Political Law Bar Q and A

Political Law Bar Questions and Answers

Bar Q and A #3

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1.) The Ambassador of the Republic of Kafirista referred to you for handling, the case of the Embassy’s Maintenance Agreement with CBM, a private domestic company engaged in maintenance work. The Agreement binds CBM, for a defined fee, to maintain the Embassy’s elevators, air- conditioning units and electrical facilities. Section 10 of the Agreement provides that the Agreement shall be governed by Philippine laws and that any legal action shall be brought before the proper court of Makati. Kafiristan terminated the Agreement because CBM allegedly did not comply with their agreed maintenance standards. CBM contested the termination and filed a complaint against Kafiristan before the Regional Trial Court of Makati. The Ambassador wants you to file a motion to dismiss on the ground of state immunity from suit and to oppose the position that under Section 10 of the Agreement, Kafiristan expressly waives its immunity from suit. Under these facts, can the Embassy successfully invoke immunity from suit?

YES, the Embassy can invoke immunity from suit. Section 10 of the Maintenance Agreement is not necessarily a waiver of sovereign immunity from suit. It was meant to apply in case the Republic of Kafiristan elects to sue in the local courts or waives its immunity by a subsequent act. The establishment of a diplomatic mission is a sovereign function. This encompasses its maintenance and upkeep. The Maintenance Agreement was in pursuit of a sovereign activity. (Republic of the Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003, 405 SCRA 126)

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2.) Ambassador Robert of State Alpha committed a very serious crime while he headed his foreign mission in the Philippines. Is he subject to arrest by Philippine authorities? Explain your answer

NO, he is not subject to arrest by Philippines authorities. Under the Vienna Convention on Diplomatic Relations (VCDR), a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. As a consequence, Article 29 of the Vienna Convention on Diplomatic Relations provides: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.

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3.) In the last quarter of 2012, about 5,000 container vans of imported goods intended for the Christmas Season were seized by agents of the Bureau of Customs. The imported goods were released only on January 10, 2013. A group of importers got together and filed an action for damages before the Regional Trial Court of Manila against the Department of Finance and Bureau of Customs. The Bureau of Customs raised the defense of immunity from suit and, alternatively, that liability should lie with XYZ Corp. which the Bureau had contracted for the lease of 10 high powered van cranes but delivered only 5 of these cranes, thus causing the delay in its cargo-handling operations. It appears that the Bureau, despite demand, did not pay XYZ Corp the P 1 Million deposit and advance rental required under their contract. (2013 BAR) a. Will the action by the group of importers prosper? b. Can XYZ Corp. sue the Bureau of Customs to collect rentals for the delivered cranes?

a.) NO. The action by the group of importers will not prosper. The primary function of the Bureau of Customs is governmental, that of assessing and collecting lawful revenues from imported articles and all other tariff and customs duties, fees, charges, fines and penalties. (Mobil Philippines Exploration, Inc. v. Customs Arrastre Service, 18 SCRA 120)

b.) NO. XYZ Corporation cannot sue the Bureau of Customs to collect rentals for the delivered cranes. The contract was a necessary incident to the performance of its governmental function. To properly collect the revenues and customs duties, the Bureau of Customs must check to determine if the declaration of the importers tallies with the landed merchandise. The cranes are needed to haul the landed merchandise to a suitable place for inspection. (Mobil Philippines Exploration v. Customs Arrastre Service, supra)

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4.) The doctrine of immunity from suit in favor of the State extends to public officials in the performance of their official duties. May such officials be sued nonetheless to prevent or to undo their oppressive or illegal acts, or to compel them to act? Explain your answer.

Public officials may be sued if they acted oppressively or illegally in the performance of their duties. A suit against a public officer who acted illegally is not a suit against the state. (Aberca v. Ver, G.R. No. 69866, April 15, 1988, 160 SCRA 590)

A public official may be compelled to act through a writ of mandamus. The main objective of mandamus is to compel the performance of a ministerial duty on the part of the respondent official; however, the writ does not issue to control or review the exercise of discretion or to compel a course of conduct. The writ of prohibition can also be availed of, as it is an extraordinary writ which can be directed against a public officer ordering said officer to desist from further proceedings when said proceedings are without or in excess of said officer’s jurisdiction, or are accompanied with grave abuse of discretion. (Rule 65, Revised Rules of Court)

Lastly, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for official actions. (Vinzons-Chuto v. Fortune Tobacco Corp., G.R. No. 141309, June 19, 2007, 525 SCRA 11)

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5.) Do government-owned or -controlled corporations also enjoy the immunity of the State from suit? Explain your answer.

A government-owned or controlled corporation may be sued. A suit against it is not a suit against the State, because it has a separate juridical personality. (Social Security Systems v. Court of Appeals, GR. No. L- 41299, February 21, 1983, 120 SORA 707)

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6.) Annika sued the Republic of the Philippines, represented by the Director of the Bureau of Plant Industry, and asked for the revocation of a deed of donation executed by her in favor of said Bureau. She alleged that, contrary to the terms of the donation, the donee failed to install lighting facilities and a water system on the property donated, and to build an office building and parking lot thereon, which should have been constructed and made ready for occupancy on or before the date fixed in the deed of donation. The Republic invoked state immunity and moved for the dismissal of the case on the ground that it had not consented to be sued. Should the Republic's motion be granted?

The motion of the Republic should be granted. There appears to be no consent on the part of the State to be sued.

In Section 3, Article XVI of the Constitution it is provided that: “The State shall not be sued without its consent.”

That no consent was given by the Republic is shown by the fact that the Bureau or the Government did seem to have complied with the demands of the deed of donation. Compliance with the state immunity is essential for two reasons:

It is required as a provision of the Constitution; and
Immunity is an essential element of state sovereignty.

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7.) 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.

According to Tanada v. Angara, 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.

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8.) Under the executive agreement entered into between the Philippines and the other members of the ASEAN, the other members will each send a battalion-size unit of their respective armed forces to conduct a combined military exercise in the Subic Bay area. A group of concerned citizens sought to enjoin the entry of foreign troops as violative of the 1987 Constitution that prohibited the stationing of foreign troops and the use by them, of local facilities. As the Judge, decide the case. Explain.

I will rule in favor of the concerned citizens. Section 25, Article XVII of the Constitution prohibits in the absence of a treaty the stationing of troops and facilities of foreign countries in the Philippines. The Supreme Court has already ruled that the provision in Article XVIII, Section 25 of the Constitution requires a treaty even for the mere temporary presence of foreign troops in the Philippines. (Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 499)

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9.) The Philippines and the Republic of Kroi Sha established diplomatic relations and immediately their respective Presidents signed the following: (1) Executive Agreement allowing the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila; and (2) Executive Agreement allowing the Republic of Kroi Sha to bring to the Philippines its military complement, warships, and armaments from time to time for a period not exceeding one month for the purpose of training exercises with the Philippine military forces and exempting from Philippine criminal jurisdiction acts committed in the line of duty by foreign military personnel, and from paying custom duties on all the goods brought by said foreign forces into Philippine territory in connection with the holding of the activities authorized under the said Executive Agreement. Senator Maagap questioned the constitutionality of the said Executive Agreements and demanded that the Executive Agreements be submitted to the Senate for ratification pursuant to the Philippine Constitution. Is Senator Maagap correct? Explain.

Senator Maagap is partly correct. The Executive Agreement allowing the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila is valid without the need of submitting it to the Senate for ratification as differed from a treaty. However, the second Executive Agreement which allows the Republic of Kroi Sha to bring to the Philippines its military complement, warships, and armaments for a certain period is subject to the provisions of Section 25 of Article XVIII of the Constitution, which provides that “foreign bases, troops or facilities shall not be allowed in the Philippines except 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 held for that purpose, and recognized as a treaty by the of the contracting state.” Under the same provision, a treaty duly concurred in by the Senate is required even for the temporary presence of foreign troops.

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10.) The unabated rise of criminality and the reported identification of delinquent children loitering in the wee hours of the night prompted City Z to implement a curfew ordinance. Minors unaccompanied or unsupervised on the streets by their parents or guardians between 10:00 P.M. to 5:00 A.M. may be apprehended by law enforcers subject to certain exclusive exceptions. These exceptions are: 1. minors running lawful errands, such as buying of medicines, using of telecommunications facilities for emergency purposes and the like; 2. night school students; and 3. Minors working at night. Minors apprehended for violation of the curfew ordinance shall be required to undergo counseling, accompanied by their parents/guardians. (a) Does the curfew ordinance violative the primary right and duty of parents to rear their children? Explain. (b) Does the curfew ordinance infringe any of the minors’ fundamental rights? Explain.

a.) NO, the curfew ordinance does not violate the primary right and duty of parents to rear their children. The principle of parens patriae states that the State has the duty of protecting the rights of persons or individual who because of age or incapacity are in an unfavorable position. Thus, while parents have the primary role in child-rearing, it should be stressed that when actions concerning the child have a relation to the public welfare or the well-being of the child, the State may act to promote these legitimate interests in the exercise of its police power. (SPARK v. Quezon City, G.R. No. 225442, August 08, 2017)

b.) YES, the curfew infringes on the minors’ fundamental rights. The court in SPARK v Quezon City observed that the two ordinances are not narrowly drawn because the exceptions mentioned in the ordinances are inadequate insofar as it does not provide an exception for the right to association, free exercise of religion, rights to peaceably assemble, and of free expression among others. Thus, it can run the risk of overly restricting minors’ fundamental freedoms. (SPARK v. Quezon City, G.R. No. 225442, August 08, 2017)

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