Political Law Bar Exam Answers: Declaration of Principles and State Policies

Armed Forces; Servant of the People (2003)

No  I  –  Article  II.  Section  3,  of  the  1987 Constitution expresses, in part, that the “Armed Forces of the Philippines is the protector of the people and (of) the State.” Describe briefly what this provision means. Is the Philippine National Police covered by the same mandate?

FIRST ALTERNATIVE ANSWER:

Article  II,  Section  3  of  the  1987  Constitution means that the Armed Forces of the Philippines should not serve the interest of the President but  of  the  people  and  should  not  commit abuses  against  the  people.  (Record  of  the Constitutional Commission, Vol. V, p. 133.) This provision is specifically addressed to the Armed Forces   of   the   Philippines   and   not   to   the Philippine National Police, because the latter is separate and distinct from the former. (Record of the Constitutional Commission, Vol. V, p. 296; Manalo v. Sistoza. 312 SCR A 239 [1999].)

SECOND ALTERNATIVE ANSWER:

Article II, Section 3 of the 1987 Constitution can be interpreted to mean that the Armed Forces of the Philippines can be a legitimate instrument for the overthrow of the civilian government if it has ceased to be the servant of the people. (Bernas, The 1987 Constitution of the Philippines: A Commentary, 2003 ed., p. 66.) This provision does not apply to the Philippine National Police, because it is separate and distinct from the Armed Forces of the Philippines. (Record of the Constitutional Commission, Vol. V, p. 296, Manalo v. Sistoza. 312 SCRA 239 [1999].)

Doctrine   of   Incorporation;   Constitutional Law (1997)

No. 1; What do you understand by the “Doctrine of Incorporation” in Constitutional Law?

SUGGESTED ANSWER:

The DOCTRINE OF INCORPORATION means that the rules of International law form part of the law of the land and no legislative action is required to make them applicable to a country. The Philippines follows this doctrine, because Section 2. Article II of the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land.

Doctrine    of    Incorporation;    Pacta    Sunt Servanda (2000)

No X. The Philippines has become a member of the World Trade Organization (WTO) and resultantly agreed that it “shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” This is assailed as unconstitutional because this undertaking unduly limits, restricts and impairs Philippine   sovereignty   and   means   among others that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform with the WTO Agreements. Refute this argument. (5%)

SUGGESTED ANSWER:

According to Tanada v. Angara, 272 SCRA 18 (1997), the sovereignty of the Philippines is subject to restriction by its membership in the family of nations and the limitations imposed of treaty limitations. Section 2. Article II of the Constitution adopts the generally accepted principles of international law as part of the law of the land. One of such principles is pacta sunt servanda. The Constitution did not envision a hermit-like isolation of the country from the rest of the world.

Freedom  from  Nuclear  Weapons;  Foreign Military Bases (1988)

No. 22: The Secretary of Justice had recently ruled that the President may negotiate for a modification or extension of military bases agreement with the United States regardless of the   “no   nukes”   provisions   in   the   1987 Constitution.  The  President  forthwith announced that she finds the same opinion “acceptable” and will adopt it. The Senators on the other hand, led by the Senate President, are skeptical, and had even warned that no treaty or international agreement may go into effect without the concurrence of two-thirds of all members of the Senate.

A former senator had said, “it is completely wrong, if not erroneous,” and “is an amendment of the Constitution by misinterpretation.” Some members of the Lower House agree with Secretary Ordonez, while others lament the latter’s opinion as “questionable, unfortunate, and without any basis at all.”

Do you or do you not agree with the aforementioned ruling of the Department of Justice? Why?

SUGGESTED ANSWER:

No. The Constitution provides that if foreign military bases, troops or facilities are to be allowed after the expiration of the present Philippine-American Military Bases Agreement in 1991, it must be “under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum.” (Art. XVIII, sec. 25) A mere agreement, therefore, not a treaty, without the concurrence of at least 2/3 of all the members of the Senate will not be valid (Art. VII, sec. 21, Art. XVIII, sec. 4). With respect to the provision allowing nuclear weapons within the bases, the Constitution appears to ban such weapons from the Philippine territory. It declares as a state policy that “the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” (Art, II, sec. 8) However, the deliberations of the Constitutional Commission would seem to indicate that this provision of the Constitution is “not   something   absolute   nor   100   percent without exception.” It may therefore be that circumstances   may   justify   a   provision   on nuclear weapons.

Philippine Flag (Q4-2006)

State whether or not the law is constitutional. Explain briefly.

1.  A law changing the design of the Philippine flag. (2%)

ALTERNATIVE ANSWER:

The law is invalid considering that under Article XVI, Section 1 of the 1987 Constitution, the flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law. Since the Constitution itself prescribes the design, it can only be changed by constitutional amendment.

ALTERNATIVE ANSWER:

The law is valid, provided that the new design does   not   change   the   elements   and   color scheme of the flag as stated in the Constitution, and the flag is consecrated and honored by the people. Since the Constitution itself states that  the flag must be recognized by law, it implies that certain aspects of the flag are subject to change through legislative action.

Principle of Civilian Supremacy (Q6-2006)

2. What Constitutional provisions institutionalize the principle of civilian supremacy? (2.5%)

SUGGESTED ANSWER:

The following constitutional provisions institutionalize the principle of civilian supremacy:

a.      Civilian authority is at all times supreme over the military. [Article II, Section 3]

b.      The  installation  of  the  President,  the highest        civilian     authority,     as     the Commander-in-Chief of the military. [Article VII, Section 18]

c.      The  requirement  that  members  of  the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government. [Article XVI, Section 5(1)]

d.      The  requirement  that  members  of  the AFP shall have respect for people’s rights in the performance of their duty. [Article XVI, Section 5(2)]

e.      Professionalism   in   the   armed   forces. [Article XVI, Section 5(3)]

f.       Insulation   of   the   AFP   from   partisan politics. [Article XVI, Section 5(3)]

g.      Prohibition against the appointment of an AFP member in the active service to a civilian position. [Article XVI, Section 5(4)]

h.      Compulsory retirement of officers without extension of service. [Article XVI, Section 5(5)]

i.       Requirement  of  proportional  recruitment from  all  provinces  and  cities,  so  as  to avoid  any  regional  clique  from  forming within the AFP. [Article XVI, Section 5(7)]

j.       A 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case of emergency by the President, depends on Congressional declaration of emergency.  [Article XVI, Section 5(6)]

The establishment of a police force that is not only civilian in character but also under the local executives. [Article XVI, Section 5(7)]

5.   Section  21, Article  XII  of the  Constitution declares: “Information on foreign loans obtained or guaranteed by the government shall be made available to the public.”

6.   As held in Valmonte vs. Belmonte, G.R. No. 74930, Feb. 13, 1989, these provisions on public disclosures are intended to enhance the role of the citizenry in governmental decision-making as well as in checking abuse in government.

Transparency;  Matters  of  Public  Interest (2000)

No   V.   State   at   least   three   constitutional provisions   reflecting   the   State   policy   on transparency in matters of public interest. What is the purpose of said policy? (5%)

SUGGESTED ANSWER:

The following are the constitutional provisions reflecting the State policy on transparency in matters of public interest:

1.              “Subject  to  reasonable  conditions prescribed by law, the State adopts and Implements a policy of full public disclosure of all its transactions involving public interest.” (Section 28, Article II)

2.       The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded to citizen, subject to such limitations as may be provided by law.” (Section 7, Article III)

3.     The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.” (Section 20. Article VI)

4.      The Office of the Ombudsman shall have the following powers, functions, and duties:

XXX                        XXX

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence,” (Section 12, Article XI)

5.       “A public officer or employee shall, upon assumption of office, and as often as thereafter may be required by law, submit a declaration under oath of his assets, liabilities, and net worth.    In the case of the President, the Vice President, the Members of the Cabinet, the Congress, the Supreme Court,      the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.” (Section 17, Article XI)

6.      “Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.” (Section 21 Article XII)

As explained In Valmonte v. Belmonte, 170 SCRA 256 (1989), the purpose of the policy is to protect the people from abuse of governmental power. If access to information of public concern is denied, the postulate “public office is a public   trust”   would   be   mere   empty words.

{Note: The examinee should be given full credit if he gives any three of the above-mentioned provisions.}

e)     Section 17, Article II of the Constitution provides: “The State shall give priority to EDUCATION, SCIENCE and TECHNOLOGY, ARTS, CULTURE, and SPORTS to foster patriotism and nationalism, accelerate social progress, and promote total human  liberation and development.”

Section 14, Article XII of the Constitution reads in part: “The sustained development of a reservoir of NATIONAL TALENTS consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled  workers  and  craftsmen  shall  be promoted by the State, The State shall encourage appropriate technology and regulate Its transfer for the national benefit.

Sub-section 2, Section 3. Article XIV of the Constitution states: “They (EDUCATIONAL INSTITUTIONS) shall inculcate patriotism and nationalism, foster love of humanity, respect for human   rights,   appreciation   of   the   role   of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency.”

Section 10. Article XIV of the Constitution declares: “SCIENCE and TECHNOLOGY are essential  for  national  development  and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, services. It shall support indigenous, appropriate, and self- reliant scientific and cultural capabilities, and their application to the country’s productive systems and national life.”

Section 11, Article XIV of the Constitution provides: “The Congress may provide for incentives, including TAX DEDUCTIONS, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid or other forms of Incentives shall be provided to deserving science students, researchers, scientists, investors, technologists, and specially gifted citizens.

Section  12,  Article  XIV  of  the  Constitution reads: The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage  widest  participation  of  private groups, local governments, and community- based organizations in the generation and utilization of science and technology.”

NOTE: It is suggested that if an examinee gave a substantive answer without giving the exact provisions of the Constitution, then  he  should be  given  full  credit. Further, one  provision quoted/discussed by the examinee should be sufficient for him to be given full credit.

From the ANSWERS TO BAR EXAMINATION QUESTIONS in POLITICAL LAW by the UP LAW COMPLEX and PHILIPPINE ASSOCIATION OF LAW SCHOOLS.