G.R. No. 230642 - Concurring Opinion

G.R. No. 230642/G.R. No. 242954/A.M. No. 20-03-04-SC, November 9, 2021,
♦ Decision, Zalameda, [J]
♦ Concurring Opinion, Perlas-Bernabe, [J]
♦ Dissenting and Concurring Opinion, Leonen, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Concurring and Dissenting Opinion, Lazaro-Javier, [J]
♦ Separate Concurring Opinion Opinion, Dimaampao, [J]

OSCAR B. PIMENTEL, ERROL B. COMAFAY, JR., RENE B. GOROSPE, EDWIN R. SANDOVAL, VICTORIA B. LOANZON, ELGIN MICHAEL C. PEREZ, ARNOLD E. CACHO, AL CONRAD B. ESPALDO, ED VINCENT S. ALBANO, LEIGHTON R. SIAZON, ARIANNE C. ARTUGUE, CLARABEL ANNE R. LACSINA, KRISTINE JANE R. LIU, ALYANNA MARI C. BUENVIAJE, IANA PATRICIA DULA T. NICOLAS, IREN A. TOLENTINO AND AUREA I. GRUYAL, PETITIONERS, VS. LEGAL EDUCATION BOARD (LEB), REPRESENTED BY ITS CHAIR, HON. EMERSON B. AQUENDE, AND LEB MEMBER, HON. ZENAIDA N. ELEPAÑO, RESPONDENTS;

FRANCIS JOSE LEAN L. ABAYATA, GRETCHEN M. VASQUEZ, SHEENAH S. ILUSTRISMO, RALPH LOUIE SALAÑO, AIREEN MONICA B. GUZMAN, DELFINO ODIAS, DARYL DELA CRUZ, CLAIRE SUICO, AIVIE S. PESCADERO, NIÑA CHRISTINE DELA PAZ, SHEMARK K. QUENIAHAN, AL JAY T. MEJOS, ROCELLYN L. DAÑO,* MICHAEL ADOLFO, RONALD A. ATIG, LYNETTE C. LUMAYAG, MARY CHRIS LAGERA, TIMOTHY B. FRANCISCO, SHIELA MARIE C. DANDAN, MADELINE C. DELA PEÑA, DARLIN R. VILLAMOR, LORENZANA L. LLORICO, AND JAN IVAN M. SANTAMARIA, PETITIONERS, VS. HON. SALVADOR MEDIALDEA, EXECUTIVE SECRETARY AND LEGAL EDUCATION BOARD, HEREIN REPRESENTED BY ITS CHAIRPERSON, EMERSON B. AQUENDE, RESPONDENTS.

RE: REQUEST FOR CLARIFICATION REGARDING THE STATUS AND TREATMENT OF THE PHILIPPINE LAW SCHOOL ADMISSION TEST (PHILSAT) IN THE LIGHT OF THE SUPREME COURT DECISION IN G.R. NO. 230642 (OSCAR B. PIMENTEL, ET AL. VS. LEGAL EDUCATION BOARD) AND GR. NO. 242954 (FRANCIS JOSE LEAN L. ABAYATA, ET AL. VS. HON. SALVADOR MEDIALDEA, EXECUTIVE AND LEGAL EDUCATION BOARD, HEREIN REPRESENTED BY ITS CHAIRPERSON, EMERSON B. AQUENDE)

THE BOARD OF TRUSTEES OF THE PHILIPPINE ASSOCIATION OF LAW SCHOOLS (PALS), REPRESENTED BY ITS CHAIRPERSON, DEAN JOAN S. LARGO, AND ITS PRESIDENT DEAN MARISOL DL. ANENIAS, INTERVENOR.

I concur. However, I write this opinion to particularly highlight the reasons for my concurrence with respect to the striking down of LEB Memorandum Order No. 7, Series of 20161 (LEBMO 7) in its entirety.

At the onset, it should be emphasized that the State has an interest in uplifting the standards of legal education in the country. Thus, it can issue reasonable regulations to attain that objective, including those that would "require [the] proper selection of law students."2 However, in exercising its role as regulator, the State must take caution not to infringe the academic freedom of institutions as guaranteed under the Constitution.3 As explained in my Opinion in this case on the main, when it comes to regulating institutional academic freedom, the State is not allowed to exercise control, but only reasonable supervision:

Section 5 (2), Article XIV of the 1987 Constitution guarantees that "[a]cademic freedom shall be enjoyed in all institutions of higher learning." According to case law, "[t]his institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. The essential freedoms subsumed in the term 'academic freedom' encompasses the freedom to determine for itself on academic grounds: (1) [w]ho may teach, (2) [w]hat may be taught, (3) [h]ow it shall be taught, and (4) [w]ho may be admitted to study." This fourth freedom of law schools to determine "who may be admitted to study" is at the core of the present controversy involving the PhiLSAT.

The PhiLSAT is essentially a standardized aptitude test measuring the examinees' communications and language proficiency, critical thinking skills, and verbal and quantitative reasoning. It is designed to measure the academic potential of the examinee to pursue the study of law. One of the essential provisions of LEBMO No. 7-2016 is paragraph 9, which states that passing the PhiLSAT is required for admission to any law school in the Philippines, and that no applicant shall be admitted for enrollment as a first year student in the basic law courses leading to a degree of either Bachelor of Laws or Juris Doctor unless he/she has passed the PhiLSAT taken within two (2) years before the start of the study. The PhiLSAT has a passing score of 55%. To concretize the mandatory nature of the PhiLSAT, paragraph 15 of LEBMO No. 7-2016 provides that law schools that violate the issuance shall be administratively sanctioned and/or fined in the amount of up to P10,000.00 for each infraction. The administrative sanctions direly encompass: (a) termination of the law program (closing the law school); (b) phasing out of the law program; and (c) provisional cancellation of the Government Recognition and putting the law program of the substandard law school under Permit Status. As the PhiLSAT is a requirement mandatorily imposed by LEBMO No. 7-2016, non-compliance therewith would result into these potential consequences.

Compliance with the PhiLSAT effectively means a surrender of the law schools' academic freedom to determine who to admit to their institutions for study. This is because the PhiLSAT operates as a sifting mechanism that narrows down the pool of potential candidates from which law schools may then select their future students. With the grave administrative sanctions imposed for non-compliance, the surrender of this facet of academic freedom is clearly compulsory, because failing to subscribe to the PhiLSAT requirement is tantamount to the law school risking its complete closure or the phasing out of its law program. This effectively results in the complete control — not mere supervision — of the State over a significant aspect of the institutions' academic freedom.

Notably, the core legal basis for the PhiLSAT is derived from Section 7 (e) of Republic Act No. 7662 which empowers the LEB "to prescribe the minimum standards for law admission x x x." On a broader scale, Section 7 (b) of the same law empowers the LEB "to supervise the law schools in the country x x x." This is a specific iteration of Section 4 (1), Article XIV of the 1987 Constitution which provides that "[t]he State x x x shall exercise reasonable supervision and regulation of all educational institutions." "Reasonable supervision," as the Framers intended, meant only "external" and not "internal" governance; as such, it is meant to exclude the right to manage, dictate, overrule, prohibit, and dominate. x x x4 (Emphases in the original)

As will be expounded on below, LEBMO 7's overall intent is to administer an exclusionary test with severe administrative sanctions on the law schools in case of non-compliance. As such, the regulation is not merely tantamount to State supervision but rather, a form of control that unduly encroaches upon institutional academic freedom; perforce, it is unconstitutional.

At its core, LEBMO 7 provides for the administration of a "nationwide uniform law school admission test" called the Philippine Law Admission Test (PhiLSAT). As stated in its paragraphs 1 and 9, LEBMO 7's core policy is to require all those seeking admission to law schools to take and pass the PhiLSAT.5

In this Court's 2019 Decision on the main,6 it was stated that "paragraphs 7, 9, 11, and 15" of LEBMO 7 "exclude and disqualify those examinees who fail to reach the prescribed passing score from being admitted to any law school in the Philippines." By doing so, "the PhiLSAT usurps the right and duty of the law school to determine for itself the criteria for the admission of students," and hence, violates their institutional academic freedom.7 The Court added that as an aptitude test, the PhiLSAT is "reasonably related to the State's unimpeachable interest in improving the quality of legal education," but it "should not be exclusionary, restrictive, or qualifying as to encroach upon institutional academic freedom."8

This notwithstanding, this Court, in the 2019 Decision, did not expressly strike down the entire LEBMO 7.9 Notably, while the fallo thereof states that the "act and practice of the Legal Education Board of excluding, restricting, and qualifying admissions to law schools in violation of the institutional academic freedom on who to admit" was ultra vires, only paragraph 9 of LEBMO 7 was explicitly declared to be invalid.10 This resulted in an ambiguity to the stakeholders as to whether the Court's ruling rendered the PhiLSAT optional or mandatory.11

LEBMO 7 should, however, be viewed as an integral whole, and its constitutionality should be scrutinized accordingly. The applicable hornbook principle is that "every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment." As explained in the case of Philippine International Trading Corporation v. Commission on Audit:12

Because the law must not be read in truncated parts, its provisions must be read in relation to the whole law. The statute's clauses and phrases must not, consequently, be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts in order to produce a harmonious whole. Consistent with the fundamentals of statutory construction, all the words in the statute must be taken into consideration in order to ascertain its meaning.13

Palpably, when read as a whole, the overall intent behind LEBMO 7 is to administer an exclusionary test (i.e., the PhilSAT) which students must take and pass before they can be admitted to law school. All of its provisions, whether key or ancillary, form an integral composite that lays down a holistic framework that is operatively interdependent and hence, cannot be extricated from one another.

To demonstrate, LEBMO 7's paragraph 1 requires prospective law students to take an admission test as contemplated in the latter provisions; paragraph 7 sets the passing score at 55% "or such percentile score as may be prescribed by the LEB"; paragraph 8 refers to the issuance of a certificate of eligibility only to those who passed the test; paragraph 10 exempts certain graduates from "taking and passing" it; paragraph 11 states that law schools can prescribe additional requirements such as a PhiLSAT score "higher than the cut-off or passing score set by the LEB"; paragraph 12 requires the schools to submit reports indicating the PhiLSAT scores of the admitted students; and paragraph 15 imposes severe administrative sanctions on law schools that violate LEBMO 7.14 As the Court held in its 2019 Decision, "[m]andating law schools to reject applicants who failed to reach the prescribed PhiLSAT passing score or those with expired PhiLSAT eligibility transfers complete control over admission policies from the law schools to the LEB.”15

The fact that only Section 9 was explicitly declared void in the fallo of the Court's 2019 Decision does not save these other provisions from invalidity. Since paragraphs 1, 7, 8, 10, 11, 12, and 15 of LEBMO 7 retain the exclusionary nature of the exam which the Court held as violative of institutional academic freedom, then they, too, must be declared unconstitutional.

However, as the ponencia now holds,16 it is not enough to strike out only the above-mentioned key provisions. As earlier intimated, the remaining provisions are merely ancillary to the key provisions of LEBMO 7; hence, they should not survive on their own.

In particular, paragraph 217 merely states that the test will be conducted in one day and will measure the "academic potential of the examinee" to pursue legal studies based on three skill sets. Paragraph 318 lists the persons qualified to take the test. Paragraph 419 discusses the qualifications of the test administrator who will design the exam, formulate the questions, and correct the answers. Paragraph 520 specifies the schedule and test locations. Paragraph 621 indicates the testing fee. Paragraph 1322 removes the required general average indicated in another LEB issuance. Finally, paragraphs 14, 16, 17, and 1823 contain the transitory, separability, repealing, and effectivity clauses.

Although these ancillary provisions are not per se invalid, they were intended to be read together as one composite unit with the key provisions that should be declared unconstitutional. This version of the PHilSAT, as created in LEBMO 7, should be characterized as a mandatory type of exam, which was intended to carry the features and operative workings of all its provisions. As such, with the key provisions being struck down, the ancillary provisions lose their purposive anchor.

Notably, the fact that LEBMO 7 contains a separability clause does not justify upholding its validity despite the declared unconstitutionality of its core provisions.24 Case law holds that:25

[T]o determine whether or not a particular provision is separable, the courts should consider the intent of the legislature. It is true that most of the time, such intent is expressed in a separability clause stating that the invalidity or unconstitutionality of any provision or section of the law will not affect the validity or constitutionality of the remainder. Nonetheless, the separability clause only creates a presumption that the act is severable. It is merely an aid in statutory construction. It is not an inexorable command. A separability clause does not clothe the valid parts with immunity from the invalidating effect the law gives to the inseparable blending of the bad with the good. The separability clause cannot also be applied if it will produce an absurd result. In sum, if the separation of the statute will defeat the intent of the legislature, separation will not take place despite the inclusion of a separability clause in the law.

In issuing LEBMO 7, the LEB intended to administer an exclusionary admission test and the ancillary provisions were added to carry out such test. Accordingly, it is reasonable to presume that the LEB would not have enacted the ancillary provisions independently as these would present an incomplete picture of the test to be administered, its purpose, and effects. Verily, allowing LEBMO 7 to subsist containing only these ancillary provisions will defeat the LEB's intent to implement its intended PhilSAT version. Hence, despite the presence of a separability clause, the ancillary provisions cannot be considered separable from the key provisions.26

For all these reasons, I therefore concur with the ponencia to declare the entirety of LEBMO 7 as unconstitutional. At the risk of belaboring the point, LEBMO 7, which implements the present version of the PhilS AT, is unconstitutional because – as explained in the 2019 Decision – it leaves law schools with "absolutely no discretion to choose [their] students at the first instance and in accordance with its own policies, but are dictated to surrender such discretion in favor of a State-determined pool of applicants, under pain of administrative sanctions and/or payment of fines."27 It involves the "[transfer of] complete control over admission policies from the law schools to the LEB."28 Therefore, all its provisions, including those ancillary provisions discussed above, should be struck down.

The foregoing notwithstanding, it should still be borne in mind that State participation in admission requirements is not completely foreclosed by academic freedom. In fact, during the constitutional deliberations, the Framers acknowledged that the government may impose admission requirements on institutions of higher learning.29 However, the admission requirement contained in LEBMO 7 unfortunately exceeded the boundaries of constitutionally permissible regulation; hence, the Court's present disposition.

As a final point, it is apt to highlight that the issue of whether the LEB can require students to take an aptitude exam in general is not an issue before the Court. In this case, LEBMO 7 is the only aptitude exam regulation subject of constitutional scrutiny. Thus, in my view, the ruling of unconstitutionality in this case is limited to the version of the PhilSAT embodied in LEBMO 7. In consequence, it is therefore possible for the LEB to issue another regulation that contains a different version of the PhiLSAT, or any other aptitude exam, in its capacity as regulator of legal education, and within the proper auspices of the State's power to supervise institutional academic freedom under the Constitution. Of course, it goes without saying that only when such new regulation is assailed should the Court step in to assess the constitutionality of its parameters in the proper case therefor.