Political Law Exam 2019 PDF

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2019 Bar Examination Political Question and Answer...

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2019 BAR EXAMINATIONS POLITICAL AND INTERNATIONAL LAW November 3, 2019

8:00 A.M. - 12:00 P.M. INSTRUCTIONS 1. This Questionnaire contains TEN (10) pages including this page. Check the number of pages and their proper sequencing. You may write notes on this Questionnaire. 2. This Questionnaire is divided into two (2) parts: Part I and Part II. Write your answers to the questions in Part I (consisting of problem sets labelled A.1. to A.10.) in Booklet I and the answers to the questions in Part II (consisting of problem sets labelled B.11. to B.20.) in Booklet II. Answers written in the wrong booklet shall not be given any credit. 3. Read each question carefully and note the points allocated for each question. In your answers, follow the sequence and the numbering system used in the Questionnaire. Answer each numbered question on a separate page; an answer to a sub-question under the same number set may be written continuously on the same page and succeeding pages until completed. 4. Your answers should demonstrate your ability to analyze the facts, apply the pertinent laws and jurisprudence, and arrive at sound and logical conclusions. Always support your answers with the pertinent laws, rules, and/or jurisprudence. A mere "yes" or "no" answer without any corresponding explanation or discussion may not be given full credit. 5. Marking of your booklets with your name or other identifying signs or symbols extraneous to the subject matter of the questions may be considered as cheating, and may disqualify you for the whole examinations. YOU CAN BRING HOME THE QUESTIONNAIRE. JUSTICE ESTELA M. PERLAS-BERNABE Chairperson 2019 Bar Examinations PART I Note: As stated in the Instructions, Part I covers problem sets labelled A.1. to A.10. All answers to these questions should be written in Booklet I. A.1. Define the following terms: (a) Jus cogens (2%) 1. The principles which form the norms of international law that cannot be set aside. (google dictionary) 2. BAR suggested Answer: UP College of law= Jus Cogens is a peremptory (absolute) norm of general international law accepted and recognized by the international community as a whole as a norm which no derogation is permitted and which can be

modified only by a subsequent norm of general international law having the same character.

(b) Principle of double criminality (2%) – (government of hong kong special administrative region v Munoz GR. No. 207342 = Under the double criminality rule, the extraditable offense must be criminal under the laws of both the requesting and requested state. This simply means that the requested state comes under no obligation to surrender the person if its laws do not regard the conduct covered by the request for extradition as criminal.

Origin - EXTRADITION TREATY WITH THE PHILIPPINES 1. Extraditable Offenses: The dual criminality clause Article 2 contains a standard definition of what constitutes an extraditable offense: an offense is extraditable if it is punishable under the laws of both parties by a prison term of at least one year. Attempts and conspiracies to commit such offenses, and participation in the commission of such offenses, are also extraditable. If the extradition request involves a fugitive, it shall be granted only if the remaining sentence to be served is more than six months. The dual criminality clause means, for example, that an offense is not extraditable if in the United States it constitutes a crime punishable by imprisonment of more than one year, but is not a crime in the treaty partner or is a crime punishable by a prison term of less than one year. In earlier extradition treaties the definition of extraditable offenses consisted of a list of specific categories of crimes. This categorizing of crimes has resulted in problems when a specific crime, for example drug dealing, is not on the list, and is therefore not extraditable. The result has been that as additional offenses become punishable under the laws of both treaty partners the extradition treaties between them need to be renegotiated or supplemented. A dual criminality clause obviates the need to renegotiate or supplement a treaty when it becomes necessary to broaden the definition of extraditable offenses. 2. Extraterritorial offenses In order to extradite individuals charged with extraterritorial crimes (offenses committed outside the territory of the Requesting State) such as international drug traffickers and terrorists, provision must be made in extradition treaties. The Philippine Treaty states that the Requested State shall grant extradition for an offense committed outside the Requesting State's territory if the Requested State's laws provide that an offense committed outside its territory is punishable in similar circumstances (art. 2(4)). If the Requested State's laws do not provide that an offense committed outside its territory is punishable in similar circumstances, the executive branch of the Requested State has discretionary authority to submit the extradition request to its courts for decision (art. 2(4b)).

In the proposed treaty an obligation to extradite depends mostly on whether the Requested State also punishes offenses outside its territory ``in similar circumstances.'' This, in effect, appears to be a dual criminality clause applied to extraterritorial offenses. The phrase ``in similar circumstances'' is undefined in each of the treaties that have such a requirement and in the Letters of Submittal from the Department of State to the President. The phrase appears to be sufficiently vague to give a reluctant Requested State ``wiggle room'' to avoid its possible obligation to extradite individuals for crimes committed outside its territory. 3. Political offense exception In recent years the United States has been promoting a restrictive view of the political offense exception in furtherance of its campaign against terrorism, drug trafficking, and money laundering. The political offense exception in the Philippine Treaty is a broader provision than is contained in other extradition treaties. The exclusion of certain violent crimes, (i.e. murder, kidnapping, and others) from the political offense exception has become standard in many U.S. extradition treaties, reflecting the concern of the United States government and certain other governments with international terrorism. The exclusion from the political offense exception for crimes covered by multilateral international agreements, and the obligation to extradite for such crimes or submit the case to prosecution by the Requested State, is now a standard exclusion and is contained in the proposed treaty. The incorporation by reference of these multilateral agreements is intended to assure that the offenses with which they deal shall be extraditable under an extradition treaty. But, extradition for such offenses is not guaranteed. A Requested State has the option either to extradite or to submit the case to its competent authorities for prosecution. For example, a Requested State could refuse to extradite and instead declare that it will itself prosecute the offender. 4. The death penalty exception The United States and other countries appear to have different views on capital punishment. Under the proposed treaties, the Requested State may refuse extradition for an offense punishable by the death penalty in the Requesting State if the same offense is not punishable by the death penalty in the Requested State, unless the Requesting State gives assurances satisfactory to the Requested State that the death penalty will not be imposed or carried out. 5. The Extradition of nationals The U.S. does not object to extraditing its own nationals and has sought to negotiate treaties without nationality restrictions. Many countries, however, refuse to extradite their own nationals. U.S. extradition treaties take varying positions on the nationality

issue. Unlike other extradition treaties, The Philippine Treaty unequivocally states that a party may not refuse extradition on the ground the person sought is one of its citizens (art. 6). 6. Retroactivity The proposed treaty states that it shall apply to offenses committed before as well as after it enters into force (art. 19). These retroactivity provisions do not violate the Constitution's prohibition against the enactment of ex post facto laws which applies only to enactments making criminal acts that were innocent when committed, not to the extradition of a defendant for acts that were criminal when committed but for which no extradition agreement existed at the time. 7. The rule of speciality The rule of speciality (or specialty), which prohibits a Requesting State from trying an extradited individual for an offense other than the one for which he was extradited, is a standard provision included in U.S. bilateral extradition treaties, including the six under consideration. The Malaysia Treaty (art. 13) contains exceptions to the rule of specialty that are designed to allow a Requesting State some latitude in prosecuting offenders for crimes other than those for which they had been specifically extradited. 8. Lapse of time The Philippine Treaty has no provision denying extradition if barred by the statute of limitations of either the Requesting or Requested State.

(c) Act of State doctrine (2%) Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves (d) Precautionary principle (2%) A.M. No. 09-6-8-SC= Precautionary principle states that when human activities

may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat.

A.2.

Under the United Nations Convention on the Law of the Sea (UNCLOS), what are the rights of the Philippines within the following areas: Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. (a) Contiguous zone (2%) In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) Punish infringement of the above laws and regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. (b) Exclusive economic zone (2%) In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention. The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. A.3. 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 beliefs. 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 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 "refugees" under international law? Explain. (3%) Yes, 1951 Convention relating to the status of Refugee. As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. A.4. Mrs. W supplies the Philippine National Police (PNP) with uniforms every year. Last month, he and two (2) other officers of the PNP conspired to execute a "ghost purchase", covered by five (5) checks amounting to ₱200,000.00 each, or a total of ₱1,000,000.00. 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%) Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. Custodial investigation shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed , without prejudice to the liability of the "inviting" officer for any violation of law. RA 7438 (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. (c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. (b) Was the PNP’s denial of Mrs. W’s request violative of her right to counsel in the proceedings conducted before the PNP? Explain.(2%) Yes.

Sec. 12 Article III of the Constitution expressly provides that “Any person under investigation for the commission of an offense shall have the right to be informed of his

rights to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.” In the case at bar, 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. Given this, it is incorrect to conclude that custodial investigation is always the consequence of an arrest. Someone can be considered to be under custodial investigation when invited for questioning by law enforcement officers, even though the person has not been formally arrested. A.5. 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 restaurant. As such, Officer A decided to hang around the said place immediately. At about 9:15 A.M., two (2) male passengers. Named A and Y, who were each carrying a traveling 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%) "Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution. stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon (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%) It was not valid. Stop and frisk serves a two-fold interest: 1. Crime prevention and

detection; and 2. safety and self-prevention of the police office. While probable cause is not required...