Thursday, February 20, 2014

FINAL EXAMINATION IN POLITICAL LAW and answers



FINAL EXAMINATION IN POLITICAL LAW and answers


1. In its Petition, Ang Bagong Bayani-OFW Labor Party contends that “the inclusion of political parties in the party-list system is the most objectionable portion of the questioned Resolution of the COMELEC.” For its part, Petitioner Bayan Muna objects to the participation of “major political parties.” On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the party-list elections.  It argues that the party-list system is, in fact, open to all “registered national, regional and sectoral parties or
organizations.”
QUESTION: IS THE CONTENTION OF THE SOLICITOR GENERAL CORRECT? ARE MAJOR POLITICAL PARTIES DISQUALIFIED  TO BE REGISTERED UNDER THE PARTY LIST SYSTEM?

ANSWER:  Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the ground that they are political parties.  Section 5, Article VI of the Constitution provides that members of the House of Representatives may “be elected through a party-list system of registered national, regional, and sectoral parties or organizations.”
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system.

2. WHAT IS A PARTY LIST SYSTEM? WHAT IS ITS PURPOSE UNDER THE CONSTITUTION? WHAT ARE THE CRITERIA TO BE FOLLOWED FOR ONE TO BE QUALIFIED AS A PARTY LIST?

ANSWER: 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.
First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941.  In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented.  And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors.
Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling “Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives.” In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. Third, in view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows:
“(1) It is a religious sect or denomination, organization or association organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.”
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government.  By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens.  It must be independent of the government.  The participation of the government or its officials in the affairs of a party-list candidate is not only illegal and unfair to other parties, but also deleterious to the objective of the law:  to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives.
Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so.  Section 9 of RA 7941 reads as follows:
“SEC. 9.  Qualifications of Party-List Nominees. – No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election.  Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term.”
Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees.  To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens “who belong to marginalized and underrepresented sectors, organizations and parties.” Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist.  To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented.
Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.  Senator Jose Lina explained during the bicameral committee proceedings that “the nominee of a party, national or regional, is not going to represent a particular district x x x.”

3. DUE TO THE CONFLICT IN MAGUINDANAO, THE PRESIDENT OF THE PHILIPPINES SUSPENDED THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS AND DECLARED A STATE OF MARTIAL LAW IN SAID PROVINCE.

A) ABDUL AHMAD, a suspected member of the MNLF while transporting his barter goods along the way in Maguindanao was arrested by the military men manning a certain checkpoint. (1)He was charged of smuggling in the Regional Trial Court after about six days of detention in a military camp as he was then subjected to questioning. His lawyer applies for bail but it was denied. (2)A  petition for habeas corpus was filed but it was also denied by the presiding Judge based upon the argument that the privilege of the writ in said area is suspended.
QUESTION:  Discuss the merits or demerits of the above situations. Is the detention of Abdul valid? Can he be denied bail? Is the petition for habeas corpus not feasible under the circumstances? Explain your answer.
ANSWER. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released

4. DOES THE DECLARATION OF A STATE OF REBELLION AMOUNT TO A DECLARATION OR MARTIAL LAW? DOES IT ALSO CONSTITUTE AN INDIRECT EXERCISE OF EMERGENCY POWERS OF THE PRESIDENT OF THE PHILIPPINES? Explain your answer.
Answer:. The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of the report requirement, is a leap of logic.  There is no indication that military tribunals have replaced civil courts in the “theater of war” or that military authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights.  There is no indication that the President has exercised judicial and legislative powers.  In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers.
Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the Constitution:
Sec. 23.  (1) ….
(2) In 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.
The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief.  The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers.  These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI.(SANLAKAS V. REYES)

5. CARMEN’S HOUSE IS SITUATED JUST RIGHT BESIDE A CITY ROAD. AN ORDINANCE WAS PASSED TWO YEARS AGO THAT AN EASEMENT OF THREE METERS SHALL BE CREATED TO PROVIDE CONVENIENCE FOR THE CITIZENS. CARMEN APPLIES FOR A PERMIT TO BUILD HER NEW HOUSE, BUT THE PERMIT CAN BE GRANTED ONLY IF AN EASEMENT OF THREE METERS IS PROVIDED FROM HER PRIVATE PROPERTY TOWARDS THE CITY ROAD.
QUESTIONS: 1) IS THE ORDINANCE VALID? 2) IF CARMEN IS NOT ISSUED A PERMIT, WHAT IS HER REMEDY UNDER THE LAW? 3) IF THE CITY REALLY WANTS TO PUSH THROUGH WITH ITS EASEMENT, WHAT IS ALSO ITS REMEDY UNDER THE CONSTITUTION OR LAW?
ANSWERS: 1) The ordinance is invalid, as it is taking private property without due compensation. 2)Her remedy is to file a case for mandamus to compel the city to issue her the permit to construct her own building in her own property 3) The city must exercise its power of eminent domain or expropriation.( CARMEN AYALA DE ROXAS and PEDRO P. ROXAS, plaintiffs, vs. THE CITY OF MANILA and ROBERT G. DIECK, as city engineer, defendants. FIRST DIVISION
[G.R. No. L-3144.  November 19, 1907.])

6. Explain the following principles: (a) Yalta Formula (b) domestic jurisdiction clause (c) par in parem non habet imperium (d) thalweg doctrine (e) act of state


7. What are consuls? State the different ranks of consuls? What are the documents necessary before a consul can assume its functions? Who can waive the immunities enjoyed by the consul?

8. What is an executive privilege? How is it related to the  “doctrine of operational proximity?

            Schwart defines executive privilege as “the power of the Government to withhold information from the public, the courts, and the Congress.  Similarly, Rozell defines it as “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” x x x   In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.  Almonte used the term in reference to the same privilege subject of Nixon.  It quoted the following portion of the Nixon decision which explains the basis for the privilege:

            “The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.  These are the considerations justifying a presumptive privilege for Presidential communications.  The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x ” (Emphasis and italics supplied)
Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers.  See AAPS, 997 F.2d at 910 (it is “operational proximity” to the President that matters in determining whether “[t]he President’s confidentiality interests” is implicated.(NERI V. SENATE, GR 180643, SEPT 4, 2008)
9. On January 10, 1991, State Prosecutor Esteban A. Molon, Jr. filed with the Regional Trial Court, Quezon City an information for the alleged nonpayment of deficiency corporate income tax for the year 1979 against Petronila C. Tupaz and her husband Jose J. Tupaz, Jr. as corporate officers of El Oro Engravers Corporation. The said case was raffled to Branch 105, presided over by respondent Judge Benedicto B. Ulep. However, on July 25 1993, Jose J. Tupaz, Jr. died. Then, on September 20, 1994, Petronila C. Tupaz was arraigned and she pleaded not guilty to the information. On April 16, 1996, State Prosecutor Alfredo P. Agcaoili filed a motion to withdraw information, thinking that the accused was charged for nonpayment of deficiency contractor’s tax but found that the accused was exempted from paying said tax. Consequently, Judge Ulep granted the motion and dismissed the case, as prayed for by the prosecution. On May 28, 1996, Prosecutor Agcaoili filed with the trial court a motion to reinstate information on the ground that the motion to withdraw information was made through palpable mistake and was the result of excusable neglect. Over the objection of the accused that it would place her in double jeopardy, Judge Ulep granted the motion and ordered the information reinstated.
QUESTION: Is Judge Ulep correct?

ANSWER: No, double jeopardy already attached. The Court sustained petitioner’s contention. The reinstatement of the information would expose her to double jeopardy. An accused is placed in double jeopardy if he is again tried for an offense for which he has been convicted, acquitted or in another manner in which the indictment against him was dismissed without his consent. In the instant case, there was a valid complaint filed against petitioner to which she pleaded not guilty. The court dismissed the case at the instance of the prosecution, without asking for accused-petitioner’s consent. This consent cannot be implied or presumed. Such consent must be expressed as to have no doubt as to the accused’s conformity. As petitioner’s consent was not expressly given, the dismissal of the case must be regarded as final and with prejudice to the re-filing of the case. Consequently, the trial court committed grave abuse of discretion in reinstating the information against petitioner in violation of her constitutionally protected right against double jeopardy(Tupaz v. Ulep,G.R. No. 127777.  October 1, 1999]
).


10. The accused is charged with murder. He was arraigned on a valid complaint filed against him for which he pleaded not guilty. During the trial the prosecution presented three witnesses. The other two witnesses were not available, and upon the motion of the accused, on the ground that his right to speedy trial is violated, the court dismissed the case. The prosecution moved for reconsideration, considering that the two last witnesses were available and ready to testify. The Court granted the motion for reconsideration. The two witnesses testified. The prosecution did not offer any documentary exhibit and rested its case. The accused filed a demurrer (i.e. insufficiency of evidence of the prosecution). The Court denied it, and ordered that the case is submitted for decision. A decision for conviction was handed.
The accused appealed his conviction assigning as error that double jeopardy attached when the Court dismissed the case, but reconsidered the same.
Was the accused placed in double jeopardy?

ANSWER: No. The dismissal was hastily done and deprived the prosecution of its right to present its evidence. “We agree with the Solicitor General that the dismissal order made by the trial court was not valid and cannot be used as basis for a claim of double jeopardy. The said right cannot be grounded on an error of law. As held in People vs. Navarro: [i][18]
The State is entitled to due process in criminal cases, that is, it must be given the opportunity to present its evidence in support of the charge.  The Court has always accorded this right to the prosecution, and where the right had been denied, had promptly annulled the offending court action.  We have heretofore held that a purely capricious dismissal of an information deprives the State of fair opportunity to prosecute and convict; it denies the prosecution its day in court.  For this reason, it is a dismissal (in reality an acquittal) without due process, and, therefore, null and void.  Such dismissal is invalid for lack of a fundamental prerequisite, that is, due process, and, consequently, will not constitute a proper basis for the claim of double jeopardy…
We agree with the OSG’s  contention that the trial court exceeded its authority when it dismissed the case without giving the prosecution a right to be heard, hence there was a violation of due process.  Further, the failure of the prosecution to offer its exhibits is not a ground to dismiss the case.  Even without any documentary exhibits, the prosecution could still prove its case through the testimonies of its witnesses.  Thus, we find that when the trial court reconsidered its order of dismissal, it merely corrected itself”(PEOPLE V. ALBERTO, G.R. No. 132374.  August 22, 2002].





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