Q & A in POLITICAL LAW

I

1. What are the modes of amending the Constitution? (Sec. 1, Art. XVII) 

1)     Constituent Assembly, Congress by a vote of ¾ of its members.

2)     Constitutional Convention

3)     People’s Initiative – petition of at least 12% of registered voters, at least 3% of registered voters in each legislative district.

a-1. Distinguish amendment from revision of the Constitution?

Amendment is minor change of specific provisions.

Revision is radical change, such as change of Government.

2. May the Constitution be revised by shifting from the presidential to the parliamentary form of Government thru Initiative and Referendum?

-       No. Revision is possible only thru Constitutional Assembly or Constitutional convention, not thru initiative and referendum which is a mode allowed only for amendment of the Constitution

3. What is the principle of Jus Cogens in International Law which constitutes a limitation on the power of the constituent assembly to propose changes in the Constitution?

-       Jus cogens, or peremptory norm of international law, means “a norm 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 Treaties)

4. What is a political question?

-       Question of policy, wisdom of particular measure. It refers to those questions which under the Constitution are to be decided by the people in their sovereign capacity. (Tañada vs. Cuenco, Feb. 28, 1957; Snap Election cases)

5. Is the political law doctrine still in effect in light of the power of judicial review over acts of the legislative or executive done with abuse of discretion?

-     Yes. While it is conceded that Article VIII, Section 1 of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions such as those which arise in the field of foreign relations. (Bayan [Bagong Alyansang Makabayan] vs. Zamora, 342 SCRA 449 [2000])

6. Who are the impeachable officers?

-       President, Vice-President, Members of the Supreme Court, members of the Constitutional Commissions, and the Ombudsman

7. What are the grounds for impeachment?

-       culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, betrayal of public trust.

II

1. State the power of Congress to call executive officials to attend:

1)     Investigation in aid of legislation – absolute right to compel appearance

2)     Question hour – president may ban appearance

2. What is executive privilege?

-       for reasons that must be stated, confidentiality to safeguard national interest, the president may restrain cabinet officials from attending Congressional investigation.

3. Has the President the constitutional power to declare (1) state of rebellion? (2) State of national emergency? (3) Martial law?

-       Yes, under her constitutional powers as Commander-in-Chief, and as Chief Executive in charge of faithfully executing the law.

4. Has the President the power to take over public utilities during the state of national emergency under the present state of the law and the Constitution?

-       No, in the absence of Implementing legislation granting her such emergency power.

5. Do the police have the power to make warrantless arrest during state of national emergency?

-       No, without legal grounds under existing law, namely (1) a crime is being committed, about to be committed or attempted to be committed in the presence of the police; or (2) a crime has been committed and the police has reasonable ground to believe based on the facts within his knowledge that the person to be arrested is probably the author of the crime; and (3) in case of escaped prisoner.

III

1. When are the constitutional provisions self-executing?

-       When the provision may be implemented without an enabling legislation.

2. Give 2 examples of (1) self-executing and (2) non-self executing provisions of the constitution.

(1)   Rights of the Accused under the Billl of Rights against unreasonable searches and seizures, against self-incrimination, etc.

(2)   Declaration of state principles and state policies under Article II, and the provisions on people’s initiative to propose amendments to the Constitution.

3. Do the provisions of the treaty creating the World Trade Organization and the Trade Related Aspect of Intellectual Property (TRIPs) Agreement attached thereto providing for reciprocity and equal treatment among nationals of member nations contravene the nationalistic provisions of the Constitutions giving preference to Filipino in the development, exploitation and utilization of national resources?

-       No, the Constitution does not prohibit entry of foreign investments. What is prohibited is unfair competition (Tañada vs. Angara, 272 SCRA 18).

IV

1. Is the extraditee entitled to bail??

-     Yes. US vs. Puruganan was reversed. An extraditee is entitled to bail by proving that he is not a flight risk and will abide by the processes of the extradition court. (Rodriguez vs. RTC Manila, Feb. 27, 2006; Hongkong vs. Olalia, April 19, 2007

2. What is the basis for the right of the extraditee to bail?

-       International human rights.

3. What are the grounds for:

1)     Warrantless arrest

a)     The person to be arrested has committed, is actually   committing, or is attempting to commit an offense in the presence of the arresting officer.

b)     When an offense has been committed and there is probable cause to believe, based on his personal knowledge of facts or other circumstances, that the person to be arrested has committed the offense.

c)     Escaped prisoner

d)    When the right is voluntarily waived, by entering a plea of not guilty and by participating in the trial.

2)     Warrantless Search and Seizure

a)     Voluntary waiver or consent, as when the accused check-in his luggage in the Airport.

b)    When there is valid reason to “stop-and-frisk,” as when the public chanced upon the accused who had reddish eyes, walking in a swaying manner, appeared high on drugs.

c)     Search incident to a lawful arrest.

d)    Search of vessel or aircraft

e)     Search of moving vehicle

f)      Plain view doctrine: requisites

i)       a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

ii)      the evidence was inadvertently discovered by the police who have the right to be where they are;

iii)     the evidence must be immediately apparent; and

iv)     “plain view” justified the seizure of the evidence without any further search.  

g)    Under exigent and emergency circumstances, such as during coup d etat (People vs. De Garcia, 233 SCRA 716)

h)    Right to privacy

4. Is the imposition of the National ID System under E.O. 420 constitutional?

-     E.O. 420 was declared constitutional because it is limited to persons transacting with government agencies. A.O. No. 308 prescribing a National I.D. System for all citizens was declared unconstitutional for being overbroad and vague which if implemented will put the people’s right to privacy in clear and present danger.

V

1. When is an impeachment complaint deemed initiated for the purpose of counting the one year period banning initiation of subsequent impeachment complaint against the President within such one year period?

-       when filed and referred to the Justice Committee. Under the recent interpretation of the House of Representatives, the complaint is referred to the Justice Committee upon receipt of the complaint by the latter. (Francisco vs. House of Representatives)

2. State the line of succession to the Presidency.

-       Vice-President, Senate President and Speaker of the House.

VI

1. What are the requisites for judicial review?

-     The following:

a)     Actual case or controversy

b)    The constitutional question must be raised by the PROPER PARTY, one who has sustained or in imminent danger of sustaining an injury as a result of the act complained of

c)     The constitutional question must be raised at the earliest opportunity

d)    The decision on the constitutional question must be must be DETERMINATIVE of the case itself.

2. What are the requisites of transcendental importance allowing concerned citizens to raise constitutional issue before the Supreme Court?

-     Transcendental importance involves the assertion of a public right. In view of the transcendental importance of the issue, the mere fact of being a citizen satisfies the requirement of personal interest and legal standing of the Petitioners (Senate vs. Ermita, G.R. No. 169659, April 20, 2006; David vs. Arroyo, G.R. No. 171396, May 3, 2006).

3. May an inferior Court, like the Municipal Trial Court, declare a law or a treaty unconstitutional?

-       Yes. The Constitutional issue must be raised at the earliest opportunity and may be elevated for review to the Supreme Court.

VII

1. May irregularities in the conduct of election be raised in a pre-proclamation case?

-     No, substitution of returns, terrorism of voters, and use of flying voters refer to the conduct of the election and cannot be raised in a pre-proclamation case. (Lucman v. Commission on Elections, 462 SCRA 899).

2. What are pre-proclamation controversies?

-     Section 241 of the Omnibus Election Code provides that a pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the Board of Canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the Board or directly with the COMELEC.

3. What issues may be raised in the pre-proclamation controversy?

-     Section 243 of the Omnibus Election Code enumerates the specific issues that may be raised in a pre-proclamation controversy:

1. Illegal composition or proceedings of the board of canvassers.

2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, and 235.

3. The election returns were prepared under duress, threats, coercion or intimidation or they are obviously manufactured or not authentic.

4. When substitute or fraudulent returns in controverted polling places were canvasses, the results of which materially affected the standing of the aggrieved candidate or candidates.

4. Petitioner and respondent were opposing candidates for mayor. During the canvass of the election returns, the counsel of respondent orally objected to the inclusion of several election returns on the ground that the envelopes containing the election returns did not have the proper seals, the election returns did not bear the signature of the chairman of the board of inspectors, and the election returns did not have the thumbprints of the members of the board of election inspectors. The board of canvassers did not rule on the objections, included the contested election returns in the canvass, and immediately proclaimed petitioner as the winner. The counsel of respondent then submitted his written objection to the inclusion in the canvass of the contested election returns, but the board of canvassers did not rule on it. Respondent filed a petition to annul the proclamation of petitioner.

May the proclamation be invalidated by the COMELEC?

-     The board of canvassers violated its duty to enter the ruling on the objections. Petitioner contends that the written objections were not submitted simultaneously with the oral objections. Submission of the written objections within 24 hours from the time the oral objections were made is compliance with the law. The absence of the signature of the chairman of the board of election inspectors and the absence of thumbmarks of the members of the board of election inspectors rendered the election returns materially defective under section 234 of the Omnibus Election Code and are proper subjects of a pre-proclamation controversy. There being no ruling on the inclusion or exclusion of the disputed election returns, there was no complete and valid canvass, which is a prerequisite to a valid proclamation. (Espidol vs. Commission on Elections, 472 SCRA 380)

5. Does the Comelec have the power to issue execution pending appeal?

-     Yes. There is no reason to dispute the authority of the Commission on Elections to order immediate execution of its own decision, since the suppletory application of the Rules of Court is expressly authorized by Section 1, Rule 41 of the COMELEC Rules of Procedure (Balgonda v. Commission on Elections, 452 SCRA 643). There must be good reasons, like the right of the protestant to the office is clearly established. Mere delay in the appeal is not good reason enough to grant execution pending appeal (Estarul vs. Comelec, June 16, 2006).

6. What are the grounds to declare failure of elections?

-     No election on account of force majeure, violence, terrorism, fraud

-     Election is suspended before closing for the same grounds.

-     After voting and during the preparation, transmission, custody or canvass, the election results in a failure to elect on account of any said causes. (Galo vs. Comelec, April 19, 2006)

VIII

1. Is the Public Assembly Act overbroad?

-     The law is not overbroad. It regulates the exercise of the right to peaceable assembly only to the extent needed to avoid a clear and present danger of the substantive evils the state has the right to prevent. There is no prior restraint since the content of the speech is not relevant to the regulation. (Bayan v. Ermita, G.R. No. 169838, April 25, 2006)

2. What is the void for vagueness doctrine?

-     The void-for-vagueness doctrine states that “a state which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” (Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001)

IX

1. What is the doctrine of Exhaustion of Administrative remedy?

-     Administrative remedies must be resorted and be exhausted first before going to Court.

2. How is such doctrine related to the doctrine of primary jurisdiction?

-     The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim \requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. (Sherwill Development Corporation v. Sitio Sto. Niño Residents Association, Inc., 461 SCRA 517)

3. What are the exceptions to the doctrine of exhaustion of Administrative remedies?

-     However, the Court recognizes some exceptions to the rule of exhaustion of administrative remedies. As held in Paat v. Court of Appeals (266 SCRA 167, 176-177 [1997]):

x x x However, we are not amiss to reiterate that the principle of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention.

The requirement of prior exhaustion of administrative remedies may likewise be dispensed with in the following instances: (1) when the claim involved is small; (2) when strong public interest is involved; and (3) in quo warranto  proceedings. (Ibid)

4. A ran for Mayor against B who was proclaimed, assumed and served in office a Mayor for the first 2 years. B’s protest was granted and B served the remaining term of one year.

1)     Can A collect the salaries for the first two years?

No. The right to salary is based on the right to office from date of actual commencement (Rodriguez vs. Tan, 91 Phil. 724).

2)     If A had previously served 2 terms, would he be barred from running for re-election?

-     No, because there is an interruption in his third term, applying by analogy the rule that a Mayor who has served three (3) consecutive terms may run in the recall election because there has been an interruption after service for three terms. If he cannot collect the salaries corresponding to the first two years of his third term, there is no reason to count said two years against him.

X

                                                     

1. What are the 2 instances when a foreigner may own lands in the Philippines?

-     (1) In case of hereditary succession and (2) in case of a former Filipino citizen coming home as a balikbayan to engage in business in the Philippines, he may own rural land not exceeding three hectares or commercial or industrial land not exceeding five thousand square meters.

2. Is same sex marriage permitted under the Constitution?

-     No, because procreation is an essential obligation of marriage.

XI

1.     The Ombudsman issues a subpoena to the Commissioners of the COMELEC to submit counter-affidavit in connection with Anti-Graft Complaint involving the computerization of elections. The COMELEC Commissioners file a motion to dismiss on the ground that as constitutional officers removable only by impeachment, the Ombudsman has no jurisdiction to investigate and prosecute them for graft before they are removed from office by impeachment.

a.     As counsel for the COMELEC Commissioners, what grounds would you raise in support of the motion to dismiss?

b.     As Ombudsman, oppose the motion to dismiss.

c.     As Judge, resolve the motion to dismiss.

Ans:    

a)     The complaint should be dismissed because constitutional officers removal by impeachment cannot be investigated and charged criminally because under the Constitution, they can be removed only by impeachment. (Lecaroz vs. Sandiganbayan, G.R. No. L-56384, March 22, 1984)

Public officials who are lawyers cannot be disbarred because they can be removed only through impeachment. (In RE: Raul Gonzalez, 160 SCRA 771 [1988]; Cuenco vs. Fernan, 158 SCRA 29 [1988]; and Jarque vs. Desierto, 250 SCRA XI-XIV [1995])

b)     The Motion to Dismiss should be denied for the following reasons:

1.     Sec. 22, R.A. 6770, the Ombudsman’s Act of 1989 provides that the Office of the Ombudsman has the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment.

2.     The right of the Ombudsman to investigate and prosecute all officials, including those removable by impeachment, for serious misconduct in office is affirmed by the Supreme Court, in the following cases:

2.1. Estrada vs. Desierto, 353 SCRA 452, March 2, 2001) which held that only the President enjoys immunity from civil and criminal suit while in office.

2.2. ITF vs. Comelec, 419 SCRA 141 (2004) in which the Supreme Court directs the Ombudsman to investigate the Comelec officials removable by impeachment for involvement in the computerization scam.

c)     As Judge, I would deny the motion to dismiss for the following reasons:

1)     In Estrada vs. Desierto, supra, the Supreme Court emphasized that the doctrine that a public office is a public trust is one of the great themes of the 1987 Constitution that led to the creation of the Office of the Ombudsman endowed with enormous powers to investigate on its own, or on the complaint by any person, any illegal, unjust, improper or inefficient act or omission of any public official. It follows that the Ombudsman has the power to investigate the Comelec officials while still in office for possible criminal prosecution.

2)     In ITF vs. Comelec, supra, the Supreme Court implicitly recognizes the power of the Ombudsman to investigate all public officials, whether removable by impeachment or not, by directing the Ombudsman to investigate Comelec Commissioners for possible involvement in graft and corruption in the computerization of elections.

3)     In Estrada vs. Desierto, supra, the Court recognizes only the immunity from criminal and civil suits of the President while in office, excluding the other constitutional officers from immunity before being removed by impeachment.

2.     May the President be investigated by the Office of the Ombudsman for graft and corruption during her tenure of office?

-     No, because the President enjoys immunity from civil and criminal suit during the tenure of her office. (Randy David vs. Gloria Arroyo)

3.     (a) May the Office of the Ombudsman investigate constitutional officers removable only by impeachment?

-     Yes. Section 22 thereof vests in the Office of the Ombudsman the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. (Office of the Ombudsman vs. Court of Appeals, 491 SCRA 92, June 16, 2006)

(b) May the Office of the Ombudsman preventively suspend public officials facing administrative charges, determine the appropriate penalty and impose such penalty?

-     Yes. Still in connection with their administrative disciplinary authority, the Ombudsman and his deputies are expressly given the power to preventively suspend public officials and employees facing administrative charges in accordance with Section 24 of Republic Act No. 6770:

Sec. 24. Preventive Suspension – The Ombudsman and his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

Section 25 thereof sets forth the penalties as follows:

Sec. 25. Penalties – (1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied.

(2) In other administrative proceedings, the penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (PhP5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.

As referred to in the above provision, under Presidential Decree No. 807, the penalties that may be imposed by the disciplining authority in administrative disciplinary cases are removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months’ salary, or reprimand.

Section 27 of the Republic Act No. 6770 provides for the period of effectivity and finality of the decisions of the Office of the Ombudsman:

Sec. 27. Effectivity and Finality of Decisions – (a) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

(1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.

Findings of facts by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month’s salary shall be final and unappealable.

[In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.]

The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.

All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, deter mine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty. (Ibid)

XII

1. When is war justified under International Law?

(1)   as a matter of national self-defense

(2)   when supported by a resolution of the UN Security Counsel.

2. What are the forcible measures short of war for settlement of international disputes?

ANS:    The following:

1)     Severance of Diplomatic relations

2)     Retorsion

3)     Reprisals

4)     Embargo

5)     Boycott

6)     Non-Intercourse

7)     Pacific Blockade

8)     Collective measures under the UN Charter

3. Explain the concepts of:

1)     Pacta sunt servanda – Treaties must be performed in good faith.

2)     Most favored nation clause – a clause in the treaty that grants to the other party equal treatment (not less favorable) that has been granted or may be granted to the most favored other country, which is common in treaties of commercial nature, like in the TRIPS Agreement on intellectual property rights appended to the treaty creating the World Trade Organization (WTO) and the GATT.

3)     Doctrine of Rebus Sic Stantibus (things remaining as they are) – a party to a treaty is discharged in the event a change of circumstances occurs which renders the fulfillment of the treaty grossly unjust, oppressive and iniquitous.

4. What are the limitations to the doctrine of rebus sic stantibus?

ANS:    The following:

1)     Applicable only to treaties of indefinite or perpetual duration.

2)     Not applicable to the provisions which had been completely executed prior to the change of circumstances.

3)     A party who caused the change in the circumstance cannot invoke the doctrine.

4)     The change of circumstance should have been unforeseen at the time of the conclusion of the treaty.

5. State the Universal jurisdiction of the International Court of Justice.

-     The International Court of Justice has jurisdiction over the following crimes:

a)     The crime of genocide

b)    Crimes against humanity

c)     War crimes

d)    The crime of aggression

6. What is Genocide?

-     Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)   Killing members of the group;

(b)   Causing serious bodily or mental harm to members of the group;

(c)   Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)   Imposing measures intended to prevent births within the group;

(e)   Forcibly transferring children of the group to another group.

7. What are Crimes against humanity?

-     Crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attach:

(1)       Murder;

(2)       Extermination;

(3)       Enslavement;

(4)       Deportation or forcible transfer of population;

(5)       Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(6)       Torture;

(7)       Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(8)       Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(9)       Enforced disappearance of persons;

(10)     The crime of apartheid;

(11)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

8. What are War crimes?

-     War crimes means:

(1)   Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i)         Willful killing;

(ii)        Torture or inhuman treatment, including biological experiments;

(iii)       Willfully causing great suffering, or serious injury to body or health;

(iv)      Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v)       Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi)      Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii)     Unlawful deportation or transfer or unlawful confinement;

(viii)    Taking of hostages.

(2)   Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

(i)             Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)            Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

(iii)           Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv)          Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

(v)           Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;

(vi)          Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;

(vii)         Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;

(viii)        The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(ix)          Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x)           Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xi)          Killing or wounding treacherously individuals belonging to the hostile nation or army;

(xii)         Declaring that no quarter will be given;

(xiii)        Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xiv)        Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(xv)         Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

(xvi)        Pillaging a town or place, even when taken by assault;

(xvii)       Employing poison or poisoned weapons;

(xviii)      Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix)        Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx)         Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

(xxi)        Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(xxii)       Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

(xxiii)      Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(xxiv)      Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(xxv)       Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;

(xxvi)      Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
 

(3)   In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

(i)         Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii)        Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii)       Taking of hostages;

(iv)      The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(4)   Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(5)   Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
 

(i)         Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii)        Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(iii)       Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv)      Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v)       Pillaging a town or place, even when taken by assault;

(vi)      Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

(vii)     Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

(viii)    Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix)      Killing or wounding treacherously a combatant adversary;

(x)       Declaring that no quarter will be given;

(xi)      Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

(xii)     Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;
 

(6)   Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

9. What is the meaning of “enforced disappearance of persons”?

-     “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

XIII

1. What are the modes of acquiring rights to ancestral domain and ancestral land?

Ans:     The rights of the ICCs / IPs to their ancestral domains and ancestral lands may be acquired in two modes:

(1)   by native title both ancestral lands and domains; or

(2)   by torrens title under the Public Land Act and the Land Registration Act with respect to ancestral lands only. (Cruz vs. DENR Secretary)

2. Explain the concept of “native title”.

Ans:     Native title refers to ICCs / IPs preconquest rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of ICCs / IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and respected. Formal recognition, when solicited by ICCs / IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs / IPs over the territories identified and delineated.

Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is a right of private ownership peculiarly granted to ICCs / IPs over their ancestral lands and domains. The IPRA categorically declares ancestral lands and domains held by native title as never to have been public land. Domains and lands held under native title are, therefore, indisputably presumed to have never been public lands and are private.

XIV

a.   State the nature and concept of the party-list system?

-     The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State’s benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, EN BANC)

b.   Are political parties allowed to participate in party-list elections?

Ans:     Yes, as long as they represent the marginalized and underrepresented sectors of society. (Ang Bagong Bayani – OFW Labor Party vs. COMELEC, June 26, 2001)

c.   What are the inviolable parameters to determine the winners in party-list elections?

Ans:     These are:

First, the twenty percent allocation – the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list.

Second, the two percent threshold – only those garnering a minimum of two percent of the total valid votes cast for the party-list system are “qualified” to have a seat in the House of Representatives.

Third, the three seat limit – each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one “qualifying” and two additional seats.

Fourth, proportional representation­ – the additional seats which a qualified party is entitled to shall be computed “in proportion to their total number of votes.” (Veterans Federation Party v. COMELEC, G.R. No. 136781 and Companion Cases, Oct. 6, 2000, En Banc)

d.   Are religious organizations allowed to participate in party-list elections?

-     No, because of the separation of the church and the state.

XV

b.    Section 2, Article XII of the Constitution provides:

“All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into-co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contribution to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.”

1.     May a foreign contractor be allowed to hold mining exploration permit?

-     Yes, Section 3(a9) of the Philippine Mining Act, which allows a foreign contractor to hold an exploration permit, is constitutional. Nowhere does the Constitution require the government to hold all exploration permits. Such a permit does not amount to an authorization to extract mineral resources that may be discovered. Without this permit, the exploration works may end up benefiting claim jumpers. The concerned government officials have the power to approve or disapprove exploration activities or to require changes in them. The work program is subjected to the approval of the Secretary of Environment and Natural Resources.

The provision in the Financial and Technical Agreement granting the contractor the right to renew it for a period of 25 years is not unconstitutional. Section 2, Article XII of the Constitution does not apply to these agreements. (La Bugal-B’Laan Tribal Association, Inc. v. Ramos, 445 SCRA 1)

2.     May a foreign contractor participate in the management and operations of a mining enterprise?

-           Yes, the concept of control adopted in Section 2, Article XII of the Constitution must be taken to mean less than all-encompassing control but sufficient to give the State the power to govern the affairs of the enterprise. Such a concept of control is compatible with permitting the foreign contractor sufficient management authority over the enterprise it invested in to ensure that it is operating efficiently and profitably, to protect its investment, and to enable it to succeed. (ibid)

3.     Does the Constitution restrict participation in the development and utilization of natural resources of the country to Philippine nationals?

-     Yes, but 100% entry of foreign investments in large scale mining thru a Financial and Technical Assistance Agreement with the Government is permitted by the Constitution and the Mining Law.

XV

1. What is the archipelagic doctrine?

-     An archipelago is a formation of two or more islands which geographically is considered as a whole under the archipelagic doctrine which regards all waters around, between and connecting the different islands of the archipelago, irrespective of their width or dimension, as internal or national waters, subject to its exclusive sovereignty.

2. What are the 2 kinds of archipelagic states? To which kind is the Philippines classified?

-     (1) Coastal Archipelagos are those situated so close to the mainland that they may reasonably be considered part and parcel thereof, forming more or less an outer coastline from which the marginal sea is measured.

(2) Outlying or mid-ocean archipelagos are groups of islands situated out in the ocean at such a distance from the coasts of firm land as to be considered and independent whole rather than forming part of the mainland.

The Philippines is a mid-ocean archipelago.

XVI

1. Does the City of Parañaque have the power to impose realty tax on the Manila International Airport Authority’s (MIAA’s) Airport Lands and Buildings?

-     No, MIAA is exempt from real estate taxes imposed by local government for the following reasons: First, MIAA is not a government-owned or controlled corporation but an instrumentality of the National Government and thus exempt from local taxation. Second, the real properties of MIAA are owned by the Republic of the Philippines and thus exempt from real estate tax. (MIAA vs. Court of Appeals, G.R. No. 155650, July 20, 2006)

2. Distinguish between a Government-owned and controlled corporation from an instrumentality of the National Government?

Ans:    

1)     The former is not exempt from real estate tax while the latter is exempt from real estate tax.

2)     A Government-owned and controlled corporation must be organized as a stock or non-stock corporation, with capital stock divided into shares and authorized to distribute to the holders of such shares dividends if a stock corporation, or as a non-profit corporation composed of members if a non-stock corporation. An instrumentality of the government is neither a stock nor a non-stock corporation vested with corporate powers to perform efficiently its governmental functions (ibid).

3. When may “government-owned or controlled corporations” be created by Congress thru special charters?

-     When 2 tests are met: (1) common good and (2) economic viability.

The government-owned or controlled corporations created through special charters are those that meet the two conditions prescribed in Section 16, Article XII of the Constitution. The first condition is that the government-owned or controlled corporation must be established for the common good. The second condition is that the government-owned or controlled corporation must meet the test of economic viability. Section 16, Article XII of the 1987 Constitution provides:

SEC. 16. The Congress shall not, except by general law, provide for the information, organization, or regulation of private corporations. Government-owned or controlled corporations may be created or established by special charters in the interest of the common good and subject to the test of economic viability. (Emphasis and underscoring supplied)

The Constitution expressly authorizes the legislature to create “government-owned or controlled corporations” through special charters only if these entities are required to meet the twin conditions of common good and economic viability.  In other words, Congress has no power to create government-owned or controlled corporations with special charters unless they are made to comply with the two conditions of common good and economic viability. The test of economic viability applies only to government-owned or controlled corporations that perform economic or commercial activities and need to compete in the market place. Being essentially economic vehicles of the State for the common good – meaning for economic development purposes – these government-owned or controlled corporations with special charters are usually organized as stock corporations just like ordinary private corporations.

In the contrast, government instrumentalities vested with corporate powers and performing governmental or public functions need not meet the test of economic viability. These instrumentalities perform essential public services for the common good, services that every modern State must provide its citizens. These instrumentalities need not be economically viable since the government may even subsidize their entire operations. These instrumentalities are not the “government-owned or controlled corporations” referred to in Section 16, Article XII of the 1987 Constitution.

Thus, the Constitution imposes no limitation when the legislature creates government instrumentalities vested with corporate powers but performing essential governmental or public functions. Congress has plenary authority to create government instrumentalities vested with corporate powers provided these instrumentalities perform essential government functions or public services. However, when the legislature creates through special charters corporations that perform economic or commercial activities, such entities – known as “government-owned or controlled corporations” – must meet the test of economic viability because they compete in the market place.

This is the situation of the Land Bank of the Philippines and the Development Bank of the Philippines and similar government-owned or controlled corporations, which derive their income to meet operating expenses solely from commercial transactions in competition with the private sector. The intent of the Constitution is to prevent the creation of government-owned or controlled corporations that cannot survive on their own in the market place and thus merely drain the public coffers. (MIAA vs. CA, supra)

4. Are the Airport Lands and Buildings subject to execution against MIAA?

-     No. MIAA is holding title thereto as mere trustee of the Republic of the Philippines because even its Executive cannot sign a deed of conveyance on behalf of the Republic. Only the President can sign such deed of conveyance. More important, MIAA is an instrumentality of the government engaged in public utilities or public service as governmental functions. (ibid)

5. When is real property owned by the Republic or its political subdivision, agency or instrumentality taxable?

-     Only when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person (Sec. 234(a), Local Government Code). Portions of the land leased to private entities are taxable. (ibid)

6. May the Senate propose amendments not related to the subject matter of the House Bills, dealing with VAT?

-     No. Section 24, Art. VI of the Constitution provides:

Sec. 24.            All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives but the Senate may propose or concur with amendments.

7. A conference Committee may include in its report an entirely new provision not found in either the House Bill of the Senate Bill, as long as the inserted provisions are “germane to the subject of the House and Senate Bills” (Tolentino vs. Secretary of Finance, 235 SCRA 630 [1994] cited in the EVAT Case, September 1, 2005)

8. What is the “enrolled bill doctrine”?

-     The signing of the bill by the Speaker of the House and the Senate President and the Certification of the Secretaries of both Houses of Congress that it was passed are conclusive on its enactment and compliance with the internal parliamentary rules. (Farinas vs. Executive Secretary, 417 SCRA 503 [2003], cited in the EVAT Case, September 1, 2005).

9. What is the “No-Amendment Rule” under the Constitution?

-     Under Art. VI, Sec. 26(2), no bill passed by either House shall become law unless it has passed 3 readings. Upon the last reading of a bill, no amendment thereto shall be allowed and the vote thereon shall immediately be taken thereafter.

10. This rule does not apply to the report of the Bicameral Conference Committee, otherwise there would be no end to negotiations since each house may seek modification of the compromise bill (Tolentino vs. Secretary of Finance, 235 SCRA 630 1994], cited in the recent EVAT Case, September 1, 2005). What is the principle of non-delegation of legislative power?

-     The powers which Congress is prohibited from delegating are those which are strictly, or inherently and exclusively, legislative. Purely legislative power which cannot be delegated has been described as the authority to make a complete law – complete as to the time when it shall take effect and as to whom it shall be applicable – and to determine the expediency of its enactment. (Defensor-Santigao vs. Comelec, 270 SCRA 106 [1997], cited in the recent EVAT Case, September 1, 2005)

11. What are the recognized exceptions to the rule on non-delegation of legislative powers?

-     (a) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(b) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(c) Delegation to the people at large;

(d) Delegation to local governments; and

(e) Delegation to administrative bodies.

In every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard – the limits of which are sufficiently determined and determinable – to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.