University of San Carlos

School of Law and Governance

College of Law

CONSTITUTIONAL LAW 1
Academic Year 2018-2019

MEMORIAL FOR RESPONDENT

Submitted by:

ACEDILLO, VENUS
AGRAMON, SHIENNA
AGUJAR, ZOFIA
AMORIN, IVY
BETOY, ASHLEY
CAMBALON, GENEL JADE
DAWSON, MORGAN KENT
DE VEYRA, MARK
LOQUES, KEENA
MAÑUS, MARIA VICTORIA
MOJICA, MURIEL ALLYSON
NG, IVY JOYCE
OLARTE, SHAIRA VEA EMMANUELLE
ORIG, MARIA ELYDA
PANGILINAN, JUDE KENNETH
POLDO, MARIA FARRAH JUSTINE
QUIBRANZA, JOSE ALFONSO
ROSAS, NILO
SAW, VERINA
TARCE, JEROME
TRAPILA, JAMES YANCY

Submitted to:

ATTY. VINCENT JOSEPH E. CESISTA

November 9, 2018
 TABLE OF CONTENTS

A. Statement of Facts 1

B. Statement of Issues 3

Constitutionality of the Legal Education Board 4

Constitutionality of PHILSAT 7

Doctrine of Non-Suability 10

Socio-economic Rights 13

Appropriation of National Funds 17

PRAYER 20
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A. Statement of Facts

On December 29, 2016, Legal Education Board (LEB) issued

Memorandum No. 07 which requires all aspiring law students to take
the nationwide Philippine Law School Admission Test (“PhiLSAT”)
before being allowed to enroll in any law school in the country starting
in the academic year 2017-2018.

On March 22, 2017, petitioner, John Sarau from Mindanao, who

graduated Summa Cum Laude with a degree in B.S. Applied
Mathematics from the University of Promise Land (UPL), wanted to
pursue a field in Actuarial Science, planned to take up law in the
University of San Carlos (USC) in Cebu City.

John approached the college secretary of UPL and asked for his
Transcript of Records (TOR) and other requirements to enroll in USC
Law. Thinking that he has to take the PhiLSAT, John called up USC
Law and asked if it is possible to waive the PhiLSAT requirements as
he is an honor graduate, and according to LEB Memo No. 07 “Honor
graduates granted professional civil service eligibility, who are enrolling
within two years from their college graduation, are exempted from
taking the test.” He was advised by the Assistant Dean of USC Law
that he has to take a certificate of exemption to be issued by the LEB
instead. The Dean of the USC Law informed John that he may be
admitted conditionally provided that he will get the exemption within
the first year of his admission in USC Law and at the same time offered
him a scholarship to support his studies.

Because of John’s articulateness and charisma, he became a

member of an exclusive, radical and aggressive intellectuals called the
“Toomers” during his first semester in law school. The Toomers are
strongly against the imposition of PhiLSAT and characterized the same
as “a breach of judicial independence much like the Greek Horse’s
breach of Troy” which appeared in an article written by the Toomers’
Chair which goes by the alias “DBL.”

Unknown to most, DBL was a prince who was second in line to

the throne of Tau’t Bato, a group of indigenous but honorable people
who lived in the deepest recesses of Mindanao. His father, the prince
of their tribe, oversaw the trade transactions involving their village and
saw to it that their tribe flourished.

Under the reign of DBL’s father, the tribe members led a

prosperous and happy life. Children like DBL had no worries in the
world as they would play in the rainforest and catch fish by the
waterfalls in their village. The tribe people would plant rice and root

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crops which they would sell to merchants visiting their village. For DBL
and his fellow tribesmen, life was good.

However, everything changed in 2005 when a company called

“Larmulo Consortium” started its mining and illegal logging activities in
the pristine Tau’t Bato village. Larmulo Consortium was headed by
JMA Pan Di, a Chinese immigrant turned warlord who ordered his men
to harass the villagers. In fact, in one encounter, the private militia of
the company fired at the villagers, which resulted to the deaths of
multiple lumads – including DBL’s father. Because of this encounter,
which people dubbed as the “Lumad Exodus”, hundreds of lumads
from the Tau’t Bato tribe migrated to other municipalities and cities.
This resulted to the members of the tribe becoming beggars and street
people – a far cry from the prosperous fishermen and farmers that they
were before.

Bearing his father’s death in mind and the sad fate of his tribe,
DBL pursued his studies and took up law in the University of San
Carlos in Cebu City, with the goal of restoring the honor of the Tau’t
Bato.

It is in light of all the facts stated above that, John Sarau and
DBL, together with Toomers and the members of the Tau’t Bato Tribe
decided that they will file two petitions before the Supreme Court:

(1) a petition to declare the LEB Law as well as its memos

unconstitutional, specifically PHILSAT

(2) to compel the national government, and the different LGU’s

where members of Tau’t Bato migrated, to provide Tau’t Bato the
socio-economic rights of Filipino citizens in the Constitution and
relevant international instruments until such time that the Tau’t
Bato are able to be independent. Among the socio-economic
demands of the petitioners are as follows:

a. decent housing
b. free primary, secondary and tertiary education for all
members of Tau’t Bato
c. decent work for adult members of Tau’t Bato
d. food and water
e. regular medical and dental checkup for them

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B. Statement of Issues
I.

WHETHER OR NOT THE ENACTMENT OF REPUBLIC ACT (RA)

7662, THE LEGAL EDUCATION REFORM ACT, IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF
PARAGRAPH 5, SECTION 5 OF ART VIII OF THE 1987
CONSTITUTION

II.

WHETHER OR NOT THE PROMULGATION OF PHILSAT IS

UNCONSTITUTIONAL AND IS A VIOLATION OF A PERSON’S
RIGHT TO SELECT A PROFESSION

III.

WHETHER OR NOT THE STATE CAN BE SUED WITHOUT ITS

CONSENT

IV.

WHETHER THE STATE CAN BE COMPELLED TO PROVIDE THE

TAU’T BATO THE SOCIO-ECONOMIC RIGHTS OF FILIPINO
CITIZENS IN THE CONSTITUTION AND RELEVANT
INTERNATIONAL INSTRUMENTS

V.

WHETHER OR NOT THE COURTS CAN COMPEL THE NATIONAL

GOVERNMENT AND THE DIFFERENT LOCAL GOVERNMENT
UNIT (LGUS) TO APPORTION NATIONAL FUNDS TO BE USED
FOR THE FOLLOWING:

A. DECENT HOUSING FOR THE MEMBERS OF TAU'T BATO

TRIBE
B. FREE PRIMARY, SECONDARY AND TERTIARY EDUCATION
FOR ALL THE MEMBERS OF TAU’T BATO
C. DECENT WORK FOR ADULT MEMBERS OF TAO’T BATO
D. FOOD AND WATER FOR THE TRIBESMEN, AND
E. REGULAR MEDICAL AND DENTAL CHECK-UP FOR THE
VILLAGERS.

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C. Arguments and Discussion

Petition filed by petitioner is without merit and has no basis in the

Constitution.

Constitutionality of the Legal Education Board

On December 23, 1993, Congress passed Republic Act No.

7662, The Legal Education Reform Act of 1993, which provided for the
creation of a Board of Legal Education to supervise law schools and
administer the legal education system in the country. It is presumed
that Legal Education Board is an independent institution but not
separate from Supreme Court.

In a study published in 1989 on the state of legal education in the

country1, some of the problems and constraints of law schools were
identified. The problem on the lack of funding and adequate facilities,
for example, “is a matter directed to the government agency in charge
of licensing or accreditation of law schools. A school without adequate
funding and facilities should not be allowed to operate in the first
place.”2

In this light, we stand for the constitutionality of the Republic Act

No. 7662, the Legal Education Board Reform Act.

The Constitutionality of the Legal Education Board which came

to life upon the enactment of R.A 7662, is mainly questioned as to its
alleged contradiction to Article VIII Sec 5 (5) of the 1987 Constitution:

SEC. 5 (5) Promulgate rules concerning the protection and

enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such
rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved
by the Supreme Court.

The LEB does not violate Article VIII Sec 5(5) of the 1987
Constitution. Under statutory construction, all laws are presumed
1
State of Legal Education in the Philippines, Bureau of Higher Education, 1989, p. 87-88
2
Magsalin, Mariano F. Jr, The State of Philippine Legal Education Revisited, Arellano Law and
Policy Review, Vol. 4 No.1, 2003

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constitutional. To justify nullification of the law or its implementation,
there must be a clear and unequivocal, not a doubtful, breach of the
constitution.3

The provision provides that one of the powers of the Judiciary is

to promulgate the rules concerning the admission to the practice of law.
Therefore, it is only right to determine whether the “admission” pertains
to include the requirement to enter into law school, or from the
requirement to enter into legal profession which is the bar examination
onwards.

Expressio unius est exclusio alterius applies in this case, which

means the explicit mention of one thing is the exclusion of another. The
“admission” stated in the Constitution must refer to the admission to
the legal profession not to the requirement to the admission to legal
education. To specify, it must refer from the Bar examination to the
taking of the oath of attorney onwards. Also applying the rule of verba
legis, “where the law speaks in clear and categorical language, there
is no occasion for interpretation; there is only room for application.”4 It
will therefore be an extension to the plain meaning of the law if the
meaning of “admission to the practice of law” will extend to “admission
to the legal education” which is clearly not what is stated.

Assuming arguendo that the law is unclear and is in need of

construction, it must be construed in a way to showcase the spirit and
purpose of the law. The purpose of the provision in the 1987
Constitution for the Judiciary to handle the admission to the practice
law is to make sure that those admitted in the legal profession is
deemed worthy of the title. Unlike the other branches of the
government, the judiciary is the main department that holds the justice
system of the country. It is therefore, only right and just that those who
will enter the profession have mastery in terms of knowledge and skill
of the law. Now, the question arises as to whether or not that purpose
must be applied in the legal education.

The Supreme Court, in the exercise of their judicial power,

enumerate the subjects in the bar examinations and the weight
assigned to each and that “no applicant shall be admitted to the bar
examinations unless he has satisfactorily completed the following
courses in a law school or university duly recognized by the
government: civil law, commercial law, remedial law, public and private
international law, political law, labor and social legislation, medical
jurisprudence, taxation and legal ethics”5. The mentioned subjects are
the requirement to take the bar examination but law schools are not

3
Smart Communications, Inc. v. Municipality of Malvar, Batangas, 727 Phil. 430, 447 (2014)
4
Cebu Portland Cement Co. v. Municipality of Naga, 24 SCRA 708 [1968]
5
Section 5 Par 2, Rule 138 of the Rules of Court

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limited to only those courses. They can further add electives they deem
appropriate. Under the law, it has, in no way mentioned anything
regarding the admission to law school, only the required subjects to
allow participation in the bar examination which is the ultimate
determiner in the admission to the practice of law.

To reiterate, the purpose of R.A 7662 is to assure the eligibility

of individuals who will practice the law. The petitioners cannot assail
that the students of the legal profession are already in the practice of
law.

It is factual that a law student can indeed already practice law in

his third year in law school. Under the Rule 138 of the Rules of Court,
“a law student who has successfully completed his 3rd year of the
regular four-year prescribed law curriculum and is enrolled in a
recognized law school's clinical legal education program approved by
the Supreme Court, may appear without compensation in any civil,
criminal or administrative case before any trial court, tribunal, board or
officer, to represent indigent clients accepted by the legal clinic of the
law school.” However, it must also be noted that the rule on student
practice of law applies only, provided that the student is under the
direct supervision and control of a member of the Integrated Bar of the
Philippines duly accredited by the law school.6 The practice of law by
a non-member of the bar is an exercise of the rule-making authority of
the judiciary provided in Article VIII of the 1987 Constitution. Hence,
the practice of law done by a third year student is not because of his
admission to law school but because the judicial department allowed
him to. In other words, a person can practice law because it is allowed
by the judiciary as provided in Rule 138-A of the Rules of Court, and
not because he was admitted to a law school made possible by the
rules laid down by the Legal Education Board.

Though it is true that he cannot have the opportunity to exercise

the privilege of the practice of law if he does not follow the requirement
provided by the LEB, it does not prove that the rules mandated by LEB
is part of the admission to the practice of law. This is because the LEB’s
purpose is to centralize and standardize the admission to legal
education in the Philippines. The LEB is focused on education of
students rather than the legal profession. The LEB deals with the
betterment of quality of produced graduates, who will be a candidate
for the admission. As far as education is concerned, the legislative has
the authority to issue statutes to establish, maintain and support a
complete, adequate, integrated system of education. Sec 1, Article XIV
of the 1987 Constitution clearly provides, “The State shall protect and

6
Section 2, Rule 138-A of the Rules of Court

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promote the right of all citizens to quality education at all levels and
shall take appropriate steps to make such education accessible to all”.

The mandatory requirement of LEB upon all law school does not
prove its unconstitutionality. Legal Education Board is under the
Judicial Bar Council, in which JBC is under the Supreme Court.
Congress makes the laws; but due to checks and balances; a system
that allows each branch to intrude into the other branches’ spheres,
the president can veto them, and the courts can rule them
unconstitutional. At any event, since the LEB is essentially under the
Supreme Court, all acts and decisions by the board can be subject to
review by the Supreme Court. Since the Supreme Court has been
silent, it can be implied that they find no abuse of power done by the
legislative in promulgating the act and no abuse of power done by the
board in enacting PhilSAT.

II

Constitutionality of PHILSAT

As a prerequisite for law school admission, under the LEB

MEMORANDUM ORDER NO. 07-16, aspiring law students must be
able to get a passing score of fifty-five percent (55%) correct answer
in the Philippine Law Admission Test (PHILSAT). The PHILSAT is
created for purposes of achieving the objectives of R.A 7662 which is
to improve the quality of legal education of filter those aspiring to be
included as a member of the Bar.

Having a mandatory Standardized National Law Aptitude Test is

within the powers of the LEB in the exercise of its functions to prescribe
the minimum standards for law admission under Section 7(e) of
Republic Act No. 7662, entitled the “Legal Education Reform Act of
1993.” Mandating a national law aptitude test will solve two most
important problem, in Philippine legal education: (a) low passing rate
in the Bar Examinations; and (b) undue proliferation of law schools.
Thus, this mechanism would ensure the competence of students in the
practice of law.

In a research conducted by the United States News7, a school

that accepts only students with high LSAT and UGPA scores is one
that truly promotes legal scholarship and puts a high regard on the
admissions process. That has been fortified by a national research8
which provides that entry to law school should be limited to students
with potential and drive. A restrictive entrance examination assures

7
Law School Diversity Index, US News (as cited in Magsalin Jr., 2003)
8
Magsalin, M. F., Jr. The State of Philippine Legal Education Revisited.Arellano Law and Policy
Review,4(1). 2003.

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that every law student has an adequate command of English,
satisfactory comprehension and retention skills and motivation in
preparation for the legal world.

Consequently, it will prevent the blatant proliferation of law

schools as prospective law students who are only interested in having
a law degree for professional development will be diminished. This
measure may also save law schools from dismal Bar performance
records by forcing them to exclude those who, for lack of capacity and
preparation, should rightfully be denied admission.

Entrance examination in all universities and colleges have been

around for centuries. Harvard started it in the early 1600s. Colleges
want to see if a student has challenged himself and built a strong
academic foundation. There have been researches that prove the
predictive power of admission test. The most prominent studies are
conducted by Law School Admission Council (LSAC) which reported
that “LSAT scores help to predict which students will do well in law
school.” Similar studies found that LSAT better predicted first year law
grades.

In implementing the PhiLSAT, all schools would have a unified

examination that would gauge the ability of an aspiring law student if
he is capable of surviving the rigors of law school.

Even before the advent of PHILSAT, several if not all schools

required aspiring lawyers/law students to take admission exams, which
no one complained. PHILSAT is a mere synchronization of those
exams, basically aimed at promoting the standard of education, legal
education to be exact. As such, the state has vested interest over the
matter and thus promulgated the enactment of mandatory taking of
PHILSAT in compliance with the objectives laid out in RA 7662. This is
similar to the National Medical Admission Test.

In the case of Tablarin v. Gutierrez9, the Supreme Court upheld

the constitutionality of the National Medical Admission Test (NMAT) as
a requirement for admission to medical school. It was held that the
NMAT does not violate the right of the citizens to quality education at
all levels; in fact, it ensures quality education for future doctors, and
protects public health by making sure of the competence of future
medical practitioners. It applies in the same way to legal education.

In Professional Regulation Commission (PRC) vs. De Guzman10,

the Supreme Court stated that, “it is true that the Court has upheld the
constitutional right of every citizen to select a profession or course of
9
Tablarin v. Gutierrez, 154 SCRA 730
10
Professional Regulation Commission (PRC) vs. De Guzman, G.R. No. 144681. June 21, 2004

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study subject to fair, reasonable and equitable admission and
academic requirements. But like all rights and freedoms guaranteed by
the Charter, their exercise may be so regulated pursuant to the police
power of the State to safeguard health, morals, peace, education,
order, safety and general welfare of the people. Thus, persons who
desire to engage in the learned professions requiring scientific or
technical knowledge may be required to take an examination as a
prerequisite to engaging in their chosen careers.”

Although we believe that we cannot predetermine a person’s

success or failure solely based on admission examinations, PhilSAT is
just a mechanism to test the propensity of a person to succeed in law
school. PhiLSAT only tests the student’s communication and language
proficiency, critical thinking skills, verbal reasoning and quantitative
reasoning and not about one’s knowledge of the law.

Final word on the constitutionality of PHILSAT, is that the

practice of law is not a matter of right but it is a privilege. Everyone is
entitled to aspire to become a lawyer but there is no constitutional right
for anyone to be a lawyer. It is accorded only to the few who were
“chosen” and proved themselves worthy. PHILSAT will be the
mechanism to primarily sort out those fit for the challenge of law school
against those who are found lacking or wanting.

In the words of Mr. Justice Cruz, “we cannot have a society of

square pegs in round holes, of dentists who should never have left the
farm and engineers who should have studied banking and teachers
who could be better as merchants. It is time indeed that the State took
decisive steps to regulate and enrich our system of education by
directing the student to the course for which he is best suited as
determined by initial tests and evaluations. Otherwise, we may be
"swamped with mediocrity," in the words of Justice Holmes, not
because we are lacking in intelligence but because we are a nation of
misfits.”11

11
Department of Education, Culture and Sports v. Roberto Rey San Diego. G.R. No. 89572
December 21, 1989

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III

Doctrine of Non-Suability
The petitioners cannot sue the national government and the
concerned local government units without their consent. Sec. 3 Art. XVI
of the 1987 Philippine Constitution states the doctrine of non-suability
of the state.12 In the words of Justice Holmes, “any formal conception
or obsolete theory but on the logical and practical ground that there
can be no legal right against the authority which makes the law on
which the right depends.”13

In the case at hand, the State has not shown any implied or
express consent14 that they can be sued by the Tau’t Bato Tribe. Nor
has the State divest itself of its sovereign immunity and thereby
voluntarily opened itself to suit.15 It cannot even be said that the State
abused any discretion because there is no instrumentality of the
government that acted such abuse.16

Granting arguendo, that the State can be sued, the question

would be is if the state can be held liable. There has to be a distinction
between suability and liability.17 In suability, the result is the express or
implied consent of the State to be sued. In liability, it is determined after
hearing on the basis of the relevant laws and the established facts.
When, therefore, the State allows itself to be sued, all it does in effect
is to give the other party an opportunity to prove, if it can, that the State
is liable.

In the facts of the case, it was not the state who caused any
illegal logging or mining since such acts were done by the Chinese
warlord. The Chinese warlord is not a government official who acted
in abuse of his position which means that the Tau’t Bato Tribe cannot
sue the state for the acts of the Chinese warlord. The State did not also
enter into a contract with the Tau’t Bato Tribe nor did the State unjustly
take any property from the Tau’t Bato Tribe that would render a suit for
just compensation. Because the Tau’t Bato Tribe has no leg to stand
on for suing the state, such suit should be dismissed.

12
Section 3 Article XVI of the 1987 Philippine Constitution
13
Kawanakoa v. Polybank, 205 U.S. 349
14
Cruz, Isagani and Carlo. Philippine Political Law,Central Book Supply, Inc., 2014, p. 59
15
Cruz, Isagani and Carlo. Philippine Political Law,Central Book Supply, Inc., 2014, p. 59
16
Republic v. Sandiganbayan 182 SCRA 911
17
Cruz, Isagani and Carlo. Philippine Political Law,Central Book Supply, Inc., 2014, p. 77

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Doctrine of exhaustion of administrative remedies

The petitioners, in asking the Supreme Court to compel the

national and the different local government units where members of
the Tau’t Bato migrated to provide their socio-economic rights by
demanding a decent housing, free education, decent work, food and
water and regular medical and dental check-up, failed to recognize first
the primary government agency which is the National Commission on
Indigenous Peoples (NCIP), that is tasked by the government to
promote and protect their rights, before going directly to the highest
Court.

The NCIP is the primary government agency that shall take

cognizance of the concerns and claims of the Indigenous Peoples in
the Philippines. It is responsible for protecting their rights.18 Under
Section 44(c) (Powers and Functions) of the IPRA Law, the NCIP shall
have powers, jurisdiction and function to formulate and implement
policies, plans, programs and projects for the economic, social and
cultural development of the Indigenous People and to submit to
Congress appropriate legislative proposals intended to carry out the
policies under the said law.19 Furthermore, under the same law, there
is a Legal Affairs Office which shall advice the NCIP on all legal matters
concerning Indigenous People and which shall be responsible for
providing Indigenous People with legal assistance in litigation involving
community interest. It shall conduct preliminary investigation on the
basis of complaints filed by the Indigenous People against a natural or
juridical person believed to have violated the Indigenous Peoples’
rights. On the basis of its findings, it shall initiate the filing of appropriate
legal or administrative action to the NCIP.20 Thus, it is very important
that the petitioners in this case should undergo first the remedies
available through the NCIP.

Under the doctrine of exhaustion of administrative remedies, it is

proper and necessary for the petitioners to exhaust first all the
administrative remedies available before resorting their case to the
court of last resort. The courts of justice must allow administrative
agencies which is in this case the NCIP to carry out their functions and
discharge their responsibilities within the specialized areas of their
respective competence.21 The Supreme Court aptly explains the

18
History on the National Commission on Indigenous Peoples of the Philippines
19
Republic Act No. 8371 (IPRA Law), Section 44 par. (k)
20
Republic Act No. 8371 (IPRA Law), Section 46 par. (g)
21
Republic v. Lacap, G.R. No. 158253, March 2, 2007

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doctrine in the case of University of the Philippines v. Catungal, Jr., to
wit:

“The underlying principle of the rule on exhaustion of

administrative remedies rests on the presumption that the
administrative agency, if afforded a complete chance to pass upon the
matter, will decide the same correctly. There are both legal and
practical reasons for the principle. The administrative process is
intended to provide less expensive and more speedy solutions to
disputes. Where the enabling statute indicates a procedure for
administrative review and provides a system of administrative appeal
or reconsideration, the courts – for reasons of law, comity, and
convenience – will not entertain a case unless the available
administrative remedies have been resorted to and the appropriate
authorities have been given an opportunity to act and correct the errors
committed in the administrative forum.”22

In the case of National Electrification Administration v.

Villanueva, the Supreme Court held that it is settled that the non-
observance of the doctrine of exhaustion of administrative remedies
results in lack of cause of action, which is one of the grounds in the
Rules of Court justifying the dismissal of the complaint.

Under the doctrine, however, there are many exceptions which

the court has lay down in Republic v. Lacap to wit: (a) where there is
estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (c) where there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant; (d) where the amount
involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial
intervention is urgent; (g) when its application may cause great and
irreparable damage; (h) where the controverted acts violate due
process; (i) when the issue of non-exhaustion of administrative
remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is
involved; and, (l) in quo warranto proceedings. However, the case at
bar or the claims raised by the petitioners to the Supreme Court does
not fall to any of the exceptions to the doctrine of administrative
remedies mentioned above.

The decision and the determination of the NCIP in taking

cognizance to the case raised by the petitioners is a condition
precedent before resorting the case to the Supreme Court. To say that
judicial intervention is urgent would be an underestimation to the NCIP.
22
University of the Philippines v. Catungal, Jr., et al., G.R. No. 121863, May 5, 1997

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Nor is there no other plain, speedy and adequate remedy as the NCIP
has the wide discretion and jurisdiction to give the petitioners a speedy
and adequate remedy.

IV.

Socio-economic Rights

The State recognizes that the Tau't Bato has the socio-economic
rights of Filipino citizens as granted in the Constitution and other
relevant international instruments.

Socio-economic rights vary from country to country, although

some employ the same meaning. According to a study conducted in
South Africa23, socio-economic rights are those rights required by all
people, especially the disadvantaged. Under international instruments,
the government is tasked with the duty of providing for its people’s
basic rights in order for the latter to live dignified lives .

Another definition of socio-economic rights is that they serve as

a guarantee that each person will be afforded with conditions that they
are able to meet their needs in the economic and social aspects.
These rights are also based on the primary principles of dignity and
freedom in accordance with internationally-recognized human rights.
Both are severely compromised when human beings cannot meet their
fundamental needs.

In the Philippines, socio-economic rights are classified as

second-generation rights -- meaning, rights that relate to human rights
and are based on the doctrines of social justice and public obligation
since they originate from positive and international laws such as the
International Covenant on Economic, Social and Cultural24. These
rights are viewed to be positive rights. They commonly include
adequate housing, food, health care, education, social security and
water.25

Unlike political and civil rights which are considered as first-

generation rights, socio-economic rights require significant effort from
the State to provide for everyone’s prosperity. They necessitate
institutional support from the State, unlike first-generation rights which
are demandable from the outset and so, may be sought by citizens at
the first instance for their protection. Socio-economic rights are also
not to be exercised independently and singularly. Rather, the state

23
Khoza, S. (2007). Socio-Economic Rights in South Africa: A resource book
24
Tan. (2012, November 14). CIVIL AND POLITICAL RIGHTS AS APPLIED IN THE PHILIPPINES
25
Khoza, S. (2007). Socio-Economic Rights in South Africa: A resource book

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must intervene by passing legislations that create an institutional
system allowing for the exercise of these rights.26

The traditional concept in the Philippines is that socio-economic

rights are not legally demandable nor enforceable, unlike political and
civil rights27. This is a doctrine that has been adhered to not just in the
Philippines but in most democratic countries.28

However, the Constitution, as well as modern trend in

jurisprudence, guide us to consider a more liberal view of this principle.
Specifically, Sec. 1, Art. 8 of the 1987 Constitution expressly states:

“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 Government29.”

A closer look at the aforementioned section further indicates that

the 1987 Constitution has vested our courts with a uniquely expanded
power of judicial review beyond this traditional threshold of justiciability.
According to Supreme Court ex-Chief Justice Reynato Puno, this rule-
making power was purposely widened in light of the underlying
importance of protecting the rights of the people as guaranteed in the
Constitution30.

Evidently, our Philippine courts now have the revolutionized

scope of constitutional authority to determine its own standards and
limitations of justiciability with respect to rights that have been
embedded under the 1987 Constitution, such as socio-economic
rights. This constitutional mandate has been affirmed in many cases
wherein the Court itself has relaxed justiciability constraints when
public interest so requires, such as in Social Justice Society vs.
Dangerous Drugs Board and Philippine Drug Enforcement Agency31
wherein the Court relaxed the rules in favor of transcendental
26
CORNESCU, A. V. (n.d.). THE GENERATIONS OF HUMAN’S RIGHTS
27
Olea, R. V. (2013, July 8). ‘Socioeconomic rights must be demanded from the state’---ex-Chief
Justice Puno. Bulatlat. Retrieved from http://bulatlat.com/main/2013/07/08/socioeconomic-rights-
must-be-demanded-from-the-state-ex-chief-justice-puno.
28
Salaverria, L. V. (2013, July 7). Pinoys must demand rights to health, housing, education, says
ex-CJ Puno. Philippine Daily Inquirer, p. A2. Retrieved from
https://www.pressreader.com/philippines/philippine-daily-inquirer/20130707.
29
CONST. (1987), ART. VIII, § 1 (Phil.)
30
. Desierto, D. A. (2010). A Universalist history of the 1987 Philippine Constitution. Historia
Constitucional, n. 11, 427-484.
31
Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency, G.R. No. 157870, November 3, 2008, 570 SCRA 410, 421

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importance, overreaching cruciality to society, or paramount public
interest.

Moreover, the historical drafts of the 1987 Constitution illustrate

no intent to reduce the constitutional significance of socio-economic
rights32. In fact, Sec. 1, Art. 13 thereof provides that:

“The Congress shall give highest priority to enactment of

measures that protect and enhance the right of all people to human
dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for
the common good.33”

Section 2 of the 1987 Constitution declares that: “The promotion

of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance34.” As
such, the enlargement of the Court’s judicial power deliberates on any
governmental divestment of a person’s constitutionally-guaranteed
rights to life, liberty, and due process35.

In light of the Philippines being a signatory as well to numerous

international treaties that embody social and economic rights, these
international instruments can be invoked in our local courts by virtue of
the doctrine of incorporation.

In this context, the State recognizes that the Tau’t Bato tribe has
socio-economic rights under the Constitution and relevant international
treaties. Albeit expressly described to be non-self-executory in the
case of Manila Prince Hotel vs GSIS, these socio-economic rights
under the Constitution can serve as standards that may be used for
the State to take measures to protect these very important rights.

However, the specific socio-economic demands that the

petitioners are seeking (i. e., decent housing, free primary, secondary
and tertiary education, decent work, food and water, and regular
medical and dental check-up) are rights that are not directly deprived
from them by the State. These specific demands can be addressed,
but only if they asked for their remedies from concerned government
agencies. Adhering to the notion that the Philippines observes laissez-
faire in its societal dealings, we posit that the question involved herein

32
Desierto, D. A. (2009). Justiciability of Socio-Economic Rights: Comparative Powers, Roles and
Practices in the Philippines and South Africa. Asian-Pacific Law and Policy Journal, Forthcoming,
11 (1), 114-160.
33
CONST. (1987), ART. XIII, § 1 (Phil.)
34
CONST. (1987), ART. XIII, § 2 (Phil.)
35
Jurry Andal et al. v. People of the Philippines, et al., G.R. Nos. 138268-69, May 26, 1999 (en
banc).

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should have been whether or not they have been deprived of such vital
needs.

The Local Government Units (LGUs) where the diasporic Tau’t

Bato fled can neither be compelled nor impleaded in order to give the
tribesmen the remedies that they are specifically seeking. The LGUs
in this case were merely recipients of the Tau’t Bato migrants who, due
to the crisis that occurred in their village, were forced to look for another
place to reside in.

Although it is clear in Section 16 of the Local Government Code

(also known as the “General Welfare” provision) that each LGU is
responsible for the general welfare of its inhabitants, the LGUs are
required to coordinate with the national government in cases of
extraordinary and unexpected predicaments, such as in the case at bar
whereby additional allocation funds are required. Particularly, the
LGUs, in providing permanent employment to the Tau’t Bato people,
will have to invite investors to establish businesses within its territory.
Such processes, despite the desire of the LGUs to be provided
immediately to correspond to the immediate need, requires
coordination with the national government. Hence, it would be an
injustice to the part of the LGUs if they were to be forced to provide
something beyond the capacity of their economic and political
resources.

About 15% of the Philippine population (or 10 million people) are

recognized members of different indigenous communities nationwide.
The enactment of the Indigenous People Rights Act (IPRA) in 1997
leads us to conclude that we have went beyond the contract-based
resource management agreements between the state and the
community as the State recognizes the “ownership” of indigenous
communities over their traditional territories and all other natural
resources therein. Furthermore, IPRA provides tenurial security to the
community with the issuance of Certificates of Ancestral Domain/Land
Title (CADT) to concerned indigenous clans as a symbol of their
ownership over these properties.

In the case at bar, the Tau’t Bato community was dispersed long
before they have filed this petition to seek remedies for their present,
unfortunate situation. However, they are claiming not for their rights to
ancestral domain but for their socio-economic rights which have
already been appropriated by the government. It is significant to note
in this instance that the Tau’t Bato people were not deprived of their
constitutional rights with any positive act or act of omission of the
government.

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In conclusion, having to enforce these ideals is more difficult than
most would expect. Yet, this case at bar can help the government to
strengthen the police power of LGUs with recognized indigenous
communities in order to prevent the recurrence of events like the case
at hand. In any case, the government cannot be compelled to provide
for such funds.

V.

Appropriation of National Funds

Assuming that the government will apportion the national funds

for the Tau’t Bato tribe by meeting their demands, it will place the
government in an unfavorable position as it will prioritize the
indigenous tribe of its requested benefits and would impliedly give less
importance to the needs of the other indigenous groups in the
Philippines. The equal protection clause simply requires that all
persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed.

The early case of Victoriano v. Elizalde Rope Workers’ Union36

takes the explanation further as it says that the equal protection of the
laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with
one another in certain particulars. All that is required of a valid
classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make
for real differences; that it must be germane to the purpose of the law;
that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. In the case at bar, the
classification of equal protection clause is for the different indigenous
groups of the Philippines.

Furthermore, in Section 2(e) of Republic Act No. 8371 states:

“The State shall take measures, with the participation of the ICCs/IPs
concerned, to protect their rights and guarantee respect for their
cultural integrity, and to ensure that members of the ICCs/IPs benefit
on an equal footing from the rights and opportunities which national
laws and regulations grant to other members of the population.” 37,
which means the government has a role to involve itself between the
concerned parties.

36
Benjamin Victorino v. Elizalde Rope Workers’ Union and Elizalde Rope Factory, Inc., G.R. No.
L-25246, September 12, 1974
37
Republic Act No. 8371. “An Act To Recognize, Protect And Promote The Rights Of Indigenous
Cultural Communities/Indigenous People, Creating A National Commission Of Indigenous People,
Establishing Implementing Mechanisms, Appropriating Funds Therefor, And For Other Purposes”

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According to the 2018 budget, the proposed budget of National
Commission on Indigenous People (NCIP), formed for the protection
and promotion of the interest and well-being of the ICCs/IPs with due
regard to their beliefs, customs and institutions38, worth P1.1 billion
was approved by the Senate Finance Committee. It would be
erroneous to say that there are no funds for the Indigenous cultural
communities/Indigenous People because according to Section 2 on
the right to develop lands and natural resources of the Indigenous
People’s Right, “the NCIP shall ensure that at least 30% of all funds
received from such activities will be allocated to the ICC/IP community
for development projects or provision of social services”. Also from the
same law, Section 7(c) on the right to manage protected and
environmentally critical areas, states that “funds previously allocated
by government for the management of the area shall be turned over,
through the NCIP, to the community to be used for the same
purpose.”39 Another right of the ICC/IP is to have access to all
government funds earmarked for environmental protection in relation
to their domains. For this purpose, the NCIP shall negotiate and enter
into agreements with concerned agencies for the effective transfer of
funds appropriated for such purposes to the concerned indigenous
peoples’ communities through the NCIP.

With the foregoing, it shows that the Commission has been

allocated with funds and that it holds the authority to disburse such
funds for the ICC/IP. There is no need to compel the government and
the different Local Government Unit (LGUs) to apportion national funds
to be used for the socio-economic rights of the Tau't Bato tribe because
there are already funds allocated for such matter and that the Tau’t
Bato tribe should seek the proper remedy from the proper government
agency constituted for Indigenous people which is the NCIP.

Currently, there are programs recognizing the ICC/IP and

creating more opportunities for them to develop. According to the
profile of The Indigenous Peoples Leadership & Enterprise
Development (IP LED) Academy, it is “a leadership and capacity
building program which hopes to respond to the growing need of
creating sustainable development and mechanism for Indigenous
Peoples communities in the Philippines. IP LED hopes to create
various pathways of learning that build and strengthen indigenous
people leadership potentials and capacities. It employs a dynamic
learning process through meaningful skills development, articulation of
values and vision, identification of current issues, challenges, and
opportunities to create positive change and meaningful development

38
National Commission on Indigenous People, History, viewed 5 Nov 2018,
<http://www.ncip.gov.ph>
39
The Indigenous Peoples’ Rights Act Of 1997, Sec.7(c). Available at:
https://www.officialgazette.gov.ph/1997/10/29/republic-act-no-8371/ (Accessed: 5 Nov 2018)

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in IP communities.”40 These are just some of the numerous
organizations and institutions providing for education and social
development to strengthen Indigenous People’s capacity.

Over the years, the Congress enacted various laws with respect
to the rights of the Indigenous Cultural Communities/Indigenous
People in our country. One of these rights is that the State shall protect
the ancestral domains of the Indigenous Cultural
Communities/Indigenous People to safeguard their economic, social
and cultural well-being. Hence, Section 7 of Republic Act No. 837141
indicates that in cases where projects by the government or mining
companies would impair and interfere the land and rights of the
members, just and fair compensation should be accorded.

Republic Act No. 7942: “An Act Instituting A New System Of

Mineral Resources Exploration, Development, Utilization, And
Conservation”42 states that royalty payment shall be included in the
funds appropriated for the socioeconomic well-being of the indigenous
cultural community. In like manner, Section 91 of Presidential Decree
No. 463: “Proving For A Modernized System Of Administration And
Disposition Of Mineral Lands And To Promote And Encourage The
Development And Exploitation Thereof”43 set forth that the operator
and lessee in any mine or leased mineral lands must carry out all the
essential measures to provide for its development. In the event that the
mine is no longer profitable or is already exhausted, those who work
for the mine as well as the inhabitants will be given alternatives to be
able to provide for their means of livelihood.

In the case at bar, the state should not be compelled to provide

the necessary funds for the Tau’t Bato tribe as it would violate the very
essence of the equal protection clause. Furthermore, it is evident that
the Indigenous Cultural Communities/Indigenous People have funds
apportioned not only by our national government but also those
corporations who support and recognize them as an integral part of our
nation.

40
The Indigenous Peoples Leadership & Enterprise Development Academy, Who we are, viewed
5 Nov 2018 <http://ip-led.ph/who-we-are>
41
Republic Act No. 8371. “An Act To Recognize, Protect And Promote The Rights Of Indigenous
Cultural Communities/Indigenous People, Creating A National Commission Of Indigenous People,
Establishing Implementing Mechanisms, Appropriating Funds Therefor, And For Other Purposes”
42
Republic Act No. 7942: “An Act Instituting A New System Of Mineral Resources Exploration,
Development, Utilization, And Conservation
43
Presidential Decree No. 463: “Proving For A Modernized System Of Administration And
Disposition Of Mineral Lands And To Promote And Encourage The Development And Exploitation
Thereof”

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PRAYER

WHEREFORE, in the light of the facts of the case and premises

considered, it is respectfully prayed that this court dismisses this action
and render judgment in favor of the respondents and against the
petitioner by:

1. Declaring that the LEB Law as well as its memos are NOT
UNCONSTITUTIONAL.

2. Declaring that the national government, and the different LGUs

where members of the Tau’t Bato migrated to, ARE NOT
COMPELLED to provide Tau’t Bato the socio-economic rights
of Filipino citizens in the Constitution and relevant
international instruments.

Other just and equitable remedies under the circumstances are

likewise prayed for.

Cebu City, November 9, 2018.

Office of the Solicitor General

Respondent

Copy furnished:

Toomers and the Members of the Tau’t Bato Tribe

Petitioner

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