Appilicable Laws; laws governing contracts (1992)

X and Y entered into a contract in Australia, whereby it was agreed that X would build a

commercial building for Y in the Philippines, and in payment for the construction, Y will
transfer and convey his cattle ranch located in the United States in favor of X.

What law would govern:

a)   The validity of the contract?

b)   The performance of the contract?

c)  The consideration of the contract?

SUGGESTED ANSWER:

(a)  The  validity  of  the  contract  will  be  governed  by Australian law, because the
validity refers to the element of the making of the contract in this case.

(Optional Addendum:”… unless the parties agreed to be bound by another law”.)

(b)   The performance will be governed by the law of the Philippines where the contract
is to be performed.

(c)   The consideration will be governed by the law of the United States where the ranch
is located.

(Optional Addendum: In the foregoing cases, when the foreign law would apply,

the absence of proof of that foreign  law  would  render  Philippine  law  applicable under
the “eclectic theory”.)

Applicable Laws; Arts 15,16 &17 (1998)

Juan is a Filipino citizen residing in Tokyo, Japan. State what laws govern:

1.    His capacity to contract marriage in Japan,

2.  His successional rights as regards his deceased Filipino father’s property in Texas,

U.S.A.

3.   The  extrinsic  validity  of  the  last  will  and  testament which Juan executed while

sojourning in Switzerland.

4.   The intrinsic validity of said will.

SUGGESTED ANSWER:
1.   Juan’s   capacity   to   contract   marriage    is governed by Philippine law –   i.e., the
Family Code -pursuant
to Art. 15, Civil Code, which provides that our laws relating to, among others, legal
capacity of persons are binding upon citizens of the Philippines even though
living abroad.

SUGGESTED ANSWER:

2.  By way of exception to the general rule of lex rei sitae prescribed by the first
paragraph of Art. 16. Civil Code, a person’s successional rights are governed by the
national law of the decedent (2nd par.. Art. 16). Since Juan’s deceased father was a
Filipino citizen, Philippine law governs Juan’s successional rights.

ANOTHER ANSWER:

2. Juan’s successional rights are governed by Philippine law, pursuant  to  Article  1039
and  the  second  paragraph  of Article 16, both of the Civil Code. Article 1039,
Civil Code, provides that capacity to succeed shall be governed by the “law of the nation”
of the decedent, i.e.. his national law. Article 16 provides in paragraph two that the
amount of successional rights, order of succession, and intrinsic validity of
testamentary  succession  shall  be  governed  by  the “national law” of the decedent who
is identified as a Filipino in the present problem.

SUGGESTED ANSWER:

3. The extrinsic validity of Juan’s will is governed by (a) Swiss law, it being the law
where the will was made (Art.
17 1st par. Civil Code), or (b) Philippine law, by implication from the provisions of Art.
816, Civil Code, which allows even an alien who is abroad to make a will in conformity
with our Civil Code.

SUGGESTED ANSWER:

4. The intrinsic validity of his will is governed by Philippine  law,  it  being  his  national 
law.  (Art.  16,  Civil Code)

Applicable Laws; Arts 15,16,17 (2002)

Felipe and Felisa, both Filipino citizens, were married in

Malolos, Bulacan on June 1, 1950. In 1960 Felipe went to the United States, becoming a
U.S. citizen in 1975. In 1980 they obtained a divorce from Felisa, who was duly notified
of the proceedings. The divorce decree became final under California Law. Coming back
to the Philippines in 1982, Felipe married Sagundina, a Filipino Citizen. In 2001, Filipe,
then domiciled in Los Angeles, California, died, leaving one child by Felisa, and another
one by Sagundina. He left a will which he left his estate to Sagundina and his two
children and nothing to Felisa.
Sagundina files a petition for the probate of Felipe’s will. Felisa questions the intrinsic
validity of the will, arguing that her   marriage   to   Felipe   subsisted   despite   the   
divorce obtained by Felipe because said divorce is not recognized in the Philippines. For
this reason, she claims that the properties and that Sagundina has no successional
rights.

A. Is  the   divorce   secured   by   Felipe   in   California recognizable and valid in the
Philippines? How does it affect  Felipe’s marriage to Felisa? Explain.

B. What law governs the formalities of the will? Explain.

C. Will Philippine law govern the intrinsic validity   of the will? Explain.

SUGGESTED ANSWER:

A. (1.) The divorce secured by Felipe in California is recognizable and valid in the
Philippines because he was no longer a Filipino at  that  time  he  secured  it,  Aliens 
may obtain  divorces  abroad  which  may  be  recognized  in the Philippines provided
that they are valid according to their national law (Van Dorn V. Romillo, Jr., 139 SCRA
139 [1985]; Quita v. Court of Appeals, 300 SCRA 406 [1998]; Llorente v. Court of
Appeals, 345 SCRA 595 [2000] ).

(2). With respect to Felipe the divorce is valid, but with respect to Felisa it is not. The
divorce will not capacitate Felisa to remarry because she and Felipe were both Filipinos
at the time of their marriage. However, in DOJ Opinion No. 134 series of 1993, Felisa is
allowed to remarry because the  injustice  sought  to  be  corrected  by  Article  26  also
obtains in her case.

SUGGESTED ANSWER:

B. The   foreigner   who   executes   his   will   in   the Philippines may observed the
formalities described in:

1.  The Law of the country of which he is a citizen under Article 817 of the New

Civil Code, or

2.  the law of the Philippines being the law of the place of execution under Article 17 of

the New Civil Code.

SUGGESTED ANSWER:

C. Philippine law will not govern the intrinsic validity of the will. Article 16 of the New
Civil Code provides that intrinsic   validity   of   testamentary   provisions   shall   be
governed by the National Law of the person whose succession is under consideration.
California law will govern the intrinsic validity of the will.

Applicable Laws; Capacity to Act (1998)

Francis Albert, a citizen and resident of New Jersey, U.S.A., under whose law he was still
aminor, being only 20 years of age, was hired by ABC Corporation of Manila to serve for
two years as its chief computer programmer. But after serving for only four months, he
resigned to join XYZ Corporation, which enticed him by offering more advantageous
terms. His first employer sues him in Manila for damages arising from the breach of his
contract of employment. He sets up his minority as a defense and asks for annulment of
the contract on that ground. The plaintiff disputes this by alleging that since the contract
was executed in the Philippines under whose law the age of majority is 18 years, he was
no longer a minor at the time of perfection of the contract.

1.  Will the suit prosper?

2.  Suppose  XYZ  Corporation  is  impleaded  as  a  co-defendant, what would be the

basis of its liability, if any?

SUGGESTED ANSWER:

1. The suit will not prosper under Article 15, Civil Code, New Jersey law governs Francis
Albert’s capacity to act, being his personal law from the standpoint of both his
nationality and his domicile. He was, therefore, a minor at the time he entered into the
contract.

1. The suit will not prosper. Being a U.S. national, Albert’s capacity to enter into a
contract is determined by the law of the State of which he is a national, under which he
to still a minor. This is in connection with Article 15 of the Civil Code which embodies
the said nationality principle of lex patriae. While this principle intended to apply to
Filipino citizens under that provision, the Supreme Court in Recto v. Harden  is  of  the
view  that  the  status  or  capacity  of foreigners is to be determined on the basis of the
same provision or principle, i.e., by U.S. law in the present problem.

Plaintiffs argument does not hold true, because status or capacity is not determined by
lex loci contractus but by lex patriae.

ANOTHER ANSWER:

1. Article 17 of the Civil Code provides that the forms and solemnities of contracts, wills
and other public instruments shall be governed by the laws of the country in which they
are executed.

Since the contract of employment was executed in Manila, Philippine law should govern.
Being over 18 years old and no longer a minor according to Philippine  Law, Francis
Albert can be sued. Thus, the suit of ABC Corporation against him for damages will
prosper.

SUGGESTED ANSWER:
2. XYZ Corporation, having enticed Francis Albert to break his contract with the
plaintiff, may be held liable for damages under Art. 1314, Civil Code.

ALTERNATIVE ANSWER:

2.  The  basis  of  liability  of  XYZ  Corporation  would

be Article 28 of the Civil Code which states that: “Unfair competition in agricultural,
commercial, or industrial  enterprises  or  in  labor  through  the  use  of force,
intimidation, deceit, machination or any other unjust, oppressive or highhanded
method shall give rise to a right of action by the person who thereby suffers damage.”

ANOTHER ANSWER:

2. No liability arises. The statement of the problem does not in any way suggest intent,
malice, or even knowledge, on the part of XYZ Corporation as to the contractual
relations between Albert and ABC Corporation.

Applicable Laws; Capacity to Buy Land (1995)

3. What law governs the capacity of the Filipino to buy the land? Explain your answer

and give its legal basis.

SUGGESTED ANSWER:

Philippine law governs the capacity of the Filipino to buy the land. In addition to the
principle of lex rei sitae given above. Article 15 of the NCC specifically provides that
Philippine laws relating to legal capacity of persons are binding upon citizens of the
Philippines no matter where they are.

Applicable Laws; Capacity to Contract (1995)

2. What law governs the capacity of the Japanese to sell the land? Explain your answer

and give its legal basis.

SUGGESTED ANSWER:

Japanese law governs the capacity of the Japanese to sell the land being his personal law
on the basis of an interpretation of Art. 15, NCC.

ALTERNATIVE ANSWERS;

a)   Since capacity to contract is governed by the personal law of an individual, the
Japanese seller’s capacity should be governed either by his national law (Japanese law)
or by the law of his domicile, depending upon whether Japan follows the nationality or
domiciliary theory of personal law for its citizens.
b)    Philippine  law  governs  the  capacity  of  the  Japanese owner in selling the land.
While as a general rule capacity ofpersons is governed by the law of his nationality,
capacity concerning transactions involving property is an exception. Under Article 16 of
the NCC the capacity of persons in transactions involving title to property is governed by
the law of the country  where the property is situated. Since the property is in the
Philippines, Philippine law governs the capacity of the seller.

Applicable Laws; capacity to succeed (1991)

Jacob,  a  Swiss  national,  married  Lourdes,  a  Filipina,  in Berne, Switzerland. Three
years later, the couple decided to reside  in  the  Philippines.  Jacob  subsequently 
acquired several properties in the Philippines with the money he inherited from his
parents. Forty years later. Jacob died intestate, and is survived by several legitimate
children and duly recognized illegitimate daughter Jane, all residing in the Philippines.

(a)     Suppose that Swiss law does not allow illegitimate children to inherit, can Jane,
who is a recognized illegitimate child,   inherit  part   of   the  properties   of   Jacob  
under Philippine law?

(b)   Assuming that Jacob executed a will leaving certain properties to Jane as her
legitime in accordance with the law of succession in the Philippines, will such
testamentary disposition be valid?

SUGGESTED ANSWER:

A. Yes. As stated in the problem. Swiss law does not allow illegitimate children to inherit
Hence, Jane cannot inherit the property of Jacob under Philippine law.

SUGGESTED ANSWER:

B. The testamentary disposition will not be valid if it would contravene Swill law;
otherwise, the disposition would be valid. Unless the Swiss law is proved, it would be
presumed to be the same as that of Philippine law under the Doctrine of Processual
Presumption.

Applicable Laws; contracts contrary to public policy (1996)

Alma was hired as a domestic helper in Hongkong by the Dragon Services, Ltd., through
its local agent. She executed a standard employment contract designed by the Philippine
Overseas  Workers  Administration  (POEA)  for  overseas Filipino workers. It provided
for her employment for one year at a salary of US$1,000.00 a month. It was submitted
to and approved by the POEA. However, when she arrived in Hongkong,  she  was  asked
to  sign  another  contract  by Dragon  Services,  Ltd.  which  reduced  her  salary  to  only
US$600.00 a month. Having no other choice, Alma signed the contract but when she
returned to the Philippines, she demanded payment of the salary differential of
US$400.00 a month.  Both  Dragon  Services,  Ltd.  and  its  local  agent claimed that
the second contract is valid under the laws of Hongkong, and therefore binding on
Alma.

Is their claim correct? Explain.

SUGGESTED ANSWER:

Their claim is not correct. A contract is the law between the parties but the law can
disregard the contract if it is contrary to public policy. The provisions of the 1987
Constitution on the protection of labor and on social justice (Sec. 10. Art II) embody a
public policy of the Philippines. Since the application of Hongkong law in this case is in
violation of that public policy, the application shall be disregarded by our Courts.
(Cadalin v. POEA. 238 SCRA 762)

ALTERNATIVE ANSWERS:

a) Their claim is not correct. Assuming that the second contract is binding under
Hongkong law, such second contract is invalid under Philippine law which recognizes as
valid only the first contract. Since the case is being litigated in the Philippines, the
Philippine Court as the forum will not enforce any foreign claim obnoxious to the
forum’s public policy.   There is a strong public policy enshrined in our Constitution on
the protection of labor.      Therefore, the  second  contract  shall  be  disregarded  and
the  first contract will be enforced. (Cadalinv.POEA,238SCRA762).

b)   No,  their claim  is  not correct.  The  second contract executed in Hongkong,
partakes of the nature of a waiver that is contrary to Philippine law and the public policy
governing Filipino overseas workers.    Art.  17,    provides that our prohibitive laws
concerning persons, their acts, or their property or which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or
conventions agreed upon in a foreign country. Besides, Alma’s consent to the second
contract was vitiated  by  undue  influence,  being  virtually  helpless  and under
financial distress in a foreign country, as indicated by the given fact that she signed
because she had no choice. Therefore, the defendants claim that the contract is valid
under Hongkong law should be rejected since under the DOCTRINE   OF   
PROCESSUAL   PRESUMPTION   a foreign law is deemed similar or identical to
Philippine law in the absence of proof to the contrary, and such is not mentioned in the
problem as having been adduced.

Applicable Laws; Contracts of Carriage (1995)

On 8 December 1991 Vanessa purchased from the Manila office of Euro-Aire an airline

ticket for its Flight No. 710 from Dallas to Chicago on 16 January 1992. Her flight
reservation was confirmed. On her scheduled departure Vanessa checked in on time at
the Dallas airport. However, at  the  check-in  counter  she  discovered  that  she  was
waitlisted with some other passengers because of intentional overbooking, a Euro-Aire 
policy  and  practice. Euro-Alre admitted that Vanessa was not advised of such policy
when she purchased her plane ticket. Vanessa was only able to fly two days later by
taking another airline.

Vanessa sued Euro-Aire in Manila for breach of contract and damages. Euro-Aire
claimed that it cannot be held liable for damages because its practice of overbooking
passengers was  allowed  by  the  U.S.  Code  of  Federal  Regulations. Vanessa on the
other hand contended that assuming that the U.S. Code of Federal Regulations allowed
Intentional overbooking, the airline company cannot invoke the U.S. Code on the
ground that the ticket was purchased in Manila, hence, Philippine law should apply,
under which Vanessa can recover damages for breach of contract of carriage. Decide.
Discuss fully.

SUGGESTED ANSWER:

Vanessa can recover damages under Philippine law for breach of contract of carriage,
Philippine law should govern as the law of the place where the plane tickets were bought
and the contract of carriage was executed. In Zalamea v.Court of Appeals (G.R No.
104235, Nov. 10, 1993) the Supreme Court applied Philippine law in recovery of
damages for breach of contract of carriage for the reason that it is the law of the place
where the contract was executed.

ALTERNATIVE ANSWER:

If the violation of the contract was attended with bad faith, there is a ground to recover
moral damages. But since there was a federal regulation which was the basis of the act
complained of, the airline cannot be in bad faith. Hence, only actual damages can be
recovered. The same is true with regards to exemplary damages.

Applicable Laws; Labor Contracts (1991)

A.     The Japan Air Lines (JAL), a foreigner corporation licensed  to  do  business  in  the

Philippines,  executed  in Manila  a  contract  of  employment  with  Maritess  Guapa
under which the latter was hired as a stewardess on the aircraft flying the Manila-Japan-
Manila route. The contrast specifically provides that (1) the duration of the contract
shall be two (2) years, (2) notwithstanding the above duration, JAL may terminate the
agreement at any time by giving her notice in writing ten (10) days in advance, and (3)
the contract shall be construed as governed under and by the laws of Japan and only the
court in Tokyo, Japan shall have the jurisdiction to consider any matter arising from or
relating to the contract.

JAL dismissed Maritess on the fourth month of her employment without giving her due
notice. Maritess then filed a complaint with the Labor Arbiter for reinstatement,
backwages and damages. The lawyer of JAL contends that neither the Labor Arbiter nor
any other agency or court in the Philippines has jurisdiction over the case in view of the
above provision (3) of the contract which Maritess voluntarily signed. The contract is
the law between her and JAL.
Decide the issue.

B.   Where under a State’s own conflicts rule that domestic law of another State should
apply, may the courts of the former nevertheless refuse to apply the latter?  If so, under
what circumstance?

SUGGESTED ANSWER:

A,  Labor Legislations are generally intended as expressions of public policy on

employer-employee relations. The contract therefore, between Japan Air Lines (JAL)
and Maritess may apply only to the extent that its provisions are not inconsistent with
Philippine labor laws intended particularly to protect employees.

Under the circumstances, the dismissal of Maritess without complying with Philippine
Labor law would be invalid and any stipulation in the contract to the contrary is
considered void.  Since  the  law  of  the  forum  in  this  case  is  the Philippine law the
issues should-be resolved in accordance with Philippine law.

B. The third paragraph of Art. 17 of the Civil Code provides that: “Prohibitive laws
concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.”

Accordingly, a state’s own conflict of laws rule may, exceptionally be inapplicable, given
public policy considerations by the law of the forum.

Going into the specific provisions of the contract in question, I would rule as follows:

1.    The  duration  of  the  contract  is  not  opposed  to Philippine   law   and   it   can
therefore   be   valid   as stipulated;

2.    The     second     provision     to     the     effect     that notwithstanding duration,

Japan Air Lines (JAL) may terminate her employment is invalid, being inconsistent with
our Labor laws;

3.    That the contract shall be construed as governed under and by the laws of Japan

and only the courts of Tokyo, Japan  shall  have  jurisdiction,  is  invalid  as  clearly
opposed to the aforecited third paragraph of Arts. 17 and 1700 of the Civil Code, which
provides:

“Art. 1700. The relations between capital and labor are not merely contractual. They are
so impressed with public interest that labor contracts must yield to the common good.
Therefore, such contracts are subject to the special laws on labor unions, collective
bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor
and similar subjects.”
ALTERNATIVE ANSWER;

A. When a contract has a foreign element such as in the factual  setting  stated  in  the
problem  where  one  of  the parties  is  a  foreign  corporation,  the  contract  can  be
sustained as valid particularly the stipulation expressing that the contract is governed by
the laws of the foreign country. Given this generally accepted principle of international
law, the contract between Maritess and JAL is valid and it should therefore be enforced.

Applicable Laws; laws governing marriages (1992)

In 1989, Maris, a Filipino citizen, married her boss Johnson, an American citizen, in
Tokyo in a wedding ceremony celebrated according to Japanese laws. One year later,
Johnson returned to his native Nevada, and he validly obtained in that state an absolute
divorce from his wife Maris.

After Maris received the final judgment of divorce, she married her childhood
sweetheart Pedro, also a Filipino citizen, in a religious ceremony in Cebu City,
celebrated according to the formalities of Philippine law. Pedro later left for the United
States and became naturalized as an American  citizen.  Maris  followed  Pedro  to  the
United States, and after a serious quarrel, Maris filed a suit and obtained a divorce
decree issued by the court in the state of Maryland.

Maris then returned to the Philippines and in a civil ceremony celebrated in Cebu City
according to the formalities of Philippine law, she married her former classmate Vincent
likewise a Filipino citizen.

a)     Was the marriage of Maris and Johnson valid when celebrated? Is their marriage

still validly existing now? Reasons.

SUGGESTED ANSWER:

(a) The marriage of Mans and Johnson was valid when celebrated because all marriages
solemnized outside the Philippines (Tokyo) in accordance with the laws in force in the
country where they are solemnized (Japan), and valid there as such, are also valid in the
Philippines.

Their marriage no  longer  validly  subsists,  because  it  has been dissolved by the
absolute divorce validly obtained by Johnson  which  capacitated  Maris  to  remarry
(Art.  26. Family Code).

Applicable Laws; laws governing marriages (2003)

Gene and Jane, Filipino, met and got married in England while both were taking up

post-graduate courses there.  A few years after their graduation, they decided to annul
their marriage.   Jane filed an action to annul her marriage to Gene in England on the
ground of latter’s sterility, a ground for annulment of marriage in England.  The English
court decreed   the   marriage   annulled.       Returning   to   the Philippines, Gene asked
you whether or not he would be free to marry his former girlfriend.  What would your
legal advice be? 5%

SUGGESTED ANSWER:

No, Gene is not free to marry his former girlfriend.   His marriage to Jane is valid
according to the forms and solemnities of British law, is valid here (Article 17, 1st par.,
NCC).   However, since Gene and Jane are still Filipinos although living in England, the
dissolution of their marriage is still governed by Philippine law (Article 15, NCC).  Since,
sterility is not one of the grounds for the annulment of a marriage   under   Article   45   
of   the   Family   Code,   the annulment of Gene’s marriage to Jane on that ground is not
valid in the Philippines (Article 17, NCC)

ALTERNATIVE ANSWER:

Yes,  Gene  is  free  to  marry  his  girlfriend  because  his marriage was validly annulled
in England.   The issue of whether or not a marriage is voidable, including the grounds
therefore, is governed by the law of the place where the marriage was solemnized (lex
loci celebrationis).   Hence, even if sterility is not a ground to annul the marriage under
the Philippine law, the marriage is nevertheless voidable because sterility makes the
marriage voidable under English law.   Therefore, annulment of the marriage in England
is valid in the Philippines.

Applicable Laws; Sale of Real Property (1995)

While in Afghanistan, a Japanese by the name of sato sold to Ramoncito, a Filipino, a

parcel of land situated in the Philippines which Sato inherited from his Filipino mother.

1. What law governs the formality in the execution of the contract  of  sale?  Explain 
your  answer  and  give  its  legal basis.

SUGGESTED ANSWER:

Under Art. 16 par. 1, NCC, real property is subject to the law of the country where it is
situated. Since the property is situated in the Philippines, Philippine law applies. The
rule of lex rei sitae in Article 16 prevails over lex loci contractu in Article 17 of the NCC.

ALTERNATIVE ANSWER:

Afghanistan law  governs the  formal requirements of the contract since the execution is
in Afghanistan. Art. 17 of the Civil Code provides that the forms and solemnities of
contracts, wills, and other public instruments shall be governed by the laws of the
country in which they are executed. However, if the contract was executed before the
diplomatic or consular officials of the Republic of the Philippines in Afghanistan,
Philippine law shall apply.

Applicable  Laws;  Succession;  Intestate  & Testamentary (2001)

Alex was born a Filipino but was a naturalized Canadian citizen at the time of his death
on December 25, 1998. He left behind a last will and testament in which he bequeathed
all his properties, real and personal, in the Philippines to his acknowledged illegitimate
Fillpina daughter and nothing to his  two  legitimate  Filipino  sons.  The  sons  sought
the annulment of the last will and testament on the ground that it deprived them of their
legitimes but the daughter was able to prove that there were no compulsory heirs or
legitimes under Canadian law. Who should prevail? Why?

SUGGESTED ANSWER:

The daughter should prevail because Article 16 of the New Civil Code provides that
intestate and testamentary succession shall be governed by the  national law  of  the
person whose succession is under consideration.

Applicable Laws; Sucession of Aliens (1995)

Michelle,  the  French  daughter  of  Penreich,  a  German national, died in Spain leaving

real properties in the Philippines as well as valuable personal properties in Germany.

1.    What law determines who shall succeed the deceased? Explain your answer and give

its legal basis.

2.   What law regulates the distribution of the real properties in the Philippines? Explain

your answer and give its legal basis.

3.  What law governs the distribution of the personal properties in Germany? Explain
your answer and give its legal basis.

SUGGESTED ANSWER:

(Assuming that the estate of the decedent is being settled in the Philippines)

1.  The  national  law  of  the  decedent  (French  law)  shall govern in determining who
will succeed to his estate. The legal basis is Art. 16 par. 2, NCC.

ALTERNATIVE ANSWER:

French  law  shall  govern  the  distribution  of  his  real properties in the Philippines
except when the real property is land which may be transmitted to a foreigner only by
hereditary succession.

SUGGESTED ANSWER:

2.   The distribution of the real properties in the Philippines shall be governed by French
law. The legal basis is Art. 16, NCC).

SUGGESTED ANSWER:
3.   The distribution of the personal properties in Germany shall be governed by French
law. The legal basis is Art. 16, NCC).

Applicable Laws; Wills executed abroad (1993)

A, a Filipino, executed a will in Kuwait while there as a contract worker. Assume that
under the laws of Kuwait, it is enough that the testator affix his signature to the presence
of   two   witnesses   and   that   the   will   need   not   be acknowledged before a notary
public.

May the will be probated in the Philippines?

SUGGESTED ANSWER:

Yes. Under Articles 815 and 17 of the Civil Code, the formality of the execution of a will
is governed by the law of the place of execution. If the will was executed with the
formalities prescribed by the laws of Kuwait and valid there as such, the will is valid and
may be probated in the Philippines.

Definition;  Cognovit; Borrowing  Statute;  Characterization (1994)

In Private International Law (Conflict of Laws) what is:

1}   Cognovit?

2)   A borrowing statute?

3)   Characterization?

SUGGESTED ANSWER:

1)   a) COGNOVIT is a confession of judgment whereby a portion of the complaint is

confessed by the defendant who denies the rest thereof (Philippine law Dictionary, 3rd
Ed.) (Ocampo v. Florenciano, L-M 13553, 2/23/50).

b)  COGNOVIT  is  a  “statement  of  confession” Oftentimes, it is referred to as a “power

of attorney” or simply as a “power”, it is the written authority of the debtor and his
direction to the clerk of the district court, or justice of the peace to enter judgment
against the debtor as stated therein. (Words and Phrases, vol. 7, pp. 115-166).

c)  COGNOVIT is a plea in an action which acknowledges that  the  defendant  did

undertake  and  promise  as  the plaintiff in its declaration has alleged, and that it cannot
deny that it owes and unjustly detains from the plaintiff the sum claimed by him in his
declaration, and consents that judgment  be  entered  against  the  defendant  for  a 
certain sum. [Words and Phrases, vol. 7, pp. 115-166).

d)   COGNOVIT is a note authorizing a lawyer for confession of judgment by defendant.

2)  “BORROWING STATUTE” – Laws of the state or jurisdiction used by another state
in deciding conflicts questioned involved in the choice of law (Black’s Law Dictionary,
5th ed. 1979).

3)  a) “CHARACTERIZATION” is otherwise called “classification” or “qualification.” It is

the process of assigning a disputed question to its correct legal category (Private
International Law, Salonga).

b) “CHARACTERIZATION” is a process in determining under  what  category  a  certain

set  of  facts  or  rules  fall. (Paras, Conflict of Laws, p. 94. 1984 ed.)

Definition; forum non-conveniens; long-arm statute (1994)

1)   What is the doctrine of Forum non conveniens?

2)  What is a “long arm statute”?

SUGGESTED ANSWER:

1) a) FORUM NON CONVENIENS is a principle in Private International Law that where

the ends of justice strongly indicate that the controversy may be more suitably tried
elsewhere, then jurisdiction should be declined and the parties relegated to relief to be
sought in another forum. (Moreno. Philippine Law Dictionary, p. 254, 1982 ed.).

b)   Where in a broad sense the ends of justice strongly indicate that the controversy may
be more suitably tried elsewhere, then jurisdiction should be declined and the parties
relegated to relief to be sought in another forum. (Handbook on Private International
Law, Aruego).

c)  FORUM NON CONVENIENS means simply that a court may resist imposition upon
its jurisdiction even when jurisdiction is authorized by the letter of a general venue
statute. (Salonga. Private International Law. p, 51. 1967 ed.)

d) Forum non conveniens is a doctrine whereby a court of law having full Jurisdiction
over a case brought in a proper venue or district declines to determine the case on its
merits because Justice would be better served by the trial over the case in another
jurisdiction. (Webster’s Dictionary)

SUGGESTED ANSWER:

2) a) LONG ARM STATUTE is a legislative act which provides for personal jurisdiction,
via substituted service or process, over persons or corporations which are non- residents
of the state and which voluntarily go into the state, directly or by agent or communicate
with persons in the state for limited purposes, inactions which concern claims relating
to performance or execution of those purposes (Black’s Law Dictionary, 5th Ed. 1979).

b) Long arm statute refers simply to authorized substituted service.

Divorce; effect of divorce granted to former Filipinos; Renvoi
Doctrine (1997)

In  1977,  Mario  and  Clara,  both  Filipino  citizens,  were married in the Philippines.

Three yeras later, they went to United States of America and established their residence
in San Francisco, California. In 1987, the couple applied for, and were granted, U.S.
citizenship. In 1989, Mario, claiming to have been abandoned by Clara, was able to
secure a decree of divorce in Reno, Nevada, U.S.A.

In 1990, Mario returned to the Philippines and married Juana who knew well Mario’s
past life.

(a)  Is the marriage between Mario and Juana valid?

(b) Would the renvoi doctrine have any relevance to the case?

SUGGESTED ANSWER:

(a)   Yes, because Philippine law recognizes the divorce between Mario and Clara as
valid.

SUGGESTED ANSWER:

(b)   No, The renvoi doctrine is relevant in cases where one country applies the
domiciliary theory and the other the nationality theory, and the issue involved is which
of the laws of the two countries should apply to determine the order of succession, the
amount of successional rights, or, the intrinsic validity of testamentary provisions. Such
issue is not involved in this case.

ALTERNATIVE ANSWER:

Yes. “Renvoi” – which means “referring back” is relevant because here, we are applying
U.S. law to Mario, being already its citizen, although the formalities of the second
marriage will be governed by Philippine law under the principle of lex loci celebrationis.

Domiciliary theory vs.Nationality Theory (2004)

Distinguish briefly but clearly between: Domiciliary theory and nationality theory of
personal law.

SUGGESTED ANSWER:

DOMICILIARY THEORY posits that the personal status and rights of a person are
governed by the law of his domicile or the place of his habitual residence. The
NATIONALITY THEORY, on the other hand, postulates that it is the law of the person’s
nationality that governs such status and rights
 Forum Non Conveniens &Lex Loci Contractus (2002)

Felipe is a Filipino citizen. When he went to Sydney for vacation, he met a former
business associate, who proposed to him a transaction which took him to Moscow.
Felipe brokered a contract between Sydney Coals Corp. (Coals), an Australian firm, and
Moscow Energy Corp. (Energy), a Russian firm, for Coals to supply coal to Energy on a
monthly basis for three years. Both these firms were not doing, and still do not do,
business in the Philippines. Felipe shuttled between Sydney and Moscow to close the
contract. He also executed in Sydney a commission contract with Coals and in Moscow
with Energy, under which contracts he was guaranteed commissions by both firms
based on a percentage of deliveries for the three-year period, payable in Sydney and in
Moscow, respectively, through deposits in accounts that he opened in the two cities.
Both firms paid Felipe his commission for four months, after which they stopped paying
him. Felipe learned from his contacts, who are residents of Sydney and Moscow, that the
two firms talked to each other and decided to cut him off. He now files  suit  in  Manila
against  both  Coals  and  Energy  for specific performance.

A.   Define or explain the principle of “lex loci contractus”.

B.   Define or explain the rule of “forum non conveniens”.

C.   Should the Philippine court assume jurisdiction over the case? Explain.

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SUGGESTED ANSWER:

A.  LEX LOCI CONTRACTUS may be understood in two senses, as follows:

(1)   It is the law of the place where contracts, wills, and other public instruments are

executed and governs their “forms   and   solemnities”,   pursuant   to   the   first
paragraph, Article 17 of the New Civil Code; or

(2)  It is the proper law of the contract; e.i., the system of law intended to govern the

entire contract, including its essential requisites, indicating the law of the place with
which the contract has its closest connection or where the main elements of the contract
converge. As illustrated by Zalamea  v. Court of Appeals (228 SCRA 23 [1993]), it
is the law of the place where the airline ticket was issued, where the passengers are
nationals and residents of, and where the defendant airline company maintained its
office.

ALTERNATIVE ANSWER:
A. Under  the  doctrine  of  lex  loci  contractus,  as  a general rule, the law of the place
where a contract is made or  entered  into  governs  with  respect  to  its  nature  and
validity, obligation and interpretation. This has been said to be the rule even though the
place where the contract was made  is  different  from  the  place  where  it  is  to  be
performed, and particularly so, if the place of the making and the place of performance
are the same  (United Airline v. CA, G.R. No. 124110, April 20,2001).

SUGGESTED ANSWER:

B. FORUM  NON  CONVENIENS  means  that  a court has discretionary authority to

decline jurisdiction over a cause of action when it is of the view that the action may be
justly and effectively adjudicated elsewhere.

SUGGESTED ANSWER:

C.  No,  the  Philippine  courts  cannot  acquire  jurisdiction over the case of Felipe.
Firstly, under the rule of forum non conveniens, the Philippine court is not a convenient
forum as all the incidents of the case occurred outside the Philippines. Neither are both
Coals and Energy doing business inside the Philippines. Secondly, the contracts were
not perfected in the Philippines. Under the principle of lex loci contractus, the law of the
place where the contract is made shall apply. Lastly, the Philippine court has no power
to determine the facts surrounding the execution of said contracts. And even if a proper
decision could be reached, such would have no biding effect on Coals and Energy as the
court was not able to acquire jurisdiction over the said
corporations. (ManilaHotelCorp.v.NLRC.343SCRA1,13-14[2000])

Nationality Theory (2004)

PH  and  LV  are  HK  Chinese.    Their  parents  are  now Filipino citizens who live in

Manila.  While still students in MNS State, they got married although they are first
cousins. It appears that both in HK and in MNS State first cousins could marry legally.

They plan to reside and set up business in the Philippines. But they have been informed,
however, that the marriage of first cousins here is considered void from the beginning by
reason of public policy.  They are in a dilemma.  They don’t want to break Philippine
law, much less their marriage vow. They seek your advice on whether their civil status
will be adversely affected by Philippine domestic law?  What is your advice?

SUGGESTED ANSWER:

My advise is as follows: The civil status of’ PH and LV will not be adversely affected by
Philippine law because they are nationals of Hong Kong and not Filipino citizens.Being
foreigners, their status, conditions and legal capacity in the Philippines are governed by
the law of Hong Kong, the country of which they are citizens. Since their marriage is
valid under Hong Kong law, it shall be valid and respected in the Philippines.

Naturalization (2003)
Miss Universe, from Finland, came to the Philippines on a tourist visa.  While in this
country, she fell in love with and married a Filipino doctor. Her tourist visa having been
expired and after the maximum extension allowed therefore, the Bureau of Immigration
and Deportation (BID) is presently demanding that she immediately leave the country
but  she  refuses  to do  so,  claiming  that she  is  already  a Filipino Citizen by her
marriage to a Filipino citizen.  Can the BID still order the deportation of Miss Universe?
Explain. 5%

SUGGESTED ANSWER:

Yes, the BID can order the deportation of Miss Universe. The marriage of an alien
woman to a Filipino does not automatically make her a Filipino Citizen.   She must first
prove in an appropriate proceeding that she does not have any disqualification for
Philippine
citizenship.   (Yung Uan Chu v. Republic of the Philippines, 158 SCRA 593 [19
88]). Since Miss Universe is still a foreigner, despite her marriage to a Filipino doctor,
she can be deported upon expiry of her allowable stay in the Philippines.

ANOTHER SUGGESTED ANSWER:

No, the Bureau of Immigration cannot order her deportation. An alien woman marrying
a Filipino, native- born or naturalized, becomes ipso facto a Filipino if she is not not
disqualified to be a citizen of the Philippines (Mo Ya Lim v. Commission of
Immigration, 41 SCRA 292 [1971]), (Sec. 4, Naturalization Law). All that she
has to do is to prove in the  deportation proceeding the fact of her marriage and that she
is not disqualified to become a Filipino Citizen.

ANOTHER SUGGESTED ANSWER:

It depends.  If she is disqualified to be a Filipino citizen, she may be deported.  If she is
not disqualified to be a Filipino citizen, she may not be deported.   An alien woman who
marries a Filipino citizen becomes one.   The marriage of Miss Universe to the Filipino
doctor did not automatically make her a Filipino citizen.  She still has to prove that she
is not disqualified to become a citizen.

Theory; significant relationships theory (1994)

Able,  a  corporation  domiciled  in  State  A,  but,  doing business in the Philippines,
hired Eric, a Filipino engineer, for its project in State B. In the contract of employment
executed by the parties in State B, it was stipulated that the contract could be terminated
at the company’s will, which stipulation is allowed in State B. When Eric was summarily
dismissed by Able, he sued Able for damages in the Philippines.

Will the Philippine court apply the contractual stipulation?

SUGGESTED ANSWER:
a) Using the “SIGNIFICANT RELATIONSHIPS THEORY“, there are contacts
significant to the Philippines. Among  these   are   that  the  place   of   business   is   the
Philippines, the employee concerned is a Filipino and the suit was filed in the
Philippines, thereby justifying the application of Philippine law. In the American
Airlines case the  Court  held  that  when  what  is  involved  is PARAMOUNT    STATE    
INTEREST    such    as    the protection of the rights of Filipino laborers, the court can
disregard choice of forum and choice of law. Therefore the Philippine  Court  should  not
apply  the  stipulation  in question.

ALTERNATIVE ANSWER:

b)  No, lex fori should be applied because the suit is filed in Philippine courts and Eric
was hired in the Philippines. The Philippine Constitution affords full protection to labor
and the stipulation as to summary dismissal runs counter to our fundamental and
statutory laws.

Torts; Prescriptive Period (2004)

In a class suit for damages, plaintiffs claimed they suffered injuries from torture during

martial law.  The suit was filed upon President EM’s arrival on exile in HI, a U.S. state.
The court in HI awarded plaintiffs the equivalent of P100 billion under the U.S. law on
alien tort claims.  On appeal, EM’s Estate raised the issue of prescription.  It argued that
since said U.S. law is silent on the matter, the court should apply: (1) HI’s law setting a
two-year limitation on tort claims; or (2) the Philippine law which appears to require
that claims for personal injury arising from martial law be brought within one year.

Plaintiffs countered that provisions of the most analogous federal statute, the Torture
Victims Protection Act, should be applied.  It sets ten years as the period for
prescription. Moreover, they argued that equity could toll the statute of limitations.   For
it appeared that EM had procured Constitutional  amendments  granting  himself  and
those acting under his direction immunity from suit during his tenure.

In this case, has prescription set in or not?  Considering the differences in the cited laws,
which prescriptive period should be applied: one year under Philippine law, two years
under HI’s law, ten years under U.S. federal law, or none of the above?  Explain.

SUGGESTED ANSWER:

The US Court will apply US law, the law of the Jorum, in determining the applicable
prescriptive period. While US law is silent on this matter, the US Court will not apply
Philippine law in determining the prescriptive period. It is generally affirmed as a
principle in private international law that procedural law is one of the exceptions     to
the application of foreign law by the forum. Since prescription is a matter of procedural
law even in Philippine jurisprudence,  (Codaltn  v.  POEA/  JVLRC/Broum  and Root
International,     238 SCRA 721 [1994]), the US Court will apply either HI or Federal law
in determining the applicable prescriptive period and not Philippine law. The
Restatement of American law affirms this principle.
 I

The dictatorial regime of President A of the Republic of Gordon was toppled by a combined
force led by Gen. Abe, former royal guards and the secessionist Gordon People’s Army. The new
government constituted a Truth and Reconciliation Commission to look into the serious crimes
committed under President A’s regime. After the hearings, the Commission recommended that
an amnesty law be passed to cover even those involved in mass killings of members of
indigenous groups who opposed President A. International human rights groups argued that the
proposed amnesty law is contrary to international law. Decide with reasons. (4%)

SUGGESTED ANSWER:

The proposed amnesty law is contrary to international law. The mass killings of members
of indigenous groups constitute genocide under Article II(a), Convention for the Prevention
and Punishment of the Crime of Genocide. The proposed amnesty law is against
international law because it is incompatible with, or in violation of the international
obligation under Article IV of this Convention that “Persons committing genocide… shall
be punished, whether they are constitutionally responsible rulers, public officials or private
individuals.”

“The Contracting Parties confirm that genocide, whether committed in time of peace or in
time of war, is a crime under international law which they undertake to prevent and to
punish.”  

II

Compare and contrast the jurisdiction of the International Criminal Court and International Court
of Justice. (3%)

SUGGESTED ANSWER:

The jurisdiction of the International Court of Justice pertains to international

responsibility in the concept of civil liability, while that of the International Criminal Court
pertains to criminal liability.

While States are the subject of law in international responsibility under the jurisdiction of
the International Court of Justice, the criminal liability within the jurisdiction of the
International Criminal Court pertains to individual natural person. (Article 34(i) of the
Statute of the International Court of Justice; Articles 25 and 27 of the Statute of the
International Criminal Court.)
III

A,      A British photojournalist, was covering the violent protests of the Thai Red-Shirts
Movement in Bangkok, Despite warnings given by the Thai Prime Minister to foreigners,
specially journalists, A moved around the Thai capital. In the course of his coverage, he was
killed with a stray bullet which was later identified as having come from the ranks of the Red-
Shirts. The wife of A sought relief from Thai authorities but was refused assistance.

1. Is there state responsibility on the part of Thailand? (2%)

SUGGESTED ANSWER

There is no state responsibility on the part of Thailand. The wrongful act in question is an
act of private individuals and not of an organ of the government or a state official. Hence, it
is not attributable to Thailand as its wrongful act for the purpose of state responsibility.

1. What is the appropriate remedy available to the victim’s family under

international law? (3%)

SUGGESTED ANSWER

The appropriate remedy available to the family of A is to seek diplomatic protection from
Great Britain to press a claim for reparation. (Brownlie, Principles of Public International
Law, 7th ed., pp. 460 and 477-478.) However, in order that the claim will be allowable
under customary international law, the family of A must first exhaust the legal remedies
available in Thailand. (Brownlie, Principles of Public International Law, 7th ed. p.492.)

IV

Choose the statement which appropriately completes the opening phrase!”

1. State which resorts to retorsion in international law

2. must ensure that all states consent to its act.
3. cannot curtail migration from the offending state.
4. can expel the nationals of the offending state.
5. should apply proportionate response within appreciable limit.
6. None of the above.

Explain your answer. (2%)

SUGGESTED ANSWER:
The correct answer is letter “D”.

A State which resorts to retorsion in international law should apply proportionate response
within appreciable limit. Retorsion is merely retallation for discourteous, unkind, unfair or
unfriendly acts by acts of the same or similar kind. Oppenheim’s International Law, Vol.
II, 7 ed., p. 134.)

Congresswoman A is a co-owner of an industrial estate in Sta. Rosa, Laguna which she had
declared in her Statement of Assets and Liabilities. A member of her political party authored a
bill which would provide a 5-year development plan for all industrial estates in the Southern
Tagalog Region to attract investors. The plan included an appropriation of 2 billion pesos for
construction of roads around the estates. When the bill finally became law, a civil society
watchdog questioned the constitutionality of the law as it obviously benefitted Congresswoman
A’s industrial estate. Decide with reasons. (3%)

SUGGESTED ANSWER:

The law is constitutional. Section 12, Article VI of the Constitution does not prohibit the
enactment of a law which will benefit the business interests of a member of the Senate or
the House of Representatives. It only requires that if the member of Congress whose
business interests will be benefited by the law is the one who will file the bill, he should
notify the House concerned of the potential conflict of interest.

VI

The “Poverty Alleviation and Assistance Act was passed to enhance the capacity of the most
marginalized families nationwide. A financial assistance scheme called “conditional cash
transfers” was initially funded 500 million pesos by Congress. One of the provisions of the law
gave the Joint-Congressional Oversight Committee authority to screen the list of beneficiary
families initially determined by the Secretary of Department of Social Welfare and Development
pursuant to the Department implementing rules. Mang Pandoy, a resident of Smokey Mountain
in Tondo, questioned the authority of the Committee.

1. Does Mang Pandoy have legal standing to question the law? (2%)

SUGGESTED ANSWER:

On the assumption that Mang Pandoy is a beneficiary of the financial legal assistance, he
has legal standing to question the law. He may be prejudiced by the improper screening of
the beneficiary families. (Province of Batangas v. Romulo, 492 SCRA 736 (2004). Besides,
since the implementation of the law will require the expenditure of public funds, as a
taxpayer Mang Pandoy has legal standing to question the law. (Cruzv. Secretary of
Environment and Natural Resources, 347 SCRA 128 [2000].)

1. Is the grant of authority to the Oversight Committee to screen

beneficiaries constitutional? (3%)

Decide with reasons.

SUGGESTED ANSWER:

The grant of authority to the Oversight Committee to screen beneficiaries is

unconstitutional. It violates the principle of separation of powers. By being involved in the
implementation of the law, the Oversight Committee will be exercising executive power.
(Abakada Guro Party List . Puristma, 562 SCRA 251 [2008].)

VII

True or False.

1. A proclamation of a state of emergency is sufficient to allow the

President to take over any public utility. (0.5%)

SUGGESTED ANSWER

The statement that a proclamation of emergency is sufficient to allow the President to take
over any public utility is false. Since it is an aspect of emergency powers, in accordance
with Section 23(2), Article VI of the Constitution, there must be a law delegating such
power to the President. (David J. Macapagal-Arroyo, 489 SCRA 160 [2006].)

1. A treaty which provides tax exemption needs no concurrence by a

majority of all the Members of the Congress. (0.5%)

SUGGESTED ANSWER

The statement that a treaty which provides tax exemption needs no concurrence by a
majority of all the Members of Congress is true. It is only a law, not a treaty, granting a tax
exemption which requires the concurrence of a majority of all the Members of Congress.
(Section 28(4), Article VI of the Constitution.) Without respect to its lawful substantive
content, a treaty, to be valid and effective, requires concurrence by at least two-thirds of all
the Members of the Senate. (Sec. 24, Art. VII of the Constitution).
VIII

Distinguish “presidential communications privilege from “deliberative process privilege.” (3%)

SUGGESTED ANSWER:

Presidential communications privilege applies to decision-making of the President. The

deliberative process privilege applies to decision-making of executive officials. Unlike the
deliberative process privilege,” “the presidential communications privilege” applies to
documents in their entirety and covers final and post decisional matters, as well as pre-
deliberative ones. The deliberative process privilege includes advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. (Nerd v. Senate Committee on Accountability of
Public Officers and Investigations, 549 SCRA 77 [2008].)

IX

The League of Filipino Political Scientists (LFPS) organized an international conference on the
human rights situation in Myanmar at the Central Luzon State University (CLSU). An exiled
Myanmar professor Sung Kui, critical of the military government in Myanmar, was invited as
keynote speaker. The Secretary of Foreign Affairs informed the President of the regional and
national security implications of having Prof. Kui address the conference. The President
thereupon instructed the immigration authorities to prevent the entry of Prof. Kui into Philippine
territory. The chancellor of CLSU argued that the instruction violates the Constitution. Decide
with reasons. (4%)

SUGGESTED ANSWER:

The argument of the chancellor of Central Luzon State University is not valid. Since an
alien has no right to enter the Philppines, preventing Prof. Sing Kui from entering the
Philippines is not a violation of his rights. (Lee and Quigley, Consular Law and Practice, 34
ed., p. 220.) Since the President has the power of control over foreign relations, he has the
power to ban aliens from entering the Philippines. (United States v. Curtiss-Wright Export
Corporation, 299 U.S. 304 [1936].)

X
A, the wife of an alleged victim of enforced disappearance, applied for the issuance of a Writ of
Amparo before a Regional Trial Court in Tarlac. Upon motion of A, the court issued inspection
and production orders addressed to the AFP Chief of Staff to allow entry at Carp Aquino and
permit the copying of relevant documents, including the list of detainees, if any. Accompanied
by court-designated Commission on Human Rights (CHR) lawyers, A took photographs of a
suspected isolation cell where her husband was allegedly seen being held for three days and
tortured before he finally disappeared. The CHR lawyers requested one Lt. Valdez for a
photocopy of the master plan of Camp Aquino and to confirm in writing that he had custody of
the master plan. Lt. Valdez objected on the ground that it may violate his right against self-
incrimination. Decide with reasons. (4%)

SUGGESTED ANSWER:

The objection of Lt. Valdez is not valid. The right against self-incrimination refers to
testimonial evidence and does not apply to the production of a photocopy ofthe master plan
of Camp Aquino, because it is a public record. He cannot object to the request for him to
confirm his custody of the master plan, because he is the public officer who had custody of
it. (Almonte v. Vasquez, 244 SCRA 286 [19951.)

XI

Which statement best completes the following phrase: (1%)

“Freedom from torture is a night

1. subject to derogation when national security is threatened.”

2. confined only during custodial investigation.”
3. which is non-derogable both during peacetime and in a situation of
armed conflict.”
4. both (a) and (b)
5. none of the above.

SUGGESTED ANSWER:

The correct answer is letter “C”.

Freedom from torture is non-derogable both during peacetime and in a situation of armed
conflict. Under Article 4 of the International Covenant on Civil and Political Rights, the
State Parties may take measures in derogation of their obligations under this Covenant in
time of public emergency. But this derogation clause does not apply to prohibition against
torture, pursuant to Article 4/2) of the Covenant. Hence, no derogation may be made in
regard to torture.

XII

A witnessed two hooded men with baseball bats enter the house of their next door neighbor B.
After a few seconds, he heard B shouting, *Huwag Pilo babayaran kita agad.” Then A saw the
two hooded men hitting B until the latter fell lifeless. The assailants escaped using a yellow
motorcycle with a fireball sticker on it toward the direction of an exclusive village nearby. A
reported the incident to P01 Nuval. The following day, PO1 Nuval saw the motorcycle parked in
the garage of a house at Sta. Ines Street inside the exclusive village. He inquired with the
caretaker as to who owned the motorcycle. The caretaker named the brothers Pilo and Ramon
Maradona who were then outside the country. PO1 Nuval insisted on getting inside the garage.
Out of fear, the caretaker allowed him. POI Nuval took 2 ski masks and 2 bats beside the
motorcycle. Was the search valid? What about the seizure? Decide with reasons. (4%)

SUGGESTED ANSWER:

The warrantless search and the seizure was not valid. It was not made as an incident to a
lawful warrantless arrest. (People v. Baula, 344 SCRA 663 [2000].) The caretaker had no
authority to waive the right of the brothers Pilo and Ramon Maradona to waive their right
against an unreasonable search and seizure. (People v. Damaso, 212 SCRA 547 [1992].) The
warrantless seizure of the ski masks and bats cannot be justified under the plain view
doctrine, because they were seized after an invalid intrusion into the house. (People v.
Bolasa, 321 SCRA 459 [1999].)

XIII

True or False.

1. A valid and definite offer to buy a property is a prerequisite to

expropriation initiated by a local government unit. (0.5%)

SUGGESTED ANSWER:

1. The statement that a valid and definite offer to buy a property is a pre-
requirement to expropriation initiated by a local government is true.
(Section 19, Local Government Code.)
2. Re-classification of land by a local government unit may be done
through a resolution. (0.5%)
SUGGESTED ANSWER:

The statement that a local government unit may reclassify land through a resolution is
false. Under Section 2 of the Local Government Code, the enactment of an ordinance is
required. (Department of Agrarian Reform v. Polo Coconut Plantation Company, Inc., 564
SCRA 78 [2008].)                      

1. Boundary disputes between and among municipalities in the same

province may be filed immediately with the Regional Trial Court.
(0.5%)

SUGGESTED ANSWER:

The statement that boundary disputes between and among municipalities in the same
province may be filed immediately with the Regional Trial Court is false. Under Section
118 of the Local Government Code, they should be referred for settlement to the
sangguniang panlalawigan. (Municipality of Sta. Fev. Municipality of Artao, 533 SCRA
586 [2007].)

1. The Metropolitan Manila Development Authority is authorized to

confiscate a driver’s license in the enforcement of traffic regulations.
(0.5%)

SUGGESTED ANSWER:

The statement that the Metropolitan Manila Development Authority is authorized to

confiscate a driver’s license in the enforcement of traffic regulations is false. Since Republic
Act No. 7924 does not grant the Metropolitan Manila Development Authority the authority
to enact ordinances, the grant to it by Section 5(f) of Republic Act No. 7924 of the power to
confiscate drivers’ licenses without the need of any other law is an unauthorized exercise of
police power. (Metropolitan Manila Development Authority v. Garin, 456 SCRA 176
[2005].)

XIV

ABC operates an industrial waste processing plant within Laoag City. Occasionally, whenever
fluid substances are released through a nearby creek, obnoxious odor is emitted causing dizziness
among residents in Barangay La Paz. On complaint of the Punong Barangay, the City Mayor
wrote ABC demanding that it abate the nuisance. This was ignored. An invitation to attend a
hearing called by the Sangguniang Panlungsod was also declined by the president of ABC. The
city government thereupon issued a ceax and desist order to stop the operations of the plant,
prompting ABC to file a petition for injunction before the Regional Trial Court, arguing that the
city government did not have any power to abate the alleged nuisance. Decide with reasons.
(3%)
SUGGESTED ANSWER:

The city government has no power to stop the operations of the plant. Since its operations
is not a nuisance per se, the city government cannot abate it extrajudicially. A suit must be
filed in court. (AC Enterprises, Inc. v. Frabelle Properties Corporation, 506 SCRA 625
[2006].)

XV

True or False

1. A person who occupies an office that is defectively created is a de facto

officer. (0.5%)

FIRST ALTERNATIVE ANSWER:

The statement that a person who occupies an office that is defectively created is a de facto
officer is false. For him to be a de facto officer, the office must be validly created. (Tuanda
v. Sandiganbayan, 249 SCRA 342 [1995].)

SECOND ALTERNATIVE ANSWER:

The statement that a person who oceupies in office that is defectively created is a de facto
officer is true. The person appointed or elected pursuant to an unconstitutional law is a de
facto officer, before the law is declared to be such. (State v. Caroll, 38 Conn. [1871].)

1. The rule on nepotism does not apply to designations made in favor of a

relative of the authority making a designation. (0.5%)

SUGGESTED ANSWER:

The statement that the rule on nepotism does not apply to designations made in favor of a
relative of the authority making the designation is false. Designation accomplishes the same
purpose as appointment. (Laurel v. Civil Service Commission, 203 SCRA 195 [1991].)

1. A discretionary duty of a public officer is never delegable. (0.5%)

SUGGESTED ANSWER:

The statement that a discretionary duty of a public officer can never be delegated is false. It
can be delegated if the delegation is authorized (Mechem, A Treatise on the Law of Public
Offices and officers, p. 368.)
 1. Acquisition of civil service eligibility during tenure of a temporary
appointee does not automatically translate to a permanent appointment.
(0.5%)

SUGGESTED ANSWER:

The statement that the acquisition of civil service eligibility during the tenure of a
temporary appointee does not automatically translate to a permanent appointment is true.
A new appointment which is permanent is necessary. (Province of Camarines Sur v. Court
of Appeals, 246 SCRA 281[1995].)  

XVI

Rudy Domingo, 38 years old, natural-born Filipino and a resident of the Philippines since birth,
is a Manila-based entrepreneur who runs KABAKA, a coalition of peoples’ organizations from
fisherfolk communities. KABAKA’S operations consist of empowering fisherfolk leaders
through livelihood projects and trainings on good governance. The Dutch Foundation for Global
Initiatives, a private organization registered in The Netherlands, receives a huge subsidy from the
Dutch Foreign Ministry, which, in turn is allocated worldwide to the Foundation’s partners like
KABAKA. Rudy seeks to register KABAKA as a party-list with himself as a nominee of the
coalition. Will KABAKA and Rudy be qualified as a party-list and a nominee, respectively?
Decide with reasons. (4%)

SUGGESTED ANSWER:

KABAKA and Rudy are not qualified as a party list and as nominee, respectively, since
KABAKA is receiving a subsidy from the Dutch Foreign Ministry. Under Section 2(5),
Article LX-C of the Constitution, a political party which is supported by any foreign
government cannot be registered with the Commission on Elections.

XVII

During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a PNP
checkpoint for carrying high-powered firearms in his car. He was charged and convicted for
violation of the COMELEC gun ban. He did not appeal his conviction and instead applied for
executive clemency. Acting on the favorable recommendation of the Board of Pardons and
Parole, the President granted him pardon. Is he eligible to run again for an elective position?
Explain briefly. (5%)

SUGGESTED ANSWER:

Mayor Galicia can run again for an elective office but not immediately. Under Section 40 of
the Local Government Code, he cannot run for an elective local office within two (2) years
after serving sentence. Under Section 12 of the Omnibus Election Code, he can run for an
elective national office after the expiration of five (5) years from his service of sentence. The
pardon granted to him is not valid. The offense involved a violation of the Omnibus
Election Code and the pardon was granted without the favorable recommendation of the
Commission on Elections. (Section 5, Article IX-C of the Constitution.)

XVIII

The House Committee on Appropriations conducted an inquiry in aid of legislation into alleged
irregular and anomalous disbursements of the Countrywide Development Fund (CDF) and
Congressional Initiative Allocation (CIA) of Congressmen as exposed by X, a Division Chief of
the Department of Budget and Management (DBM). Implicated in the questionable
disbursements are high officials of the Palace. The House Committee summoned X and the
DBM Secretary to appear and testify. X refused to appear, while the Secretary appeared but
refused to testify invoking executive privilege.

1. May X be compelled to appear and testify? If yes, what sanction may

be imposed on him? (2%)

SUGGESTED ANSWER:

X may be compelled to appear and testify. Only the President or the Executive Secretary
by order of the President can invoke executive privilege. (Senate of the Philippines v.
Ermita, 488 SCRA 13 [2006].) He can be cited for contempt and ordered to be arrested. (De
la Paz v. Senate Committee on Foreign Relations, 579 SCRA 521 [2009].)

1. Is the Budget Secretary shielded by executive privilege from

responding to the inquiries of the House Committee? Explain briefly. If
the answer is no, is there any sanction that may be imposed upon him?
(3%)

SUGGESTED ANSWER:
The Secretary of Budget and Management is not shielded by executive privilege from
responding to the inquires of the House Committee on Appropriations, because the inquiry
is in aid of legislation and neither the President nor the Executive Secretary by order of the
President invoked executive privilege. (Senate of the Philippines v. Ermita, 488 SCRA 1
[2006].) For refusing to testify, he may be cited for contempt and ordered to be arrested.
(De la Paz v. Senate Committee on Foreign Relations, 519 SCRA 521 [2009].)

XIX

To instill religious awareness in the students of Dona Trinidad High School, a public school in
Bulacan, the ParentTeacher’s Association of the school contributed funds for the construction of
a grotto and a chapel where ecumenical religious services and seminars are being held after
school hours. The use of the school grounds for these purposes was questioned by a parent who
does not belong to any religious group. As his complaint was not addressed by the school
officials, he filed an administrative complaint against the principal before the DECS. Is the
principal liable? Explain briefly. (5%)

SUGGESTED ANSWER:

The principal is liable. Although the grotto and the chapel can be used by different
religious sects without discrimination, the land occupied by the grotto and the chapel will
be permanently devoted to religious use without being required to pay rent. This violates
the prohibition against the establishment of religion enshrined in Section 5 of the Bill of
Rights. (Opinion No. 12 of the Secretary of Justice dated February 2, 1979.) Although
religion is allowed to be taught in public elementary and high schools, it should be without
additional cost to the government. (Section 3(3), Article XIV of the Constitution.)

XX

Define/explain the following:

1. Doctrine of operative facts (1%)

SUGGESTED ANSWER:

The doctrine of operative facts means that before a law was declared unconstitutional, its
actual existence must be taken into account and whatever was done while the law was in
operation should be recognized as valid. (Rieta v. People, 436 SCRA 273 [2004].)

1. De facto municipal corporation (1%)

SUGGESTED ANSWER:
A de facto municipal corporation is one so defectively created as not to be a de jure
corporation but is nevertheless the result of a bona fide attempt to incorporate under
existing statutory authority, coupled with the exercise of corporate powers, and recognized
by the courts as such on the ground of public policy in all proceedings except a direct
attack by the state questioning its corporate existence. (Angeles, Restatement of the Law on
Local Governments, p. 23.)

1. Municipal corporation by estoppel (1%)

SUGGESTED ANSWER:

A municipal corporation by estoppel is a corporation which is so defectively formed as not

to be a de facto corporation but is considered a corporation in relation to someone who
dealt with it and acquiesced in its exercise of its corporate functions or entered into a
contract with it. (Martin, Public Corporations, 1985 ed.. p. 20.)

1. Doctrine of necessary implication (1%)

SUGGESTED ANSWER:

The doctrine of necessary implication means that every statute is understood by

implication to contain all such provisions as may be necessary to effectuate its object and
purpose, or to make effective rights, powers, privileges or jurisdiction which it grants,
including all such collateral and subsidiary consequences as may be fairly and logically
inferred from its terms. (Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor, 312
SCRA 104 [1999].)

1. Principle of holdover (1%)

SUGGESTED ANSWER:
The principle of holdover means that in the absence of an express or implied constitutional
or statutory provision to the contrary, an officer is entitled to hold his office until his
successor is appointed or chosen and has been qualified. (Topacio Nueno v. Angeles, 76
Phil. 12 [1946].)

XXI

The Sangguniang Panlungsod of Pasay City passed an ordinance requiring all disco pub owners
to have all their hospitality girls tested for the AIDS virus. Both disco pub owners and the
hospitality girls assailed the validity of the ordinance for being violative of their constitutional
rights to privacy and to freely choose a calling or business. Is the ordinance valid? Explain. (5%)

SUGGESTED ANSWER:

The ordinance is a valid exercise of police power. The right to privacy yields to certain
paramount rights of the public and defers to the exercise of police power. The ordinance is
not prohibiting the disco pub owners and the hospitality girls from pursuing their calling
or business but is merely regulating it. (Social Justice Society u. Dangerous Drugs Board,
570 SCRA 410 [2008].) The ordinance is a valid exercise of police power, because its
purpose is to safeguard public health. (Beltran vs. Secretary of Health, 476 SCRA 168
[2005].)

XXII

Governor Diy was serving his third term when he lost his governorship in a recall election.

1. Who shall succeed Governor Diy in his office as Governor? (1%)

SUGGESTED ANSWER:

The candidate who received the highest number of votes in the recall will succeed Governor
Diy. (Section 72 of the Local Government Code.)
 

1. Can Governor Diy run again as governor in the next election? (2%)

SUGGESTED ANSWER:

Governor Diy can run again as governor. He did not fully serve his third term, because he
lost in the recall election. His third term should not be included in computing the three-
term limit. [Lorzardav. Cornission on Elections, 311 SCRA 602 [1999).)

1. Can Governor Diy refuse to run in the recall election and instead resign
from his position as governor? (2%)

SUGGESTED ANSWER:

Governor Diy cannot refuse to run in the recall election. He is automatically considered as
a duly registered candidate. (Section 71, Local Government Code.) He is not allowed to
resign. (Section 73, Local Government Code.)

XXIII

A was a career Ambassador when he accepted an ad interim appointment as Cabinet Member.

The Commission on Appointments bypassed his ad interim appointment, however, and he was
not re-appointed. Can he re-assume his position as career Ambassador? (5%)

SUGGESTED ANSWER:

The career Ambassador cannot re-assume his position as career Ambassador. His ad
interim appointment as Cabinet Member was a permanent appointment. (Summers us.
Ozaeta, 81 Phil 754 (1948).) He abandoned his position as Ambassador when he accepted
his appointment as Cabinet Member because as Cabinet Member, he could not hold any
other office during his tenure. (Section 13, Article VII, Constitution.)

XXIV
 

Compare and contrast “overbreadth doctrine” from “void-for-vagueness” doctrine. (5%)

SUGGESTED ANSWER:

While the overbreadth doctrine decrees that a governmental purpose may not be achieved
by means in a statute which sweep unnecessary broadly and thereby invades the area of
protected freedom a statute is void for vagueness when it forbids or requires the doing of
an act in terms so vague that men of common intelligence cannot necessarily guess at its
meaning and differ is to its application. (Estrada v. Sandiganbayan, 369 SCRA 394 [2001].)

XXV

1. What is the rotational scheme of appointments in the COMELEC?

(2%)

SUGGESTED ANSWER:

The rotational scheme of appointments in the Commission on Elections refers to the

scheme in which there is a regular recurrence of a two-year interval between the expiration
of terms of the Chairman and the Commissioners. (Gaminde vs. Commission on Audit, 347
SCRA 655 (2000).)

1. What are the two conditions for its workability? (2%)

SUGGESTED ANSWER:

The two (2) conditions for the workability of the rotational scheme of appointments are the
following: (1) the terms of the first Chairman and Commissioners should start on a
common date, irrespective of variation of dates of their appointments and qualifications,
and (2) any vacancy due to the death, resignation or disability before expiration of the term
should be filled only for the unexpired balance of the term. (Gaminde v. Commission on
Audit, 347 SCRA 655 (2000).)

1. To what other constitutional offices does the rotational scheme of

appointments apply? (2%)
SUGGESTED ANSWER:

The rotational scheme of appointments applies also to the Judicial and Bar Council, the
Civil Service Commission, and the Commission on Audit. (Section 9(2), Article VIII,
Section 1(2), Article IX-B and Section 1(2), Article IX-D of the Constitution.)

XXVI

Distinguish between “pocket veto” and “item veto.” (2%)

SUGGESTED ANSWER:

A pocket veto is when the President is considered to have rejected a bill submitted to him
for his approval when Congress adjourns during the period given to the President to
approve or reject a bill.

On the other hand, an item veto, or partial veto, is the power of a President to nullify or
cancel specific provisions of a bill, usually a budget appropriations bill, without vetoing the
entire legislative package.

XXVII

What is the concept of association under international law? (2%)

SUGGESTED ANSWER:

An association is formed when two states of unequal power voluntarily establish durable
links. The associate delegates certain responsibilities to the other, the principal, while
maintaining its status as a state. It is an association between sovereigns. The associated
state arrangement has usually been used as a transitional device of former colonies on their
way to full independence. (Province of North Cotabato v. Government of the Republic
ofthe Philippines Peace Panel on Ancestral Domain, 568 SCRA 402 [2008]-)

Association, under international law. is a formal arrangement between a non-self-

governing territory and an independent State whereby such territory becomes an
associated State with internal self-government, but the independent state is responsible for
foreign relations and defense.
For an association to be lawful, it must comply with the general conditions prescribed in
UN General Assembly Resolution 1541(XV) of 14 December 160: (1) the population must
consent to the association; and (2) the association must promote the development and
wellbeing of the dependent state (the non-self-governing territory). Association is subject to
UN approval.