2007 bar questions and suggested answers (POLITICAL LAW)

Saturday, April 18, 2009 Posted by Coffeeholic Writes Labels: Bar Examination Political
and Public International Law

-I-(10 points)
True or False. Briefly explain your answer.
(a) For purposes of communication and instruction, the official languages of the Philippines are
English and Filipino, until otherwise
Alternative Answer: The statement is false. Article XIV, Section 7 of the 1987
Constitution provides that for “purposes of communication and instruction, the official
languages of the Philippines are Filipino and, until otherwise provided by law, English.” Thus,
while Filipino will always be an official language, Congress may, by law,remove English as the
other official language. Hence, the statement is false as the continuation of Englishas an official
language is subject to the control and discretion of Congress.Alternative Answer:The statement
is true. To be more precise, however, what is only to remain as official until
otherwise provided by law is English. Filipino will always be an official language under the
Charter.(b) The 1987 Constitution has increased the scope of academic freedom
recognized under the previousConstitution.Alternative Answer:The statement is true.
The 1987 Constitution provides that academic freedom shall be enjoyed in
allinstitutions of higher learning. This is more expansive in scope than the 1973 Constitution
which statedthat: All institutions of higher learning shall enjoy academic freedom. While
the 1973 Charter suggests thatacademic freedom was institutional in the sense that it belonged
to the colleges and universities, the presentCharter gives the guaranty to all
other components of the institution, including faculty and possiblystudents.Alternative
Answer:The statement is false. The scope of academic freedom remains the same. Article XIV,
Section 5 (2) of theConstitution provides that academic freedom shall be enjoyed in all
institutions of higher learning. As heldin U.P. Board of Regents v. Court of Appeals,
G.R. No. 134629, August 31, 1999, “This (provision) isnothing new. The 1935 and
the 1973 Constitution likewise provided for academic freedom or, more precisely,
for the institutional autonomy of universities and institutions of higher learning.”-II-(10
points)The City Mayor issues an Executive Order declaring that the city promotes responsible
parenthood andupholds natural family planning. He prohibits all hospitals operated by the city
from prescribing the use of artificial methods of contraception, including condoms, pills,
intrauterine devices and surgical sterilization.As a result, poor women in his city lost their access
to affordable family planning programs. Private clinics,however, continue to render family
planning counsel and devices to paying clients.(a) Is the Executive Order in any way
constitutionally infirm? Explain.Alternative Answer:

The Executive Order is constitutionally infirm. Under the 1987 Constitution, the State shall defend the
rightof spouses to establish a family in accordance with their religious convictions and the
demands of responsible parenthood. (Art. XV, Sec. 3[1]). By upholding natural family planning and
prohibiting cityhospitals from prescribing artificial methods of contraception, the Mayor is imposing his
religious beliefson spouses who rely on the services of city hospitals. This clearly violates
the above section of theConstitution.Moreover, the 1987 Constitution states that no person shall be
denied the equal protection of the laws. (Art.III, Sec. 1). The Constitution also provides that the state shall
promote a just and dynamic social order thatwill ensure the prosperity and independence of the nation and
free the people from poverty through policiesthat provide adequate social services, promote
full employment, a rising standard of living and an improvedquality of life for all. (Art. II, Section
9). The loss of access of poor city women to family planning programs is discriminatory and
creates suspect classification. It also goes against the demands of social justice as enshrined in the
immediately preceding provision.Alternative Answer:Yes. It constitutes an invalid exercise of police
power and violates substantive due process by depriving people of the means to control their reproductive
processes. Moreover, since the national government hasnot outlawed the use of artificial methods of
contraception, then it would be against national policies. Inaddition, the Mayor cannot issue such
Executive Order without an underlying ordinance. (Moday v, Courtof Appeals, G.R. No. 107916,
February 20, 1997) Besides, the action of the Mayor may be in violation of a person’s right to privacy.(b) Is
the Philippines in breach of any obligation under international law? Explain.Alternative Answer:The
Philippines might be in breach of its obligations under the Convention on the Elimination of All Formsof
Discrimination Against Women (CEDAW) of which the country is a signatory. Under the CEDAW,
“State Parties shall take all appropriate measures to eliminate discrimination against women in the field
of health care in order to ensure, on basis of equality of men and women, access to health
care services,including those related to family planning” (Article 12, Section 1) Women shall likewise
have “access toadequate health care facilities, including information, counseling and services in family
planning.” (Article14, Section 2[b]).(c) May the Commission on Human Rights order the Mayor to stop
the implementation of the ExecutiveOrder? Explain.Alternative Answer: No, the power of the
Commission on Human Rights (CHR) is limited to fact-finding investigations. Thus, itcannot issue an
“order to desist” against the mayor, inasmuch as the order prescinds from an adjudicatory power that
CHR does not possess. (Simon v. Commission on Human Rights, G.R. No. 100150, January 5,1994;
Cariño v. Commission on Human Rights, G.R. No. 96681, December 2, 1991.)- III -(10
Points)Lawrence is a Filipino computer expert based in Manila who invented a virus that
destroys all the filesstored in a computer. Assume that in May 2005, this virus spread all over
the world and caused $50 millionin damage to property in the United States, and that in June 2005, he
was criminally charged before UnitedStates courts under their anti-hacker law. Assume that in July 2005,
the Philippines adopted its own anti-hacker law, to strengthen existing sanctions already provided against
damage to property. The United Stateshas requested the Philippines to extradite him to US courts under
the RP-US Extradition Treaty.a. Is the Philippines under an obligation to extradite Lawrence? State
the applicable rule and its rationale.Alternative Answer:

The Philippine is under no obligation to extradite Lawrence. Under the principle of dual
or doublec r i m i n a l i t y , t h e c r i m e m u s t b e p u n i s h a b l e i n b o t h t h e r e q u e s t i n g a n d r e
q u e s t e d s t a t e s t o m a k e i t extraditable. In this case, only the United States had anti-hacker law at
the time of the commission of thecrime in May 2005. The rational for the principle of dual criminality
rests “in part on the basic principle of r e c i p r o c i t y ” a n d “ i n
part of the maxim nulla poena sine lege.” (LA
S h e a r e r , 1 9 7 1 E x t r a d i t i o n i n International Law, Manchester University Press, Manchester, p.
137.) b. Assume that the extradition request was made after the Philippines adopted its anti-hacker
legislation.Will that change your answer?Alternative Answer:It will not change my answer as the rule is
that the crime must be punishable in both countries at the time of the commission of the offense. Since
there was yet no such crime in the Philippines at the time when theacts complained of were done, in
so far as the Philippines is concerned, Lawrence did not commit anycrime.Alternative
Answer:Yes, it will change my answer if a crime like malicious mischief could be considered the
equivalent of theanti-hacker law and is punishable in both countries at the time of the request for
extradition.- IV -(10 points)In 1993, historians confirmed that during World War II, "comfort
women" were forced into serving theJapanese military. These women were either abducted
or lured by false promises of jobs as cooks or waitresses, and eventually forced against
their will to have sex with Japanese soldiers on a daily basisduring the course of the war, and
often suffered from severe beatings and venereal diseases. The Japanesegovernment contends that
the "comfort stations" were run as "onsite military brothels" (or prostitutionhouses) by
private operators, and not by the Japanese military. There were many Filipina "comfort women."a. Name
at least one basic principle or norm of international humanitarian law that was violated by
theJapanese military in the treatment of the "comfort women."Alternative Answer:The Japanese military
violated jus cogens norms of international law concerning war crimes, crimes againsthumanity like white
slavery, sexual slavery and trafficking in women.Alternative Answer:The principle of military necessity
was violated. It prohibits the use of any measure that is not absolutelynecessary for the purposes of the
war. Military necessity is governed by several constraints: An attack or action must be intended to
help in the military defeat of the enemy, it must be an attack on a militaryobjective and the
harm caused to civilians or civilian property must be proportional and not excessive inrelation to the
concrete and direct military advantage anticipated. Having to force women of the
enemystate to serve the sexual needs of the soldiers is not absolutely necessary for the conduct of the
war. b. The surviving Filipina "comfort women" demand that the Japanese government apologize and pay
themcompensation. However, under the 1951 San Francisco Peace Agreement -the legal instrument that
endedthe state of war between Japan and the Allied Forces -all the injured states, including
the Philippines,received war reparations and, in return, waived all claims against Japan arising from the
war. Is that a validdefense?Alternative Answer: No, that is not a valid defense. Even if it could
be argued that the Philippines, by signing said PeaceAgreement had the right as a state to bring
further claims, it had no authority to waive the individual rightto reparations vested directly in its
nationals who were victims of sexual slavery. The Philippines can onlyvalidly waive its right to recovery
of reparations for injuries to the state. Moreover, there is no defense for