2018 BAR EXAMINATIONS

POLITICAL LAW

September 9, 2018 8:00 A.M. – 10:00 P.M.

INSTRUCTIONS

1. This Questionnaire contains five (5) pages. Check the number of pages and
make sure it has the correct number of pages and their proper numbers.

All items have to be answered within two (2) hours. Since there are ten (10)
questions, you have 20 minutes to answer each question. You may write on the
Questionnaire for notes relating to the questions.

Read each question very carefully and write your answers in your Bar Examination
Notebook in the same order the questions are posed. Write your answers only on
the front of every sheet in your Notebook. If not sufficient then start with the back
page of the first sheet and thereafter. Note well the allocated percentage points for
each number, question, or sub-question. In your answers, use the numbering system
in the questionnaire.

2. Answer the Essay questions legibly, clearly, and concisely. Start each number
on a separate page. An answer to a sub-question under the same number may be
written continuously on the same page and the immediately succeeding pages until
completed.

Yours answer should demonstrate your ability to analyze the facts, apply the
pertinent laws and jurisprudence, and arrive at a sound or logical conclusion. Always
support your answer with the pertinent laws, rules, jurisprudence, and the facts.

A mere “Yes” or “No” answer without any corresponding explanation or discussion

will not be given full credit. Thus, always briefly but fully explain your answers
although the question does not expressly ask for an explanation. You do not need to
re-write or repeat the question in your Notebook.

3. Make sure you do not write your name or any extraneous note/s or distinctive
marking/s on your Notebook that can serve as an identifying mark/s (such as names
that are not in the given questions, prayers or private notes to the Examiner). Writing,
leaving, or marking any distinguishing or identifying mark in the exam Notebook is
considered cheating and can disqualify you.

YOU CAN BRING HOME THE QUESTIONNAIRE

JUSTICE MARIANO C. DEL CASTILLO

Chairman
2018 Bar Examinations
POLITICAL LAW 2

-I-

Lolita Vinluan, a laundry woman who never performed in any hostile act and
a victim of rape by Japanese Soldiers during World War II, filed a Petition for
Certiorari under Rule 65 against the President, Secretary of Foreign Affairs,
Secretary of Justice, and Executive Secretary for signing a Peace Agreement with
Japan. Lolita assails the validity of the Peace Agreement particularly its provisions
on the waiver of future claims against Japan because the rape done to her during the
war was an international crime — the prohibition against such is a jus cogens, and
thus no derogation is allowed. On the other hand, the respondents argue that Lolita
cannot assail the validity of the Peace Agreement because agreeing to such is a
purely executive function, which means that it cannot be assailed via Rule 65
Certiorari since it is within the ambit of Presidential discretion.

a) Is Lolita a person hors de combat during the war? (2.5%)

Suggested Answer:

Lolita is NOT a person hors de combat. Persons hors de combat are those who
were injured in the course of battle and are no longer able to directly take part in the
hostilities. Under Article 41(2), Protocol I, a person is hors de combat if: a.) He is in
the power of an adverse party to the conflict, b.) He clearly expresses an intention to
surrender, and c.) He has been rendered unconscious or incapacitated by wounds or
sickness and is incapable of defending himself. Provided he abstains from any
hostile act and does not attempt to escape. Lolita is not a person hors de combat since
she wasn’t a part of the battle during World War II.

b) Is the Peace Agreement a treaty under the Vienna Convention on the

Law on Treaties (2.5%)

Suggested Answer:

A Treaty is an international agreement concluded between States in written

form and governed by International law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation [VCLT,
art.2(1)]. The Peace Agreement being a written international agreement between two
states, is a treaty under the Vienna Convention.

- II -

President Robert Durante issued an order placing Metro Manila under a State of
Emergency because of severe traffic congestion. This prompted the Congress to
issue a resolution granting the President the power to enact laws relating to the
mitigation of the traffic congestion. Prof. Jay David filed a petition before the
Supreme Court questioning the validity of the grant of legislative power to the
President.

a) Assuming that traffic congestion is an emergency, is the grant of power to

enact laws given by Congress to the President valid? (5%)
POLITICAL LAW 3

Suggested Answer:

No. Article VI, Section 23, Paragraph 2 of the Constitution provides that “[i]n
times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.” In the present case, the grant of legislative power to the
President is void because it was done by a mere resolution and not through a law.

b) If the Congress, upon its review, immediately revoked the grant of power to
the President, therefore mooting the case, what would be the recourse of Prof.
Jay David in order to secure a judgment in his favor? (5%)

Suggested Answer:

David may invoke the ruling in David v. Arroyo. In that doctrine, a moot and
academic issue may still be decided by the Court provided that: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet evading review.

- III -

What are the parameters laid down by the Court regarding the qualifications
of Party-Lists in the case of Atong Paglaum v. Comelec? (5%)

Suggested Answer:

In Atong Paglaum, Inc. v. Commission on Elections (G.R. Nos. 203766, 203818-

19, 203922 & etc., April 2, 2013), the Court laid down the following parameters in
determining whether a political party or organization is qualified to register under
the party-list system:

1. Three different groups may participate in the party-list system: (1) national
parties or organizations, (2) regional parties or organizations, and (3) sectoral
parties or organizations;
2. National parties or organizations and regional parties or organizations do not
need to organize along sectoral lines and do not need to represent any
"marginalized and underrepresented" sector;
3. Political parties can participate in party-list elections provided they register
under the party-list system and do not field candidates in legislative district
elections. A political party, whether major or not, that fields candidates in
legislative district elections can participate in party-list elections only through
its sectoral wing that can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party, and is linked to a
political party through a coalition;
POLITICAL LAW 4

4. Sectoral parties or organizations may either be "marginalized and

underrepresented" or lacking in "well-defined political constituencies." It is
enough that their principal advocacy pertains to the special interest and
concerns of their sector. The sectors that are "marginalized and
underrepresented" include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and overseas workers. The
sectors that lack "well-defined political constituencies" include professionals,
the elderly, women, and the youth;
5. A majority of the members of sectoral parties or organizations that represent
the "marginalized and underrepresented" must belong to the "marginalized
and underrepresented" sector they represent. Similarly, a majority of the
members of sectoral parties or organizations that lack "well-defined political
constituencies" must belong to the sector they represent. The nominees of
sectoral parties or organizations that represent the "marginalized and
underrepresented," or that represent those who lack "well-defined political
constituencies," either must belong to their respective sectors, or must have a
track record of advocacy for their respective sectors. The nominees of national
and regional parties or organizations must be bona-fide members of such
parties or organizations; and
6. National, regional, and sectoral parties or organizations shall not be
disqualified if some of their nominees are disqualified, provided that they
have at least one nominee who remains qualified.

- IV -

a) Who are Filipino citizens? (2.5%)

Suggested Answer:

According to Article IV, Section 1 of the 1987 Constitution, the following are
citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.

b) Differentiate Passive Personality Principle and Nationality Principle as bases

of jurisdiction. (2.5%)

Suggested Answer:

Passive personality principle is wherein a state asserts its jurisdiction over a

foreign individual who committed a wrong outside of its territorial jurisdiction but
the offended or aggrieved party is its own national while the Nationality Principle
provides that the jurisdiction of the state extends to its national wherever they are
situated.
POLITICAL LAW 5

-V-

a) What are the bodies over which the Commission on Audit can conduct a
post-audit? (2.5%)

Suggested Answer:

Article IX-D, Sec. 2(1) of the Constitution provides that Commission on

Audit can conduct a post-audit on the following:

(a) constitutional bodies, commissions and offices that have been granted
fiscal autonomy under this Constitution;
(b) autonomous state colleges and universities;
(c) other government-owned or controlled corporations and their
subsidiaries; and
(d) such non-governmental entities receiving subsidy or equity, directly or
indirectly, from or through the Government, which are required by law or
the granting institution to submit to such audit as a condition of subsidy or
equity

b) What are the requisites for a document to qualify for the protection under the
deliberative process privilege? Explain each requisite. (2.5%)

Suggested Answer:
In Re: Production of Court Records and Documents and the Attendance of
Court Officials and employees as witnesses under the subpoenas of February 10,
2012 and the various letters for the Impeachment Prosecution Panel dated January
19 and 25, 2012. (2012)
Deliberative Process Privilege is intended to prevent the “chilling” (or the
fear) of deliberative communications by Senators, Justices, etc. that may invoke the
privilege when asked about information related to exercising their public functions.
Elements are:
a.) Predecisional – if they were made in the attempt to reach a final decision;
precedes in a temporal sequence the decision to which it relates
b.) Deliberative – disclosure of the information would discourage candid
discussion within the agency; reflects the give-and-take of the consultative
process

- VI -

A. Define the following:

a) Rebus sic stantibus (1%)

Suggested Answer:
POLITICAL LAW 6

Under the theory of rebus sic stantibus, the parties stipulate in the light of
certain prevailing conditions, and once these conditions cease to exist, the contract
also ceases to exist. (Osmeña III v. Social Security System)

b) Jus Cogens (1%)

Suggested Answer:

Jus cogens refers to norms accepted and recognized by the international

community of States as a whole, that command peremptory authority, superseding
conflicting treaties and custom. They are considered peremptory in the sense that
they are mandatory, do not admit derogation, and can be modified only by the
general international norms of equivalent authority. (Romulo v. Vinuya)

c) Pacta sunt servanda (1%)

Suggested Answer:

Pacta sunt servada means that international agreements must be performed in

good faith. (Tañada v. Angara)

d) Jure imperii (1%)

Suggested Answer:

Jure imperii refers to the State’s sovereign and governmental acts. (Arigo v.
Swift)

e) Jure gestionis (1%)

Suggested Answer:

Jure gestionis refers to the State’s private, commercial, and proprietary acts.
(Arigo v. Swift)

B. Differentiate:
a) Reprieve from commutation of sentence. (2%)

Suggested Answer:

A commutation of sentence is the reduction of penalty imposed, while

reprieve is defined as the temporary suspension of the execution of a sentence,
especially of a sentence of death. The object of commutation of sentence is the
rehabilitation of the criminal offender. The law of respite or reprieve appears to
apply only to capital sentences. (Llamas v. Orbos citing Cabantay v. Wolfe)

b) Amnesty from pardon (3%)

Suggested Answer:
POLITICAL LAW 7

Pardon is granted by the Chief Executive and as such it is a private act which
must be pleaded and proved by the person pardoned, because the courts take no
notice thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the courts should take
judicial notice. Pardon is granted to one after conviction; while amnesty is granted
to classes of persons or communities who may be guilty of political offenses,
generally before or after the institution of the criminal prosecution and sometimes
after conviction. Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted, that is, it abolishes or
forgives the punishment, and for that reason it does "nor work the restoration of the
rights to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon," and it "in no case exempts the culprit from the
payment of the civil indemnity imposed upon him by the sentence" (article 36,
Revised Penal Code). While amnesty looks backward and abolishes and puts into
oblivion the offense itself, it so overlooks and obliterates the offense with which he
is charged that the person released by amnesty stands before the law precisely as
though he had committed no offense.” (Barrioquinto v. Fernandez, which cites
Section 10[6], Article VII, Philippine Constitution)

- VII -

Senator Trol Llanes, a staunched critic of PDU50 called on the members of

the Magdalo group to mobilize the Military men who are sympathetic to his causes.
Hearing about the move, PDU50 proclaimed Martial Law in the entire country on
account of the growing lawlessness and rebellion instigated by Trol Llanes and his
group.

Meanwhile, Congress revoked the proclamation of Martial Law. PDU50 set

aside the revocation.

Representative Wala Laman questioned the act of PDU50 setting aside the
revocation and insisted that the validity of the Congressional revocation may not be
reviewed by the Supreme Court with the consequent effect that PDU50 shall not
have any power to set aside the Congressional revocation.

a) Is the Congressional revocation of the proclamation of Martial Law subject to

judicial review? (5%)

Suggested Answer:

No. The Court in Lagman v. Pimentel III (G.R. Nos. 235935, 236061, 236145 &
236155, February 6, 2018) definitively held that the manner in which Congress
deliberated on the President’s request for an extension of the proclamation of martial
law and the suspension of the privilege of the writ of habeas corpus is not subject to
judicial review. Under Section 18, Article VII of the 1987 Constitution, the
Congress, voting jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such a proclamation or suspension. Hence, applying
the same rationale in Lagman to the case at hand, the Congressional revocation is
POLITICAL LAW 8

therefore not subject to judicial review, absent any violation of the voting and
quorum requirements laid down under the Constitution.

b) May PDU50 set aside the Congressional revocation of the proclamation of

Martial Law? (5%)

Suggested Answer:

No. Section 18, Article VII of the 1987 Constitution expressly states that the
Congressional revocation of a proclamation or suspension shall not be set aside by
the President. Hence, PDU50 acted in excess of his authority in setting aside the
revocation of Congress.

- VIII -

The Judicial and Bar Council (JBC) submitted four names to fill the vacancy
of the judiciary: A, a bar topnotcher; B, a lawyer who took the bar 5 times; C, a
justice of the Court of Appeals for 20 years; and D, a known affiliate of the president.

a) The president appoints B, the bar retaker. A and C questioned the

appointment. The issue is whether or not the president could appoint
someone less competent than the other nominees. Is this a political
question? Why? (5%)

Suggested Answer:

Yes. the petition of A and C questioning the President’s appointment is a

political question. Citing Ocampo v. Enriquez, political question is a province which
the court should not interfere in order to respect the co-equal branch of the
government. In this case, the decision of the President to appoint B is subject to his
own wisdom of the law and legal standards in relation to the latter’s appointment.
Absent grave abuse of discretion the Court should not interfere.

b) A, B, and C questioned the inclusion of D on the list. The issue is whether

or not it was correct for the JBC to nominate D when his independence is
questionable for being affiliated with the president. Is this a political
question? Why? (5%)

Suggested Answer:

The issue is not a political question. Citing Villanueva v. JBC, it was

mentioned that the JBC is under the supervision of the Supreme Court and though it
is given the leeway or discretion in choosing the nominees for the position in the
judiciary it should not be exercised arbitrarily or in contravention of existing laws
and jurisprudence. Hence, given the petition assails the nomination of JBC, it is not
a political question that involves the wisdom of a co-equal branch instead a decision
of a body directly under the authority of the court.
POLITICAL LAW 9

c) The president appoints A but the Commission on Appointments insist that

it needs their confirmation. The issue is whether or not the appointment
needs confirmation. Is this a political question? Why? (5%)

Suggested Answer:

No. The issue is not a political question Article VIII, Section 9 of the 1987
Constitution specifically provides that the members of the judiciary’s appointment
is not subject to confirmation. Hence the question goes into the extent of authority
of the Commission on Appointments as provided by the constitution rather than the
wisdom of the appointment of the President.

- IX -

PDU50 decided to withdraw from the Rome Statute (which created the
International Criminal Court). Before the withdrawal, Hutu Bato, a witness to the
series of extra-judicial killings in Davao City proceeded to the ICC to file a case on
the ground of crimes against humanity against PDU50. Hutu Bato had information
that PDU50 had planned to withdraw from the Rome Statute to avoid prosecution
before the ICC.

Spokesperson Dirty Hari argued that the action before the ICC will not prosper
because he failed to exhaust domestic legal remedies before Philippine courts. Hutu
Bato countered that the withdrawal was an act of “shielding” which will frustrate
any domestic legal remedy.

Decide with reasons. (5%)

Suggested Answer:

The action before the ICC will prosper. Under the Principle of
Complementarity of the ICC, the ICC can only exercise its jurisdiction where the
State party of which the accused is a member of, is unable or unwilling to prosecute
such offense. Failure to exhaust domestic legal remedies is not an excuse to the
failure of an action before the ICC.

-X-

The Constitution states that the Constitutional Commissions shall be

independent. How did the Constitution ensure this independence? (5%)

Suggested Answer:

Sections 2, 3, 4, 5, and 6 of Article 9 provides the measures in order to ensure

the independence of the Constitutional Commissions.

Sec. 2 provides No member of a Constitutional Commission shall, during his

tenure, hold any other office or employment. Neither shall he engage in the practice
of any profession or in the active management or control of any business which, in
POLITICAL LAW 10

any way, may be affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise or privilege
granted by the Government, any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations or their subsidiaries. 
 In
short, it imposes a list of prohibitions engaging in activities which can distract them
from their responsibilities or subject them to pressures and temptations.
Sec. 3 protects their salary from diminution during their continuance in office.
Sec. 4 gives them independent powers of appointment but in accordance with law.
Sec. 5 gives them fiscal autonomy, and their approved annual appropriations shall
be automatically and regularly released and shall not be subject to pre-audit.
Sec. 6 gives them authority, sitting en banc, to promulgate rules of procedure. The
SC has no power to disapprove Commission rules except through the exercise of
judicial review when such rules violate the Constitution.
Moreover, Commissioners are given a fixed term and are removable only by
impeachment. (Art. XI, Sec. 2)

- XI -

In 2015, Ang Federasyon ng mga Beshies at Mumshies (Federasyon) applied

to be a party-list for the upcoming election. Its goals are to protect and to advocate
for the rights of the LGBTQIA community. Ang Banal, a religious organization,
opposed the application of Federasyon because allowing Federasyon to vie for a
congressional seat would violate the State’s mandate to follow God, according to
Ang Banal’s Holy Doctrines and the Preamble. Comelec denied Federasyon’s
application because Federasyon’s goals are contrary to public morals. This denial
prompted Federasyon to file a Petition for Certiorari under Rule 65 before the
Supreme Court. Among the grounds cited by the Federasyon is that Comelec
violated Federasyon’s right to equal protection. Ang Banal filed its comment saying
that the grant of Federasyon’s application violates God’s mandate.

a) Rule on the comment of Ang Banal. (5%)

Suggested Answer:

Ang Banal’s comment lacks merit. The denial of Federasyon’s application based
on an alleged “violation of God’s mandate” goes against the non-establishment
clause enshrined in Article III, Section 5 of the 1987 Constitution, which provides
that "[n]o law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof." In interpreting such provision, in Ang Ladlad LGBT Party
v. Commission on Elections (G.R. No. 190582, April 8, 2010), which is on all fours
with the instant case, the Court held that the non-establishment clause calls for
government neutrality in religious matters and that governmental reliance on
religious justification is inconsistent with such policy of neutrality. Hence, a
violation of “God’s mandate” cannot justify the exclusion of Federasyon from
registering as a party-list.

b) Rule on the petition for Certiorari based on the ground cited. (5%)

Suggested Answer:
POLITICAL LAW 11

The petition for certiorari should be granted. The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection
of laws which is enjoyed by other persons or other classes in the same place and in
like circumstances. In this case, absent any legitimate state interest, there is no
justification to treat the LGBTQIA community differently for purposes of registering
under the party-list system. Following Ang Ladlad, the LGBTQIA community has
the same interest in participating in the party-list system as other parties similarly
situated; the LGBQIAs have the right to participate on the same basis as other
marginalized and under-represented sectors.

- XII -

Leila, a student in Antipolo Conservative School, was charged with a

disciplinary action in her school. Beth, the complainant, alleged that Leila sends
nude pictures of female to Beth by leaving copies of said photos to her locker. This
was supported by other students who claim that they also received photos from Leila.
Leila, on the other hand, said that it is part of her artistic expression to send out nude
photos of women to fellow students. If she will be disciplined because of that, the
action would violate her right to free speech.

a) What is the standard of obscenity laid down in Gonzales v. Kalaw-Katigbak?

(5%)

Suggested Answer:

According to Gonzales v. Katigbak the question to be asked whether a material

is considered obscene is: Whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole appeals
to prurient interest. The said test should be viewed in light of the Filipino
contemporary standards and values.

b) What are the due process requirements in disciplining students of a school?

(5%)

Suggested Answer:

In Ateneo de Manila v. Capulong citing Guzman v. National University, the

following are the due process requirements in disciplining students of a school:

(1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the charges
against them, with the assistance of counsel, if desired;
(3) they shall be informed of the evidence against them;
(4) they shall have the right to adduce evidence in their own behalf; and
(5) the evidence must be duly considered by the investigating committee or
official designated by the school authorities to hear and decide the case

- XIII -
POLITICAL LAW 12

Differentiate the Emergency Powers of the President provided by Art.6,

Sec.23(2) with his powers as Commander-in-Chief provided by Art.7, Sec.18. (5%)

Suggested Answer:

Art. 6, Sec. 23(2) are delegated legislative powers. It provides that the
Congress may authorize the President “to exercise powers necessary and proper to
carry out a declared national policy. On the basis of this provision, the President may
be given emergency legislative powers if Congress so desires.

Art. 7, Sec. 18 are the purely executive powers vested on the President as the
Commander-in-Chief. These 3 powers of the President are the calling out power,
power to suspend of the privilege of the writ of habeas corpus, and the power to
impose martial law on the Philippines or any part thereof. As the Commander-in-
Chief, the President holds supreme military authority and is the ceremonial, legal,
and administrative head of the armed forces.