2019 BAR EXAMINATION
– PART I –
Define the following terms:
(a) Jus cogens (2%)
(b) Principle of double criminality (2%)
(c) Act of State Doctrine (2%)
(d) Precautionary Principle (2%)
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%)
(b) Exclusive economic zone (2%)
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 belief. 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 which eventually landed in Palawan. The Philippine Coast Guard intended to push back the 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%)
Mrs. W supplies 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%)
(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. (2%)
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 restaurants. 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 travel 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%)
(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%)
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%)
(b) Is Mr. Y’s refusal to answer based on executive privilege valid? Explain. (2.4%)
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 the 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 the component 1 of the CNSS constitutional? Explain. (2.5%)
(b) Is the component 2 of the CNSS constitutional? Explain. (2.5%)
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 Panglungsod. 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 Elections and Y continued on as his City Administrator. A year 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 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), 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%)
(b) How about Y? Can he validly invoke the condonation doctrine to absolve him of the charge? Explain. (3%)
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 enforcer 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 counselling, 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%)
(b) Does the curfew ordinance infringe any of the minors’ fundamental rights? Explain. (2.5%)
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.
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 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%)
(b) Rule on Mr. D’s present motion. (3%)