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Judicial Review 1

Fundamental Principles & Doctrines

By Prof. Alexis Medina2

I.
JUDICIAL POWER IN GENERAL

1.1. Judicial power: Constitutional basis


1.2. Judicial power: Traditional and Expanded concepts
1.3. Role of the judiciary
1.4. Judicial power as a duty

1.1. Judicial power: Basis under the 1987 Constitution

Judicial power includes the duty of the courts of justice to

1) settle actual controversies involving rights which are legally demandable and
enforceable; and

2) Determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

(Section 1, Article VIII, 1987 Constitution)

1.2. Judicial power: Traditional and expanded concepts

1 This material is a working draft, subject to revision, modification or updating. Reproduction for purely academic purposes with
due attribution to the author is permitted.
2 AB Political Science, University of the Philippines (UP), Diliman; Order of the Purple Feather (OPF), UP, College of Law;
Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine Representative to the World Trade
Organization (WTO) Trade Facilitation Preparatory Committee Meeting for Legal Review (Geneva, Switzerland, 2014);
Philippine Representative, Senior Officials Meeting, Asia Pacific Economic Cooperation (APEC), 2015; former Philippine
Youth delegate to Japan and Southeast Asia; Litigation lawyer; formerly with the Ponce Enrile Reyes & Manlastas Law Offices
(Pecabar); Professor of Constitutional Law, San Sebastian College-Recoletos, Manila, College of Law, and Polytechnic
University of the Philippines (PUP), Manila, College of Law; former professor of Constitutional Law, New Ear University,
College of Law, Quezon City; Bar Review Lecturer, Recoletos Review Center, Manila
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Under the expanded power of judicial review, courts of justice may review
the discretion of political departments and declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of discretion.

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred by law. The second part of the
authority represents a broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the political departments of the
government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court,
the power to rule upon even the wisdom of the decisions of the executive and the legislature
and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion.

(Oposa v. Factoran, G.R. No. 101083, July 30, 1993, quoting Associate Justice Isagani Cruz, Philippine
Political Law) (Emphases supplied)

The Constitution has thus expanded the concept of judicial power.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014) (Emphasis supplied)

1.3. The role of the judiciary

Jurisprudence has repeatedly expounded that the judiciarys role is to

Say what the law is

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014; Lozano v. Nograles, G.R. No. 187883, June 16,
2009; St. Josephs College v. St. Josephs College Workers Association, G.R. No. 155609, January 17,
2005; Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001; Tolentino v. Secretary of Finance, G.R.
No. 115455, August 25, 1994; Cebu Institute of Technology v. Ople, G.R. No. L-58870, December 18,
1987; San Miguel Corporation v. Avelino, G.R. No. L-39699, March 14, 1979; Lansang v. Garcia, G.R.
No. L-33964, December 11, 1971; Vera v. Avelino, G.R. No. L-543, August 31, 1946; Wee Poco v.
Posadas, G.R. No. L-43142, August 26, 1937; Alejandrino v. Quezon, G.R. No. 22041, September 11,
1924; Borromeo v. Mariano, G.R. No. L-16808, January 3, 1921)

Determine the limits of power of agencies and offices of the government and its
officers;

Be the final arbiter on the question of whether or not a branch of government or any
of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction;

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Francisco v. House of Representatives, quoting the
sponsorship speech of former Chief Justice Constitutional Commissioner Roberto Concepcion, G.R. No.
160261, November 10, 2003; Arroyo v. De Venecia, G.R. No. 127255, August 14, 1997; Villarosa v.
House of Representatives Electoral Tribunal, G.R. No. 143351, September 14, 2000)
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Determine the nature, scope and extent of the powers of the government;

Mediate in allocating constitutional boundaries;

Determine conflicting claims of authority under the Constitution

Interpret the Constitution and define constitutional boundaries.

(Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936)

enforce the Constitution

Decide whether the proper constitutional sphere of a department has been


transcended.

(Alejandrino v. Quezon, G.R. No. 22041, September 11, 1924)

1.4. Judicial power is a duty

Judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by
the mere specter of this creature called the political question doctrine.

(Francisco Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003 ) (Emphasis supplied)

The courts will not shirk, digress from or abandon its sacred duty and authority to
uphold the Constitution in matters that involve grave abuse of discretion in appropriate cases,
committed by any officer, agency, instrumentality or department of the government.

(Tanada v. Angara, G.R. No. 118295, May 2, 1997)

Courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on
the question whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

Courts have a "duty, rather than a power", to determine whether another branch of the
government has "kept within constitutional limits."

(Former Chief Justice Constitutional Commissioner Roberto Concepcion in Javellana v. Executive Secretary,
G.R. No. L-36142, March 31, 1973)
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II.
JUDICIAL REVIEW IN GENERAL

2.1. Judicial power vs. Judicial review


2.2. Judicial review: Foundation and meaning
2.3. Judicial review: Purposes
2.4. Judicial supremacy means judicial review
2.5. Requirements for judicial review

2.1. Judicial power vs. Judicial review

Judicial review is merely an aspect of judicial power.

(Guingona v. Court of Appeals, July 10, 1998, G.R. No. 125532; Andal v. People, May 26, 1999, G.R. Nos.
138268-69)

2.2. Judicial review: Foundation and meaning

The Constitution is a definition of the powers of government. Who is to determine the


nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other departments; it does
not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial review under the
Constitution.

(Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936; Araullo v. Aquino, G.R. No. 209287
July 1, 2014; Osmena v. Comelec, G.R. No. 100318, July 30, 1991; Association of Small Landowners v. Secretary of
Agrarian Reform, G.R. No. 78742, July 14, 1989)

One of the greatest contributions of the American system to this country is the concept
of judicial review enunciated in Marbury v. Madison. This concept rests on the extraordinary
simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority competent to
hold it in control, to thwart its unconstitutional attempt, and thus to vin dicate and preserve inviolate
the will of the people as expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)


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The power of judicial review is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
unconstitutional.

(Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 7, 2010; Garcia v. Drilon, G.R. No.
179267, June 25, 2013; 2nd LT. Salvador Parreno v. Commission on Audit, G.R. No. 162224, June 7, 2007)

The power of judicial review is the power of the courts to test the validity of executive
and legislative acts for their conformity with the Constitution.

(Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009)

2.3. Judicial review: Purposes

To hold, control or thwart the government from overstepping its limited powers
under the Constitution

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006; Angara v. Electoral Commission, G.R.
No. L-45081, July 15, 1936)

To check not supplant the Executive, or to simply ascertain whether he has


gone beyond the constitutional limits of his jurisdiction but not to exercise the
power vested in him or to determine the wisdom of his act.

(Constantino v. Cuisia, G.R. No. 106064, October 13, 2005; Integrated Bar of the Philippines v.
Zamora, G.R. No. 141284, August 15, 2000; Lansang v. Garcia, G.R. No. L-33964; December 11,
1971)

2.4. Judicial supremacy means the power of judicial review; it really means
the supremacy of the Constitution, not the judiciary

The Constitution is a definition of the powers of government. Who is to determine the


nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other departments; it does
not in reality nullify or invalidate an act of the Legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial review under the
Constitution.

(Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936, 63 Phil. 139; Association of Small Land
Owners v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989 ; Araullo v. Aquino, G.R. No. 209287, July 1,
2014) (Emphasis supplied)
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2.5. Judicial review: Basic requirements

No question involving the constitutionality or validity of a law or governmental act may


be heard and decided by the Court unless there is compliance with the legal requisites for
judicial inquiry, namely:

ACTUAL CASE
(a) there must be an actual case or controversy calling for the exercise of judicial
power;

LOCUS STANDI
(b) the person challenging the act must have the standing to question the validity of the
subject act or issuance (locus standi) ;

EARLIEST OPPORTUNITY
(c) the question of constitutionality must be raised at the earliest opportunity; and

LIS MOTA
(d) the issue of constitutionality must be the very lis mota of the case.

(In the Matter of: Save the Supreme Court Judicial Independence, UDK-15143, January 21, 2015; Belgica v.
Honorable Executive Secretary, G.R. No. 208566, November 19, 2013; Biraogo v. Philippine Truth Commission of
2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 148; Funa v. Executive Secretary, 11 February 2010, G.R.
No. 184740; Planters Products v. Fertiphil, G.R. No. 166006, March 14, 2008; Francisco v. House of Representatives,
G.R. No. 160261, November 10, 2003)

2.6. Judicial Review:

Seven Pillars of Limitations or Specific Safeguards

In Demetria v. Alba, the Supreme Court, through Justice Marcelo Fernan cited the
seven pillars of limitations of the power of judicial review, enunciated by US Supreme Court
Justice Brandeis in Ashwander v. TVA as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non -adversary
proceeding, declining because to decide such questions is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an
inquiry as to the constitutionality of the legislative act.

2. The Court will not anticipate a question of constitutional law in advance of the necessity of
deciding it. . . . It is not t he habit of the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.

3. The Court will not formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.

4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of. This rule has
found most varied application. Thus, if a case can be decided on either of two grounds, one involving a
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constitutional question, the other a question of statutory construction or general law, the Court will decide
only the latter. Appeals from the highest court of a state challenging its decision of a q uestion under the
Federal Constitution are frequently dismissed because the judgment can be sustained on an independent
state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show
that he is injured by its operation. Among the many applications of this rule, none is more striking than
the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a
public official interested only in the performance of his official duty will not be entertained . . . In Fairchild
v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon , the challenge of the federal
Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has
availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided (citations omitted).

The foregoing pillars of limitation of judicial review, summarized in Ashwander v. TVA


from different decisions of the United States Supreme Court, can be encapsulated into the
following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the
facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation
of the statute
5. that the parties are not in estoppel (Francisco v. House of Representatives)
6. that the Court upholds the presumption of constitutionality.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003; Demetria v. Alba, G.R. No.
71977, February 27, 1987; Chief Justice Maria Lourdes Sereno, Concurring and Dissenting Opinion, Disini v. Secretary
of Justice, G.R. No. 203335, February 18, 2014)

These are specific safeguards laid down by the Court when it exercises its power of
judicial review.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003; Chief Justice Maria Lourdes
Sereno, Concurring and Dissenting Opinion, Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)

III.
JUDICIAL REVIEW REQUIREMENT:
ACTUAL CASE OR CONTROVERSY
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3.1. Actual case or controversy as a constitutional requirement


3.2. Actual case defined
3.3. When there is no actual case: Hypothetical, abstract, conjectural,
contingent, anticipatory, speculative, moot or academic cases
3.4. Actual vs. Hypothetical case
3.5. Courts do not give advisory opinions
3.6. Policy reason: Why courts cannot give advisory opinions
3.7. Facial challenge as a departure from the case or controversy requirement
3.7. Examples of petitions dismissed for lack of actual case
3.8. Moot and Academic Principle

3.1. An actual case or controversy is a constitutional requirement for


judicial review

By constitutional fiat, judicial power operates only when there is an actual case or
controversy. This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable x x x."

(Belgica v. Honorable Executive Secretary, G.R. No. 208566, November 19, 2013 ; Southern Hemisphere
Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010) (Emphasis supplied)

Section 1, Article VIII of the Constitution states that "[j]udicial power includes the duty
of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable." The power of judicial review, therefore, is limited to the
determination of actual cases and controversies.

(La Bugal-Blaan Tribal Association v. Ramos, G.R. No. 127882, January 27, 2004)

Pursuant to this constitutional mandate, courts, through the power of judicial review, are
to entertain only real disputes between conflicting parties through the application of law.

(Didipio Earth Savers Multi-Purpose Association v. Gozun, G.R. No. 157882, March 30, 2006)

This power of judicial review is limited to actual cases and controversies .

(Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936, 63 Phil. 139)

3.2. Actual case defined

An actual case or controversy is

a conflict of legal rights or an assertion of opposite legal claims, which


can be resolved on the basis of existing law and jurisprudence

(Guingona v. Court of Appeals, July 10, 1998, G.R. No. 125532)


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a conflict of legal rights, an assertion of opposite legal claims


susceptible of judicial resolution

(In the Matter of: Save the Supreme Court Judicial Independence, UDK-15143, January 21, 2015; Araullo v.
Aquino, G.R. No. 209287, July 1, 2014; Remman Enterprises v. Professional Regulation Board, G.R. No. 197676,
February 4, 2014; Corrales v. Republic, G.R. No. 186613, August 27, 2013; Garcia v. Executive Secretary, 02 April
2009, G.R. No. 157584; Belgica v. Honorable Executive Secretary, G.R. No. 208566, November 19, 2013;
Information Technology Foundation v. Comelec, G.R. No. 159139, June 15, 2005; Province of North Cotobato v.
Republic, G.R. No. 183591, October 14, 2008; Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14,
2008; David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006; Suplico v. NEDA, G.R. No. 178830, July 14, 2008;
Didipio Earth Savers Multi-Purpose Association v. Gozun, G.R. No. 157882, March 30, 2006 ; Joya v. PCGG, G.R. No.
96541, August 24, 1993)

a contrariety of legal rights that can be interpreted and enforced on the


basis of existing law and jurisprudence.

(Belgica v. Honorable Executive Secretary, G.R. No. 208566, November 19, 2013; Corrales v. Republic, G.R.
No. 186613, August 27, 2013; Province of North Cotobato v. Republic, G.R. No. 183591, October 14, 2008; Didipio
Earth Savers Multi-Purpose Association v. Gozun, G.R. No. 157882, March 30, 2006 )

a definite and concrete dispute touching on the legal relations of


parties having adverse legal interests, which may be resolved by a court of law
through the application of a law

(In the Matter of: Save the Supreme Court Judicial Indepe ndence, UDK-15143, January 21, 2015; Remman
Enterprises v. Professional Regulation Board, G.R. No. 197676, February 4, 2014; Lozano v. Nograles, G.R. No.
187883, June 16, 2009; Bayantel v. Republic, G.R. No. 161140, January 31, 2007 ; David v. Macapagal-Arroyo, G.R.
No. 171396, May 3, 2006; Didipio Earth Savers Multi-Purpose Association v. Gozun, G.R. No. 157882, March 30,
2006; Information Technology Foundation v. Comelec, G.R. No. 159139, June 15, 2005; Velarde v. Social Justice
Society, G.R. No. 159357, 28 April 2004, 428 SCRA 283, 291 )

the pleadings must show an active antagonistic assertion of a legal


right, on the one hand, and a denial thereof on the other

(In the Matter of: Save the Supreme Court Judicial Indepe ndence, UDK-15143, January 21, 2015; Remman
Enterprises v. Professional Regulation Board, G.R. No. 197676, February 4, 2014; Information Technology
Foundation v. Comelec, G.R. No. 159139, June 15, 2005 )

there ought to be an actual and substantial controversy admitting of specific


relief through a decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts.

(In the Matter of: Save the Supreme Court Judicial Indepe ndence, UDK-15143, January 21, 2015; Remman
Enterprises v. Professional Regulation Board, G.R. No. 197676, February 4, 2014 ; Information Technology
Foundation v. Comelec, G.R. No. 159139, June 15, 2005 )

a conflict ripe for adjudication or judicial determination

(Remman Enterprises v. Professional Regulation Board, G.R. No. 197676, February 4, 2014 ; Belgica v.
Honorable Executive Secretary, G.R. No. 208566, November 19, 2013; Corrales v. Republic, G.R. No. 186613, August
27, 2013; Garcillano v. House of Representatives, 23 December 2008; La Bugal Blaan Tribal Association v. Ramos,
January 27, 2004, G.R. No. 127882; Didipio Earth Savers Multi-Purpose Association v. Gozun, G.R. No. 157882,
March 30, 2006)
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A question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. It is a prerequisite that something had then
been accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or threatened injury
to itself as a result of the challenged action.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Belgica v. Honorable Executive Secretary, G.R. No.
208566, November 19, 2013; Province of North Cotobato v. Republic, G.R. No. 183591, October 14, 2008)
(Emphases supplied)

An issue is ripe for judicial determination when litigation is inevitable, or when


administrative remedies have been exhausted.

(Lozano v. Nograles, G.R. No. 187883, June 16, 2009) (Emphases supplied)

3.3. There is NO actual case when the question involved is hypothetical,


abstract, conjectural, contingent, anticipatory, speculative, moot or
academic

The power of judicial review does not extend to

conjectural or anticipatory case, for otherwise the decision of the Court will
amount to an advisory opinion;

hypothetical questions because any attempt at abstraction could only lead to


dialectics and barren legal questions and to sterile conclusions unrelated to actualities;

moot questions in a case in which no practical relief can be granted.

(Garcillano v. House of Representatives, 23 December 2008; La Bugal-Blaan Tribal Association v. Ramos,


January 27, 2004, G.R. No. 127882)

The case-or-controversy requirement bans this court from deciding abstract,


hypothetical or contingent questions, lest the court give opinions in the nature of advice
concerning legislative or executive action. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

(Lozano v. Nograles, 16 June 2009, G.R. No. 187883) (Emphasis supplied)

The case must concern a real and not a merely theoretical question or issue.

(Remman v. Professional Regulatory Board, G.R. No. 197676, February 4, 2014; Information Technology
Foundation v. Comelec, G.R. No. 159139, June 15, 2005 ) (Emphasis supplied)

An actual case or controversy means an existing case or controversy that is appropriate


or ripe for determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion
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(Anak Mindanao Party List v. Executive Secretary, G.R. No. 166052, August 29, 2007; La Bugal-Blaan Tribal
Association v. Ramos, G.R. No. 127882, January 27, 2004; Board of Optometry v. Colet, G.R. No. 122241, July 30,
1996)(Emphases supplied)

Courts as a rule, will desist from taking cognizance of speculative or hypothetical


cases, advisory opinions and cases that have become moot.

(Anak Mindanao Party List v. Executive Secretary, G.R. No. 166052, August 29, 2007) (Emphases supplied)

The power does not extend to hypothetical questions since any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.

(La Bugal-Blaan Tribal Association v. Ramos, G.R. No. 127882, January 27, 2004)

Courts have no authority to pass upon issues through advisory opinions or to resolve
hypothetical or feigned problems or friendly suits collusively arranged between parties
without real adverse interests. Courts do not sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually challenging.

(Guingona v. Court of Appeals, July 10, 1998, G.R. No. 125532) (Emphases supplied)

The case must not be moot or academic. Courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging.

(Information Technology Foundation v. Comelec, G.R. No. 159139, June 15, 2005 ) (Emphasis supplied)

Any attempt at abstraction could only lead to dialectics and barren legal questions and
to sterile conclusions unrelated to actualities.

(Lozano v. Nograles, 16 June 2009, G.R. No. 187883; Angara v. Electoral Commission, G.R. No. L-45081,
July 15, 1936, 63 Phil. 139)

3.4. Actual case vs. hypothetical case: What is the difference?

A justiciable controversy is distinguished from a hypothetical or abstract difference or


dispute, in that the former involves a definite and concrete dispute touching on the legal
relations of parties having adverse legal interests. A justiciable controversy admits of specific
relief through a decree that is conclusive in character, whereas an opinion only advises what
the law would be upon a hypothetical state of facts.

(Guingona v. Court of Appeals, July 10, 1998, G.R. No. 125532; See also Garcia v. Executive Secretary, 02
April 2009, G.R. No. 157584)

3.5. Courts cannot give advisory opinions

Courts have no authority to pass upon issues through advisory opinions.

(Guingona v. Court of Appeals, July 10, 1998, G.R. No. 125532) (Emphasis supplied)
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Withal, courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot questions.

(Belgica v. Honorable Executive Secretary, G.R. No. 208566, November 19, 2013) (Emphasis supplied)

Judicial review is exercised only to remedy a particular, concrete injury.

(Lozano v. Nograles, G.R. No. 187883, 16 June 2009)

Courts decline to issue advisory opinions or to resolve hypothetical or feigned


problems, or mere academic questions.

(Province of North Cotobato v. Republic, G.R. No. 183591, October 14, 2008) (Emphasis supplied)

3.6. Policy reason: Why courts cannot issue advisory opinions

This Court cannot render an advisory opinion. A policy that reduces this Court to an
adviser for official acts by the other departments that have not yet been done would
unnecessarily tax our resources. It is inconsistent with our role as final arbiter and adjudicator
and weakens the entire system of the Rule of Law. Our power of judicial review is a duty to
make a final and binding construction of law. This power should generally be reserved when the
departments have exhausted any and all acts that would remedy any perceived violation of
right.

(In the Matter of: Save the Supreme Court Judicial Indepe ndence, UDK-15143, January 21, 2015)
(Emphases supplied)

3.7. Facial challenge as a departure from the case or controversy


requirement

A facial invalidation is an examination of the entire law, pinpointing its flaws


and defects, not only on the basis of its actual operation to the parties, but also on
the assumption or prediction that its very existence may cause others not before the
court to refrain from constitutionally protected speech or activities

Distinguished from an as-applied challenge which considers only extant facts affecting
real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and
defects, not only on the basis of its actual operation to the parties, but also on the assumption
or prediction that its very existence may cause others not before the court to refrain from
constitutionally protected speech or activities.

xxx

The allowance of a facial challenge in free speech cases is justified by the aim to avert
the chilling effect on protected speech, the exercise of which should not at all times be
abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally
bear an in terrorem effect in deterring socially harmful conduct. In fact, the legislature may
13 | P a g e

even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains
from diminishing or dissuading the exercise of constitutionally protected rights.

(Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

On its face" invalidation of statutes constitutes a departure from the case


and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts

A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity." The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deterred and perceived grievances left to
fester because of possible inhibitory effects of overly broad statutes.

(Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010;
Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001)

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes . As the U.S. Supreme
Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma , the
Court ruled that "claims of facial overbreadth have been 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." For this reason, it has been held that "a
facial challenge to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act would be
valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of
others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established 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." As has been pointed out, "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." Consequently, there is no basis for petitioner's
claim that this Court review the Anti-Plunder Law on its face and in its entirety.
14 | P a g e

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the case and controversy requirement
of the Constitution and permits decisions to be made without concrete factual settings and in
sterile abstract contexts.

(Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010;
Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001)

In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes concerning not
only protected speech, but also all other rights in the First Amendment. These include religious
freedom, freedom of the press, and the right of the people to peaceably assemble, and to
petition the Government for a redress of grievances. After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to
one's freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statues, it has expanded its scope to cover
statutes not only regulating free speech, but also those involving religious freedom, and other
fundamental rights. The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. Verily, the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the Court has authority to take cognizance
of these kindred petitions and to determine if the RH Law can indeed pass constitutional
scrutiny. To dismiss these petitions on the simple expedient that there exist no actual cas e or
controversy, would diminish this Court as a reactive branch of government, acting only when
the Fundamental Law has been transgressed, to the detriment of the Filipino people .

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014) (Emphases supplied)

3.8. Examples of petitions dismissed because there was no actual case

3.8.1. A petition to stop Congress from passing a bill lowering the age to vote
in SK elections

Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering
the membership age in the SK does not present an actual justiciable controversy.
15 | P a g e

There can be no justiciable controversy involving the constitutionality of a proposed bill.


The Court can exercise its power of judicial review only after a law is enacted, not before.

Under the separation of powers, the Court cannot restrain Congress from passing any
law, or from setting into motion the legislative mill according to its internal rules. Thus, the
following acts of Congress in the exercise of its legislative powers are not subject to judicial
restraint: the filing of bills by members of Congress, the approval of bills by each chamber of
Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual
approval into law of the reconciled bills by each chamber of Congress. Absent a clear violation
of specific constitutional limitations or of constitutional rights of private parties, the Court
cannot exercise its power of judicial review over the internal processes or procedures of
Congress.

The Court has also no power to dictate to Congress the object or subject of bills that
Congress should enact into law. The judicial power to review the constitutionality of laws does
not include the power to prescribe to Congress what laws to enact. The Court has no power to
compel Congress by mandamus to enact a law. To do so would destroy the delicate system of
checks and balances finely crafted by the Constitution for the three co-equal, coordinate and
independent branches of government.

Every law passed by Congress is always subject to amendment or repeal by Congress.


The Court cannot restrain Congress from amending or repealing laws, for the power to make
laws includes the power to change the laws.

(Montesclaros v. Commission on Elections, G.R. No. 152295, July 9, 2002) (Emphases and underscoring
supplied)

3.8.2. A petition to stop Congress from passing a bill to abolish the Judicial
Development Fund

Petitioners allegations show that he wants this court to strike down the proposed bills
abolishing the Judiciary Development Fund. This court is not empowered to review proposed
bills because a bill is not a law.

Thus, there can be no justiciable controversy involving the constitutionality of a


proposed bill. The Court can exercise its power of judicial review only after a law is enacted, not
before.

This court has explained that the filing of bills is within the legislative power of Congress
and is not subject to judicial restraint. A proposed bill produces no legal effects until it is
passed into law. Under the Constitution, the judiciary is mandated to interpret laws. It cannot
speculate on the constitutionality or unconstitutionality of a bill that Congress may or may not
pass. It cannot rule on mere speculations or issues that are not ripe for judicial determination.
The petition, therefore, does not present any actual case or controversy that is ripe for this
courts determination.

(In the Matter of: Save the Supreme Court Judicial Independence, UDK-15143, January 21, 2015)
(Emphases supplied)
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3.8.3. A petition to nullify a House Resolution calling for Congress to convene


and consider proposals to amend or revise the Constitution

The two petitions prayed for the nullification of House Resolution No. 1109 calling upon
the Members of Congress to convene to consider proposals to amend or revise the Constitution.

In the first place, petitioners have not sufficiently proven any adverse injury or hardship
from the act complained of. In the second place, House Resolution No. 1109 only resolved that
the House of Representatives shall convene at a future time for the purpose of proposing
amendments or revisions to the Constitution. No actual convention has yet transpired and no
rules of procedure have yet been adopted. More importantly, no proposal has yet been made,
and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short,
House Resolution No. 1109 involves a quintessential example of an uncertain contingent future
event that may not occur as anticipated, or indeed may not occur at all. The House has not yet
performed a positive act that would warrant an intervention from this Court.

(Lozano v. Nograles, G.R. No. 187883, June 16, 2009)

3.8.4. A petition to suspend a requirement of law, on the ground that the


petitioner may not able to comply with it and thus be penalized

Petitioner sought the suspension of the requirement, under Section 21 of Republic Act
No. 7925, of a public offering of 30% of the aggregate common stocks of telecommunication
companies, claiming that it was impossible for it to comply with this due to the companys
financial condition, and thus feared the risk of possible sanctions. However, a mere
apprehension of an administrative sanction does not give rise to a justiciable controversy.
Whatever sanctions petitioner fears are merely hypothetical.

(Bayantel v. Republic, G.R. No. 161140, January 31, 2007)

3.8.5. A petition challenging the constitutionality of a law on the ground that


the laws implementation may be abused

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. Such possibility is not
peculiar to RA 9372 since the exercise of any power granted by law may be abused. Allegations
of abuse must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.

(Southern Hemisphere v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

3.9. MOOT AND ACADEMIC Principle


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3.9.1. GENERAL RULE

As a general rule, the courts will not adjudicate a case that has become moot.
As a rule, courts decline jurisdiction over such case, or dismiss it on ground of
mootness.
(see David v. Arroyo, 03 May 2006; Gunsi v. Commissioners, 23 Feb ruary 2009; Gunsi v. Commissioners,
Comelec, 23 February 2009; Integrated Bar of the Philippines v. Atienza, 24 February 2010, G.R. No. 175241)

Courts do not adjudicate moot cases, judicial power being limited to the
determination of actual controversies.

(Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004)

Where the issue has become moot and academic, there is no justiciable
controversy, and an adjudication thereon would be of no practical use or value as courts do
not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging.

(Suplico v. NEDA, G.R. No. 178830, July 14, 2008; Mattel v. Francisco, 30 July 2008, G.R. No. 166886)
(Emphasis supplied)

The Court is not empowered to decide moot questions or abstract propositions, or to


declare principles or rules of law which cannot affect the result as to the thing in issue in the
case before it. In other words, when a case is moot, it becomes non-justiciable.

(Pormento v. Estrada, G.R. No. 191988, August 31, 2010)(Emphasis supplied)

3.9.2. When does a case become moot?

A case becomes moot when

it ceases to present a justiciable controversy by virtue of supervening


events, so that a declaration thereon would be of no practical use or value.

(Timbol v. Comelec, G.R. No. 206004, February 24, 2015; Araullo v. Aquino, G.R. No. 209287, July 1, 2014;
Penafrancia Sugar Mill v. Sugar Regulatory Board, G.R. No. 208660, March 5, 2014; Funa v. Agra, G.R. No. 191644,
February 19, 2013; Vilando v. HRET, G.R. Nos. 192147 & 192149, August 23, 2011; David v. Arroyo, 03 May 2006;
Gunsi v. Commissioners, 23 February 2009; Funa v. Executive Secretary, 11 February 2010, G.R. No. 184740;
Integrated Bar of the Philippines v. Atienza, 24 February 2010, G.R. No. 17524 1)

a judgment thereon cannot have any practical legal effect or, in the
nature of things, cannot be enforced.

(Penafrancia Sugar Mill v. Sugar Regulatory Board, G.R. No. 208660, March 5, 2014; Garcillano v. House of
Representatives, G.R. No. 170338, December 23, 2008; Chavez v. Gonzales, G.R. No. 168338, February 15, 2008 ;
Sales v. Comelec, G.R. No. 174668, September 12, 2007)
18 | P a g e

no practical relief can be granted.

(Chavez v. Gonzales, G.R. No. 168338, February 15, 2008 ; Sales v. Comelec, G.R. No. 174668, September
12, 2007)

its purpose has become stale.

(Funa v. Chairman, COA, G.R. No. 192791, April 24, 2012; Garcillano v. House of Representatives, G.R. No.
170338, December 23, 2008; Joya v. PCGG, G.R. No. 96541, August 24, 1993)

when no useful purpose can be served in passing upon the merits.

(Penafrancia Sugar Mill v. Sugar Regulatory Board, G.R. No. 208660, March 5, 2014; Belgica v. Honorable
Executive Secretary, G.R. No. 208566, November 19, 2013; Mattel v. Francisco, 30 July 2008, G.R. No. 166886)

when the matter in dispute has already been resolved and hence, one is not
entitled to judicial intervention unless the issue is likely to be raised again
between the parties. There is nothing for the court to resolve as the
determination thereof has been overtaken by subsequent events.

(Pormento v. Estrada, G.R. No. 191988, August 31, 2010)

3.9.3. Examples of petitions dismissed for being moot

3.9.3.1. After the removal of the former Chief Justice through the
impeachment process, his earlier petition to prohibit the presentation
of certain evidence and to enjoin the impeachment proceedings
became moot

Then Chief Justice Renato Corona filed his petition before the Supreme Court to declare
the Impeachment Complaint against him null and void, prohibit the presentation and admission
of certain pieces of evidence, among others, and enjoin the proceedings in the Impeachment
Court.

Eventually, the impeachment trial continued and concluded with the conviction of
petitioner. Petitioner immediately accepted the verdict and without any protest vacated his
office. In fact, the Judicial and Bar Council is already in the process of screening applicants and
nominees, and the President of the Philippines is expected to appoint a new Chief Justice.
Unarguably, the constitutional issue raised by petitioner had been mooted by supervening
events and his own acts.

(Corona v. Senate of t he Philippines, G.R. No. 200242, July 17, 2012)

3.9.3.2. After the enactment of the law authorizing the President to fix
the compensation framework of GOCCs and GFIs, an earlier petition to
questioning the Presidents power to issue Executive Order No. (EO) 7
19 | P a g e

establishing the compensation framework for GOCCs and GFIs became


moot

With the enactment of the GOCC Governance Act of 2011, the President is now
authorized to fix the compensation framework of GOCCs and GFIs.

The new law amended R.A. No. 7875 and other laws that enabled certain GOCCs and
GFIs to fix their own compensation frameworks; the law now authorizes the President to fix the
compensation and position classification system for all GOCCs and GFIs, as well as other entities
covered by the law. This means that, the President can now reissue an EO containing these
same provisions without any legal constraints.
(Galicto v. Aquino, G.R. No. 193978, February 28, 2012)

3.9.3.3. After the President withdrew the proclamation of martial law in


Maguindanao, which proclamation was not implemented in the first
place, the petition to assail the constitutionality of the declaration
became moot and academic.

President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their
automatic duty to review and validate or invalidate the same.

Consequently, the petitions in these cases have become moot and the Court has nothing
to review. The lifting of martial law and restoration of the privilege of the writ of habeas corpus
in Maguindanao was a supervening event that obliterated any justiciable controversy.

Since President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus in just eight days, they have not been meaningfully
implemented. The military did not take over the operation and control of local government
units in Maguindanao. The President did not issue any law or decree affecting Maguindanao
that should ordinarily be enacted by Congress.

(Fortun v. Arroyo, G.R. No. 190293, March 20, 2012)

3.8.3.4. An election protest becomes moot when the term of the elective
official expires

With the expiration of the tenure of the contested mayoralty position subject of this
Petition on 30 June 2007, no practical or useful purpose would be served by passing on the
merits of Saless contentions. Courts will not determine a moot question in a case in which no
practical relief can be granted. It is unnecessary to indulge in academic discussion of a case
presenting a moot question, as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced.

In Malaluan v. COMELEC, this Court clearly pronounced that the expiration of the
challenged term of office renders the corresponding petition moot and academic.
20 | P a g e

(Sales v. Comelec, G.R. No. 174668, Se ptember 12, 2007)

3.8.3.5. A petition questioning the validity of Comelecs money ban


during the elections was deemed moot after the elections

By its express terms, the Money Ban Resolution was effective only for a specific and
limited time during the May 13, 2013 elections, i.e., from May 8 to 13, 2013. The Court issued a
Status Quo Ante Order on May 10, 2013; thus, the Money Ban Resolution was not in force
during the most critical period of the elections from May 10, 2013 to actual election day. With
the May 13, 2013 elections over, the Money Ban Resolution no longer finds any application so
that the issues raised have become moot and academic.

(Bankers Association of the Philippine s v. Comelec, G.R. No. 206794, November 26, 2013)

3.8.3.6. A petition questioning the eligibility of presidential candidate


Joseph Estrada became moot when he was not elected

The petition asks whether private respondent Joseph Ejercito Estrada is covered by the
ban on the President from "any reelection." Private respondent was elected President of the
Republic of the Philippines in the general elections held on May 11, 1998.

Private respondent was not elected President the second time he ran. Since the issue on
the proper interpretation of the phrase "any reelection" will be premised on a persons second
(whether immediate or not) election as President, there is no case or controversy to be resolved
in this case. No live conflict of legal rights exists. There is in this case no definite, concrete, real
or substantial controversy that touches on the legal relations of parties having adverse legal
interests. No specific relief may conclusively be decreed upon by this Court in this case that will
benefit any of the parties herein.

Assuming an actual case or controversy existed prior to the proclamation of a President


who has been duly elected in the May 10, 2010 elections, the same is no longer true today.
Following the results of the elections, private respondent was not elected President for the
second time. Thus, any discussion of his "reelection" will simply be hypothetical and speculative.
It will serve no useful or practical purpose.

(Pormento v. Estrada, G.R. No. 191988, August 31, 2010)

3.8.4. EXCEPTIONS to the Moot and Academic Principle:

However, courts will decide cases, otherwise moot and academic, if:
first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and the paramount public
interest is involved;
21 | P a g e

third, when constitutional issue raised requires formulation of controlling principles


to guide the bench, the bar, and the public; and
fourth, the case is capable of repetition yet evading review.

(Timbol v. Comelec, G.R. No. 206004, February 24, 2015 ; Funa v. Agra, G.R. No. 191644, February 19,
2013; Funa v. Chairman, COA, G.R. No. 192791, April 24, 2012; David v. Arroyo, 03 May 2006; Mattel v. Francisco, 30
July 2008, G.R. No. 166886; Gunsi v. Commissioners, 23 February 2009)

3.8.5. Examples of petitions decided by the Supreme Court even though the
cases became moot and academic

3.8.5.1. A petition questioning the legality of the mayors act of


modifying the venue of a permit to rally, even though the rally has
already been held

However, even in cases where supervening events had made the cases moot, this Court
did not hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar and public. Moreover, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is capable of repetition, yet
evading review.

In the present case, the question of the legality of a modification of a permit to rally will
arise each time the terms of an intended rally are altered by the concerned official, yet it
evades review, owing to the limited time in processing the application where the shortest
allowable period is five days prior to the assembly. The susceptibility of recurrence compels the
Court to definitively resolve the issue at hand.

(Integrated Bar of the Philippines v. Atienza, 24 February 2010, G.R. No. 175241)

3.8.5.2. A petition questioning the legality of the tenure of the Chairman of


COA, which became moot with the appointment of a new Chairman,
was resolved due to the need for the promulgation of principles that
will "guide the bench, the bar and the public" should like circumstance
arise

Although deemed moot due to the intervening appointment of Chairman Tan and the
resignation of Villar, the situation presently obtaining is definitely of such exceptional nature as
to necessarily call for the promulgation of principles that will henceforth "guide the bench, the
bar and the public" should like circumstance arise. Confusion in similar future situations would
be smoothed out if the contentious issues advanced in the instant case are resolved
straightaway and settled definitely.

(Funa v. Chairman, COA, G.R. No. 192791, April 24, 2012)


22 | P a g e

3.8.5.3. A petition questioning the validity of the Presidents declaration


of a state of rebellion, which declaration was eventually withdrawn
during the pendency of the case, was deemed capable of repetition
but evading review.

The issuance of Proclamation No. 435, declaring that the state of rebellion has ceased
to exist, has rendered the case moot. Nevertheless, courts will decide a question, otherwise
moot, if it is "capable of repetition yet evading review. The case at bar is one such case.

Once before, the President on May 1, 2001 declared a state of rebellion and called upon
the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order
No. 1. On that occasion, "'an angry and violent mob armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons' assaulted and attempted to break into
Malacaang." Petitions were filed before this Court assailing the validity of the President's
declaration. Five days after such declaration, however, the President lifted the same. The
mootness of the petitions in Lacson v. Perez and accompanying cases precluded this Court
from addressing the constitutionality of the declaration.

To prevent similar questions from reemerging, we seize this opportunity to finally lay to
rest the validity of the declaration of a state of rebellion in the exercise of the President's
calling out power, the mootness of the petitions notwithstanding.

(Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004) (Emphases supplied)

3.8.5.4. A petition questioning the citizenship of a Member of the House


was decided on the merits, even though the term of the Member has
expired, because the issue of citizenship was deemed capable of
repetition yet evading review.

Citizenship, being a continuing requirement for Members of the House of


Representatives, however, may be questioned at any time. Courts will decide a question,
otherwise moot and academic, if it is "capable of repetition, yet evading review." The question
on Limkaichongs citizenship is likely to recur if she would run again, as she did run, for public
office, hence, capable of repetition.

(Vilando v. HRET, G.R. Nos. 192147 & 192149, August 23, 2011)

3.8.5.5. The issue of whether Comelec could validly vest in the DILG
control and supervision over SK elections was deemed capable of
repetition yet evading review.

The question whether the COMELEC can validly vest in the DILG the control and
supervision of SK elections is likely to arise in connection with every SK election and yet the
question may not be decided before the date of such elections.

(Alunan v. Mirasol, G.R. No. 108399, July 31, 1997)


23 | P a g e

3.8.5.6. The legality of a Cabinet members holding of two positions was


an issue deemed capable of repetition yet evading review

The constitutionality of the concurrent holding by Agra of the two positions in the
Cabinet, albeit in acting capacities, was an issue that comes under all the recognized
exceptions. The issue involves a probable violation of the Constitution, and relates to a
situation of exceptional character and of paramount public interest by reason of its
transcendental importance to the people. The resolution of the issue will also be of the
greatest value to the Bench and the Bar in view of the broad powers wielded through said
positions. The situation further calls for the review because the situation is capable of
repetition, yet evading review.

(Funa v. Agra, G.R. No. 191644, February 19, 2013)

3.8.5.7. A petition to be included in the list of candidates was decided


even after the elections, because of the need to set forth controlling
doctrines on denial of due course or cancelling COCs of nuisance
candidates

We may no longer act on petitioners prayer that his name be included in the certified
list of candidates and be printed on the ballots as a candidate for Member of the Sangguniang
Panlungsod. Petitioner filed with this court his Petition for Certiorari on March 15, 2013, 39
days after respondent began printing the ballots on February 4, 2013. Also, the May 13, 2013
elections had been concluded, with the winners already proclaimed.

That this case is moot and academic, however, does not preclude us from setting forth
"controlling and authoritative doctrines" to be observed by respondent in motu proprio denying
due course to or cancelling certificates of candidacy of alleged nuisance candidates.

(Timbol v. Comelec, G.R. No. 206004, February 24, 2015)

4.
JUDICIAL REVIEW REQUIREMENT:
LEGAL STANDING OR LOCUS STANDI

4.1. The requirement of legal standing or locus standi


24 | P a g e

The person challenging the act must have the standing to question the
validity of the subject act; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its
enforcement

The person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.

(Senate v. Ermita, G.R. No. 169777, April 20, 2006; Biraogo v. Philippine Truth Commission, G.R. No.
192935, December 7, 2010; Funa v. Chairman, Civil Service Commission, G.R. No. 191672, November 25, 2014;
Villafuerte v. Robredo, G.R. No. 195390, December 10, 2014 )

A party bringing a suit challenging the constitutionality of a law, act, or statute must
show "not only that the law is invalid, but also that he has sustained or in is in immediate, or
imminent danger of sustaining some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way."

(Bayan v. Executive Secretary Zamora, G.R. No. 138570, October 10, 2000)

The long settled rule is that he who challenges the validity of a law must hav e a
standing to do so.

(Espina v. Zamora, G.R. No. 143855, September 21, 2010)

The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will
sustained, direct injury as a result of its enforcement.

(People v. Vera, G.R. No. L-45685, November 16, 1937)

4.2. Locus standi defined:

Legal standing or locus standi means a personal and substantial interest in a


case such that the party has sustained or will sustain direct injury as a result of the
government act challenged

"Legal standing" or locus standi has been defined as a personal and substantial interest
in the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged.

(Association of Flood Victims v. Comelec, G.R. No. 203775, August 5, 2014; Imbong v. Ochoa, G.R. No.
204819, April 8, 2014; Corrales v. Republic, G.R. No. 186613, August 27, 2013; Initiatives for Dialogue and
Empowerment [IDEAL] v. Power Sector Liabilities and Management Corporation [PSALM], G.R. No. 192088, October
9, 2012; Funa v. Chairman, Commission on Audit, G.R. No. 192791, April 24 , 2012; Galicto v. Aquino, G.R. No.
193978, February 28, 2012; Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011; Pimentel v. Office of the
Executive Secretary, G.R. No. 158088, July 6, 2005 ; La Bugal-Blaan Tribal Association v. Ramos, G.R. No. 127882,
January 27, 2004; Tolentino v. Comelec, G.R. No. 148334, January 21, 2004; Integrated Bar of the Philippines [IBP]
v. Zamora, G.R. No. 141284, August 15, 2000; People v. Vera, G.R. No. L-45685, November 16, 1937)
25 | P a g e

Locus standi, as a requisite for the exercise of judicial review, refers to "a right of
appearance in a court of justice on a given question."

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Bayan Muna v. Romulo, G.R. No. 159618, February 1,
2011; De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

Legal standing or locus standi refers to the right of a party to come to a court of justice
and make such a challenge. More particularly, standing refers to his personal and substantial
interest in that he has suffered or will suffer direct injury as a result of the passage of that law.

(Espina v. Zamora, G.R. No. 143855, September 21, 2010)

4.3. Locus standi requirements: Injury, Causation and Redressability

Generally, a party will a party will be allowed to raise a constitutional question or be


allowed to litigate only when he can show that

INJURY
(1) he has personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government;

CAUSATION
(2) the injury is fairly traceable to the challenged action; and

REDRESSABILITY
(3) the injury is likely to be redressed by the remedy being sought or by a favorable
action

(Galicto v. Aquino, G.R. No. 193978, February 28, 2012; Lozano v. Nograles, 16 June 2009, G.R. No.
187883; Social Justice Society v. Dangerous Drugs Board, 03 November 2008, G.R. No. 157870; Funa v. Executive
Secretary, 11 February 2010, G.R. No. 184740; Tolentino v. Comelec, G.R. No. 148334, January 21, 2004; see also
GMA Network v. Comelec, G.R. No. 205357, September 2, 2014 and White Light Corporation v. City of Manila, G.R.
No. 122846, January 20, 2009 citing Allen v. Wright on the requirements of injury, causation and redressability)

4.4. Injury as a requirement for locus standi

Unless a person is injuriously affected in any of his constitutional rights by the


operation of statute or ordinance, he has no standing.

(Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013; La Bugal-Blaan Tribal Association v.
Ramos, G.R. No. 127882, January 27, 2004)

To have legal standing, therefore, a suitor must show that he has sustained or will
sustain a "direct injury" as a result of a government action, or have a "material interest" in the
issue affected by the challenged official act.
26 | P a g e

(Funa v. Chairman, Commission on Audit, G.R. No. 192791, April 24, 2012)

4.4.1. The party must have a personal stake in the controversy

The question on legal standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Funa v. Chairman, Commission on Audit, G.R. No.
192791, April 24, 2012; Galicto v. Aquino, G.R. No. 193978, February 28, 2012; De Castro v. Judicial and Bar Council,
G.R. No. 191002, March 17, 2010; La Bugal-Blaan Tribal Association v. Ramos, G.R. No. 127882, January 27, 2004;
Agan v. Philippine International Air Terminals Company [PIATCO], G.R. No. 155001, May 5, 2003; Integrated Bar of
the Philippines [IBP] v. Zamora, G.R. No. 141284, August 15, 2000)

4.4.2. The interest of the person in the case must be direct and personal

The interest of a person assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Anak Mindanao Party List v. Executive Secretary, G.R.
No. 166052, August 29, 2007; Agan v. Philippine International Air Terminals Company [PIATCO], G.R. No. 155001,
May 5, 2003; De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

4.4.3. The party has been or is about to be denied some right or privilege or
be subjected to some burdens or penalties

It must appear that the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Anak Mindanao Party List v. Executive Secretary, G.R.
No. 166052, August 29, 2007; Agan v. Philippine International Air Terminals Company [PIATCO], G.R. No. 155001,
May 5, 2003; De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010; Espina v. Zamora, G.R. No.
143855, September 21, 2010; Bayan v. Zamora, G.R. No. 138570, October 10, 2000 )

4.4.4. The party must have a material interest in the case

The term "interest" means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.
27 | P a g e

(Integrated Bar of the Philippines [IBP] v. Zamora, G.R. No. 141284, August 15, 2000; Bayan Muna v.
Romulo, G.R. No. 159618, February 1, 2011; Funa v. Chairman, Commission on Audit, G.R. No. 192791, April 24,
2012; Association of Flood Victims v. Comelec, G.R. No. 203775, August 5, 2014)

4.4.5. The prohibition against third-party standing: Challenging the


constitutionality of a statute on the ground of violation of rights of third persons not
before the court -- is not allowed

In relation to locus standi, the "as applied challenge" 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 grounded on a violation
of the rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

4.5. How to determine locus standi : The Direct Injury Test

The person must have a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result.

As early as in 1937, in People v. Vera, the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that
the person who would assail the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result."
(Araullo v. Aquino, G.R. No. 209287, July 1, 2014; Agan v. Philippine International Air Terminals Company
[PIATCO], G.R. No. 155001, May 5, 2003; De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

The United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt, later reaffirmed inTileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a direct injury as a result of that action,
and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it
held that the person who impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers Association v. De la Fuente , Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)

Anent locus standi, the question to be answered is this: does the party possess a
personal stake in the outcome of the controversy as to assure that there is real, concrete and
legal conflict of rights and duties from the issues presented before the Court?

(Chavez v Judicial and Bar Council, G.R. No. 202242, July 17, 2012)
28 | P a g e

4.5.1. Policy reasons for the Direct Injury Test

These justifications have been asserted for the direct injury test:

to assure a vigorous adversary presentation of the case

(Lozano v. Nograles, G.R. No. 187883, June 16, 2009; Kilosbayan v. Guingona, G.R. No. 113375,
May 5, 1994; Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011)

to warrant the judiciary's overruling the determination of a coordinate,


democratically elected organ of government."

(Lozano v. Nograles, G.R. No. 187883, June 16, 2009; Kilosbayan v. Guingona, G.R. No. 113375,
May 5, 1994)

A lesser but not insignificant reason is economic in character. Given the


sparseness of our resources, the capacity of courts to render efficient judicial
service to our people is severely limited.

(Lozano v. Nograles, G.R. No. 187883, June 16, 2009 ; Kilosbayan v. Guingona, G.R. No. 113375,
May 5, 1994)

The ever-present need to regulate the invocation of the intervention of the Court
to correct any official action or policy in order to avoid obstructing the efficient
functioning of public officials and offices involved in public service.

(De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

To prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)

4.6. Assertion of a Public Right:

A citizen has personal interest and standing to sue for the enforcement
of a public right

When the proceeding involves the assertion of a public right, such as the right
to information, the requirement of personal interest is satisfied by the mere fact
that the petitioner is a citizen.

When the proceeding involves the assertion of a public right, the mere fact that the
petitioner is a citizen satisfies the requirement of personal interest. (Initiatives for Dialogue and
29 | P a g e

Empowerment [IDEAL] v. Power Sector Liabilities and Management Corporation [PSALM], G.R.
No. 192088, October 9, 2012)

In Taada v. Tuvera , the Court asserted that when the issue concerns a public a right
and the object of mandamus is to obtain the enforcement of a public duty, the people are
regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen
and as such is interested in the execution of the laws, he need not show that he has any legal
or special interest in the result of the action. In the aforesaid case, the petitioners sought to
enforce their right to be informed on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to
be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they
sought to be enforced "is a public right recognized by no less than the fundamental law of the
land."

Legaspi v. Civil Service Commission, while reiterating Taada, further declared that
"when a mandamus proceeding involves the assertion of a public right, the requirement of
personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of
the general 'public' which possesses the right."

Further, in Albano v. Reyes , the Court concluded that the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioner's
standing.

Similarly, the instant petition is anchored on the right of the people to information and
access to official records, documents and papers a right guaranteed under Section 7, Article
III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because
of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's
legal standing, i. e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we
rule that the petition at bar should be allowed.

(Chavez v. Presidential Commission on Good Government, G.R. No. 130716, December 9, 1998) (Emphases
supplied)

The petitioner has standing to bring this taxpayers suit to enforce his constitutional
right to information because the petition seeks to compel PEA to comply with its
constitutional duties. There are two constitutional issues involved here. First is the right of
citizens to information on matters of public concern. Second is the application of a
constitutional provision intended to insure the equitable distribution of alienable lands of the
public domain among Filipino citizens.

Because of the satisfaction of the two basic requisites laid down by decisional law to
sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2) espoused by a
Filipino citizen, we rule that the petition at bar should be allowed.

(Chavez v. Public Estates Authority, July 9, 2002, G.R. No. 133250)


30 | P a g e

When the question is one of public right and the object of the mandamus is to procure
the enforcement of a public duty, the people are regarded as the real party in interest and the
relator at whose instigation the proceedings are instituted need not show that he has any legal
or special interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws.

(Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36)

The assertion of a public right as a predicate for challenging a supposedly illegal or


unconstitutional executive or legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently demonstrates in his petition
that he is entitled to protection or relief from the Court in the vindication of a public right.

As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of
mere public right, however, the people are the real parties. It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied."

(De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

4.7. Facial challenge as an exception to the direct injury requirement

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 where it involves free speech on grounds of
overbreadth or vagueness of the statute.

In an "as applied" challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from
assailing 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.

But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on grounds of overbreadth or
vagueness of the statute.

The rationale for this exception 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 restrain himself from speaking
in order to avoid being charged of a crime. The overbroad or vague law thus chills him into
silence.
31 | P a g e

(Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)(Emphases supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited
to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable
only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under situations
not before the court, that are impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the
court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a
statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away
the unconstitutional aspects of the law by invalidating its improper applications on a case to
case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties
and can only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court invalidates the entire
statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.
The Court assumes that an overbroad laws "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.

(Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

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.

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.

The U.S. Supreme Court has created a notable exception to the prohibition against third-
party standing. Under the exception, 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 ground allowed for a
facial challenge is overbreadth or vagueness of the statute. Thus, the U.S. Supreme Court
declared:
32 | P a g e

x x x the Court has altered its traditional rules of standing to permit - in the First
Amendment area - attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with the requisite narrow specificity. x x x Litigants, therefore, are permitted to
challenge a statute not because their own rights of free expression are violated, but
because of a judicial prediction or assumption that the statute's very existence may cause
others not before the court to refrain from constitutionally protected speech or
expression.

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.

Prof. Erwin Chemerinsky, a distinguished American textbook writer on Constitutional Law,


explains clearly the exception of overbreadth to the rule prohibiting third-party standing in this
manner:

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.

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.
(Carpio, Dissenting Opinion, Romualdez v. Comelec, G.R. NO. 167011, April 30, 2008)

Should the void-for-vagueness doctrine apply only to statutes violating free speech? See
Justice Tingas dissenting opinion in Romualdez v. Comelec, G.R. NO. 167011, April 30, 2008. 3

3 There are three concerns animating the vagueness doctrine. First, courts are rightly concerned that citizens
be fairly warned of what behavior is being outlawed; se cond, 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 to tal invalidation of a statute, such
invalidation warranted unless there is some intervening act that has eliminated the threat to those interests.

In its essence, the vagueness doctrine is a critical implement to the fundamental role of the cou rts to rule
justly and fairly. Uncertainty in statutes enables persons to be penalized for acts which are not precisely defined in
law as criminal, or for acts which are constitutionally protected but cast within an overbroad definition of a crime.
33 | P a g e

Our special focus now lies with the "void-for-vagueness" or "procedural due process uncertainty" rule. Two
coordinate functions are served by the doctrine: guidance to the individual in planning his future conduct, and
guidance to those adjudicating his rights and duties. It is clear that some substantial degree of de finiteness 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 de signed to
fill the latter two.

The requirement of certainty arose from a fundamental common-law concept, a matter of fairness, and an
element of due process of law. No one will deny that 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.

The danger of a statute that suffers from the vagueness defect cannot be underestimated. Taken to the
extreme, the absence of any clear and definite standards for conviction would leave the matter of freedom of the
accused solely upon the discretion of the judge, to whom the language of the statute would offer no guide to
adjudication. At worse, it could represent "the coercive force of society run loose at the whim of the [prosecutor]
without adequate restraint at the level of the trial court (for want of standards by which to restrain), enforced against
indigent and unrepresented defendants." Indeed, the chances for acquittal as against a vague statute are
significantly bettered depending on the skill of the defense counsel, and the poorer an accused is, the slimmer the
chances that a skilled counsel would be within means. Void-for-vagueness statutes strike special impunity at the
impoverished. They smack of unmitigated heedlessness of the lot of the likely victims of their built -in uncertainty,
especially the underprivileged.

Romualdez, cited by the ponencia, is unfortunately insensate to these constitutional concerns. T hat decision
referenced Estrada v. Desierto as basis for its response to the vagueness challenge. The ponencia in Estrada did
adopt and incorporate the views stated by Justice Mendoza in his Separate Opinion, particularly, that "[t]he
overbreadth and vagueness doctrines then have special application only to free speech cases[t]hey are inapt for
testing the validity of penal statutes... the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing on their faces statutes in free speech cases or, as they are called in American law, First
Amendment cases. [t]hey cannot be made to do service when what is in volved is a criminal statute."

However, in his Separate Opinion to the Resolution (on the Motion for Reconsideration) dated 29 January
2002, Justice Mendoza acknowledged:

[L]et it be clearly stated that, when we said that the doctrines of strict scrutiny, overbreadth and vagueness
are analytical tools for testing on their faces statutes in free speech cases or, as they are called in American law,
First Amendment cases [and therefore] cannot be made to do service when what is involved is a criminal statute, we
did not mean to suggest that the doctrines do not apply to criminal statutes at all. They do although th ey do not
justify a facial challenge, but only an as-applied challenge, to those statutes Neither did we mean to suggest that
the doctrines justify facial challenges only in free speech or First Amendment cases. To be sure, they also justify
facial challenges in cases under the Due Process and Equal Protection Clauses of the Constitution with respect to so -
called fundamental rights..."

In light of Justice Mendozas subsequent clarification, it is a disputable matter whether Estrada established a
doctrine that "void-for-vagueness or overbreadth challenges do not apply to penal statutes," the reference thereto in
Romualdez notwithstanding. However, there is no doubt that Romualdez itself, which did not admit to a similar
qualification or clarification, set forth a "doctrine" that "the overbreadth and the vagueness doctrines have special
application only to free-speech cases [and] are not appropriate for testing the validity of penal statutes." As a result,
the Office of the Solicitor General invokes Romualdez in its present Memorandum before the Court, and the
petitioners in at least one other case now pending before this Court urges the reexamination of that doctrine.
34 | P a g e

The ponente has also cited in tandem with the Romualdez precedent this Separate Opinion o f Justice
Mendoza for the purpose of denominating the key issue as whether the vagueness doctrine can be utilized as an
analytical tool to challenge the statute "on-its-face" or "as applied." Unfortunately, we can only engage that question
if we acknowledge in the first place that the doctrine of vagueness can be applied to criminal statutes, because if not
(as pronounced in Romualdez), there is no point in distinguishing between on -its-face and as-applied challenges.
Moreover, this subsequent Separate Opinion, especially as it may distinguish from Justice Mendozas earlier and more
sweeping Separate Opinion, cannot be asserted as reflective of a doctrine announced by this Court. What works
towards such effect is Romualdez, which again does not offer such clarificatory distinction, and which certainly does
not concede, as Justice Mendoza eventually did, that "we did not mean to suggest that the doctrines [of void -for-
vagueness] do not apply to criminal statutes at all" and that "neither did we mean that that doctrines do not justify
facial challenges "in cases under the Due Process and Equal Protection Clauses of the Constitution with respect to the
so-called fundamental rights."

What we have thus seen is the queer instance of obiter in a latter case, Romualdez v. Sandiganbayan, making
a doctrine of an obiter in an earlier case, Estrada v. Desierto.

Moreover, the controversial statement in Romualdez, as adopted from Estrada with respect to the vagueness
challenge being applicable only to free speech cases, is simply not reflective of the American jurisprudential rule
which birthed the vagueness doctrine in the first place.

The leading American case laying down the rules for the vagueness challenge is Connally v. General
Construction Co., decided by the U.S. Supreme Court in 1926. It concerned a statute creating an eight (8) -hour
workday in Oklahoma, through a provision which read:

'That not less than the current rate of per diem wages in the locality where the work is performed shall be
paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by
or on behalf of the state, ... and laborers, workmen, mechanics, or other persons employed by contractors or
subcontractors in the execution of any contract or contracts with the state, ... shall be deemed to be employed by or
on behalf of the state. ...' (388)

The statute further penalized violations thereof with a fine. A constitutional challenge to this statute was
raised that the statutory provisions, "if enforced, will deprive plaintiff, its officers, agents and representatives, of their
liberty and property without due process of law, in violation of the Fourteenth Amendment to the Federal
Constitution; that they contain no ascertainable standard of guilt ; that it cannot be determined with any degree of
certainty what sum constitutes a current wage in any locality; and that the term 'locality' itself is fatally vague and
uncertain." The U.S. Supreme Court agreed, holding:

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 ordinary notions of fair play and the se ttled 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 essent ial of due process of law. xxx

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.'

We are of opinion that t his provision presents a double uncertainty, fatal to its validity as a criminal statute. In
the first place, the words 'current rate of wages' do not denote a specific or definite sum, but minimum, maximum,
and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of
work done, the efficiency of the workmen, etc., as the bill alleges is the case in respect of the territory surrounding
the bridges under construction. The statutory phrase reasonably cannot be confined to any of these amounts, since it
imports each and all of them. The current rate of wages' is not simple, but progressive -from so much (the minimum)
to so much (the maximum), including all between; and to direct the payment of an amount which shall not be less
35 | P a g e

than one of several different amounts, without saying which, is to leave the question of what is meant incapable of
any definite answer. See People ex rel. Rodgers v. Coler, 166 N. Y. 1, 24 -25, 59 N. E. 716, 52 L. R. A. 814, 82 Am.
St. Rep. 605.

Nor can the question be solved by resort to the established canons of construction that enable a court to look
through awkward or clumsy expression, or language wanting in precision, to the intent of the Legislature. For the
vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant
one thing rather than another, and in the futility of an attempt to apply a requirement, which assumes the existence
of a rate of wages single in amount, to a rate in fact composed of a multitude of gradations. To construe the phrase
'current rate of wages' as meaning either the lowest rate or the highest rate, or any intermediate rate, or, if it were
possible to determine the various factors to be considered, an average of all rates, would be as likely to defeat the
purpose of the Legislature as to promote it. See State v. Partlow, 91 N. C. 550, 553, 49 Am. Rep. 652;
Commonwealth v. Bank of Pennsylvania, 3 Watts & S. (Pa.) 173, 177.

In the second place, additional obscurity is imparted to the statute by the use of the qualifying word 'locality.'
Who can say, with any degree of accuracy, what areas constitute the locality where a given piece of work is being
done? Two men, moving in any direction from the place of op erations, would not be at all likely to agree upon the
point where they had passed the boundary which separated the locality of that work from the next locality. It is said
that this question is settled for us by the decision of the state Supreme Court on rehearing in State v. Tibbetts, 205
P. 776, 779. But all the court did there was to define the word 'locality' as meaning 'place,' 'near the place,' 'vicinity,'
or 'neighborhood.' Accepting this as correct, as of course we do, the result is not to remove t he obscurity, but rather
to offer a choice of uncertainties. The word 'neighborhood' is quite as susceptible of variation as the word 'locality.'
Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods o r
by miles. See Schmidt v. Kansas City Distilling Co., 90 Mo. 284, 296, 1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16;
Woods v. Cochrane and Smith, 38 Iowa, 484, 485; State ex rel. Christie v. Meek, 26 Wash. 405, 407 -408, 67 P. 76;
Millville Imp. Co. v. Pitman, etc., Gas Co., 75 N. J. Law, 410, 412, 67 A. 1005; Thomas v. Marshfield, 10 Pick. (Mass.)
364, 367. The case last cited held that a grant of common to the inhabitants of a certain neighborhood was void
because the term 'neighborhood' was not sufficiently certain to identify the grantees. In other connections or under
other conditions the term 'locality' might be definite enough, but not so in a statute such as that under review
imposing criminal penalties. Certainly, the expression 'near the place' leaves much to be desired in the way of a
delimitation of boundaries; for it at once provokes the inquiry, 'How near?' And this element of uncertainty cannot
here be put aside as of no consequence, for, as the rate of wages may vary -as in the present case it is alleged it
does vary- among different employers and according to the relative efficiency of the workmen, so it may vary in
different sections. The result is that the application of the law depends, not upon a word of fixed meaning in itself, or
one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but
upon the probably varying impressions of juries as to whether given areas are or are not to be included within
particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so
equivocal.

The statute in question did not involve a proscription on free speech, but a standard of wages with a
corresponding financial penalty for violation thereof. Without any consideration to the notion that the "void-for-
vagueness" challenge should be limited to free speech cases, the U.S. High Court accepted the notion that a vague
statute could be invalidated and then proceeded to analyze whether the statute was indeed vague . The fact that the
statute was invalidated makes it clear then that the "void-for-vagueness" challenge could be employed against a
penal statute.

Within the next 73 years, the U.S. Supreme Court repeatedly invalidated penal statutes on the g round of
"void-for-vagueness," in the cases of Cline v. Frink Dairy Co., Lanzetta v. State of New Jersey, Papachristou v. City of
Jacksonville, Grayned v. City of Rockford48, Smith v. Goguen49 and Kolender v. Lawson. More recently, in 1999, the
U.S. Supreme Court reiterated the rule in City of Chicago v. Morales as it invalidated an anti-loitering ordinance. x x x

In her concurring opinion, Justice Sandra Day O'Connor offered this succinct restatement of the void -for-
vagueness rule:

A penal law is void-for-vagueness if it fails to "define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited" or fails to establish guidelines to prevent "arbitrary and
discriminatory enforcement" of the law. Kolender v . Lawson , 461 U. S. 352, 357 (1983). Of these, "the more
important aspect of vagueness doctrine `is ... the requirement that a legislature establish minimal guidelines to
36 | P a g e

4.8. Locus standi: Any Filipino citizen, as a steward of nature, has legal standing
to file an action for violations of our environmental laws

The Rules of Procedure for Environmental Cases allow for a "citizen suit,"
and permit any Filipino citizen, as a steward of nature, to file an action
before our courts for violations of our environmental laws; this collapses the
traditional rule on personal and direct interest, on the principle that humans
are stewards of nature

[I]n our jurisdiction, locus standi in environmental cases has been given a more liberalized
approach. While developments in Philippine legal theory and jurisprudence have not progressed
as far as Justice Douglas's paradigm of legal standing for inanimate objects, the current trend
moves towards simplification of procedures and facilitating court access in environmental cases.

govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574 -575 (1974)). I agree that some
degree of police discretion is necessary to allow the police "to perform their peacekeeping responsibilities
satisfactorily." See post, at 12 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors,
and juries to conduct "a standardless sweep ... to pursue their personal predilections." Kolender v. Lawson, supra, at
358 (quoting Smith v. Goguen, supra, at 575).

Consider the lucid explanation of Gunther and Sullivan, which integrates the principles established by
American jurisprudence on that point:

The concept of vagueness under the [freedom of expression clause in the] First Amendment [of the U.S.
Constitution] draws on the procedural due process requirement of adequate notice, under which a law must c onvey
sufficient definite warning as to the proscribed conduct when measured by common understanding and practices."
Jordan v. DeGeorge, 341 U.S. 223 (1951) A law will be void on its face for vagueness if persons "of common
intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction
Co., 269 U.S. 385 (1926). One of the purposes of this requirement is to ensure fair notice to the defendant. But the
ban on vagueness protect not only liberty, but also equality and the separation of executive from legislative power
through the prevention of selective enforcement. See Smith v. Goguen (415 U.S. 566): "We have recognized that the
more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine
the requirement that legislatures set reasonably clear guidelines for law enforcement officials and triers of fact in
order to prevent arbitrary and discriminatory enforcement". xxx

Prior to Romualdez, Philippine jurisprudence had recognized the susceptibility of penal statutes to the
vagueness challenge, even if they did not pertain to the free exercise of speech. Nazario, earlier cited, was one such
case. Another instance, was People v. Dela Piedra, decided in 2001, where the Court announced:

Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are
subject to it what conduct on their part will render them liable to its penalties. A criminal statute that "fails to give a
person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," or is so
indefinite that "it encourages arbitrary and erratic arrests and convictions," is void for vagueness. The constitutional
vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of
which he is given no fair warning.

Dela Piedra is inconsistent with the subsequent Romualdez doctrine, yet it embodies the correct basic
proposition which is sensitive to the fundamentals of the due process clause. (Justice Tinga, Dissenting Opinion, G.R.
NO. 167011, April 30, 2008)
37 | P a g e

Recently, the Court passed the landmark Rules of Procedure for Environmental Cases ,
which allow for a "citizen suit," and permit any Filipino citizen to file an action before our courts
for violations of our environmental laws:

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.

Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their
respective provisions.

Explaining the rationale for this rule, the Court, in the Annotations to the Rules of
Procedure for Environmental Cases , commented:

Citizen suit. To further encourage the protection of the environment, the Rules enable
litigants enforcing environmental rights to file their cases as citizen suits. This provision
liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional
rule on personal and direct interest, on the principle that humans are stewards of nature. The
terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran, insofar as it
refers to minors and generations yet unborn. (Emphasis supplied, citation omitted.) Although
this petition was filed in 2007, years before the effectivity of the Rules of Procedure for
Environmental Cases, it has been consistently held that rules of procedure "may be retroactively
applied to actions pending and undetermined at the time of their passage and will not violate
any right of a person who may feel that he is adversely affected, inasmuch as there is no
vested rights in rules of procedure."

xxx

Moreover, even before the Rules of Procedure for Environmental Cases became effective,
this Court had already taken a permissive position on the issue of locus standi in environmental
cases. In Oposa, we allowed the suit to be brought in the name of generations yet unborn
"based on the concept of intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned." Furthermore, we said that the right to a balanced and healthful
ecology, a right that does not even need to be stated in our Constitution as it is assumed to
exist from the inception of humankind, carries with it the correlative duty to refrain from
impairing the environment.

In light of the foregoing, the need to give the Resident Marine Mammals legal standing
has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to
bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are
joined as real parties in the Petition and not just in representation of the named cetacean
species. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that there may
be possible violations of laws concerning the habitat of the Resident Marine Mammals, are
therefore declared to possess the legal standing to file this petition. (Resident Marine Mammals
of the Protected Seascape of Taon Strait v. Secretary Reyes, G.R. No. 180771, April 21, 2015)
38 | P a g e

4.9. Doctrine of Transcendental Importance:

When legal standing requirement may be waived even when there is


no direct injury to the petitioner

4.9.1. If the case is of transcendental importance or paramount


interest to the public, the requirement of locus standi may be waived or
relaxed, and the suit may be allowed to prosper, even where there is no
showing of direct injury to the petitioner

In cases of paramount importance where serious constitutional questions are


involved, the standing requirement may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014; Biraogo v. Philippine Truth Commission, G.R. No.
192935, December 7, 2010 citing In Coconut Oil Refiners Association, Inc. v. Torres) (Emphases supplied)

The Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of "transcendental importance.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)

The Court has already uniformly ruled in Kilosbayan v. Guingona, Tatad v. Executive
Secretary, Chavez v. Public Estates Authority and Bagong Alyansang Makabayan v. Zamora , just
to name a few, that absence of direct injury on the part of the party seeking judicial review may
be excused when the latter is able to craft an issue of transcendental importance. In Lim v.
Executive Secretary, this Court held that in cases of transcendental importance, the cases must
be settled promptly and definitely, and so, the standing requirements may be relaxed.

(Aquino v. Comelec, G.R. No. 189793, April 7, 2010) (Emphases supplied)

The Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people, as when the
issues raised are of paramount importance to the public.

(Initiatives for Dialogue and Empowerment [IDEAL] v. Power Sector Liabilities and Manageme nt Corporation
[PSALM], G.R. No. 192088, October 9, 2012) (Emphases supplied)

The rule on standing is a matter of procedure, hence, can be relaxed when the public
interest so requires, such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014; Espina v. Zamora, G.R. No. 143855, September 21,
2010) (Emphases supplied)
39 | P a g e

Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of "transcendental importance."
Pertinent are the following cases:

(1) Chavez v. Public Estates Authority , where the Court ruled that the enforcement of
the constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora , wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary , while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise
of Congress taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan
v. Zamora, that in cases of transcendental importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) (Emphases supplied)

The Court retains the broad discretion to waive the requirement of legal standing in
favor of any petitioner when the matter involved has transcendental importance, or otherwise
requires a liberalization of the requirement.

(De Castro v. Judicial and Bar Council, 17 March 2010) (Emphases supplied)

In the case of Kilosbayan vs. Guingona, Jr. , the Court ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit
to prosper even where there is no direct injury to the party claiming the right of judicial review.

(Bayan v. Zamora, G.R. No. 138570, October 10, 2000) (Emphases supplied)

Being a mere procedural technicality, the requirement of locus standi may be


waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases
prompted the Court to act liberally.

Recognizing that a strict application of the direct injury test may hamper public
interest, this Court relaxed the requirement in cases of transcendental importance or with far
reaching implications.

(Planters Products Inc. v. Fertiphil Corp., 14 March 2008) (Emphases supplied)

This Court has the discretion to take cognizance of a suit which does not satisfy the
requirement of legal standing when paramount interest is involved. In not a few cases, the
court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is
able to craft an issue of transcendental significance to the people. Thus, when the issues
40 | P a g e

raised are of paramount importance to the public, the Court may brush aside technicalities
of procedure.

(Tolentino v. Comelec, G.R. No. 148334. January 21, 2004; Integrated Bar of the Philippines v. Zamora,
G.R. No. 141284, 15 August 2000, 338 SCRA 81) (Emphases supplied)

The general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.

(White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 200) (Emphasis supplied)

The requirement of locus standi, being a mere procedural technicality, can be waived by
the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the
Court liberalized the approach when the cases had "transcendental importance."

(De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, be set aside in view of the importance of the issues raised. In the
landmark Emergency Powers Cases , this Court brushed aside this technicality because the
transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.

(Kilosbayan v. Guingona, G.R. No. 113375, May 5, 1994) (Emphases supplied)

The Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people, as when the
issues raised are of paramount importance to the public.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003) (Emphases supplied)

The Court has discretion to relax the procedural technicality on locus standi, given the
liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo, where
technicalities of procedure were brushed aside, the constitutional issues raised being of
paramount public interest or of transcendental importance deserving the attention of
the Court in view of their seriousness, novelty and weight as precedents.

(Province of North Cotobato v. Government, G.R. No. 183591, October 14 , 2008) (Emphases supplied)

Concerned citizens can bring suits if the constitutional question they raise is of
"transcendental importance" which must be settled early.

(Kilosbayan v. Morato, G.R. No. 118910, November 16, 1995; Emergency Powers Cases [Araneta v.
Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v.
Gimenez, 122 Phi. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to
question the validity of any official action which they claim infringes their prerogatives qua legislators. (Philconsa v.
Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990);
Tolentino v. Comelec, 41 SCRA 702 (1971); T atad v. Garcia, G.R. No. 114222, April 16, 1995)
41 | P a g e

The Court has time and again acted liberally on the locus standi requirements and has
accorded certain individuals, not otherwise directly injured, or with material interest
affected, by a Government act, standing to sue provided a constitutional issue of critical
significance is at stake. The rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been personally injured by the operation of a law or any other government
act.

(Funa v. Chairman, Civil Service Commission, G.R. No. 191672, November 25, 2014)

4.9.2. Determinants:

When is a case of transcendental importance or paramount interest?

There being no doctrinal definition of transcendental importance, the following


instructive determinants are instructive:

(1) the character of the funds or other assets involved in the case;

(2) the presence of a clear case of disregard of a constitutional or statutory prohibition


by the public respondent agency or instrumentality of the government; and

(3) the lack of any other party with a more direct and specific interest in raising the
questions being raised.

(In the Matter of: Save the Supreme Court Judicial Independence, UDK-15143, January 21, 2015; Chavez v.
Judicial and Bar Council, G.R. No. 202242, July 17, 2012; Francisco v. House of Representatives, G.R. No. 160261,
November 10, 2003; Senate v. Ermita, G.R. No. 169777, April 20, 2006; Anak Mindanao Party List Group v.
Executive Secretary, G.R. No. 166052, August 29, 2007 )

4.9.3. Doctrine of transcendental importance should not be abused

For our part, we cannot and should not in the name of liberality and the
"transcendental importance" doctrine entertain these types of petitions. As we held in the
very recent case of Lozano, et al. vs. Nograles, albeit from a different perspective, our liberal
approach has its limits and should not be abused.

(Galicto v. Aquino, G.R. No. 193978, February 28, 2012)

The Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people, as when the
issues raised are of paramount importance to the public. Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter is totally
eliminated. A party must, at the very least, still plead the existence of such interest, it not being
one of which courts can take judicial notice.
42 | P a g e

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003)

4.9.4. Examples of cases deemed of transcendental importance

4.9.4.1. The validity of the Pork Barrel System

As citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest." Indeed, of greater import
than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute. All told, petitioners have
sufficient locus standi to file the instant cases.

(Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)

4.9.4.2. The validity of Presidential Proclamation No. 1017, declaring a


state of national emergency, and General Order No. 5 to implement it

The validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society
now waits with bated breath the ruling of this Court on this very critical matter. The petitions
thus call for the application of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017 cases."

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)

4.10. Locus standi/legal standing of specific parties: taxpaters, voters,


concerned citizens and legislators

Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public


funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are
of transcendental importance which must be settled early; and
43 | P a g e

(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.

(Funa v. Chairman, Civil Service Commission, G.R. No. 191672, November 25, 2014; Funa v. Manila
Economic and Cultural Office, G.R. No. 193462, February 4, 2014; David v. Macapagal-Arroyo, G.R. No. 171396, May
3, 2006, 489 SCRA 163; Chavez v Judicial and Bar Council, G.R. No. 202242, July 17, 2012) (Emphases supplied;
Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618 , November 23, 2010; Kilosbayan v. Morato, G.R. No.
118910, November 16, 1995)

4.10.1. Taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed, or that public money is being deflected to
any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law

Taxpayers have been allowed to sue where there is a claim that

a) public funds are illegally disbursed; or

b) that public money is being deflected to any improper purpose; or

c) that public funds are wasted through the enforcement of an inval id or


unconstitutional law

(Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013; Chavez v. judicial and Bar Council,
G.R. No. 202242, July 17, 2012; Brilliantes v. Comelec, G.R. No. 163193, June 15, 2004; Del Mar v. Philippine
Amusement and Gaming Corporation [Pagcor], G.R. No. 138298, November 29, 2000)

A party suing as a taxpayer must specifically prove that he has sufficient interest in
preventing the illegal expenditure of money raised by taxation.

(Del Mar v. Philippine Amusement and Gaming Corporation [Pagcor], G.R. No. 138298, November 29, 2000;
Kilosbayan v. Morato, G.R. No. 118910, November 16, 1995; Tolentino v. Secretary of Finance], 235 SCRA 630
[1994]; Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Co melec, 73 SCRA 333 (1976); Bugnay
Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972])

Taxpayers are allowed to sue, for example, where there is a claim of illegal
disbursement of public funds.

(Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976);
Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or where
a tax measure is assailed as unconstitutional. (Kilosbayan v. Morato, G.R. No. 118910, November 16, 1995; Tolentino
v. Secretary of Finance], 235 SCRA 630 [1994])

4.10.2. A legislator has legal standing when the powers of Congress are
impaired or when their prerogatives, powers or privileges
as legislators are infringed
44 | P a g e

Legislators are allowed to sue to question the validity of any official action
which they claim infringes their prerogatives, powers or privileges as legislators

Legislators are allowed to sue to question the validity of any official action which they
claim infringes their prerogatives as legislators.

(Kilosbayan v. Morato, G.R. No. 118910, November 16, 1995 citing Philconsa v. Enriquez, 235 506 [1994];
Guingona v. PCGG, 207 SCRA 659 [1992]; Gonzales v. Macaraig, 191 SCRA 452 [1990]; Tolentino v. Comelec, 41
SCRA 702 [1971]; Tatad v. Garcia, G.R. No. 114222, April 16, 1995)

To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the powers of
that institution.

(Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 7, 2010; Philippine Constitutional
Association [Philconsa] v. Enriquez, G.R. No. 113105, August 19, 1994; Pimentel v. Office of the Executive Secretary,
G.R. No. 158088, July 6, 2005; (Del Mar v. Philippine Amusement and Gaming Corporation [Pagcor], G.R. No.
138298, November 29, 2000)

Thus, legislators have the standing to maintain inviolate the prerogatives, powers
and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as legislators.

(Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005 ; Del Mar v. Philippine
Amusement and Gaming Corporation [Pagcor], G.R. No. 138298, November 29, 2000)

An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and
privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to
question the validity of any official action which, to their mind, infringes on their prerogatives as
legislators.

(Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 7, 2010; Philippine Constitutional
Association [Philconsa] v. Enriquez, G.R. No. 113105, August 19, 1994)

As for a legislator, he is allowed to sue to question the validity of any official action
which he claims infringes his prerogatives as a legislator. Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003)

A member of the Senate, and of the House of Representatives for that matter, has the
legal standing to question the validity of a presidential veto or a condition imposed on an item
in an appropriation bill.
45 | P a g e

Where the veto is claimed to have been made without or in excess of the authority
vested on the President by the Constitution, the issue of an impermissible intrusion of the
Executive into the domain of the Legislature arises.

(Philippine Constitutional Association [Philconsa] v. Enriquez, G.R. No. 113105, August 19, 1994)

A member of the House of Representatives has standing to maintain inviolate the


prerogatives, powers and privileges vested by the Constitution in his office.

(Del Mar v. Philippine Amusement and Gaming Corporation [Pagcor], G.R. No. 138298, November 29, 2000)

4.10.3. Voters have standing to question the validity of election laws

Voters are allowed to question the validity of election laws because of their obvious
interest in the validity of such laws.

(Kilosbayan v. Morato, G.R. No. 118910, November 16, 1995, Gonzales v. Comelec, 21 SCRA 774 [1967])

4.11. Examples: Recent rulings on locus standi

4.11.1. Minors and unborn generations have standing to sue on the basis of
intergenerational responsibility

Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Every
generation has a responsibility to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. The minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.

(Oposa v. Factoran, G.R. No. 101083, July 30, 1993)

14.11.2. Taxpayers have standing to sue to question the validity of the Pork
Barrel System

Clearly, as taxpayers, petitioners possess the requisite standing to question the validity
of the existing "Pork Barrel System" under which the taxes they pay have been and continue to
be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer from the
unconstitutional usage of public funds, if the Court so rules.

(Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)


46 | P a g e

14.11.3. To have standing to question the legality of the composition of the


Judicial and Bar Council, the petitioner need not be a nominee to a
judicial post

The Court disagrees with the respondents contention that petitioner lost his standing to
sue because he is not an official nominee for the post of Chief Justice. While it is true that a
"personal stake" on the case is imperative to have locus standi, this is not to say that only
official nominees for the post of Chief Justice can come to the Court and question
the JBC composition for being unconstitutional. A vast number of aspirants to judicial
posts all over the country may be affected by the Courts ruling. More importantly, the legality
of the very process of nominations to the positions in the Judiciary is the nucleus of the
controversy. Hence, a citizen has a right to bring this question to the Court, clothed with legal
standing and at the same time, armed with issues of transcendental importance to society. The
claim that the composition of the JBC is illegal and unconstitutional is an object of
concern, not just for a nominee to a judicial post, but for all citizens who have the
right to seek judicial intervention for rectification of legal blunders.

(Chavez v Judicial and Bar Council, G.R. No. 202242, July 17, 2012) (Emphases supplied)

14.11.4. A peoples organization cannot sue as a taxpayer absent any


allegation that public funds are being misused.

In Kilosbayan, Inc. v. Morato, the Court ruled that the status of Kilosbayan as a peoples
organization does not give it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific injury it has suffered.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006; Kilosbayan v. Morato, G.R. No. 118910, July
17, 1995

14.11.5. A political party has no standing to sue if it has not shown any injury
to itself or to its leaders, member or supporters

In Lacson v. Perez , involving the validity of President Arroyos Proclamation No. 427 and
General Order No. 4, both declaring "a state of rebellion" the Supreme Court ruled that one of
the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had
not demonstrated any injury to itself or to its leaders, members or supporters. Petitioner is a
juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless
arrest.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006; Sanlakas v. Executive Secretary, G.R. No.
159085, February 3, 2004)

14.11.6. Members of Congress have standing to sue, as they claim that the
Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress
47 | P a g e

In Sanlakas v. Executive Secretary , the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the Presidents declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing
their legislative powers.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006; Sanlakas v. Executive Secretary, G.R. No.
159085, February 3, 2004)

14.11.7. A labor organization has legal standing to question the Presidents


declaration of state of national emergency that resulted in the ban on
all rallies, as the act allegedly violated the members right to peaceful
assembly

KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may
be deemed sufficient to give it legal standing. Organizations may be granted standing to
assert the rights of their members. We take judicial notice of the announcement by the
Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)

14.11.8. Mere invocation by the IBP of its duty to preserve the rule of law is
not sufficient to clothe it with standing

National officers of the Integrated Bar of the Philippines (IBP) have no legal standing,
having failed to allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 (declaration of state of
emergency). In Integrated Bar of the Philippines v. Zamora , the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this case.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006; Integrated Bar of the Philippines v. Zamora,
G.R. No. 141284, August 15, 2000)

14.11.9. A media personality has no standing to sue to question the validity


of the presidents proclamation of state of emergency as there is no
showing that the enforcement of such issuance will prevent her from
pursuing her occupation

Loren Legarda has no personality as a taxpayer to file the instant petition as there are
no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of
no consequence. She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of
these issuances prevented her from pursuing her occupation. Her submission that she has
48 | P a g e

pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case.

(David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006)

14.11.10. A senator has standing to question the Presidents administrative


order that allegedly usurps legislative power

As a Senator, petitioner is possessed of the requisite standing to bring suit raising the
issue that the issuance of A.O. No. 308 is a usurpation of legislative power. As taxpayer
and member of the Government Service Insurance System (GSIS), petitioner can also impugn
the legality of the misalignment of public funds and the misuse of GSIS funds to implement A.O.
No. 308.

(Ople v. Torres, G.R. No. 127685, July 23, 1998)

IV.
JUDICIAL REVIEW REQUIREMENT:
RAISED AT THE EARLIEST OPPORTUNITY

4.1. The question of constitutionality must be raised at the earliest


opportunity

One of the requirements of judicial review is that the issue of constitutionality must be
raised at the earliest opportunity.

(In the Matter of: Save the Supreme Court Judicial Independence, UDK-15143, January 21, 2015; Belgica v.
Honorable Executive Secretary, G.R. No. 208566, November 19, 2013; Biraogo v. Philippine Truth Commission of
2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 148; Funa v. Executive Secretary, 11 February 2010, G.R.
No. 184740; Estarija v. Ranada, G. R. No. 159314, June 26, 2006 )

4.2. When is the earliest opportunity to raise a constitutional issue?

The earliest opportunity to raise a constitutional issue is in the pleadings


before a competent court; if it is not raised in the pleadings, it cannot be considered
at the trial, and, if not considered at the trial, it cannot be considered on appeal

The earliest opportunity to raise a constitutional issue is to raise it in the pleadings


before a competent court that can resolve the same, such that, "if it is not raised in the
pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal.
49 | P a g e

(Matibag v. Benipayo, G.R. No. 149036, April 2, 2002; Estarija v. Ranada, G. R. No. 159314, June 26, 2006)

Furthermore, the Supreme Court may determine, in the exercise of sound discretion, the
time when a constitutional issue may be passed upon.

(Matibag v. Benipayo, G.R. No. 149036, April 2, 2002; Estarija v. Ranada, G. R. No. 159314, June 26, 2006)

The constitutionality of an act of Congress will not be passed upon by the Court unless
at the first opportunity that question is properly raised and presented in an appropriate case,
and is necessary to a determination of the case. The constitutional validity of a statutory
provision should not be entertained by the Court where it was not specifically raised below,
insisted upon, and adequately argued.

(Reyes v. Court of Appeals, G.R. No. 118233, December 10, 1999)

The law requires that the question of constitutionality of a statute must be raised at the
earliest opportunity. In Matibag v. Benipayo, we held that the earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a competent court that can resolve the
same, such that, if it was not raised in the pleadings before a competent court, it cannot be
considered at the trial, and, if not considered in the trial, it cannot be considered on appeal.

In Matibag, President Gloria Macapagal-Arroyo appointed, ad interim , Alfredo L.


Benipayo as Chairman of the Commission on Elections (COMELEC). Ma. J. Angelina G. Matibag
was the Director IV of the Education and Information Department (EID) but Benipayo
reassigned her to the Law Department. Matibag sought reconsideration of her relief as Director
of the EID and her reassignment to the Law Department. Benipayo denied her request for
reconsideration. Consequently, Matibag appealed the denial of her request to the COMELEC en
banc. In addition, Matibag filed a complaint against Benipayo before the Law Department for
violation of the Civil Service Rules and election laws. During the pendency of her complaint
before the Law Department, Matibag filed a petition before this Court assailing the
constitutionality of the ad interim appointment of Benipayo and the other COMELEC
Commissioners. We held that the constitutional issue was raised on time because it was the
earliest opportunity for pleading the constitutional issue before a competent body.

In the case of Umali v. Guingona, Jr. , the question of the constitutionality of the creation
of the Presidential Commission on Anti-Graft and Corruption (PCAGC) was raised in the motion
for reconsideration after the Regional Trial Court of Makati rendered a decision. When appealed,
the Court did not entertain the constitutional issue because it was not raised in the pleadings in
the trial court. In that case, the Court did not exercise judicial review on the constitutional
question because it was belatedly raised and not properly pleaded, thus, it cannot be
considered by the Court on appeal.

(Estarija v. Ranada, G. R. No. 159314, June 26, 2006)

4.3. In criminal cases, question of the constitutionality of a statute may be


raised for the first time in any stage of the proceedings
50 | P a g e

As a general rule, the question of constitutionality must be raised at the earliest


opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not considered on appeal. But we must state that the
general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine
the time when a question affecting the constitutionality of a statute should be presented. Thus,
in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case.

(People v. Vera, G.R. No. L-45685, November 16, 1937)

4.4. Earliest opportunity does not mean bringing the issue of


constitutionality immediately to the Supreme Court

Seeking judicial review at the earliest opportunity does not mean immediately
elevating the matter to the [Supreme] Court. Earliest opportunity means that the
question of unconstitutionality of the act in question should have been immediately raised in the
proceedings in the court below. Thus, the petitioners should have moved to quash the separate
indictments or moved to dismiss the cases in the proceedings in the trial courts on the ground
of unconstitutionality of B.P. Blg. 22. But the records show that petitioners failed to initiate such
moves in the proceedings below. Needless to emphasize, this Court could not entertain
questions on the invalidity of a statute where that issue was not specifically raised, insisted
upon, and adequately argued. Taking into account the early stage of the trial proceedings
below, the instant petitions are patently premature.

(Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004)

In Chavez v. Judicial and Bar Council (G.R. No. 202242, July 17, 2012) the government
sought the dismissal of the petition questioning the composition of the JBC, arguing among
others, that, being aware that the current composition of the JBC had been in practice since
1994, petitioners silence for eighteen (18) years showed that the constitutional issue being
raised before the Court did not comply with the "earliest possible opportunity" requirement. The
Supreme Court nevertheless granted the petition and declared the numerical composition of the
JBC unconstitutional.

4.5. Recent rulings on when constitutionality of issues are raised at the earliest
opportunity

4.5.1. The issue of constitutionality of a labor statute need not be raised for
the first time in the NLRC

The constitutional challenge is also timely. It should be borne in mind that the
requirement that a constitutional issue be raised at the earliest opportunity entails the
interposition of the issue in the pleadings before a competent court, such that, if the issue is
not raised in the pleadings before that competent court, it cannot be considered at the trial and,
51 | P a g e

if not considered in the trial, it cannot be considered on appeal. Records disclose that the issue
on the constitutionality of the subject clause was first raised, not in petitioner's appeal with the
NLRC, but in his Motion for Partial Reconsideration with said labor tribunal, and reiterated in his
Petition for Certiorari before the CA. Nonetheless, the issue is deemed seasonably raised
because it is not the NLRC but the CA which has the competence to resolve the
constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial
function its function in the present case is limited to determining questions of fact to which
the legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in
accordance with the standards laid down by the law itself; thus, its foremost function is to
administer and enforce R.A. No. 8042, and not to inquire into the validity of its
provisions. The CA, on the other hand, is vested with the power of judicial review or
the power to declare unconstitutional a law or a provision thereof, such as the subject
clause. Petitioner's interposition of the constitutional issue before the CA was undoubtedly
seasonable. The CA was therefore remiss in failing to take up the issue in its decision.

(Serrano v. Gallant Maritime Services, G.R. No. 167614, March 24, 2009)

4.5.2. The constitutionality of a statute need not be raised with the


Ombudsman, but should be raised before the Court of Appeals

In this case, petitioner raised the issue of constitutionality of Rep. Act No. 6770 in his
motion for the reconsideration of the Ombudsmans decision. Verily, the Ombudsman has no
jurisdiction to entertain questions on the constitutionality of a law. Thus, when petitioner raised
the issue of constitutionality of Rep. Act No. 6770 before the Court of Appeals, which is the
competent court, the constitutional question was raised at the earliest opportune time.
Furthermore, this Court may determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon.

(Estarija v. Ranada, G. R. No. 159314, June 26, 2006)

4.5.3. The challenge on the constitutionality of rules on rehabilitation was not


raised at the earliest opportunity as it was not raised at the trial court
or at the Court of Appeals

The challenge on the constitutionality of the Interim Rules is a new and belated theory
that we should not even entertain. It was not raised before the CA. Well settled is the rule that
issues not previously ventilated cannot be raised for the first time on appeal. Relatedly, the
constitutional question was not raised at the earliest opportunity .

(Bank of the Philippine Islands v. Shemberg Biotech, G.R. No. 162291, August 11, 2010)

4.5.4. When the issue of constitutionality was raised only in the motion for
reconsideration at the trial court, the issue was not raised at the
earliest opportunity

In Umali v. Guingona, Jr., the constitutionality of the creation of the Presidential


Commission on Anti-Graft and Corruption was raised in the motion for reconsideration of the
RTCs decision. This Court did not entertain the constitutional issue because it was belatedly
raised at the RTC.
52 | P a g e

(Bank of the Philippine Islands v. Shemberg Biotech, G.R. No. 162291, August 11, 2010)

4.5.5. When the issue of the constitutionality of a law was raised for the first
time after 18 years, and after the petitioners received benefits from the
same law, the issue was not raised at the earliest opportunity

Intervenor FARM, composed of a small minority of 27 farmers, has yet to explain its
failure to challenge the constitutionality of Sec. 3l of RA 6657, since as early as November 21,
l989 when PARC approved the SDP of Hacienda Luisita or at least within a reasonable time
thereafter and why its members received benefits from the SDP without so much of a protest.
On the other hand, FARM raised the constitutionality of Sec. 31 only on May 3, 2007 when it
filed its Supplemental Comment with the Court. Thus, it took FARM some eighteen (18) years
from November 21, 1989 before it challenged the constitutionality of Sec. 31 of RA 6657 which
is quite too late in the day. The FARM members slept on their rights and even accepted benefits
from the SDP with nary a complaint on the alleged unconstitutionality of Sec. 31 upon which
the benefits were derived.

The question of constitutionality will not be passed upon by the Court unless it is
properly raised and presented in an appropriate case at the first opportunity. FARM is,
therefore, remiss in belatedly questioning the constitutionality of Sec. 31 of RA 6657. The
second requirement that the constitutional question should be raised at the earlies t possible
opportunity is clearly wanting.

(Hacienda Luisita v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011)

V.
JUDICIAL REVIEW REQUIREMENT:
LIS MOTA

5.1. The issue of constitutionality must be the very lis mota of the case.

The issue of constitutionality must be the very lis mota of the case.

(In the Matter of: Save the Supreme Court Judicial Independence, UDK-15143, January 21, 2015; Belgica v.
Honorable Executive Secretary, G.R. No. 208566, November 19, 2013; Biraogo v. Philippine Truth Commission of
2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 148; Funa v. Executive Secretary, 11 February 2010, G.R.
No. 184740; Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001)

The constitutionality of an act of the legislature will not be determined by the courts
unless that question is properly raised and presented inappropriate cases and is necessary to
a determination of the case; i.e., the issue of constitutionality must be the very lis mota
presented.
53 | P a g e

(Macasiano v. National Housing Authority, G.R. No. 107921, July 1, 1993 ; Tropical Homes v. National
Housing Authority, G.R. No. L-48672, July 31, 1987; Dumlao v. Comelec, G.R. No. L-52245, January 22, 1980; People
v. Vera, G.R. No. L-45685, November 16, 1937)

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a


governmental act should be avoided whenever possible.

Succinctly put, courts will not touch the issue of constitutionality unless it is truly
unavoidable and is the very lis mota or crux of the controversy.

(Francisco Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003)

It is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by the parties
and that when it is raised, if the record also presents some other ground upon which
the court may rest its judgment, that course will be adopted and the constitutional
question will be left for consideration until a case arises in which a decision upon such question
will be unavoidable.

(Francisco Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003; Sotto v. Commission on
Elections, G.R. No. L-329, April 16, 1946)

5.2. Meaning of the lis mota requirement

Courts will not pass upon a question of unconstitutionality, if the case can be
disposed on some other ground

Lis Mota the fourth requirement to satisfy before this Court will undertake judicial
review means that the Court will not pass upon a question of unconstitutionality,
although properly presented, if the case can be disposed of on some other ground,
such as the application of the statute or the general law. The petitioner must be able to
show that the case cannot be legally resolved unless the constitutional question raised
is determined.

(Hacienda Luisita v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011; Garcia v.
Executive Secretary, G.R. No. 157584, April 2, 2009; See also People v. Vera, 65 Phil. 56 [1938]) (Emphases
supplied)

As a rule, the courts will not resolve the constitutionality of a law, if the controversy can
be settled on other grounds.

(Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001)

Lis mota literally means "the cause of the suit or action". This means that the petitioner
who claims the unconstitutionality of a law has the burden of showing first that the case
cannot be resolved unless the disposition of the constitutional question that he
raised is unavoidable. If there is some other ground upon which the court may rest
its judgment, that course will be adopted and the question of constitutionality
should be avoided. Thus, to justify the nullification of a law, there must be a clear and
54 | P a g e

unequivocal breach of the Constitution, and not one that is doubtful, speculative or
argumentative.

(Kalipunan ng Damay ang Mahihirap v. Robredo, G.R. No. 200903, July 22, 2014)

The unyielding rule has been to avoid, whenever plausible, an issue assailing the
constitutionality of a statute or governmental act. If some other grounds exist by which
judgment can be made without touching the constitutionality of a law, such recourse is favored.

(Hacienda Luisita v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011)

This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It
is a well-established rule that a court should not pass upon a constitutional question and decide
a law to be unconstitutional or invalid, unless such question is raised by the parties and that
when it is raised, if the record also presents some other ground upon which the court may raise
its judgment, that course will be adopted and the constitutional question will be left for
consideration until such question will be unavoidable.

(Alvarez v. Picop Resources, G.R. No. 162243, November 29, 2006)

As a rule, where the controversy can be settled on other grounds, the courts will not
resolve the constitutionality of a law (Lim v. Pacquing, 240 SCRA 649 [1995]) . The policy of the
courts is to avoid ruling on constitutional questions and to presume that the acts of political
departments are valid, absent a clear and unmistakable showing to the contrary.

(Planters Products v. Fertiphil Corporation, G.R. No. 16600 6, March 14, 2008)

5.3. Basis of the lis mota requirement:

The lis mota requirement is based on the principle of separation of powers,


and presumption of validity of executive and legislative acts of co-equal branches of
the government

Lis mota literally means "the cause of the suit or action." This last requisite of judicial
review is simply an offshoot of the presumption of validity accorded the executive and
legislative acts of our co-equal branches of the government. Ultimately, it is rooted in
the principle of separation of powers. Given the presumed validity of an executive act, the
petitioner who claims otherwise has the burden of showing first that the case cannot be
resolved unless the constitutional question he raised is determined by the Court.

(General v. Urro, G.R. No. 191560, March 29, 2011)

This requirement is based on the rule that every law has in its favor the presumption of
constitutionality; to justify its nullification, there must be a clear and unequivocal breach of the
Constitution, and not one that is doubtful, speculative, or argumentative.

(Hacienda Luisita v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011; Garcia v.
Executive Secretary, G.R. No. 157584, April 2, 2009; See also People v. Vera, 65 Phil. 56 [1938]) (Emphases
supplied)
55 | P a g e

It is rooted in the principle of separation of powers and is thus merely an offshoot of the
presumption of validity accorded the executive and legislative acts of our coequal branches of
the government.

(Kalipunan ng Damay ang Mahihirap v. Robredo, G.R. No. 200903, July 22, 2014)

The policy of the courts is to avoid ruling on constitutional questions and to presume
that the acts of the political departments are valid, absent a clear and unmistakable showing to
the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation
of powers. This means that the measure had first been carefully studied by the legislative and
executive departments and found to be in accord with the Constitution before it was finally
enacted and approved.

(Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001)

5.4. Presumption of validity of law

The constitutionality of laws is presumed. To justify nullification of a law, there must be


a clear and unequivocal breach of the Constitution, not a doubtful or arguable implication; a law
shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable
doubt. The presumption is always in favor of constitutionality. To doubt is to sustain. Even this
Court does not decide a question of constitutional dimension, unless that question is properly
raised and presented in an appropriate case and is necessary to a determination of the case,
i.e., the issue of constitutionality must be the very lis mota presented.

(Salvador v. Mapa, G.R. No. 135080, November 28, 2007)

5.5. Examples of cases where the Supreme Court ruled that the
constitutional issue was not the lis mota of the case

In Reyes v. Court of Appeals, (G.R. No. 118233, December 10, 1999), the Supreme
Court declined to rule on the Constitutionality of Section 187 of R.A. 7160, the Local
Government Code, as it was not necessary to a determination of the case, after it found that
the appeal to question the validity of the local tax ordinances was filed beyond the prescriptive
period, and the petitioners failed to prove its allegation that there were no public hearings.
Thus, it declared that further constitutional scrutiny of Section 187 was unwarranted.

(Reyes v. Court of Appeals, G.R. No. 118233, December 10, 1999)

In General v. Urro (G.R. No. 191560, March 29, 2011) the constitutionality of the
respondents appointment was deemed not the lis mota of the case, because the petitioner
failed to establish his cause of action in his petition for a quo warranto against respondent Urro,
as the petitioner merely held an acting appointment. The essence of an acting appointment is
its temporariness and its consequent revocability at any time by the appointing authority. The
petitioner in a quo warranto proceeding who seeks reinstatement to an office, on the ground of
usurpation or illegal deprivation, must prove his clear right to the office for his suit to succeed;
otherwise, his petition must fail.
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As the petitioner failed to establish his cause of action for quo warranto, a discussion of
the constitutionality of the appointments of the respondents was deemed completely
unnecessary.

(General v. Urro, G.R. No. 191560, March 29, 2011)

VI.
POLITICAL QUESTION DOCTRINE

6.1. Political question doctrine


6.2. What are political questions?
6.3. Indications of political questions
6.4. Political vs. Legal questions
6.5. Basis of political questions: Separation of powers
6.6. Political questions do not preclude judicial review
6.7. How courts resolve political questions
6.8. Political questions: Examples in jurisprudence
6.9. Legal, not political questions: Examples in jurisprudence

6.1. Political Question Doctrine

Generally, political questions are beyond judicial review or non-justiciable

Political questions are not within the province of the judiciary , except to the
extent that power to deal with such questions has been conferred upon the courts by express
constitutional or statutory provision.

(Mabanag v. Lopez Vito, G.R. No. L-1123, March 5, 1947; Vera v. Avelino, G.R. No. L-543, August 31, 1946)

It is not within the province of the courts to pass judgment upon the policy of
legislative or executive action.

It is not within the province of the courts to pass judgment upon the policy of legislative
or executive action.

(Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957, 103 Phil. 1051; Llamas v. Executive Secretary,
G.R. No. 99031, October 15, 1991)

Where, therefore, discretionary powers are granted by the Constitution or by statute,


the manner in which those powers are exercised is not subject to judicial review. The courts,
therefore, concern themselves only with the question as to the existence and extent of these
discretionary powers.
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As distinguished from the judicial, the legislative and executive departments are spoken
of as the political departments of government because in very many cases their action is
necessarily dictated by considerations of public or political policy. These considerations of public
or political policy of course will not permit the legislature to violate constitutional provisions, or
the executive to exercise authority not granted him by the Constitution or by, statute, but,
within these limits, they do permit the departments, separately or together, to recognize that a
certain set of facts exists or that a given status exists, and these determinations, together with
the consequences that flow therefrom, may not be traversed in the courts.

(Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957, citing Willoughby on the Constitution of the
United States)

When a power vested in an officer or branch of the government is absolute or


unqualified, the acts in the exercise of such power are said to be political in nature, and,
consequently, non-justiciable or beyond judicial review.

(Justice Concepcion in Javellana v. Executive Secretary, G.R. No. L-36142, March 31, 1973) (Emphasis
supplied)

The courts will not intrude into areas committed to the other branches of
government. Essentially, the foregoing limitation is a restatement of the political question
doctrine.

(Belgica v. Honorable Executive Secretary, G.R. No. 208566, November 19, 2013)

Truly political questions are beyond judicial review, the reason for respect of the
doctrine of separation of powers to be maintained.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003)

Where the matter involved is left to a decision by the people acting in their sovereign
capacity or to the sole determination by either or both the legislative or executive branch of the
government, it is beyond judicial cognizance.

(Justice Fernando, concurring and dissenting opinion in Aquino v. Enrile, G.R. No. L -35546, September 17,
1974; Bondoc v. Pineda, G.R. No. 97710, September 26, 1991)

A political question arises in constitutional issues relating to the powers or competence


of different agencies and departments of the executive or those of the legislature. The
political question doctrine is used as a defense when the petition asks this court to
nullify certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such situation,
presumptively, this court should act with deference. It will decline to void an act unless the
exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.

(Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015)


58 | P a g e

A becoming courtesy admonishes us to respect the decisions of the political


departments when they decide what is known as the political question.

(Association of Small Landowners v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989)

6.2. What are political questions?

6.2.1. As to who should decide the issue:

Political questions are those which, under the Constitution, are to be


decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or
executive branch

Political questions refer to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the
government.

(Vera v. Avelino, G.R. No. L-543, August 31, 1946; Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957;
Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013; Vinuya v. Executive Secretary, G.R. No.
162230, 28 April 2010; Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009; Estrada v. Desierto, G.R. No.
146710-15, March 2, 2001; Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000; Santiago
v. Guingona, G.R. No. 134577, November 18, 1998; Marcos v. Manglapus, G.R. No. 88211, September 15, 1989)
(Emphases supplied)

If an issue is clearly identified by the text of the Constitution as matters for


discretionary action by a particular branch of government or to the people themselves
then it is held to be a political question.

(Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000)

A political question is a matter which is to be exercised by the people in their primary


political capacity, or that it has been specifically delegated to some other department or
particular officer of the government, with discretionary power to act.

(Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015)

6.2.2. As to the nature of the issue:

Political questions refer to questions of policy or wisdom

Political questions are concerned with issues dependent upon the wisdom, not the
legality, of a particular measure.
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(Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957; Belgica v. Executive Secretary, G.R. No. 208566,
November 19, 2013; Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010; Francisco v. House of
Representatives, G.R. No. 160261, November 10, 2003; Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001;
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000 ; Santiago v. Guingona, G.R. No.
134577, November 18, 1998; Marcos v. Manglapus, G.R. No. 88211, September 15, 1989)

The term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy.

(Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957; Francisco v. House of Representatives, G.R. No.
160261, November 10, 2003; Daza v. Singson, G.R. No. 86344, December 21, 1989; Association of Small
Landowners v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989)

The judiciary does not pass upon questions of wisdom, justice or expediency of
legislation.

(Angara v. Electoral Commission, G.R. No. L-45081, July 15, 1936; Imbong v. Ochoa, G.R. No. 204819, April
8, 2014)

The courts cannot inquire into or pass upon the advisability or wisdom of the
acts performed, measures taken or decisions made by the other departments -- provided
that such acts, measures or decision are within the area allocated thereto by the Constitution.

(Justice Concepcion in Javellana v. Executive Secretary, G.R. No. L-36142, March 31, 1973

Policy matters are not the concern of the Court. Government policy is within
the exclusive dominion of the political branches of the government. It is not for this
Court to look into the wisdom or propriety of legislative determination. Indeed, whether
an enactment is wise or unwise, whether it is based on sound economic theory,
whether it is the best means to achieve the desired results, whether, in short, the
legislative discretion within its prescribed limits should be exercised in a particular manner are
matters for the judgment of the legislature, and the serious conflict of opinions does not
suffice to bring them within the range of judicial cognizance.
(Farinas v. Executive Secretary, G.R. No. 147387, December 10, 2003)

The courts do not involve themselves with or delve into the policy or wisdom of
a statute. For the Court to resolve a clearly non-justiciable matter would be to debase the
principle of separation of powers that has been tightly woven by the Constitution into our
republican system of government.

(Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009) (Emphases supplied)

The courts are not concerned with the wisdom, justice, policy or expediency of a
statute.

(Victoriano v. Elizalde Rope Workers' Union, G.R. No. L-25246September 12, 1974; Remman Enterprises v.
Professional Regulations Commission, G.R. No. 197676, February 4, 2014; Garcia v. Drilon, G.R. No. 179267, June
25, 2013; Basco v. Philippine Amusement and Gaming Corporation (Pagcor), G.R. No. 916 49, May 14, 1991; Samson
v. Aguirre, G.R. No. 133076, September 22, 199)
60 | P a g e

It is not within the province of the courts to pass judgment upon the policy of
legislative or executive action.

(Llamas v. Orbos, G.R. No. 99031, October 15, 1991; Tanada v. Cuenco, G.R. No. L-10520, February 28,
1957)

The policy of the Court is non-interference in the wisdom of a law.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014 )

It is not the Courts duty to say what the law should be. It is not the province of the
judiciary to look into the wisdom of the law nor to question the policies adopted by the
legislative branch. Nor is it the business of this Tribunal to remedy every unjust situation that
may arise from the application of a particular law. It is for the legislature to enact remedial
legislation, if that would be necessary in the premises. But as always, with apt judicial caution
and cold neutrality, the Court must carry out the delicate function of interpreting the law,
guided by the Constitution and existing legislation and mindful of settled jurisprudence.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014 ; St. Josephs College v. St. Josephs College Workers
Association, G.R. No. 155609, January 17, 2005; Cebu Institute of Technology v. Ople, G.R. No. L-58870, December
18, 1987)

Our inescapable obligation is to say what the law is and not what the law should be.

(Wee Poco v. Posadas, G.R. No. L-43142, August 26, 1937)

6.3. Basic indications that the issue is a political question

In the classic formulation of Justice Brennan in Baker v. Carr, prominent on the surface
of any case held to involve a political question is found

a) a textually demonstrable constitutional commitment of the issue to a


coordinate political department; or

b) a lack of judicially discoverable and manageable standards for resolving it; or

c) the impossibility of deciding without an initial policy determination of a kind


clearly for nonjudicial discretion; or

d) the impossibility of a courts undertaking independent resolution without expressing


lack of the respect due coordinate branches of government; or

e) an unusual need for unquestioning adherence to a political decision already made; or

f) the potentiality of embarrassment from multifarious pronouncements by various


departments on the one question."
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(Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010; Garcia v. Executive Secretary, G.R. No.
157584, April 2, 2009; Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000; Baker v. Carr,
369 U.S. 186 [1962]; Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013 )

6.4. Political questions vs. Legal questions

6.4.1.1. It is a legal, not a political, question when the issue is whether


the constitutional conditions or limitations have been met

When the grant of power is qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have been met or the limitations
respected, is justiciable - the problem being one of legality or validity, not its
wisdom.

(Justice Concepcion in Javellana v. Executive Secretary, G.R. No. L-36142, March 31, 1973; Central Bank
Employees Association v. Bangko Sentral, G.R. No. 148208, December 15, 2004; Brilliantes v. Comelec, G.R. No.
163193, June 15, 2004; Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000 ; Santiago v.
Guingona, G.R. No. 134577, November 18, 1998)

Moreover, the jurisdiction to delimit constitutional boundaries has been given to the
Court.

(Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000)

Otherwise, said qualifications, conditions or limitations particularly those prescribed


by the Constitution would be set at naught.

(Justice Concepcion in Javellana v. Executive Secretary, G.R. No. L-36142, March 31, 1973; Central Bank
Employees Association v. Bangko Sentral, G.R. No. 148208, December 15, 2004; Santiago v. Guingona, G.R. No.
134577, November 18, 1998)

The determination of whether an issue involves a truly political and non-justiciable


question lies in the answer to the question of whether there are constitutionally imposed
limits on powers or functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or instrumentality of the government
properly acted within such limits.

(Francisco v. House of Representatives, G.R. No. 160261. November 10, 2003; Diocese of Bacolod v.
Commission on Elections, G.R. No. 205728, January 21, 2015)

The issue presented is justiciable rather political, when it involves the legality, and
not the wisdom of the act complained of, such as, the manner of filling the Commission on
Appointments as prescribed by the Constitution.

(Daza v. Singson, G.R. No. 86344, December 21, 1989)


62 | P a g e

A political question will not be considered justiciable if there are no constitutionally


imposed limits on powers or functions conferred upon political bodies. Hence, the existence
of constitutionally imposed limits justifies subjecting the official actions of the body
to the scrutiny and review of this court.

(Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015)

[I]t is not within the province of the courts to pass judgment upon the policy of
legislative or executive action. Where, therefore, discretionary powers are granted by the
Constitution or by statute, the manner in which those powers are exercised is not subject to
judicial review. The courts, therefore, concern themselves only with the question as to the
existence and extent of these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken
of as the political departments of government because in very many cases their
action is necessarily dictated by considerations of public or political policy . These
considerations of public or political policy of course will not permit the legislature to violate
constitutional provisions, or the executive to exercise authority not granted him by the
Constitution or by, statute, but, within these limits, they do permit the departments, separately
or together, to recognize that a certain set of facts exists or that a given status exists, and
these determinations, together with the consequences that flow therefrom, may not be
traversed in the courts.

(Tanada v. Cuenco, G.R. No. L-10520, February 28, 1957, citing Willoughby on the Constitution of the
United States)

6.5. Basis of political question doctrine: Separation of powers

Truly political questions are thus beyond judicial review, the reason for respect of the
doctrine of separation of powers to be maintained.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003)

Political questions are not within the province of the judiciary, except to the extent that
power to deal with such questions has been conferred upon the courts by express constitutional
or statutory provision. This doctrine is predicated on the principle of the separation of
powers.

(Mabanag v. Lopez Vito, G.R. No. L-1123, March 5, 1947)

One of the principal bases of the non-justiciability of so-called political


questions is the principle of separation of powers characteristic of the Presidential
system of government.

Within its own sphere but only within such sphere each department is supreme
and independent of the others, and each is devoid of authority, not only to encroach
upon the powers or field of action assigned to any of the other departments, but,
63 | P a g e

also, to inquire into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments provided that such
acts, measures or decisions are within the area allocated thereto by the Constitution.

(Justice Concepcion in Javellana v. Executive Secretary, G.R. No. L-36142, March 31, 1973; Santiago v.
Guingona, G.R. No. 134577, November 18, 1998) (Emphases supplied)

6.6. Political question doctrine does not preclude judicial review

6.6.1. Courts now have the power to rule upon the wisdom of the decisions of
the executive and the legislature and to declare their acts invalid for
lack or excess of jurisdiction because tainted with grave abuse of
discretion

The first part of the authority [Section 1, Article VI] represents the traditional concept
of judicial power, involving the settlement of conflicting rights as conferred as law. The second
part of the authority represents a broadening of judicial power to enable the courts of justice to
review what was before forbidden territory, to wit, the discretion of the political departments of
the government.

As worded, the new provision [Section 1, Article VI] vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is
the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

(Oposa v. Factoran, G.R. No. 101083, July 30, 1993, quoting Justice Isagani Cruz, Philippine Political Law )

6.6.2. The Constitution expanded the power of judicial review and narrowed
the scope of the political question doctrine

Even if the question were political in nature, it would still come within our
powers of review under the expanded jurisdiction conferred upon us by Article VIII,
Section 1, of the Constitution, which includes the authority to determine whether grave abuse
of discretion amounting to excess or lack of jurisdiction has been committed by any branch or
instrumentality of the government.

(Daza v. Singson, G.R. No. 86344, December 21, 1989; Oposa v. Factoran, G.R. No. 101083, July 30, 1993;
Osmena v. Comelec, G.R. No. 100318, July 30, 199; Mamba v. Lara, G.R. No. 165109, December 14, 2009)

To a great degree, the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of the court not only
to settle actual controversies involving rights which are legally demandable and enforceable but
64 | P a g e

also to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of government.

(Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001; Belgica v. Executive Secretary, G.R. No. 208566,
November 19, 2013)

The present Constitution now fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments.

(Santiago v. Guingona, G.R. No. 134577, November 18, 1998)

The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. But nonetheless
there remain issues beyond the Court's jurisdiction the determination of which is exclusively for
the President, for Congress or for the people themselves through a plebiscite or referendum.

(Marcos v. Manglapus, G.R. No. 88211, September 15, 1989)

The political question doctrine is no longer, the insurmountable obstacle to


the exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review.

(Oposa v. Factoran, G.R. No. 101083, July 30, 1993)

The concept of the political question has been constricted with the enlargement
of judicial power, which now includes the authority of the courts "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government.

(Association of Small Landowners v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989)

Where the legislature or the executive branch is acting within the limits of its authority,
the judiciary cannot and ought not to interfere with the former. But where the legislature or
the executive acts beyond the scope of its constitutional powers, it becomes the
duty of the judiciary to declare what the other branches of the government had
assumed to do as void.

(Demetria v. Alba, G.R. No. 71977, February 27, 1987)

The concept of a political question never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right.

Marcos v. Manglapus limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the


determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Supreme Court will not substitute its
65 | P a g e

judgment for that of the official concerned and decide a matter which by its nature or by law is
for the latter alone to decide.

In Daza v. Singson and Coseteng v. Mitra Jr. involving the application of Article VI,
Section 18 of the 1987 Constitution regarding the removal of petitioners from the Commission
on Appointments, the Supreme Court exercised its power of judicial review noting that the
requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised.
This approach was again reiterated in Defensor Santiago v. Guingona, Jr.

In Integrated Bar of the Philippines v. Zamora , the Supreme Court declared again that
the possible existence of a political question did not bar an examination of whether
the exercise of discretion was done with grave abuse of discretion.

In Estrada v. Desierto, the Supreme Court ruled that the legal question as to whether a
former President resigned was not a political question even if the consequences would be to
ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. But the expanded jurisdiction of
this court now mandates a duty for it to exercise its power of judicial review
expanding on principles that may avert catastrophe or resolve social conflict.

In Llamas v. Executive Secretary Oscar Orbos , the Supreme Court held:

While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its exercise, it
is also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by the
Constitution, We will not decline to exercise our power of judicial review. And such
review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.

The concept of judicial power in relation to the concept of the political question was
discussed most extensively in Francisco v. HRET . In this case, the House of Representatives
argued that the question of the validity of the second impeachment complaint that was filed
against former Chief Justice Hilario Davide was a political question beyond the ambit of this
court. Former Chief Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in
light of the new Constitution which expanded the definition of judicial power as
including "the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government." As well observed by retired Justice Isagani Cruz, this
expanded definition of judicial power considerably constricted the scope of political
question. He opined that the language luminously suggests that this duty (and power) is
66 | P a g e

available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.

Francisco also provides the cases which show the evolution of the political question, as
applied in the following cases:

In Marcos v. Manglapus , this Court, speaking through Madame Justice Irene Cortes,
held: The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee , through Justice Teodoro Padilla, this
Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "(t)he political question
doctrine neither interposes an obstacle to judicial determination of the rival claims .
The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by no
means does away with the applicability of the principle in appropriate cases."

And in Daza v. Singson, speaking through Justice Isagani Cruz, the Supreme Court
ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us was
political in nature, we would still not be precluded from resolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question.

As stated in Francisco, a political question will not be considered justiciable if there are
no constitutionally imposed limits on powers or functions conferred upon political bodies.
Hence, the existence of constitutionally imposed limits justifies subjecting the
official actions of the body to the scrutiny and review of this court.

(Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015)

6.6.3. Under the expanded concept of judicial review, courts have the duty to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official
whose action is being questioned, and courts cannot evade this duty by
claiming the issue involves a political question

While the Court may not pass upon questions of wisdom, justice or expediency of a law,
it may do so where an attendant unconstitutionality or grave abuse of discretion results.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)


67 | P a g e

The 1987 Constitution expands the concept of judicial review by providing that "[T]he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."

When the grant of power is qualified, conditional or subject to limitations, the


issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity,
not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given
to this Court. When political questions are involved, the Constitution limits the determination as
to whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.

(Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000)

Courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter
on the question whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this
nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003 quoting Chief Justice
Constitutional Commissioner Roberto Concepcions sponsorship speech on Section 1, Article VIII of the Constitution)

While Art. VIII, 1 has broadened the scope of judicial inquiry into areas
normally left to the political departments to decide, such as those relating to national
security, it has not altogether done away with political questions such as those which arise in
the field of foreign relations. Under Art. VIII, the Supreme Court's function is merely [to] check
whether or not the governmental branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it erred or has a different view. In the
absence of a showing of grave abuse of discretion amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective power. It has no power to look into what it
thinks is apparent error.

(Arroyo v. De Venecia, G.R. No. 127255, August 14, 1997)

The power of judicial review granted to the Philippine Supreme Court and lower courts,
as expressly provided for in the Constitution, is not just a power but also a duty, and it was
given an expanded definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
68 | P a g e

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003 )

The second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine whether or not there has been a
grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964,
December 11, 1971, 42 SCRA 4481].

(Marcos v. Manglapus, G.R. No. 88211, September 15, 1989)

6.6.4. Courts merely check whether the governmental branch has gone
beyond the constitutional limits, not that it erred

Under the 1987 Constitution, the Supreme Court has been conferred an "expanded
jurisdiction" to review the decisions of the other branches and agencies of the government to
determine whether or not they have acted within the bounds of the Constitution (See Art. VIII,
Sec. 1, Constitution). Yet, in the exercise thereof, the Court is to merely check whether or
not the governmental branch or agency has gone beyond the constitutional limits of
its jurisdiction, not that it erred or has a different view.

(Llamas v. Executive Secretary, G.R. No. 99031, October 15, 1991; Co v. Electoral Tribunal of the House of
the Representatives, G.R. Nos. 92191-92, July 30, 1991 ) (Emphases and underscoring supplied)

6.7. How courts should resolve political questions

When political questions are involved, the Constitution limits the


determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.

(Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015; Garcia v. Executive Secretary, G.R. No.
157584, April 2, 2009; Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000 ; Marcos v.
Manglapus, G.R. No. 88211, September 15, 1989) (Emphasis and underscoring supplied)

At the same time that the Constitution mandates this Court to respect acts performed by
co-equal departments done within their sphere of competence and authority, it has also allowed
us to cross the line of separation on a very limited and specific point to determine whether
the acts of the executive and the legislative departments are null because they were
undertaken with grave abuse of discretion.

(Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009)

6.7.1. Meaning of grave abuse of discretion: Capricious and whimsical


exercise of judgment, evasion of a positive duty
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By grave abuse of discretion is meant simply capricious or whimsical exercise of


judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or hostility

(Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000)

By grave abuse of discretion is meant such capricious or whimsical exercise of


judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent
and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.

(Santos v. Commission on Audit, G.R. No. 199439, April 22, 2014;Santiago v. Guingona, G.R. No. 134577,
November 18, 1998)

Mere abuse of discretion is not enough. It must be grave abuse of discretion as when
the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or
to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.

(Santos v. Commission on Audit, G.R. No. 199439, April 22, 2014)

Grave abuse of discretion is present "when there is a capricious and whimsical


exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and
it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law.

(Gravides v. Comelec, G.R. No. 199433, November 13, 2012)

There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence; or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias.

(Information Technology Foundation v. Comelec, G.R. No. 159139, January 13, 2004; Doromal v. Biron,
G.R. No. 181809, February 17, 2010)

6.7.2. Courts cannot substitute its judgment for that of Congress or the
President; Courts only checknot supplantthe Executive or
Congress

A court is without power to directly decide matters over which full


discretionary authority has been delegated. But while this Court has no power to
substitute its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of discretion. A showing that
plenary power is granted either department of government, may not be an obstacle to judicial
inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy
70 | P a g e

(Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000)

The exercise of the power of judicial review is merely to checknot supplantthe


Executive, or to simply ascertain whether he has gone beyond the constitutional
limits of his jurisdiction but not to exercise the power vested in him or to determine the
wisdom of his act.

(Constantino v. Cuisia, G.R. No. 106064, October 13, 2005; Integrated Bar of the Philippines v. Zamora,
G.R. No. 141284, August 15, 2000; Lansang v. Garcia, G.R. No. L-33964; December 11, 1971)

If grave abuse is not established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by law is for the latter alone to
decide.

(Diocese of Bacolod v. Comelec, G.R. No. 205728, January 21, 2015; Marcos v. Manglapus, G.R. No. 88211,
September 15, 1989) (Emphasis and underscoring supplied)

6.8. Political questions: Examples in jurisprudence

6.8.1. The wisdom of the Presidents exercise of his calling out powers
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom.
The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give the
President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents
decision is totally bereft of factual basis.
(Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000) (Emphases and
underscoring supplied)

6.8.2. The acts or judgment calls of the President in exercise of his


treaty-making power or in the conduct of foreign affairs

The Constitution vests the power to enter into treaties or international agreements in
the President, subject only to the concurrence of at least two-thirds vote of all the members of
the Senate. In this light, the negotiation and ratification of treaties and/or international
agreements are exclusive acts which pertain solely to the President. Consequently, the acts or
judgment calls of the President involving a treaty - may not be validly struck down,
in the absence of clear showing of grave abuse of power or discretion.

(Bayan v. Zamora, G.R. No. 138570, October 10, 2000 342)


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Certain types of cases often have been found to present political questions. One such
category involves questions of foreign relations.

The conduct of the foreign relations of our government is committed by the Constitution
to the executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject
to judicial inquiry or decision Decisions relating to foreign policy are delicate, complex, and
involve large elements of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil. They are decisions of a kind
for which the Judiciary has neither aptitude, facilities nor responsibility.

To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not
to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals
for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is
not for the courts to question.

(Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010)

6.8.3. The legitimacy of a revolutionary government

The legitimacy of the Aquino government is not a justiciable matter . It belongs


to the realm of politics where only the people of the Philippines are the judge. And the
people have made the judgment; they have accepted the government of President Corazon C.
Aquino which is in effective control of the entire country so that it is not merely a de facto
government but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven members of this Court, as
reorganized, have sworn to uphold the fundamental law of the Republic under her government.

(In Re: Saturnino Bermudez, G.R. No. 76180, October 24, 1986)

6.8.4. The legislative wisdom of redistributing private landholdings under the


Comprehensive Agrarian Reform Program

The legislature and the executive have been seen fit, in their wisdom, to include in the
CARP the redistribution of private landholdings. The Court sees no justification to interpose its
authority, which we may assert only if we believe that the political decision is not unwise, but
illegal. We do not find it to be so.

(Association of Small Landowners v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989)
72 | P a g e

6.8.5. The wisdom of the decision of the President and the Senate in enlisting
the Philippines in the World Trade Organization (WTO)
The Supreme Court will not review the wisdom of the decision of the President and
the Senate in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body.
What the Senate did was a valid exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside the realm of judicial inquiry and
review. That is a matter between the elected policy makers and the people. As to whether
the nation should join the worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in electing their policy makers.
(Tanada v. Angara, G.R. No. 118295, May 2, 1997)

6.8.6. The propriety of the governments economic policy of removing tariffs,


taxes, subsidies, etc.
Neither will the Supreme Court rule on the propriety of the government's economic
policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other
import/trade barriers. Rather, it will only exercise its constitutional duty "to determine whether
or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction"
on the part of the Senate in ratifying the WTO Agreement and its three annexes.
(Tanada v. Angara, G.R. No. 118295, May 2, 1997)

6.8.7. The propriety of the law adopting a partial deregulation of the oil
industry.

What petitioner Garcia raises as an issue is the propriety of immediately and fully
deregulating the oil industry. Such determination essentially dwells on the soundness or wisdom
of the timing and manner of the deregulation Congress wants to implement through R.A. No.
8497. Quite clearly, the issue is not for us to resolve; we cannot rule on when and to what
extent deregulation should take place without passing upon the wisdom of the policy of
deregulation that Congress has decided upon.

The courts do not involve themselves with or delve into the policy or wisdom of a
statute; it sits, not to review or revise legislative action, but to enforce the legislative will. For
the Court to resolve a clearly non-justiciable matter would be to debase the principle of
separation of powers that has been tightly woven by the Constitution into our republican
system of government

(Garcia v. Executive Secretary, 02 April 2009, G.R. No. 157584)

6.8.8. The propriety and wisdom of the enactment of an election law


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Section 14 of Rep. Act No. 9006 repealed Section 67 of the Omnibus Election Code
(under which an elective official who runs for office other than the one which he is holding is
considered ipso facto resigned therefrom upon filing his certificate of candidacy). For sure,
some sectors of society and in government may believe that the repeal of Section 67 is bad
policy as it would encourage political adventurism. But policy matters are not the concern
of the Court. Government policy is within the exclusive dominion of the political branches of
the government. It is not for this Court to look into the wisdom or propriety of
legislative determination. Indeed, whether an enactment is wise or unwise, whether
it is based on sound economic theory, whether it is the best means to achieve the
desired results, whether, in short, the legislative discretion within its prescribed limits should
be exercised in a particular manner are matters for the judgment of the legislature.
(Farinas v. Executive Secretary, G.R. No. 147387, December 10, 2003 ) (Emphases supplied)

6.8.9. Determination by the House of Representatives of what constitutes an


impeachable offense

A determination of what constitutes an impeachable offense is a purely political question


which the Constitution has left to the sound discretion of the legislature. Such an intent is clear
from the deliberations of the Constitutional Commission.

(Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011)

6.8.10. Sufficiency of the substance of the impeachment complaints

Moreover, the Court cannot review the sufficiency of the substance of the impeachment
complaints. The sufficiency of the substance will delve into the merits of the impeachment
complaints over which the Court has no jurisdiction. The Court can only rule on whether there is
a gross violation of the Constitution in filing the impeachment complaint, in particular, whether
the complaint was filed in violation of the one-year ban. The Court cannot review the
decision of the Committee on Justice to impeach. The Court ruled in Francisco:

Impeachment is a political process. Thus, the decision to impeach lies exclusively on


Congress. The most important thing in an impeachment proceeding is the vote by the House
Plenary. Section 10 of the Rules of Procedure states that "[a] vote of at least one -third () of
all Members of the House is necessary for the approval of the resolution setting forth the
Articles of Impeachment. If the resolution is approved by the required vote, it shall then be
endorsed to the Senate for its trial." The Rule is based on Section 3 (4), Article XI of the 1987
Constitution which states:

(Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011)

6.8.11. Who to appoint is a political question involving considerations of


wisdom which only the appointing authority can decide."

Who to appoint is "a political question involving considerations of wisdom which only the
appointing authority can decide." For the betterment of government service, the appointing
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authority may consider other "abstract criteria[,]" aside from the minimum qualifications set by
law in making appointments. As this court explained in Cortez v. Civil Service Commission:

[M]any factors are taken into account in evaluating the qualifications of prospective
appointees and that formal examinations, work experience and educational attainment are only
some of them. Such abstract criteria as loyalty, cordiality, initiative, resourcefulness, discipline,
and other personality traits are also properly considered. When making this evaluation, the
appointing authority should be given the widest possible leeway and cannot be controlled by
the Commission. . . .

As long as the appointee possesses the minimum qualifications prescribed by law or


regulations, there is no question that his appointment must be respected by the Civil Service
Commission even if it be proved that there are others with superior credentials. (Abad v. Dela
Cruz, G.R. No. 207422, March 18, 2015)(Emphasis supplied)

6.9. Legal, not political questions: Examples in jurisprudence

6.9.1. The legitimacy of President Gloria Macapagal-Arroyo, who came to


power as a result of EDSA II

In fine, the legal distinction between EDSA People Power I EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and freedom
of assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government
that resulted from it cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal questions.

The cases pose legal and not political questions. The principal issues for resolution
require the proper interpretation of certain provisions in the 1987 Constitution, notably section
1 of Article II, and section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit.

(Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001)

6.9.2. The constitutionality of the Pork Barrel System

The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon
the wisdom of the political branches of government but rather a legal one whic h the
Constitution itself has commanded the Court to act upon.

(Belgica v. Honorable Executive Secretary, G.R. No. 208566, November 19, 2013 )
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6.9.3. The issue of whether the President may grant executive clemency in
administrative cases

The nature of the question for determination is not purely political, whether under the
Constitution the President may grant executive clemency in administrative cases. The exercise
by the President of her power of executive clemency is subject to constitutional limitations. The
Court will merely check whether the particular measure in question has been in accordance with
law. In so doing, the Court will not concern ourselves with the reasons or motives which
actuate the President as such is clearly beyond our power of judicial review.

(Llamas v. Executive Secretary, G.R. No. 99031, October 15, 1991)

6.9.4. Whether or not a legislative apportionment did not violate the


limitations under Section 5(3), Article VI of the 1987 Constitution.

The constitutionality of a legislative apportionment act is a judicial question, and not one
which the court cannot consider on the ground that it is a political question. It is well settled
that the passage of apportionment acts is not so exclusively within the political power of the
legislature as to preclude a court from inquiring into their constitutionality when the question is
properly brought before it.

To deny the Court the exercise of its judicial review power over RA 9591 is to contend
that this Court has no power "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government," a duty mandated under Section 1, Article VIII of the
Constitution. Indeed, if we subscribe to the COMELECs theory, this Court would be reduced to
rubberstamping laws creating legislative districts no matter how unreliable and non-
authoritative the population indicators Congress used to justify their creation. There can be no
surer way to render meaningless the limitation in Section 5(3), Article VI of the 1987
Constitution.

(Aldaba v. Comelec, G.R No. 188078, March 15, 2010)

6.9.5. The validity of various legislative acts

There is a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives.

In Tanada v. Angara, in seeking to nullify an act of the Philippine Senate on the ground
that it contravened the Constitution, it held that the petition raises a justiciable controversy and
that when an action of the legislative branch is seriously alleged to have infringed the
76 | P a g e

Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.

In Bondoc v. Pineda, this Court declared null and void a resolution of the House of
Representatives withdrawing the nomination, and rescinding the election, of a congressman as
a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the
Constitution.

In Coseteng v. Mitra, it held that the resolution of whether the House representation in
the Commission on Appointments was based on proportional representation of the political
parties as provided in Section 18, Article VI of the Constitution is subject to judicial review.

In Daza v. Singson, it held that the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject to judicial review.

(Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003)

6.
JUDICIAL REVIEW & ITS CONSEQUENCE:
UNCONSTITUTIONALITY &
DOCTRINE OF OPERATIVE FACT

7.1. Presumption of constitutionality


7.2. Requirement for unconstitutionality
7.3. To doubt is to sustain
7.4. Effect of unconstitutionality
7.5. Doctrine of Operative Fact

7.1. Presumption of constitutionality of a law

Every law has in its favor the presumption of constitutionality.

(Pimentel v. Ochoa, G.R. No. 195770, July 17, 2012 ; Hacienda Luisita v. Presidential Agrarian Reform
Council, G.R. No. 171101, November 22, 2011; Bureau of Customs Employees Association v. Teves, G.R. No. 181704,
December 6, 2011; Betoy v. Board of Directors, National Power Corporation, G.R. Nos. 156556 -57, October 4, 2011;
Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2 009; Abakada Party List Group v. Purisima, G.R. No.
166715, August 14, 2008; Gerochi v. Department of Energy, G.R. No. 159796, July 17, 2007; Garcia v. Executive
Secretary, G.R. No. 157584, April 2, 2009; Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004)

Every presumption should be indulged in favor of the constitutionality of a law and the
burden of proof is on the party questioning the constitutionality of a law to show that there is a
clear and unequivocal breach of the Constitution.

(Bases Conversion Development Authority v. Commission on Audit, G.R. No. 178160, February 26, 2009)
77 | P a g e

A law enacted by Congress enjoys the strong presumption of constitutionality.

(Bases Conversion Development Authority v. Commission on Audit , G.R. No. 178160, February 26, 2009;
Abakada Party List Group v. Purisima, G.R. No. 166715, August 14, 2008)

Every statute is presumed valid. Every law is presumed to have passed through regular
congressional processes. A person asserting the contrary has the burden of proving his
allegations clearly and unmistakably.

(Samson v. Aguirre, G.R. No. 133076, September 22, 199)

The policy of the courts is to avoid ruling on constitutional questions and to presume
that the acts of the political departments are valid in the absence of a clear and unmistakable
showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming respect for the acts of
the other departments. The theory is that as the joint act of Congress and the President of the
Philippines, a law has been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted.

(Garcia v. Executive Secretary, G.R. No. 100883 December 2, 1991)

7.2. Requirement for unconstitutionality: Clear and unequivocal breach of


the Constitution

Every law has in its favor the presumption of constitutionality. To justify its nullification,
there must be a clear and unequivocal breach of the Constitution, and not one that is
doubtful, speculative or argumentative.

(Pimentel v. Ochoa, G.R. No. 195770, July 17, 2012 ; Hacienda Luisita v. Presidential Agrarian Reform
Council, G.R. No. 171101, November 22, 2011; Bureau of Customs Employees Association v. Teves, G.R. No. 181704,
December 6, 2011; Betoy v. Board of Directors, National Power Corporation, G.R. Nos. 156556 -57, October 4, 2011;
Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009; Abakada Party List Group v. Purisima, G.R. No.
166715, August 14, 2008; Gerochi v. Department of Energy, G.R. No. 159796, July 17, 2007; Garcia v. Executive
Secretary, G.R. No. 157584, April 2, 2009; Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004; See also People
v. Vera, 65 Phil. 56 [1938]) (Emphases supplied)

To justify the nullification of a law, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal breach.

(Bases Conversion Development Authority v. Commission on Audit, G.R. No. 178160, February 26, 2009 ;
Abakada Party List Group v. Purisima, G.R. No. 166715, August 14, 2008; Central Bank Employees Association v.
Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004)

To invalidate a law based on baseless supposition is an affront to the wisdom not only of
the legislature that passed it but also of the executive which approved it.

(Smart v. Municipality of Malvar, Batangas, G.R. No. 204429, February 18, 2014 ; Bases Conversion
Development Authority v. Commission on Audit , G.R. No. 178160, February 26, 2009)
78 | P a g e

7.3. Doubts must be resolved in favor of constitutionality:


To doubt is to sustain

All reasonable doubts should be resolved in favor of the constitutionality of a


statute. An act of the legislature, approved by the executive, is presumed to be within
constitutional limitations.

(Central Bank Employees Association v. Bangko Sentral ng Pilipinas, G.R. No. 148208, December 15, 2004)

The theory is that as the joint act of the Legislature and the Executive, every statute is
supposed to have first been carefully studied and determined to be constitutional before it was
finally enacted. Hence, unless it is clearly shown that it is constitutionally flawed, the attack
against its validity must be rejected and the law itself upheld. To doubt is to sustain.

(Philippine Judges Association v. Prado, G.R. No. 105371, November 11, 1993)

The policy of the courts is to avoid ruling on constitutional questions and to presume
that the acts of the political departments are valid in the absence of a clear and unmistakable
showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming respect for the acts of
the other departments. The theory is that as the joint act of Congress and the President of the
Philippines, a law has been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted.

(Garcia v. Executive Secretary, G.R. No. 100883 December 2, 1991)

The constitutionality of laws is presumed. To justify nullification of a law, there must be


a clear and unequivocal breach of the Constitution, not a doubtful or arguable implication; a law
shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable
doubt. The presumption is always in favor of constitutionality. To doubt is to sustain.

(Salvador v. Mapa, G.R. No. 135080, November 28, 2007)

In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court


must sustain legislation because to invalidate a law based on baseless supposition is an affront
to the wisdom not only of the legislature that passed it but also of the executive which
approved it. This presumption of constitutionality can be overcome only by the cleares t showing
that there was indeed an infraction of the Constitution, and only when such a conclusion is
reached by the required majority may the Court pronounce, in the discharge of the duty it
cannot escape, that the challenged act must be struck down.

(Smart v. Municipality of Malvar, Batangas, G.R. No. 204429, February 18, 2014)

The policy of the courts is to avoid ruling on constitutional questions and to presume
that the acts of the political departments are valid, absent a clear and unmistakable showing to
the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation
of powers. This means that the measure had first been carefully studied by the legislative and
79 | P a g e

executive departments and found to be in accord with the Constitution before it was finally
enacted and approved.

(Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001)

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation
of powers which imposes upon the courts proper restraint, born of the nature of their functions
and of their respect for the other branches of government, in striking down the acts of the
Executive or the Legislature as unconstitutional. Verily, the policy is a harmonious blend of
courtesy and caution.

(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

7.4. Effect of unconstitutionality: General rule: An unconstitutional act is


void, and has no legal effect.

The general rule is that an unconstitutional law is void. It produces no rights, imposes
no duties and affords no protection. It has no legal effect. It is, in legal contemplation,
inoperative as if it has not been passed.

(Planters Products v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008)

As a general rule, an unconstitutional act is not a law; it confers no rights; it


imposes no duties; it affords no protection; it creates no office; it is inoperative as if
it has not been passed at all.

(Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012; Yap v. Thenamaris Ships Management,
G.R. No. 179532, May 30, 2011)

A legislative or executive act that is declared void for being unconstitutional


cannot give rise to any right or obligation.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

The general rule is supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse or custom or practice to the
contrary.

(Yap v. Thenamaris Ships Management, G.R. No. 179532, May 30, 2011; Planters Products v. Fertiphil
Corporation, G.R. No. 166006, March 14, 2008)

When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

(Planters Products v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008)
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The general rule is that a void law or administrative act cannot be the source of legal
rights or duties. Article 7 of the Civil Code enunciates this general rule, as well as its exception:
"Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary. When the courts declared a law to be
inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution."

(Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8, 2013)

7.5. Exception: Doctrine of Operative Fact

7.5.1. Under the Doctrine of Operative Fact, actions previous to the


declaration of unconstitutionality are legally recognized, in the interest
of equity and fair play.

As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no


duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed
at all. This rule, however, is not absolute. In the interest of fair play under the doctrine of
operative facts, actions previous to the declaration of unconstitutionality are legally
recognized. They are not nullified.

(Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012)

The doctrine of operative fact, as an exception to the general rule, only applies as a
matter of equity and fair play. It nullifies the effects of an unconstitutional law by
recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot
always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue


burden on those who have relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in double jeopardy or would
put in limbo the acts done by a municipality in reliance upon a law creating it.

(Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012; Yap v. Thenamaris Ships Management,
G.R. No. 179532, May 30, 2011; Planters Products v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008)
(Emphases supplied)

The doctrine of operative fact is an exception to the general rule, such that a judicial
declaration of invalidity may not necessarily obliterate all the effects and consequences of a
void act prior to such declaration.

(Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8, 2013)

[T]he orthodox view [is] that an unconstitutional act, for that matter an executive order
or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal
rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the
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fundamental law once judicially declared results in its being to all intents and purposes a mere
scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent
with the Constitution, the former shall be void and the latter shall govern. Administrative or
executive acts, orders and regulations shall be valid only when they are not contrary to the laws
of the Constitution. It is understandable why it should be so, the Constitution being supreme
and paramount. Any legislative or executive act contrary to its terms cannot survive.

Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic.

(Serrano de Agbayani v. Philippine National Bank, G.R. No. L-23127, April 29, 1971; Commissioner of
Internal Revenue v. Puregold Duty Free, G.R. No. 202789, June 22, 2015; Commissioner of Internal Revenue v. San
Roque Power Corporation, G.R. No. 187485, October 8, 2013; NPC Drivers and Mechanics Association v. National
Power Corporation, G.R. No. 156208, September 17, 2008)

It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be complied with. This is so as
until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience
and respect. Parties may have acted under it and may have changed their positions. What could
be more fitting than that in a subsequent litigation regard be had to what has been done while
such legislative or executive act was in operation and presumed to be valid in all respects. It is
now accepted as a doctrine that prior to its being nullified, its existence as a fact
must be reckoned with.

(Serrano de Agbayani v. Philippine National Bank, G.R. No. L-23127, April 29, 1971; Commissioner of
Internal Revenue v. Puregold Duty Free, G.R. No. 202789, June 22, 2015; Commissioner of Internal Revenue v. San
Roque Power Corporation, G.R. No. 187485, October 8, 2013; NPC Drivers and Mechanics Association v. National
Power Corporation, G.R. No. 156208, September 17, 2008 ; Union of Filipro Employees v. Vivar, G.R. No. 79255,
January 20, 1992; Tan Beng v. City Sheriff of Manila, G.R. No. L-24375, May 18, 1978)

This is merely to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise the power of judicial
review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication.

(Serrano de Agbayani v. Philippine National Bank, G.R. No. L-23127, April 29, 1971; Commissioner of
Internal Revenue v. Puregold Duty Free, G.R. No. 202789, June 22, 2015; Belgica v. Ochoa, G.R. No. 208566,
November 19, 2013; Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October
8, 2013; NPC Drivers and Mechanics Association v. National Power Corporation, G.R. No. 156208, September 17,
2008; Union of Filipro Employees v. Vivar, G.R. No. 79255, January 20, 1992; Tan Beng v. City Sheriff of Manila, G.R.
No. L-24375, May 18, 1978)

In the language of an American Supreme Court decision: "The actual existence of a


statute, prior to such a determination [of unconstitutionality], is an operative fact
and may have consequences which cannot justly be ignored.

(Serrano de Agbayani v. Philippine National Bank, G.R. No. L-23127, April 29, 1971; Commissioner of
Internal Revenue v. Puregold Duty Free, G.R. No. 202789, June 22, 2015; Belgica v. Ochoa, G.R. No. 208566,
November 19, 2013; Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October
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8, 2013; NPC Drivers and Mechanics Association v. National Power Corporation, G.R. No. 156208, September 17,
2008; Union of Filipro Employees v. Vivar, G.R. No. 79255, January 20, 1992; Tanada v. Tuvera, G.R. No. L-63915,
April 24, 1985) (Emphasis supplied)

The past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects, with respect to
particular relations, individual and corporate, and particular conduct, private and official.

(Serrano de Agbayani v. Philippine National Bank, G.R. No. L-23127, April 29, 1971; Commissioner of
Internal Revenue v. Puregold Duty Free, G.R. No. 202789, June 22, 2015; Commissioner of Internal Revenue v. San
Roque Power Corporation, G.R. No. 187485, October 8, 2013; NPC Drivers and Mechanics Association v. National
Power Corporation, G.R. No. 156208, September 17, 2008 ; Union of Filipro Employees v. Vivar, G.R. No. 79255,
January 20, 1992; Tanada v. Tuvera, G.R. No. L-63915, April 24, 1985)

The operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act,
such act is presumed constitutional and thus, entitled to obedience and respect and
should be properly enforced and complied with.

(Belgica v. Ochoa, G.R. No. 208566, November 19, 2013)

The operative fact doctrine recognizes the interim effects of a law prior to its
declaration of unconstitutionality. The operative fact doctrine is a rule of equity. As such, it
must be applied as an exception to the general rule that an unconstitutional law produces no
effects. The doctrine is applicable when a declaration of unconstitutionality will impose an
undue burden on those who have relied on the invalid law, but it can never be invoked to
validate as constitutional an unconstitutional act.

(Mirallosa v. Carmel Development, G.R. No. 194538, November 27, 2013)

The "operative fact" doctrine realizes that in declaring a law or rule null and void,
undue harshness and resulting unfairness must be avoided.

(Union of Filipro Employees v. Vivar, G.R. No. 79255, January 20, 1992)

A legislative or executive act that is declared void for being unconstitutional cannot give
rise to any right or obligation. However, the generality of the rule makes us ponder whether
rigidly applying the rule may at times be impracticable or wasteful. Should we not recognize
the need to except from the rigid application of the rule the instances in which the void law or
executive act produced an almost irreversible result? The need is answered by the doctrine of
operative fact.

The doctrine of operative fact recognizes the existence of the law or executive act prior
to the determination of its unconstitutionality as an operative fact that produced consequences
that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or
executive act but sustains its effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect. But its use must be subjected to great scrutiny and
circumspection, and it is resorted to only as a matter of equity and fair play.
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(Araullo v. Aquino, G.R. No. 209287, July 1, 2014) (Emphases supplied)

7.5.2. Requirement for the application of the Doctrine of Operative Fact:


There must be a legislative or executive measure

Clearly, for the operative fact doctrine to apply, there must be a "legislative or executive
measure," meaning a law or executive issuance that is invalidated by the court. From the
passage of such law or promulgation of such executive issuance until its invalidation
by the court, the effects of the law or executive issuance, when relied upon by the
public in good faith, may have to be recognized as valid.

The doctrine of operative fact is an argument for the application of equity and fair play.

The doctrine of operative fact is in fact incorporated in Section 246 of the Tax Code.
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from
the time the rule or ruling is issued up to its reversal by the Commissioner or this Court. The
reversal is not given retroactive effect. This, in essence, is the doctrine of operative fact. There
must, however, be a rule or ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not formalized into a rule or
ruling, will not suffice because such a mere administrative practice may not be uniformly and
consistently applied. An administrative practice, if not formalized as a rule or ruling, will not be
known to the general public and can be availed of only by those within formal contacts with the
government agency.

(Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8, 2013)
(Emphases supplied)

7.5.3. Doctrine of operative fact applies to executive acts, including those


that are quasi legislative and quasi-judicial in nature.

To be clear, the doctrine of operative fact extends to a void or unconstitutiona l


executive act. The term executive act is broad enough to include any and all acts of the
Executive, including those that are quasi legislative and quasi-judicial in nature.

In keeping with the demands of equity, the Court can apply the operative fact doctrine
to acts and consequences that resulted from the reliance not only on a law or executive act
which is quasi-legislative in nature but also on decisions or orders of the executive branch which
were later nullified.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014) (Emphasis supplied)

The operative fact doctrine does not only apply to laws subsequently declared
unconstitutional or unlawful, as it also applies to executive acts subsequently declared as
invalid.
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That the operative fact doctrine squarely applies to executive actsin this case, the
approval by the Presidential Agrarian Reform Council (PARC) of the Hacienda Luisita,
Incorporated proposal for stock distributionis well-settled in our jurisprudence.

The "operative fact" doctrine is embodied in De Agbayani v. Court of Appeals , wherein it


is stated that a legislative or executive act, prior to its being declared as unconstitutional by the
courts, is valid and must be complied with. This doctrine was reiterated in the more recent case
of City of Makati v. Civil Service Commission, wherein the Supreme Court ruled that the
existence of a statute or executive order prior to its being adjudged void is an
operative fact to which legal consequences are attached.

Bearing in mind that PARC Resolution No. 89-12-210an executive actwas declared
invalid in the instant case, the operative fact doctrine is clearly applicable.

The term "executive act" is broad enough to encompass decisions of administrative


bodies and agencies under the executive department which are subsequently
revoked by the agency in question or nullified by the Court.

In Tan v. Barrios, the Court, in applying the operative fact doctrine, held that despite the
invalidity of the jurisdiction of the military courts over civilians, certain operative facts must be
acknowledged to have existed so as not to trample upon the rights of the accused therein.

Evidently, the operative fact doctrine is not confined to statutes and rules and
regulations issued by the executive department that are accorded the same status as
that of a statute or those which are quasi-legislative in nature.

Even assuming that De Agbayani initially applied the operative fact doctrine only to
executive issuances like orders and rules and regulations, said principle can nonetheless be
applied, by analogy, to decisions made by the President or the agencies under the
executive department. This doctrine, in the interest of justice and equity, can be applied
liberally and in a broad sense to encompass said decisions of the executive branch. In keeping
with the demands of equity, the Court can apply the operative fact doctrine to acts and
consequences that resulted from the reliance not only on a law or executive act
which is quasi-legislative in nature but also on decisions or orders of the executive
branch which were later nullified. This Court is not unmindful that such acts and
consequences must be recognized in the higher interest of justice, equity and fairness.

Significantly, a decision made by the President or the administrative agencies has to be


complied with because it has the force and effect of law, springing from the powers of the
President under the Constitution and existing laws. Prior to the nullification or recall of said
decision, it may have produced acts and consequences in conformity to and in reliance of said
decision, which must be respected. It is on this score that the operative fact doctrine should be
applied to acts and consequences that resulted from the implementation of the PARC Resolution
approving the Stock Distribution Plan of HLI.

(Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011)
85 | P a g e

7.5.4. Operative Fact Doctrine: A rule of equity applicable in the absence of a


law, never in contravention of law

The operative fact doctrine is a rule of equity. As a complement of legal jurisdiction,


equity "seeks to reach and complete justice where courts of law, through the inflexibility of their
rules and want of power to adapt their judgments to the special circumstances of cases, are
incompetent to do so. Equity regards the spirit and not the letter, the intent and not the form,
the substance rather than the circumstance, as it is variously expressed by different courts."
Remarkably, it is applied only in the absence of statutory law and never in contravention of said
law.

(Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011)

7.5.5. Examples of the application of Doctrine of Operative Fact

7.5.5.1. The acts of the Judicial and Bar Council, prior to the declaration
of its composition of as unconstitutional, are valid

Notwithstanding the unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

(Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012)

7.5.5.2. Government projects funded under DAP that can no longer be


undone.

The doctrine of operative fact applicable to the adoption and implementation of the
DAP. Its application to the DAP proceeds from equity and fair play. The consequences resulting
from the DAP and its related issuances could not be ignored or could no longer be undone.

The adoption and the implementation of the DAP and its related issuances were
executive acts. To declare the implementation of the DAP unconstitutional without recognizing
that its prior implementation constituted an operative fact that produced consequences in the
real as well as juristic worlds of the Government and the Nation is to be impractical and unfair.

The implementation of the DAP yielded undeniably positive results, including roads,
bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine
of operative fact to the DAP could literally cause the physical undoing of such worthy results by
destruction, and would result in most undesirable wastefulness.

Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of
operative fact does not always apply, and is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations where the nullification of the effects
of what used to be a valid law would result in inequity and injustice; but where no such result
would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
86 | P a g e

In that context, as Justice Brion has clarified, the doctrine of operative fact can
apply only to the PAPs that can no longer be undone, and whose beneficiaries relied in
good faith on the validity of the DAP, but cannot apply to the authors, proponents and
implementors of the DAP, unless there are concrete findings of good faith in their
favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.

(Araullo v. Aquino, G.R. No. 209287, July 1, 2014) (Emphasis supplied)

7.5.5.3. The implementation of unpublished Presidential Decrees prior to


their publication is an operative fact which may have consequences
that cannot be ignored

The implementation/enforcement of presidential decrees prior to their publication in the


Official Gazette is an operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial declaration that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.

(Tanada v. Tuvera, G.R. No. L-63915, April 24, 1985)

7.5.5.4. The invalidity of the appointment does not necessarily mean


invalidity of the acts of the appointee

The concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the


Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel
(CPLC) was declared void for being in violation of Section 7, par. 2, Article IX-B of the 1987
Constitution, since these are incompatible offices. Notably, the appointment of Elma as
Chairman of the PCGG and as CPLC is, without a question, an executive act. Prior to the
declaration of unconstitutionality of the said executive act, certain acts or transactions
were made in good faith and in reliance of the appointment of Elma which cannot
just be set aside or invalidated by its subsequent invalidation.

(Hacienda Luisita v. Presidential Agrarian Reform Council, G.R. No. 171101, November 22, 2011 citing Public
Interest Center v. Elma, G.R. No. 138965, June 30, 2006)