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"Void for vagueness" doctrine in the Philippines

In the recent case of SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R.


ROMUALDEZ vs. COMMISSION ON ELECTIONS and DENNIS GARAY, EN BANC, G.
R. No. 167011, April 30, 2008, the petitioners contended, inter alia, that Section 45(j) of
the Voters Registration Act was void for being vague as it did not refer to a definite
provision of the law, the violation of which would constitute an election offense; hence, it
ran contrary to Section 14(1) and Section 14(2), Article III of the 1987 Constitution (due
process clause).
The Commission on Election (Comelec) charged the petitioners with violations of
Section 10(g) and (j), in relation to Section 45(j) of the Voters Registration Act.
In a split decision, with Justices Carpio, Tinga, et. al., dissenting, the Philippine
Supreme Court En Banc rejected the void for vagueness theory of the petitioners.
Section 10(g) and Section 10(j) of Republic Act No. 8189, provides that a qualified voter
shall be registered in the permanent list of voters in a precinct of the city or municipality
wherein he resides to be able to vote in any election. To register as a voter, he shall
personally accomplish an application form for registration as prescribed by the
Commission in three (3) copies before the Election Officer on any date during office
hours after having acquired the qualifications of a voter. The application shall, inter alia,
contain the following data: Periods of residence in the Philippines and in the place of
registration and a statement that the application is not a registered voter of any precinct.
Section 45(j) of the same Act provides, inter alia, that the following shall be considered
election offenses under this Act: Violation of any of the provisions of this Act.
The Court rejected the argument of the petitioners, in line with their void for vagueness
theory, that Section 45(j) of Republic Act No. 8189 made no reference to a definite
provision of the law, the violation of which would constitute an election offense.
Generally, the void-for-vagueness doctrine holds that a law is facially invalid if men of
common intelligence must necessarily guess at its meaning and differ as to its
application.
However, the Court held that facial invalidation or an on-its-face invalidation of criminal
statutes is not appropriate. It stated that doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools to test "on their faces" statutes in free speech cases or
American First Amendment cases. They cannot apply when what is involved is a
criminal statute. With respect to such statute, the rule is that 'one to whom application
of a statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in which
its application might be unconstitutional.' According to the Court, vagueness challenges
in the First Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated only 'as applied' to a particular defendant.
The Court held that to this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity."
It added that while it had been previously mentioned in passing in some cases, the
void-for-vagueness concept has yet to find direct application in our jurisdiction.
The Court stated that an "on-its-face" invalidation of criminal statutes would result in a
mass acquittal of parties whose cases may not have even reached the courts. Such
invalidation would constitute a departure from the usual requirement of actual case and
controversy" and permit decisions to be made in a sterile abstract context having no
factual concreteness.
It held that the task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is rarely if
ever an appropriate task for the judiciary.
It added that the combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis of detailed statutes ordinarily
results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided."
It stated that an on-its-face invalidation of statutes is generally disfavored because it is a
"manifestly strong medicine" that must be employed "sparingly and only as a last
resort."
In determining the constitutionality of a statute, it added, its provisions that have
allegedly been violated must be examined in the light of the conduct with which the
defendant has been charged. For judicial review to be exercised, there must be an
existing case or controversy that is appropriate or ripe for determination, and not
conjectural or anticipatory.
The Court added that the overbreadth doctrine is not intended for testing the validity of
a law that reflects legitimate state interest in maintaining comprehensive control over
harmful, constitutionally unprotected conduct.
It stated that claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words and again, that overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct."
A person to whom a law may be applied will not be heard to challenge a law on the
ground that it may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.
A facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when
the assailed law may be valid.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds
that "a law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application." And like overbreadth, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible applications.
TheCourt stated that the test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practice. The
vagueness doctrine merely requires a reasonable degree of certainty for the statute to
be upheld - not absolute precision or mathematical exactitude.
Interpreting Section 45 of Republic Act No. 8189, the Court held that it makes a recital
of election offenses under the Act. Section 45(j) is provides that a violation of any of the
provisions of Republic Act No. 8189 is an election offense. The challenged provision
renders itself to no other interpretation. A reading of the challenged provision involves
no guesswork. We do not see herein an uncertainty that makes the same vague, the
Court added. Notably, herein petitioners do not cite a word in the challenged provision,
the import or meaning of which they do not understand.
According to the Court, a statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of terms without defining
them; much less do we have to define every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature to define each and every
word in an enactment. Congress is not restricted in the form of expression of its will, and
its inability to so define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can
be gathered from the whole act.
The words of a statute will be interpreted in their natural, plain and ordinary acceptation
and signification, unless it is evident that the legislature intended a technical or special
legal meaning to those words. The intention of the lawmakers who are, ordinarily,
untrained philologists and lexicographers to use statutory phraseology in such a manner
is always presumed.
An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of the nature of the act,
it would be impossible to provide all the details in advance as in all other statutes.
The Court stated that criminal laws by legislative fiat intend to punish not only those
expressly declared unlawful but even those not so declared but are clearly enjoined to
be observed to carry out the fundamental purpose of the law.
It added that the phraseology in Section 45(j) is employed by Congress in a number of
our laws. These provisions have not been declared unconstitutional.
Every statute has in its favor the presumption of validity. To justify its nullification, there
must be a clear and unequivocal breach of the Constitution, and not one that is doubtful,
speculative or argumentative. In the case at bar, the Court held that petitioners failed to
overcome the heavy presumption in favor of the law and that its constitutionality must
be upheld in the absence of substantial grounds for overthrowing the same.
Further, the Court stated that Courts will refrain from touching upon the issue of
constitutionality unless it is truly unavoidable and is the very lis mota. In the case at bar,
the lis mota is the alleged grave abuse of discretion of the COMELEC in finding
probable cause for the filing of criminal charges against petitioners.
I wish to digest the dissenting opinion of Justice Carpio below:
1. Petitioners constitutional attack on Section 45(j) under the due process clause
puts in issue two other requirements for the validity of a penal statute. First, a
penal statute must prescribe an ascertainable standard of guilt to guide courts
in adjudication. Second, a penal statute must confine law enforcers within
well-defined boundaries to avoid arbitrary or discriminatory enforcement of
the law.
2. Petitioners challenge the constitutionality of Section 45(j) as applied to them
in a live case under which they face prosecution. This is the traditional as
applied approach in challenging the constitutionality of any statute. In an as
applied challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground - whether absence of due process,
lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness.
3. The as applied approach embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The
rule prohibits one from challenging the constitutionality of the statute based
solely on the violation of the rights of third persons not before the court. This
rule is also known as the prohibition against third-party standing.
4. A petitioner may mount a facial challenge to the constitutionality of a statute
even if he claims no violation of his own rights under the assailed statute. To
mount a facial challenge, a petitioner has only to show violation under the
assailed statute of the rights of third parties not before the court. This
exception allowing facial challenges, however, applies only to statutes
involving free speech. The rationale for this exception allowing a facial
challenge is to counter the chilling effect on protected speech that comes
from statutes violating free speech. A person who does not know whether his
speech constitutes a crime under an overbroad or vague law may simply
refuse to speak to avoid being charged of a crime. The overbroad or vague
law chills him into silence.
The third exception to the prohibition against third-party standing is termed the
overbreadth doctrine. A person generally can argue that a statute is
unconstitutional as it is applied to him or her; the individual cannot argue that a
statute is unconstitutional as it is applied to third parties not before the court. For
example, a defendant in a criminal trial can challenge the constitutionality of the
law that is the basis for the prosecution solely on the claim that the statute
unconstitutionally abridges his or her constitutional rights. The overbreadth
doctrine is an exception to the prohibition against third-party standing. It permits
a person to challenge a statute on the ground that it violates the First
Amendment (free speech) rights of third parties not before the court, even though
the law is constitutional as applied to that defendant. In other words, the
overbreadth doctrine provides that: Given a case or controversy, a litigant whose
own activities are unprotected may nevertheless challenge a statute by showing
that it substantially abridges the First Amendment rights of other parties not
before the court.
5. The overbreadth doctrine is closely related to the vagueness doctrine. Both
doctrines are often simultaneously invoked to mount facial challenges to
statutes violating free speech. The doctrines of overbreadth and vagueness,
as devices to mount facial challenges to penal or non-penal statutes
violating free speech, are not applicable to the present petition for two
reasons. First, petitioners here assert a violation of their own constitutional
rights, not the rights of third-parties. Second, the challenged statute - Section
45(j) of RA No. 8189, does not involve free speech. Thus, any invocation of
the doctrines of overbreadth and vagueness to mount a facial challenge in
the present case is grossly misplaced.
6. As conduct not speech is its object, the challenged provision must be
examined only as applied to the defendant, herein petitioner, and should not
be declared unconstitutional for overbreadth or vagueness [under a facial
challenge].
7. The overbreadth and the vagueness doctrines have special application only to
free-speech cases. They are not appropriate for testing the validity of penal
statutes. We must view these statements of the Court on the inapplicability of
the overbreadth and vagueness doctrines to penal statutes as appropriate
only insofar as these doctrines are used to mount facial challenges to penal
statutes not involving free speech.
8. The present petition indisputably involves an as applied challenge to the
constitutionality of Section 45(j) of RA No. 8189. As an as applied
challenge, petitioners may raise any constitutional ground to strike
down Section 45(j). In this as applied challenge, petitioners may invoke the
overbreadth and vagueness doctrines to test the constitutionality of Section
45(j).
9. The threshold issue on the constitutionality of Section 45(j) now turns on three
tests: First, does Section 45(j) give fair notice or warning to ordinary citizens
as to what is criminal conduct and what is lawful conduct? Put differently, is
Section 45(j) so vague that ordinary citizens must necessarily guess as to its
meaning and differ as to its application? Second, is Section 45(j) so vague
that it prescribes no ascertainable standard of guilt to guide courts in judging
those charged of its violation? Third, is Section 45(j) so vague that law
enforcers - the police and prosecutors - can arbitrarily or selectively enforce
it? If Section 45(j) meets all the three tests, it complies with the due process
clause and is therefore constitutional. If it fails any one of the three tests, then
it is unconstitutional and the two Informations against petitioners based on
Section 45(j) should be quashed.
10. RA No. 8189 contains 52 sections and some 235 sentences, 149 paragraphs,
and 7,831 words. Section 45(j) of RA No. 8189 makes violation of any of the
provisions of RA No. 8189 a criminal offense, in addition to violations
expressly specified in Section 45(a) to (i). The ordinary citizen has no way of
knowing which provisions of RA No. 8189 are covered by Section 45(j) even if
he has before him a copy of RA No. 8189. Even Judges and Justices will
differ as to which provisions of RA No. 8189 fall under Section 45(j). The
prosecution office of the Comelec has not specified which provisions of RA
No. 8189 fall under Section 45(j). There is no legal textbook writer who has
attempted to enumerate the provisions of RA No. 8189 that fall under Section
45(j). Members of the Commission on Elections will certainly dispute that
failure by the Commission to reconstitute lost or destroyed registration
records constitutes a crime on their part.
11. Under RA No. 8189, law enforcement officers have wide latitude to choose
which provisions of the law to consider a crime since there is no specific
enumeration of provisions falling under Section 45(j). Prosecutors can choose
to prosecute only those who violate certain provisions of RA No. 8189.
Judges trying violators of the law have no ascertainable standard to
determine the guilt of a person accused of violating Section 45(j). There is no
certainty which provisions of RA No. 8189 fall under Section 45(j). Section
45(j) makes a blanket, unconditional declaration that violation of any of the
provisions of RA No. 8189 constitutes a crime. Certainly, the lawmaker did
not intend that trivial and harmless violations, or omissions for cause, should
constitute a crime under Section 45(j). Unfortunately, there is no way of
knowing with certainty what these trivial and harmless violations or omissions
are. Everyone will have to guess as to what provisions fall under Section
45(j), and their guesses will most likely differ from each other.
12. A provision in an elaborate and detailed law that contains a catch-all provision
making it a crime to violate any provision of such law does not give fair
notice to the ordinary citizen on what constitutes prohibited conduct or
permitted conduct under such law. Section 45(j) does not draw reasonably
clear lines between lawful and unlawful conduct such that the ordinary citizen
has no way of finding out what conduct is a prohibited act. The ordinary
citizen will have to guess which provisions of RA No. 8189, other than those
mentioned in Section 45(a) to (i), carry a penal sanction.
13. If Section 45(j) had enumerated the specific provisions within its coverage,
then reasonable clear lines would guide the ordinary citizen as to what acts
are prohibited. Section 45(j) does not specify those provisions and thus fails
to draw reasonable clear lines. If Section 45(j) is strictly applied, the ordinary
citizen may simply decline to exercise his right of suffrage to avoid
unintentionally committing a crime. Section 45(j) is a trap even to the most
educated citizen.
14. A penal law void for vagueness is not made valid by a specification in the
Information correcting the vagueness in the law. No court of law has adopted
a doctrine that the prosecutor has the power to correct a vagueness in a
penal law. Whether a law is void for vagueness under an as applied
challenge must be tested under the provisions of the law as found in the
statute books, and not as interpreted by the prosecutor in the Information.
15. There is no basis in the claim that any discussion on the possible provisions
of RA No. 8189 that may fall within the coverage of Section 45(j) constitutes a
facial challenge on such provisions of RA No. 8189. This is gross error.
What is void for vagueness is the provision violation of any of the provisions
of this Act, and not any of the unnamed provisions that may be violated. No
other provision in RA No. 8189 is being challenged as unconstitutional, only
Section 45(j). The provisions possibly falling within the coverage of Section
45(j) must be discussed to illustrate that the ordinary citizen has no way of
knowing with certitude what provisions of RA No. 8189 fall within the
coverage of Section 45(j). The discussion shows that the ordinary citizen has
no fair notice that these are the provisions falling within the coverage of
Section 45(j). What is being challenged is the constitutionality of Section 45(j),
which is so vague that it could cover any of the provisions discussed above.
16. This Court must revisit Gatchalians holding that makes a crime not only
those (acts) expressly declared unlawful but even those not so declared but
are clearly enjoined to be observed to carry out the fundamental purpose of
the law. Unlike the U.S. Fair Labor Standards Act after which our Republic
Act No. 602 was patterned, RA 602 does not specify the provisions of the law
the violation of which is declared unlawful. This Court must categorically rule
that only acts expressly declared unlawful or prohibited by law, and penalized
as such, are crimes. Acts not expressly declared unlawful or prohibited can
never give rise to criminal liability. Any ambiguity in the law whether an act
constitutes a crime is resolved in favor of the accused.
17. To punish as crimes acts not expressly declared unlawful or prohibited by law
violates the Bill of Rights. First, the Constitution provides that [N]o person
shall be held to answer for a criminal offense without due process of law.
Due process requires that the law expressly declares unlawful, and punishes
as such, the act for which the accused is held criminally liable. The void for
vagueness doctrine is aimed precisely to enforce this fundamental
constitutional right. Second, the Constitution provides that [I]n all criminal
prosecutions, the accused shall x x x enjoy the right x x x to be informed of
the nature and cause of the accusation against him. This right of the accused
requires that the Information states the particular act the accused committed
in violation of a specific provision of a law defining such act a crime.
18. A blanket and unconditional declaration that any violation of an elaborate and
detailed law is a crime is too imprecise and indefinite, and fails to define with
certitude and clarity what acts the law punishes as crimes. Such a shotgun
approach to criminalizing human conduct is exactly what the void for
vagueness doctrine outlaws.That the terms of a penal statute creating a new
offense must be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties is a well-
recognized requirement, consonant alike with the ordinary notions of fair play
and the settled rules of law; and a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates the
first essential of due process of law.


19. The dividing line between what is lawful and unlawful conduct cannot be left
to conjecture. The citizen cannot be held to answer charges based upon
penal statutes whose mandates are so uncertain that they will reasonably
admit of different constructions. A criminal statute cannot rest upon an
uncertain foundation. The crime, and the elements constituting it, must be so
clearly expressed that the ordinary person can intelligently choose, in
advance, what course it is lawful for him to pursue.
20. Section 45(j) is a penal statute. Penal statutes are construed strictly against
the state and liberally in favor of the accused. The purpose is not to allow a
guilty person to escape punishment through a technicality but to provide a
precise definition of the prohibited act. To constitute a crime, an act must
come clearly within the spirit and letter of the penal statute. Otherwise, the act
is outside the coverage of the penal statute. An act is not a crime unless
clearly made so by express provision of law. No person should be brought
within their terms who is not clearly within them, nor should any act be
pronounced criminal which is not made clearly so by the statute.
21. Section 45(j) does not specify what provisions of RA No. 8189, if violated,
carry a penal sanction. Section 45(j) merely states that violation of any of the
provisions of RA No. 8189 is a crime. In addition to the provisions covered by
Section 45(a) to (i), there are many other provisions of RA No. 8189 that are
susceptible of violation. Section 45(j), however, does not specify which of
these other provisions carry a penal sanction if violated. Thus, Section 45(j)
fails to satisfy the requirement that for an act to be a crime it must clearly be
made a crime by express provision of law.
May I also digest the dissenting opinion of Justice Tinga:
1. A vague criminal statute at its core violates due process, as it deprives fair
notice and standards to all the citizens, the law enforcement officers,
prosecutors and judges. No person shall be deprived of life, liberty or property
without due process of law. The due process clause makes legally operative
our democratic rights, as it establishes freedom and free will as the normative
human conditions which the State is bound to respect. Any legislated
restrictions imposed by the State on life, liberty or property must be in
accordance with due process of law. The scope of due process
encompasses values ascribed to justice such as equity, prudence,
humaneness and fairness.
2. Section 45(j) is vague. It does not provides fair notice to the citizentry, as well
as the standards for enforcement and adjudication. Thus, the section violates
the due process clause and thus deserves to be struck down.
3. Substantive due process guarantees against the arbitrary exercise of state
power, while procedural due process is a guarantee of procedural fairness.
Substantive and procedural due process are equally sacrosanct in the
constitutional order, and a law that is infirm in either regard is wholly infirm.
4. A statute violates due process, and thus repugnant to the Constitution, if it fails
to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid. Such flaw is one characteristic of a vague statute, the other
being that it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle. Both
attributes earmark a statute as vague, the generally accepted definition of a
vague statute being one that lacks comprehensible standards that people of
common intelligence must necessarily guess at its meaning and differ as to its
application.
5. Even though the fair notice rule is integral to due process itself, it finds
realization in still another provision of our Bill of Rights. Section 14(2), Article
III assures that an accused is to be informed of the nature and cause of the
accusation against him. This constitutional right extends not only to the
criminal information against the accused, but also to the language of the
statute under which prosecution is pursued. Yet our own jurisprudence has
yet to expressly link the fair notice requirement with Section 14(2), Article III,
though this need not be a contestable point since the due process clause
under Section 1, Article III already embodies the fair notice requirement.
6. A penal statute that violates the fair notice requirement is marked by
vagueness because it leaves its subjects to necessarily guess at its meaning
and differ as to its application. What has emerged as the most contentious
issue in the deliberations over this petition is whether such vagueness may
lead to the nullification of a penal law. Our 2004 ruling in Romualdez v.
Sandiganbayan states: It is best to stress at the outset that the overbreadth
and the vagueness doctrines have special application only to free-speech
cases. They are not appropriate for testing the validity of penal statutes. The
time has come to reconsider that statement. Rooted in unyielding formalism
and deprived of guidance from basic constitutional tenets, that dicta
disenchants the rights of free people, diminishing as it does, the basic right to
due process.
7. The vagueness doctrine is a specie of unconstitutional uncertainty, which
may involve procedural due process uncertainty cases and substantive due
process uncertainty cases. Procedural due process uncertainty involves
cases where the statutory language was so obscure that it failed to give
adequate warning to those subject to its prohibitions as well as to provide
proper standards for adjudication. Such a definition encompasses the
vagueness doctrine. This perspective rightly integrates the vagueness
doctrine with the due process clause, a necessary interrelation since there is
no constitutional provision that explicitly bars statutes that are void-for-
vagueness.
8. Void-for-vagueness derives from the basic tenet of criminal law that conduct
may not be treated as criminal unless it has been so defined by an authority
having the institutional competence to do so before it has taken place. It
requires that a legislative crime definition be meaningfully precise.
9. The inquiry into whether a criminal statute is meaningfully precise requires
the affirmative satisfaction of two criteria. First, does the statute fairly give
notice to those it seeks to bind of its strictures? Second, is the statute precise
enough that it does not invite arbitrary and discriminatory enforcement by law
enforcement authorities? Unless both criteria are satisfied, the statute is void
for vagueness.
10. There are three concerns animating the vagueness doctrine. First, courts are
rightly concerned that citizens be fairly warned of what behavior is being
outlawed; second, courts are concerned because vague laws provide
opportunities for arbitrary enforcement and put the enforcement decisions in
the hands of police officers and prosecutors instead of legislatures; finally,
where vague statutes regulate behavior that is even close to constitutionally
protected, courts fear a chilling effect will impinge on constitutional rights.
These three interests have been deemed by the U.S. Supreme Court as
important enough to justify total invalidation of a statute, such invalidation
warranted unless there is some intervening act that has eliminated the threat
to those interests.
11. It is clear that some substantial degree of definiteness should be required of
penal statutes, for if a person is to be charged with knowledge of all his rights
and duties under a statute regardless of whether he has read or understood
it, fundamental fairness requires that he be given at least the opportunity to
discover its existence, its applicability, and its meaning. While the due
process requirements of publication are designed to fill the first of those
needs, the due process requirements of definiteness are designed to fill the
latter two.
12. A criminal statute should be definite enough to give notice of required conduct
to those who would avoid its penalties, and to guide the judge in its
application and the attorney defending those charged with its violation. The
rules must be definite enough to enable the judge to make rulings of law
which are so closely referable to the statute as to assure consistency of
application. In addition, the statute must serve the individual as a guide to his
future conduct, and it is said to be too indefinite if men of common
intelligence must necessarily guess at its meaning and differ as to its
application. If the statute does not provide adequate standards for
adjudication, by which guilt or innocence may be determined, it will be struck
down.
13. The dividing line between what is lawful and unlawful cannot be left to
conjecture. The citizen cannot be held to answer charges based upon penal
statutes whose mandates are so uncertain that they will reasonably admit of
different constructions. A criminal statute cannot rest upon an uncertain
foundation. The crime, and the elements constituting it, must be so clearly
expressed that the ordinary person can intelligently choose, in advance, what
course it is lawful for him to pursue. Penal statutes prohibiting the doing of
certain things, and providing a punishment for their violation, should not admit
of such a double meaning that the citizen may act upon the one conception of
its requirements and the courts upon another.
14. It is clear that a criminal statute may be nullified on the ground of void-for-
vagueness. What are the requisites that must obtain before a suit predicated
on such ground may be brought before the courts? Assuming that the suit
successfully demonstrates the vagueness of the statute or provision of law,
what remedy can the courts apply? There are orthodox precepts in Philippine
law that may find application in the resolution of void-for-vagueness cases.
Long established in our jurisprudence are the four requisites for judicial
inquiry: an actual case or controversy; the question of constitutionality must
be raised by the proper party; the constitutional question must be raised at
the earliest possible opportunity; and the constitutional question must be
necessary to the determination of the case itself. These requisites would
accommodate instances such as those in the present case, where the
constitutional challenge to the penal law is raised by the very persons who
are charged under the questioned statute or provision.
15. The general rule is that an unconstitutional act is not law; it confers no rights,
imposes no duties, affords no protection, creates no office; it is, in legal
contemplation, as inoperative as though it had never been passed. At the
same time, there are doctrines in statutory construction that authorize the
courts to allow the survival of the challenged statute or provision of law. It is a
well-settled rule that a statute should be construed whenever possible in a
manner that will avoid conflict with the Constitution. Where a statute is
reasonably susceptible of two constructions, one constitutional and the other
unconstitutional, that construction in favor of its constitutionality shall be
adopted while the construction that renders it invalid rejected.
16. In the case of overbroad statutes, it is necessary to inquire into the potential
applications of the legislation in order to determine whether it can be
unconstitutionally applied. In contrast, the constitutional flaws attached to a
vague statute are evident on its face, as the textual language in itself is
insufficient in defining the proscribed conduct.
17. Justice Carpio offers his own analysis of facial challenge and as-applied
challenge. His submission discusses both concepts from the perspective of
standing, contending that the present suit cannot be considered as a facial
challenge, or a challenge against the constitutionality of a statute that is filed
where the petitioner claims no actual violation of his own rights under the
assailed statute, but relies instead on the potential violation of his or other
persons rights. Instead, according to Justice Carpio, the present suit may be
considered as an as-applied challenge, the traditional approach where the
petitioner raises the violation of his constitutional rights irrespective of the
constitutional grounds cited.
18. The ability of a petitioner to bring forth a suit challenging the constitutionality
of an enactment or provisions thereof, even if the petitioner has yet not been
directly injured by the application of the law in question, is referred to as a
facial challenge.
19. The ability of a petitioner to judicially challenge a law or provision of law that
has been specifically applied against the petitioner is referred to as an as-
applied challenge.
20. The nullification on constitutional grounds by the courts of a provision of law,
or even of the entire statute altogether, is referred to as facial invalidation.
21. The invalidation of the application of a provision of law or a statute only
insofar as it applies to the petitioner and others similarly situated, without
need to nullify the law or provision thereof, is referred to as as-applied
invalidation.
22. The Court, this time and through this case, should reassert that the
vagueness challenge is viable against penal statutes. The vagueness
challenge is a critical defense to all persons against criminal laws that are
arbitrarily drawn, formulated without thoughtful deliberation, or designed to
yield to the law enforcer the determination whether an offense has been
committed. Section 45(j) of Rep. Act 8189 is indeed a textbook example of a
vague penal clause. The ponencia submits that Section 45(j) does not suffer
from the infirmity as it ostensibly establishes that violation of any provision of
Rep. Act No. 8189 is an election offense. I cannot accept the proposition that
the violation of just any provision of Rep. Act No. 8189, as Section 45(j)
declares with minimal fanfare, constitutes an election offense punishable with
up to six (6) years of imprisonment. Section 45(j) categorizes the violation of
any provision of Rep. Act 8189 as an election offense, thus effectively
criminalizing such violations. Following Section 46 of the same law, any
person found guilty of an election offense shall be punished with
imprisonment of not less than one (1) year but not more than six (6) years.
Virtually all of the 52 provisions of Rep. Act 8189 define an act, establishes a
policy, or imposes a duty or obligation on a voter, election officer or a
subdivision of government. Virtually all of these provisions are susceptible to
violation, the only qualifier being that they incorporate a verb.
23. Our Philippine criminal laws are predicated on crimes that have precisely
defined elements, and the task of the judge is to determine whether these
elements have been proven beyond reasonable doubt. For the most part,
each crime currently defined in our penal laws consist of only a handful of
elements, providing the judge a clearly defined standard for conviction or
acquittal. That is not the case for a penal provision predicated on any
violation of this Act. A legislative enactment can consist of 100 provisions.
Each provision may describe just one act, right, duty or prohibition, or there
could be several contained in just one provision. The catch-all penal provision
ostensibly criminalizes the violation of any one right, duty, or prohibition, of
which there could be hundreds in just one statute. Just any one of these
possibly hundreds of acts mentioned in the law is an element of the
consummated crime under the catch-all provision such as Section 45(j), thus
greatly increasing the risk for conviction under such a provision. There could
be literally hundreds of ways that a catch-all provision in just one law could
become the source of imprisonment.
24. Obviously, broader standards lead to broader discretion on the part of judges.
Some judges may tend towards a narrow application of a provision such as
Section 45(j), while others might be inclined towards its broad application.
What is certain is that no consistent trend will emerge in criminal prosecutions
for violations of provisions such as Section 45(j), a development that will not
bode well for the fair and consistent administration of justice. Provisions such
as Section 45(j) do nothing for the efficient administration of justice. Since
such a provision is laced with unconstitutional infirmity, I submit it is the task
of the Court to say so, in order that the courts will need not be confronted with
this hydra of statutory indeterminacy.
25. The very vagueness of Section 45(j) makes it an ideal vehicle for political
harassment. The election season will undoubtedly see a rise in the partisan
political temperature, where competing candidates and their camps will
employ every possible legal tactic to gain an advantage over the opponents.
Among these possible tactics would be the disenfranchisement of voters who
may be perceived as supporters of the other side; or the disqualification of
election officers perceived as either biased or impartial enough to hamper a
candidate with ill-motives. The disenfranchisement of voters or the
disqualification of election officers could be accomplished through
prosecutions for election offenses. Even if these prosecutions do not see
fruition, the mere filing of such charges could be enough to dampen
enthusiasm in voting, or strike fear in conducting honest and orderly elections.
26. In recent years, Congress has chosen to employ phraseology similar to
Section 45(j) in a number of laws, such as the Cooperative Code, the
Indigenous Peoples Rights Act, and the Retail Trade Liberalization Act. I
know from my own experience that this is the product of a legislative
predilection to utilize a standard template in the crafting of bills. I have come
to believe that this standard phraseology constitutes a dangerous trend, and a
clear stand from this Court that Section 45(j) is unconstitutional for being void-
for-vagueness would make the legislature think twice before employing such
terminology in the laws that it passes. The problem is less obvious if the law
in question contains only a few provisions, where any person can be
reasonably expected to ascertain with ease what particular acts are made
criminal. However, in more extensive laws such as Rep. Act No. 8189 or the
especially long codes, such expectation could not be reasonably met. I am
aware that compliance with the requisites for the publication of laws is
considered legally sufficient for the purposes of notice to the public, but I
submit that a measure of reason should be appreciated in evaluating that
requirement. If a law runs 400 pages long, with each sentence detailing an
act that is made criminal in nature, the doctrine ignorance of the law excuses
no one should not be made a ready and convenient excuse, especially if, as
in Rep. Act 8189, the act is made criminal only by implication of a provision
such as Section 45(j).
27. We should think of the public good that would prevail if the Court makes the
stand that Congress cannot criminalize a whole range of behavior by simply
adding a multi-purpose, catch-all provision such as Section 45(j). Congress
will be forced to deliberate which precise activities should be made criminal.
Such deliberate thought leads to definitive laws that do not suffer the vice of
void-for-vagueness. These definite laws will undoubtedly inform the people
which acts are criminalized, a prospect wholly consonant with constitutional
guarantees of fair notice and due process.
28. Sad to say, the majoritys ruling today is beyond comprehension. No good will
come out of it. For one, it opens a Pandoras box of all sorts of malicious
wholesale prosecutions of innocent voters at the instance of political partisans
desirous to abuse the law for electoral gain. It emboldens Congress to
continue incorporating exactly the same provision in the laws it enacts, no
matter how many hundreds of acts or provisions are contained in the
particular statute. For that matter, it signals that vague penal laws are
acceptable in this jurisdiction. Left unabated, the doctrine will be reflexively
parroted by judges, lawyers and law students memorizing for their bar exams
until it is accepted as the entrenched rule, even though it simply makes no
sense. Bad folk wisdom handed down through the generations is soon
regarded as gospel truth. I sincerely hope the same mistake is not made with
the lamentable doctrine affirmed by the majority today.

By:

Atty. MANUEL J . LASERNA J R.