Nicardo M. Falcis III filed pro se before this Court a Petition for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, to “declare Articles 1 and 2 of the Family Code as unconstitutional and, as a consequence, nullify Articles 46(4) and 55(6) of the Family Code.”
Falcis 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[,]” which 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. CA, 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.
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.”
The Civil Registrar General, through the Office of the Solicitor General, filed its Comment (Ad Cautelam) praying that this Court deny due course to or dismiss the Petition. It notes that the Petition was not in the nature of a class suit, but was instead personal only to Falcis. Because of this, it claims that Falcis failed to show injury-in-fact and an actual case or controversy, but was rather seeking an advisory opinion that this Court cannot issue.
The Civil Registrar General also faults Falcis for not impleading Congress, as his Petition actually challenged the current legislative policy on same-sex marriage, and not any act committed by the Civil Registrar-General.
LGBTS Church, Reverend Agbayani, et al—collectively, petitioners-intervenors—whose counsel was Falcis himself, filed a Motion for Leave to Intervene and Admit Attached Petition-in-Intervention. They ask this Court to allow them to intervene in the proceedings, claiming that they have an interest in the outcome of this case. They adopt by reference the arguments raised by Falcis in his Petition.
Whether or not the Petition and/or the Petition-in-Intervention are properly the subject of the exercise of our power of judicial review.
Founded on the principle of supremacy of law, judicial review is the courts’ power to decide on the constitutionality of exercises of power by the other branches of government and to enforce constitutional rights.
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.
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.
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.
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.
Here, the Petition cannot be entertained as a facial challenge to Articles 1, 2, 46(4), and 55(6) of the Family Code.
A facial challenge is “an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.” It is distinguished from “as-applied” challenges, which consider actual facts affecting real litigants.
Facial challenges are only allowed as a narrow exception to the requirement that litigants must only present their own cases, their extant factual circumstances, to the courts.
To be entertained by this Court, a facial challenge requires a showing of curtailment of the right to freedom of expression, because its basis is that an overly broad statute may chill otherwise constitutional speech.
Ultimately, petitions before this Court that challenge an executive or legislative enactment must be based on actual facts, sufficiently for a proper joinder of issues to be resolved. If litigants wish to assail a statute or regulation on its face, the burden is on them to prove that the narrowly-drawn exception for an extraordinary judicial review of such statute or regulation applies.
When faced with speculations—situations that have not yet fully ripened into clear breaches of legally demandable rights or obligations—this Court shall refrain from passing upon the case.
WHEREFORE, the Petition for Certiorari and Prohibition and the Petition-in-Intervention are DISMISSED.