CHAPTER IV – VALIDITY AND CONSTITUTIONALITY OF STATUTES

I. VALIDITY AND CONSTITUTIONALITY OF STATUTES

The supreme court is called upon to make a determination if a law is constitutional or not. It
is in such cases when the supreme court as final arbiter asserts its power of judicial review
and makes a final judgment.
As the ultimate guardian of our constitution, the supreme court is indeed the court of last
resort on petitions to declare a law unconstitutional.
 It will try to avoid going into the issue of constitutionality if there is any available
ground to decide a case. There will always be a presumption in favor of the
constitutionality of the statute it will be presumed that the law has been the
subject of study and careful deliberation before it was finally enacted.

In this jurisdiction, no constitutional question will be heard unless the following requisites of
judicial inquiry a compound with to wit:

1. There must be an actual case or controversy

2. The question of constitutionality must be raised by their proper party
3. The constitutional question at the earliest possible opportunity
4. the decision of the constitutional question must be necessary to the determination
of the case

II. ACTUAL CASE OR CONTROVERSY

 There must be an actual conflict which needs judicial determination.
 It must be a concrete case that is a real one that admits of specific relief and
definite determination of the legal rights of the party.
III. PROPER PARTY
One who has sustained or is in danger of sustaining an injury as a result of the act
complained of.
IV. EARLIEST OPPORTUNITY
 The constitutional question must be raised in the pleadings otherwise they cannot
be considered during the trial

This role is subject to the following exceptions:

1. In criminal cases the constitutional question can be raised at any time in the discretion
of the court
2. in the civil cases the constitutional question can be raised at any stage if it is necessary
to the determination of the case itself
3. In every case accept where there is estoppel the constitutional question can be raised at
any stage if it involves jurisdiction of the court
V. DECISIONS OF THE CONSTITUTIONAL QUESTION IS NECESSARY TO DETERMINE THE CASE
ITSELF
 A constitutional question may have been raised but the supreme court may not find
it necessary to resolve it on the ground that the matter brought before it is a
political question or that the petitioner was estopped from impugning the
 constitutionality of the law. The supreme court will finally act on the constitutional
question before it only when there are no other available grounds which it can be
raised its decision. In any case, the requisites of a judicial inquiry should be
compiled with.
VI. EFFECT OF UNCONSTITUTIONAL STATUTE
 Effects will depend on whether the statute is totally or partially declared
unconstitutional
VII. IF TOTALITY DECLARED UNCONSTITUTIONAL
1. First view - 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 in legal contemplation;
inoperative as the though it has never been passed.
2. Second view – an unconstitutional statute is nevertheless a statute, that is a legislative
act. Such a statute is commonly spoken of as void. The supreme court cannot set aside a
statute as it can a municipal ordinance it simply ignores statutes deemed
unconstitutional.

The court also refused to recognize the statute and to recognize the rights of the parties
as if the statute has no existence. In ignoring the statute the court may give its reasons
but the decision affects the parties only and there is no judgment against the statute.
VIII. IF PARTIALLY DECLARED UNCONSTITUTIONAL
 The valid portion, if separable from the invalid may stand and be enforced
When is a valid portion separable?
- When it can stand independently as a separate statute
IX. WHAT IS THE EFFECT OF A STATUTE WHICH IS DECLARED UNCONSTITUTIONAL?
School of thought on this question
1. ORTHODOX VIEW - “when the courts declare a law to be inconsistent with the
constitution the former shall be void and the latter shall govern” represents as
orthodox view.
2. THE SECOND VIEW – the supreme court simply ignores statue deemed unconstitutional.
It does not strike the statute from the statute books. It does not repeal, supersede,
revoke or anull the.
X. WHAT IS THE EXTENT OF JUDICIAL POWER TO DECLARE THE UNCONSTITUTIONALITY OF
ASSAILED LEGISLATIVE AND EXECUTIVE ACTS?
 As a rule our courts particularly our supreme court have the power to declare said
acts to be unconstitutional if indeed they are contrary to the constitution. Out of
respect however to the principle of separation of powers over courts have shown
restraint in declaring the same to be totally unconstitutional if it is possible for
instance to salvage the valid portion of a statute from those which in their
assessment should be declared illegal and unconstitutional. In this manner, the will
of the legislature is given effect and the cardinal rule that the legislature intended
right and justice to prevail is given importance.
 The constitutionality of a law regulation ordinance or a will not be resolved by the
court if the controversy can be settled on the grounds.
XI. REQUISITES FOR DECLARATION OF NATURAL UNCONSTITUTIONALITY
 Valid if two conditions concur thus:

1. The legislature is willing to retain the valid portion even if the rest is declared illegal
2. That the valid portions can stand independently as a separate statute

The legislature manifest its willingness to retain the valid portions if the law itself contains separability
clause. This clause contains a provision to the effect that if a provision in the law is declared invalid or
unconstitutional the remainder of the act shall not be affected by such declaration of invalidity or
unconstitutional. But even without such clause the remaining provisions of the law which are valid must
express the legislative will independently of the void part since the court has no power to legislate.