MOCK BAR September 11, 2021

Q2: In 2015, Atty. Falco, as a plaintiff representing himself, filed before the Supreme Court a
Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court, beseeching the
Court to declare unconstitutional Articles 1 and 2 of the Family Code of the Philippines
enacted in 1987. In turn, he seeks to have Articles 46(4) and 55(6) of the same law nullified.
He insisted that 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. In lieu of substantiating his claims with facts, Atty. Falco asserted that the mere
passage of the Family Code was a prima facie case of grave abuse of discretion, and that the
issues he raised were of such transcendental importance as to warrant the setting aside of
procedural niceties. As a member of the LGBTQI+ community, Atty. Falco argued that the
provisions in question injured him directly as the prohibition against same sex marriages
prevents his plans to settle down in a long-term, monogamous, same sex relationship the
Philippines. As of the date of filing, Atty. Falco has never tried to secure a marriage license
from the Civil Registrar for the purpose of marrying a person of the same sex. Should the case
prosper? (4%)

a. Explain the “expanded power of judicial review” of courts. (2%)

Q2: LEGAL BASIS

xxx The Petition before this Court does not present an actual case over which we may properly
exercise our power of judicial review.

xxx

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."

xxx
Facts are the basis of an actual case or controversy. To reiterate, "there must be sufficient facts
to enable the Court to intelligently adjudicate the issues." xxx Parties coming to court must
show that the assailed act had a direct adverse effect on them. xxx

The Petition presents no actual case or controversy.

Despite a goal of proving to this Court that there is a continuing and pervasive violation of
fundamental rights of a marginalized minority group, the Petition is woefully bereft of
sufficient actual facts to substantiate its arguments. xxx

Even petitioner's choice of respondent exposes the lack of an actual case or controversy. xxx
Lest petitioner himself forget, what he asserts as ground for the allowance of his suit is the
existence of grave abuse of discretion; specifically, grave abuse of discretion in the enactment
of the Family Code. xxx No factual antecedents existed prior to the filing of the Petition apart
from the passage of the Family Code. Petitioner has never applied for a marriage license. He
has never even visited the premises of respondent's office, or of anyone acting under its
authority. Petitioner has never bothered to show that he himself acted in any way that asked
respondent to exercise any kind of discretion. Indeed, no discretion was ever exercised by
respondent. Without an exercise of discretion, there could not have been abuse of discretion,
let alone one that could conceivably be characterized as "grave."

Petitioner has no legal standing to file his Petition.

Legal standing is a party's "personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement." Interest in the case
"means a material interest, an interest in issue affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental interest."

Much like the requirement of an actual case or controversy, legal standing ensures that a party
is seeking a concrete outcome or relief that may be granted by courts. xxx

xxx Here, petitioner asserts that he, being an "open and self-identified homosexual[,]" has
standing to question Articles 1, 2, 46(4), and 55(6) of the Family Code due to his "personal stake
in the outcome of the case." Petitioner's desire "to find and enter into long-term
monogamous same-sex relationships" and "to settle down and have a companion for life in
his beloved country" does not constitute legally demandable rights that require judicial
enforcement. This Court will not witlessly indulge petitioner in blaming the Family Code for his
admitted inability to find a partner. xxx

It does not escape this Court's notice that the Family Code was enacted in 1987. This Petition
was filed only in 2015. Petitioner, as a member of the Philippine Bar, has been aware of the
Family Code and its allegedly repugnant provisions, since at least his freshman year in law
school. It is then extraordinary for him to claim, first, that he has been continually injured by
the existence of the Family Code; and second, that he raised the unconstitutionality of
Articles 1 and 2 of the Family Code at the earliest possible opportunity.

Petitioner has neither suffered any direct personal injury nor shown that he is in danger of
suffering any injury from the present implementation of the Family Code. He has neither an
actual case nor legal standing. (Falcis v. Civil Registrar, G.R. No. 217910, 2019)

READING THE QUESTION

 The ultimate question is “Should the case prosper?”

o It did not ask you whether or not the arguments of the petitioner were correct.
o It did not ask if the assailed provisions of the Family Code were unconstitutional.
o By the phrasing of the problem and question alone, it can be inferred that the
problem is not asking you to decide on the merits of the case.
o Instead, it is asking you whether or not the Supreme Court should even entertain
the petition.
 The sub-question serves as a clue.
o By asking you to explain a procedural concept, the sub-question gives a hint that
the main question is also talking about a procedural issue.
 The facts give it away.
o The facts already show that Atty. Falco is justifying the jurisdictional basis of his
petition.
o He insists on the permissibility of mounting a facial challenge to allow the review
of the constitutionality of the Family Code.
o He invoked transcendental importance in an attempt to exempt his petition from
procedural rules, particularly on whether or not there is an actual controversy.
o He mentioned the direct injury caused upon him, therefore touching upon his
legal standing as a petitioner.
o Facts are not always distractions. Sometimes, they are clues.
 The allotted points reveal the simplicity of the answer required.

SUGGESTED ANSWER

No, the case should not prosper as Atty. Falco’s petition did not satisfy all the jurisprudential
requisites for the Supreme Court to exercise judicial review.

Firstly, the petition presented no actual controversy. Atty. Falco was not asserting any right
against another since he failed to show any facts apart from the mere passage of the Family
Code. He has never even applied for a marriage license from the Civil Registrar, which therefore
has not exercised any sort of discretion that injured Atty. Falco’s rights.
Secondly, Atty. Falco has no legal standing for he did not sustain any direct injury due to the
enforcement of the Family Code. His being a member of the LGBTQI+ community and his desire
to settle down are not legally demandable rights that require judicial enforcement.

Lastly, even though the issue of constitutionality is the very lis mota of the case, the said issue
was not raised at the earliest possible opportunity. The Family Code took effect in 1987
whereas Atty. Falco, a lawyer who knew the existence of such a law, did not file the petition
until 2015.

HOW THIS ANSWER CAME ABOUT

 Answered the question directly with a “No” and immediately put forth the reason for
such answer.
 Proceeded straight to weaving the requisites with the application of the law to save
time and space. Enumerating the requirements first before application will result in
redundancy.
 Parallelism observed: the answer maintained the negative tone in all the paragraphs.
o ✓ Atty. Falco, a lawyer who knew the existence of such a law, did not file the
petition until 2015.
o 𝘟 Atty. Falco, a lawyer who knew the existence of such a law, only filed the
petition in 2015.
 Say in one complex but clear sentence what you meant to say in two.
o ✓ Lastly, even though the issue of constitutionality is the very lis mota of the
case, the said issue was not raised at the earliest possible opportunity.
o 𝘟 The issue of constitutionality is the very lis mota of the case. However, it was
not raised at the earliest possible opportunity.
 Say in one word what you meant to say in two or more words.
o “Jurisprudential requisites” instead of “requisites laid down by jurisprudence”
o “Due to” instead of “by reason of”
 Using “first” or “firstly” as ordinal adverbs is a matter of preference. You may use either,
but be consistent. Don’t start with “first” and then write “secondly” in the next
paragraph.
 Know the “quotable quotes” of jurisprudence. Echo the words of SC justices.

Q2a: LEGAL BASIS

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.

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

xxx 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. xxx (Falcis v. Civil
Registrar, G.R. No. 217910, 2019)

READING THE QUESTION

 Direct to the point.

 Puts the main question into context.
 No mental gymnastics required.
 Begs you to give it straight.

SUGGESTED ANSWER

The expanded power of judicial review, under Article VIII Section 1 of the 1987 Constitution,
refers to the duty of the courts of justice 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. Consequently, judicial power is no longer limited to settling
actual controversies involving rights which are legally demandable and enforceable.

HOW THIS ANSWER CAME ABOUT

 Immediately opened with the term or concept needed to be explained.
 Instantly cited the source.
 Simply stated what the law says. If you cannot remember verbatim, it’s okay, as long as
you get the gist and do not inadvertently change what the law says.
 o But it would be better for you to memorize the most common phrases used in
law.
 I did not copy-paste the provision as it is written. I did not open with “to settle actual
controversies…” because that is not what is being asked.
o Instead, I added the ordinary concept of judicial power as some sort of result in
the last sentence (hence, the use of the word “consequently”). This is to
emphasize the difference between the ordinary from the expanded power of
judicial review.

Q4: Roseanne Park—an Australian citizen and a resident of Sydney, Australia where her office
is also located—purchased shares of stock from YG Entertainment (YGE), a corporation
incorporated in the Philippines with a principal office at Cebu City. The Stock Purchase
Agreement stated that any suit, action or proceeding with respect to the Agreement may be
brought in (a) the courts of the State of New South Wales where Sydney is located or (b) the
courts of the country of Corporation’s incorporation, as Roseanne may elect in her sole
discretion, and the parties thereby submit to any such suit, action proceeding or judgment
and waives any other preferential jurisdiction by reason of domicile. Roseanne then filed a
Complaint for Specific Performance and Damages before the RTC of Cebu against YGE, Teddy
Park (TP), Yang Hyun-suk (YHS), and Hwang Bo-kyung (HBK), in relation to shares Roseanne
bought from YGE. Roseanne moved for court authorization to take deposition, praying that
her deposition be taken before the Consulate-General of the Philippines in Sydney and be
used as her direct testimony. She maintains that Rule 23, Section 4 of the Rules of Court on
the taking of deposition applies because she is “out of the Philippines” as an Australian
citizen residing in Sydney. TP and YHS opposed, claiming that Roseanne chose the Philippine
system to file her suit, yet she deprived the court and the parties the opportunity to observe
her demeanor and directly propound questions on her. HBK argued that the oral deposition
was not intended for discovery purposes if Roseanne deposed herself as plaintiff. Should the
Court grant Roseanne’s Motion for Court Authorization to Take Deposition? (3%)

Q4: LEGAL BASIS

That neither the presiding judge nor the parties will be able to personally examine and
observe the conduct of a deponent does not justify denial of the right to take deposition. This
objection is common to all depositions. Allowing this reason will render nugatory the
provisions in the Rules of Court that allow the taking of depositions.

As suggested by the Court of Appeals, the parties may also well agree to take deposition by
written interrogatories to afford petitioners the opportunity to cross-examine without the need
to fly to the United States. xxx

Jurisprudence has discussed how "[u]nder the concept adopted by the new Rules,
the deposition serves the double function of a method of discovery — with use on trial not
necessarily contemplated — and a method of presenting testimony." The taking of
 depositions has been allowed as a departure from open-court testimony. Jonathan Landoil
International Co., Inc.  v. Spouses Mangundadatu  is instructive:
The Rules of Court and jurisprudence, however, do not restrict a
deposition to the sole function of being a mode of discovery before trial.
Under certain conditions and for certain limited purposes, it may be taken
even after trial has commenced and may be used without the deponent
being actually called to the witness stand. In Dasmariñas Garments  v. Reyes,
we allowed the taking of the witnesses' testimonies through deposition, in
lieu of their actual presence at the trial.
Thus, "[d]epositions may be taken at any time after the institution
of any action, whenever necessary or convenient." There is no rule that
limits deposition-taking only to the period of pre-trial or before it; no
prohibition against the taking of depositions after pre-trial." There can be no
valid objection to allowing them during the process of executing final and
executory judgments, when the material issues of fact have become
numerous or complicated.
In keeping with the principle of promoting the just, speedy and
inexpensive disposition of every action and proceeding, depositions are
allowed as a "departure from the accepted and usual judicial proceedings
of examining witnesses in open court where their demeanor could be
observed by the trial judge." Depositions are allowed, provided they are
taken in accordance with the provisions of the Rules of Court (that is, with
leave of court if the summons have been served, without leave of court if an
answer has been submitted); and provided, further, that a circumstance for
their admissibility exists.
xxx xxx xxx
When a deposition does not conform to the essential requirements of
law and may reasonably cause material injury to the adverse party, its taking
should not be allowed. This was the primary concern in Northwest Airlines  v.
Cruz. In that case, the ends of justice would be better served if the witness
was to be brought to the trial court to testify. The locus of the oral deposition
therein was not within the reach of ordinary citizens, as there were time
constraints; and the trip required a travel visa, bookings, and a substantial
travel fare. In People  v. Webb, the taking of depositions was unnecessary,
since the trial court had already admitted the Exhibits on which the witnesses
would have testified. (Emphasis supplied)

Rule 23, Section 1 of the Rules of Court gives utmost freedom in the taking of depositions.
Section 16 on protection orders, which include an order that deposition not be taken, may only
be issued after notice and for good cause shown. However, petitioners’ arguments in support of
the trial court’s Order denying the taking of deposition fails to convince as good cause shown.
The civil suit was filed pursuant to an agreement that gave respondent the option of filing the
case before our courts or the courts of California. It would have been even more costly, time-
consuming, and disadvantageous to petitioners had respondent filed the case in the United
States. xxx

Rule 23, Section 4(c)(2) of the Rules of Court, which was invoked by respondent, governs the
use of depositions taken. This allows the use of a deposition taken when a witness is “out of the
Philippines.” xxx In any case, Rule 23 of the Rules of Court still allows for objections to
admissibility during trial. xxx As regards weight of evidence, “the admissibility of the deposition
does not preclude the determination of its probative value at the appropriate time.” In
resorting to depositions, respondent takes the risk of not being able to fully prove his case.
(Santamaria v. Cleary, G.R. Nos. 197122 &197161, [June 15, 2016])

READING THE QUESTION

 Straightforward.
 Some of the facts are mere distractions.
 The inclusion of the opposing parties’ arguments requires attention in the answer.

SUGGESTED ANSWER

Yes, the Court should grant Roseanne’s Motion for Court Authorization to Take Deposition.

Jurisprudence explained that taking of depositions under Rule 23, Section 4(c)(2) of the Rules of
Court is allowed as a departure from open-court testimony, in keeping with the principle of
promoting the just, speedy and inexpensive disposition of every action.

That being said, Roseanne may be deposed as a plaintiff because the taking of deposition serves
the double function of a method of discovery and a method of presenting testimony. It is
immaterial that neither the judge nor the parties will be able to personally examine and
observe her conduct. To deny Roseanne’s motion based on such a reason will render nugatory
the provisions in the Rules of Court that allow the taking of depositions.

HOW THIS ANSWER CAME ABOUT

 Directly answered with a “yes” and affirmed it with the action to be taken (that the
motion be granted).
 Parallelism observed: it is not just a bar tip but a grammatical rule to maintain
similarities in sentence structure.
o ✓ Yes, the Court should grant
o 𝘟 Yes, the Court should not deny
 I did not mention anymore that the Rules of Court allows the taking of depositions of
persons outside the Philippines, because that is an undisputed fact and is not the bone
of contention here.
 Cited the basis (jurisprudence) and incorporated the provision of law in the same
sentence.
 The answer here heavily lifts the “quotable quotes” of jurisprudence.
o “allowed as a departure from open-court testimony, in keeping with the
principle of promoting the just, speedy and inexpensive disposition of every
action”
o “serves the double function of a method of discovery and a method of
presenting testimony”
 The third paragraph not only applies the law to the facts but also rebuts the opposing
parties’ arguments.