In defense of ‘public interest litigation’

Oscar Franklin Tan frequently likes to skewer — unsuccessfully — in his columns the fact that I challenged alone, without a partner, the unconstitutionality of the Family Code’s exclusion of same-sex couples from the definition of marriage. He tries to poke fun at the supposed basic violation of legal procedure in challenging a law. He is entitled to his armchair criticism but the critic must also be critiqued lest the criticism misleads the public.

We must ask the hard questions. Has he attended the latest MCLEs (mandatory continuing legal education) on political law discussing the trends about legal procedure in constitutional law? Does he know about the newest doctrines on the expanded power of judicial review? Has he read the latest jurisprudence where petitioners successfully challenged laws such as the Reproductive Health Law and Cybercrime Prevention Act, even if the petitioners were not personally and directly injured?

Most worrisome, has he read the petition in full? The petition has been uploaded by different news sites but it doesn’t seem he has read the procedural parts arguing that the Supreme Court should adopt Justice Arturo Brion’s “fresh approach” in his separate opinion in the case of Araullo v. Aquino.

It’s understandable that he calls “vigilante lawyering” what is legitimately accepted in other liberal countries as public interest litigation. He has never been a pro bono advocate in court for issues involving public interest and has never appeared before the Supreme Court for oral arguments to the best of my knowledge.

The role of advocacy is to push the boundaries of what is possible within a given framework. Advocates do not bend or break the law. Advocates find spaces of inclusion. And under the equal protection clause of the Constitution, there is a space for LGBT couples. Oscar Tan himself argued as much in his past column on Oct. 22, 2014.

Of course I am not the best petitioner. The best petitioners are the gay and lesbian couples. But no one dared to file a case until after I filed mine.

Tan seems to not have read or learned about the latest news. A petition-in-intervention was filed (almost a year after my petition) by gay and lesbian couples—Rev. Crescencio Agbayani and Marlon Felipe, and Maria Arlyn Ibanez and her partner. And they have trusted me to represent them as well. Fortunately, the Supreme Court will hear the case through oral arguments on June 19.

If Tan thinks many lawyers are engaging in “vigilante lawyering,” he should show them what the proper way of lawyering is by appearing in oral arguments before the Supreme Court. Otherwise, his columns will forever remain as extrajudicial opinions.

JESUS NICARDO FALCIS III,
same-sex marriage petitioner,
samesexmarriageph2018@
gmail.com