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Case Digest: Falcis III v. Civil Registrar General, G.R. No. 217910, 3 September 2019

Falcis III v. Civil Registrar General, G.R. No. 217910, 3 September 2019

TOPIC: Conditions for the Exercise of Judicial Review: Actual Case or Controversy


On May 18, 2015, Jesus Nicardo M. Falcis III (Falcis) filed pro se before this Court a Petition for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure.1 His Petition sought to “declare Articles 1 and 2 of the Family Code as unconstitutional and, as a consequence, nullify Articles 46(4)2 and 55(6)3 of the Family Code.”

Falcis claims that a resort to Rule 65 was appropriate, citing Magallona v. Executive Secretary, Araullo v. Executive Secretary, and the separate opinion8 of now-retired Associate Justice Arturo D. Brion (Associate Justice Brion) in Araullo. Again citing Associate Justice Brion’s separate opinion, he claims that this Court should follow a “‘fresh’ approach to this Court’s judicial power” and find that his Petition pertains to a constitutional case attended by grave abuse of discretion. He also asserts that the mere passage of the Family Code, with its Articles 1 and 2, was a prima facie case of grave abuse of discretion,11 and that the issues he raised were of such transcendental importance as to warrant the setting aside of procedural niceties.

Falcis further argues that his Petition complied with the requisites of judicial review: (1) actual case or controversy; (2) standing; (3) was raised at the earliest opportunity; and (4) that the constitutional question is the very lis mota of the case. As to standing, he claims that his standing consisted in his personal stake in the outcome of the case, as he “is an open and self-identified homosexual” who alleges that the Family Code has a “normative impact” on the status of same-sex relationships in the country. He was also allegedly injured by the supposed “prohibition against the right to marry the same-sex[,]”1which prevents his plans to settle down in the Philippines.

Falcis justifies the direct recourse to this Court by citing, in addition to the alleged transcendental importance of the issues he raised, the supposed lack of need for trial concerning any factual issues. He also insists that the constitutionality of Articles 1 and 2 of the Family Code were the very lis mota of his case.

According to Falcis, a facial challenge on Articles 1 and 2 is permitted as these two (2) provisions regulate fundamental rights such as “the right to due process and equal protection, right to decisional and marital privacy, and the right to found a family in accordance with religious convictions.”

Falcis further claims that strict scrutiny should be the test used in appraising the constitutionality of Articles 1 and 2 of the Family Code, and that the compelling state interest involved is the protection of marriage pursuant to Article XV, Section 2 of the Constitution, not the protection of heterosexual relationships. He argues that like opposite-sex couples, same-sex couples are equally capable of founding their own families and fulfilling essential marital obligations. He claims that contrary to Chi Ming Tsoi v. Court of Appeals, procreation is not an essential marital obligation. Because there is allegedly no necessity to limit marriage as only between a man and a woman, Articles 1 and 2 of the Family Code are supposedly unconstitutional for depriving Falcis of his right to liberty without substantive due process of law.

To support his allegation that strict scrutiny is the appropriate test, Falcis extensively referenced and quoted—devoting more than five (5) pages of his 29-page Petition—the separate concurring opinion of retired Chief Justice Reynato Puno (retired Chief Justice Puno) in Ang Ladlad Party-list v. Commission on Elections. However, he claims that retired Chief Justice Puno incorrectly concluded that the appropriate test is intermediate or heightened review. Nonetheless, he argues that even under the rational basis test, there is a violation of the equal protection clause since there is no substantial distinction between same-sex and opposite-sex couples.

Finally, Falcis claims that Articles 1 and 2 of the Family Code deny the existence of “individuals belonging to religious denominations that believe in same-sex marriage” and that they have a “right to found a family in accordance with their religious convictions.” He claims that the religious weddings conducted by these denominations have been denied civil recognition “unlike the religious convictions of Catholics and Muslims.”


WON the mere passage of the Family Code creates an actual case or controversy reviewable by this Court


Judicial review is inherent in this Court’s judicial power. Article VIII, Section 1 of the 1987 Constitution states:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Article VIII, Section 1 expands the territory of justiciable questions and narrows the off-limits area of political questions. In Estrada v. Desierto:

To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills of constitutional law. In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr, viz:

“. . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question’s presence. The doctrine of which we treat is one of political questions’, not of political cases’.”

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question. Our leading case is Tañada v. Cuenco, where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.” To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the “thou shalt not’s” of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to “. . . review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof. . . .”(Emphasis in the original, citations omitted)

Nonetheless, the expansion of this Court’s judicial power is by no means an abandonment of the need to satisfy the basic requisites of justiciability. In Provincial Bus Operators Association of the Philippines v. Department of Labor and Employment:

As a rule, “the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned.” A controversy is said to be justiciable if: first, there is an actual case or controversy involving legal rights that are capable of judicial determination; second, the parties raising the issue must have standing or locus standi to raise the constitutional issue; third, the constitutionality must be raised at the earliest opportunity; and fourth, resolving the constitutionality must be essential to the disposition of the case.

Fundamentally, for this Court to exercise the immense power that enables it to undo the actions of the other government branches, the following requisites must be satisfied: (1) there must be an actual case or controversy involving legal rights that are capable of judicial determination; (2) the parties raising the issue must have standing or locus standi to raise the constitutional issue; (3) the constitutionality must be raised at the earliest possible opportunity, thus ripe for adjudication; and (4) the matter of constitutionality must be the very lis mota of the case, or that constitutionality must be essential to the disposition of the case.

This Court’s constitutional mandate does not include the duty to answer all of life’s questions. No question, no matter how interesting or compelling, can be answered by this Court if it cannot be shown that there is an “actual and an antagonistic assertion of rights by one party against the other in a controversy wherein judicial intervention is unavoidable.”

This Court does not issue advisory opinions. We do not act to satisfy academic questions or dabble in thought experiments. We do not decide hypothetical, feigned, or abstract disputes, or those collusively arranged by parties without real adverse interests. If this Court were to do otherwise and jump headlong into ruling on every matter brought before us, we may close off avenues for opportune, future litigation. We may forestall proper adjudication for when there are actual, concrete, adversarial positions, rather than mere conjectural posturing:

Even the expanded jurisdiction of this Court under Article VIII, Section 1 does not provide license to provide advisory opinions. An advisory opinion is one where the factual setting is conjectural or hypothetical. In such cases, the conflict will not have sufficient concreteness or adversariness so as to constrain the discretion of this Court. After all, legal arguments from concretely lived facts are chosen narrowly by the parties. Those who bring theoretical cases will have no such limits. They can argue up to the level of absurdity. They will bind the future parties who may have more motives to choose specific legal arguments. In other words, for there to be a real conflict between the parties, there must exist actual facts from which courts can properly determine whether there has been a breach of constitutional text.(Emphasis in the original, citation omitted)

As this Court makes “final and binding construction[s] of law[,]” our opinions cannot be mere counsel for unreal conflicts conjured by enterprising minds. Judicial decisions, as part of the legal system, bind actual persons, places, and things. Rulings based on hypothetical situations weaken the immense power of judicial review.

In Province of North Cotabato v. GRP (MOA-AD case), . . . the Court explained the limits of the power of judicial review and the prerequisites for the judicial determination of a case.

In [that] case, the Court rejected the argument of the Solicitor General that there was no justiciable controversy that was ripe for adjudication. . . . The Court ruled that “[w]hen an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.” Moreover, in the MOA-AD case, the Executive was about to sign the initialed MOA-AD with the MILF in Kuala Lumpur, Malaysia in the presence of representatives of foreign states. Only the prompt issuance by this Court of a temporary restraining order stopped the signing, averting the implications that such signing would have caused.

In the present case, however, the Court agrees with the Solicitor General that there is no actual case or controversy requiring a full-blown resolution of the principal issue presented by petitioners.

Unlike the unconstitutional MOA-AD, the CAB, including the FAB, mandates the enactment of the Bangsamoro Basic Law in order for such peace agreements to be implemented. In the MOA-AD case, there was nothing in the MOA-AD which required the passage of any statute to implement the provisions of the MOA-AD, which in essence would have resulted in dramatically dismembering the Philippines by placing the provinces and areas covered by the MOA-AD under the control and jurisdiction of a Bangsamoro Juridical Entity.



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