressed that when actions concerning the child have a relation to the public welfare or the well-being of the child, the State may act to promote these legitimate interests in the exercise of its police power [SPARK v. Quezon City, G.R. No. 225442, August 08, 2017].
(b) Does the curfew ordinance infringe any of the minors’ fundamental rights? Explain. (2.5%)
SUGGESTED ANSWER:
Yes, the curfew infringes on the minors’ fundamental rights. The court in SPARK v. Quezon City [G.R. No. 225442, August 08, 2017] observed that the two ordinances are not narrowly drawn because the exceptions mentioned in the ordinances are inadequate insofar as it does not provide an exception for the right to association, free exercise of religion, rights, to peaceably assemble, and of free expression, among others. Thus, it can run the risk of overly restricting minors’ fundamental freedoms [SPARK v. Quezon City, G.R. No. 225442, August 08, 2017].
A.10.
An Information for Estafa was filed against the accused, Mr. D. During the course of the trial, Mr. D filed a motion to dismiss for failure to prosecute the case for a reasonable length of time. Opposing the motion, the prosecution argued that its failure to present its witnesses was due to circumstances beyond its control. Eventually, the trial court dismissed the case with finality on the ground that Mr. D’s right to speedy trial was violated.shaverges
A month after, the same criminal case for Estafa was re-filed against Mr. D, prompting him to file a motion to dismiss invoking his right against double jeopardy. The prosecution opposed the motion, arguing that the first criminal case for Estafa was dismissed with the express consent of the accused as it was, in fact, upon his own
motion. Moreover, it was already able to secure the commitments of its witnesses to appear; hence, it would be prejudicial for the State if the case were to be dismissed without trial.
(a) For double jeopardy to attach, what requisites must exist? (2%)
SUGGESTED ANSWER:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act (Article III, Section 21, 1987 Constitution). To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first. Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused [Canceran v. People, G.R. No. 206442, July 1, 2015].
(b) Rule on Mr. D’s present motion. (3%)
SUGGESTED ANSWER:
Mr. D’s motion to dismiss should be granted. A dismissal predicated on the right of the accused to speedy trial upon his own motion or express consent, amounts to an acquittal which will bar another prosecution of the accused for the same offense. This is an exception to the rule that a dismissal upon the motion or with the express consent of the accused will not be a bar to the subsequent prosecution of the accused for the same offense [Salcedo v. Mendoza, G.R. No. L-49375, February 28, 1979].
Alternative Answer:
Recent jurisprudence provides that “As a general rule, the dismissal of a criminal case resulting in acquittal, made with the express consent of the accused or upon his own motion, will not place the accused in double jeopardy. This rule, however, admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial. x x x x It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private respondents to speedy trial has not been violated by the State” [Tan v. People, G.R. No. 173637, April 21, 2009]. In these cases, the Court focused on discussing why there was no violation of the right to speedy trial, hence there was no first jeopardy to speak of. The facts stipulated in the question, however, do not provide that there was an issue on the first jeopardy other than it was secured upon the motion of the accused.
END OF PART I