2016 (Political Law) Bar Exam Questions: Question 19

[Answer/discuss the question below, or see 2016 bar exam Political Law Instructions; 2016 Political Law Questions: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 20; See also 2016 Bar Exam: Information, Discussions, Tips, Questions and Results]

-XIX-

Fernando filed an administrative complaint against his co-teacher, Amelia, claiming that the latter is living with a married man who is not her husband. Fernando charged Amelia with committing “disgraceful and immoral conduct” in violation of the Revised Administrative Code and, thus, should not be allowed to remain employed in the government. Amelia,on the other hand, claims that she and her partner are members of a religious sect that allows members of the congregation who have been abandoned by their respective spouses to enter marital relations under a “Declaration ofPledging Faithfulness.” Having made such Declaration, she argues that she cannot be charged with committing immoral conduct for she is entitled to free exercise of religion under the Constitution.

[a] Is Amelia administratively liable? State your reasons briefly. (2.5%)

[b] Briefly explain the concept of”benevolent neutrality.” (2.5%)

3 comments

  1. BAR EXAMS QUESTION NO. 19

    Fernando filed an administrative complaint against his co-teacher, Amelia, claiming that the latter is living with a married man who is not her husband. Fernando charged Amelia with committing “disgraceful and immoral conduct” in violation of the Revised Administrative Code and, thus, should not be allowed to remain employed in the government. Amelia,on the other hand, claims that she and her partner are members of a religious sect that allows members of the congregation who have been abandoned by their respective spouses to enter marital relations under a “Declaration of Pledging Faithfulness.” Having made such Declaration, she argues that she cannot be charged with committing immoral conduct for she is entitled to free exercise of religion under the Constitution.

    [a] Is Amelia administratively liable? State your reasons briefly. (2.5%)

    [b] Briefly explain the concept of”benevolent neutrality.” (2.5%)

    SUGGESTED ANSWER:

    Yes, Amelia is liable of “disgraceful and immoral conduct”,

    Time and again we have stressed adherence to the principle that public office is a public trust. All government officials and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. This constitutional mandate should always be in the minds of all public servants to guide them in their actions during their entire tenure in the government service. The good of the service and the degree of morality which every official and employee in the public service must observe, if respect and confidence are to be maintained by the Government in the enforcement of the law, demand that no untoward conduct on his part, affecting morality, integrity and efficiency while holding office should be left without proper and commensurate sanction, all attendant circumstances taken into account.

    The high degree of moral uprightness that is demanded of employees of the government entails many sacrifices that are peculiar to the civil service. By aspiring to these positions, government employees are deemed to have submitted themselves to greater scrutiny of their conduct, all in the pursuit of a professional civil service.

    Under Revised Administrative Code, Immorality is punishable by suspension of six (6) months and one day to one (1) year for the first offense and dismissal for the second offense. Considering that Amelia’s misconduct is in the nature of a continuing offense, it must be treated as a first offense, and her continued cohabitation with married man must be deemed a second offense, which will warrant the penalty of dismissal.

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    1. (b) Benevolent Neutrality Theory requires the government to establish that a challenged law is justified by a compelling state interest. This involves a two-step process of first determining whether there is substantial burden on religious freedom, and second, the determination of whether the state-imposed burden is justified by a compelling state interest.

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  2. Yes. (Estrada vs Escritor, August, 4, 2003 and June 22, 2006) – Right to freedom of religion must prevail. Benevolent neutrality recognizes that government must pursue its secular goals and interests, but at the same time, strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interest.

    Benevolent neutrality approach requires that the court make an individual determination and not dismiss the claim outright.

    Note: The case is almost identical to 2009 Bar

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