POLITICAL LAW 2008 BAR EXAMS AND SUGGESTED ANSWERS BY JMB I a) The legal yardstick in determining whether usage

has become customary international law is expressed in the maxim opinion juris sive necessitates or opinion juris for short. What does the maxim mean? (3%) Answer: Literally means opinion as to law or necessity (PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, PETITIONER, VS. HEALTH SECRETARY, G.R. NO. 173034, October 09, 2007). It (r) equires that the state practice or norm "be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it (BAYAN MUNA, et. al. VS. ALBERTO ROMULO, et. al. G.R. No. 159618, February 01, 2011 citing North Sea Continental Shelf, 1969 I.C.J. 77 ). b) Under international law, differentiate hard law from soft law. (3%) Answer: Hard law means binding laws. To constitute law, a rule, instrument or decision must be authoritative and prescriptive. In international law, hard law includes treaties or international agreements, as well as customary laws. These instruments result in legally enforceable commitments for countries (states) and other international subjects. Soft law means commitments made by negotiating parties that are not legally binding. By implication, those set of international customary rules, laws and customs which do not carry any binding effect whatsoever or impose no obligation at all to states for its compliance.

II May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative explain why. (5%) Answer: Yes. The Supreme Court in the case of In re Garcia (an obiter dictum), which concerns the application of a Filipino citizen top practice law in the Philippines on the strength of the Treaty on Academic Degrees and the Exercise of Professions concluded between the Philippines and Spain. Based on his license to practice law in Spain on account of completing legal education in that country, he invoked his right to practice law in the Philippines. It appears that the treaty applies only to the practice of profession by Spanish nationals in the Philippines, subject to laws and regulations of the other State Party. Obviously Filipino citizens are not beneficiaries of this treaty right. However, the Court adds that the Executive Department could not have intended to include Filipino citizens in the entitlement to the practice of law in the Philippines under the Treaty for the following reason: (T) he Executive Department may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules of admission to the practice of law in the Philippines, the power to repeal, alter or supplement such rules being reserved only to Congress. The Court implies that under the guise of treaty-making power it is not permissible for the Executive Department to include in the exercise of such power matters which the Constitution reserves to the other departments of the government.

III The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved? (6%) Answer: The answer is suggested by Abbas vs. COMELEC (179 SCRA 287), in which the Supreme Court in an obiter dictum takes the following view in regard to the relation between RA 6734, the Organic Act for the Autonomous Region in Muslim Mindanao, and the Tripoli Agreement: Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to RA 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter (emphasis supplied) The conflict may be resolved by applying the rule lex posterior derogat priori (rules from one source prevail over those derived from another source). Following the first rule, Abbas further states: Thus, if at all, RA 6734 would be amendatory of the Tripoli Agreement, being the subsequent law. IV

targeted badly blighted area in San Nicolas, Manila, except a well-maintained drug and convenience store that poses no blight or health problem itself. Thereafter, NHA sold all the properties it has thus far acquired to a private realty company for redevelopment. Thus, the NHA initiated expropriation proceedings against the store owner who protested that his property could not be taken because it is not residential or slum housing. He also contended that his property is being condemned for a private purpose, not a public one, noting the NHAs sale of the entire area except his property to a private party. If you were the judge, how would you decide the case? (6%) Answer: I would decide in favor of the store owner. The right to take private property for public purposes necessarily originates from "the necessity" and the taking must be limited to such necessity. In City of Manila v. Chinese Community of Manila, we held that the very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law College, we ruled that "necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit (Masikip vs. City of Pasig, G.R. NO. 136349, January 23, 2006).

V Congress passed a law authorizing the National Housing Authority (NHA) to expropriate or acquire private property for the redevelopment of slum areas, as well as to lease or resell the property to private developers to carry out the redevelopment plan. Pursuant to the law, the NHA acquired all the properties within a Having received tips that the accused was selling narcotics, two police officers forced open the door of his room. Finding him sitting partly dressed on the side of the bed, the officers spied two capsules on anight stand bedside the bed. When asked. Are these

yours?, the accused seized the capsules and put them in his mouth. A struggle ensued, in the course of which the officers pounced on the accused, took him to a hospital where at their direction, a doctor forced an emetic solution through a tube into the accuseds stomach against his will. This process induced vomiting. In the vomited matter were found two capsules which proved to contain heroin. In the criminal case, the chief evidence against the accused was the two capsules.