ANNOTATION

THE POWER OF JUDICIAL REVIEW

By
JOSE AGATON R. SIBAL
_______________

1.Introduction, p. 220
2.No Precise Definition For Judicial Review, p. 220
3.Constitutional Definition, p. 221
4.Judicial Review, Def ined, p. 223
5.Necessity of Judicial Review, p. 223
6.Effect of Judicial Review, p. 224
7.The Courts and The Constitution, p. 224
8.Test of Validity, p. 228
9.Courts' Limitation, p. 228
A.With Executive Department, p. 228
B.With Legislative Department, p. 229
10.Conditions For Judicial Determination of Constitutional Questions, p. 231
11.Unconstitutionality, When Declared, p. 236
12.Effect of Invalidity, p. 236
A.Effect of Partial Invalidity, p. 238
B.Effect of Saving Clause, p. 239
________________

1. Introduction
The authority to hear and settle disputes concerning rights and duties between persons or
between government and private individuals is referred to as judicial power. Such judicial power
is vested in one Supreme Court and in such lower courts as may be established by law.1
The Supreme Court, by tradition and in our system of judicial administration, has the last word
on what the law is: it is the final arbiter of any justiciable controversies. There is only one
Supreme Court from whose decision all other courts should take their bearings.2 And it is in this
Court where all roads of relief and legal remedies lead to an end.3

However, no matter how good the laws are if the Judges do not apply them promptly and fairly,
there will be no justice. Equal justice must prevail in order that democracy may survive.
The proper exercise of the authority of the courts requires legislative action: (1) defining such
enforceable and demandable rights and/or prescribing remedies for violations thereof; and (2)
determining the court with jurisdiction to hear and decide said controversies or disputes, in the
regional court and/or on appeal.4
Thus, the Congress has the power to define, prescribe, and aportion the jurisdiction of various
courts but it cannot deprive the Supreme Court of its jurisdiction over cases enumerated in the
Constitution.5
2. No Precise Definition For Judicial Power
The phrase "judicial power" is not capable of precise definition which would be applicable to all
cases. The term has been variously defined as the authority to determine the rights of
_______________

1 Article VIII, Section 1, 1st par., 1987 Constitution.

2 Ysasi vs. Fernandez, 26 SCRA 393.
3 People vs. Bocar, 61 O.G. 4043.
4 Lopez vs. Bocar, 17 SCRA 756.
5 See Article VIII, Section 2.
221

persons or property by arbitrating between adversaries in specific controversies at the instance

of a party thereto; the authority exercised by that department of government which is charged
with the declaration of what the law is and its construction so far as it is written law; the authority
vested in some court, officer or persons to hear and determine when the rights of persons or
property or the propriety of doing an act is the subject matter of adjudication; the power
conferred upon a public officer, involving the exercise of judgment and discretion in the
determination of questions of right in specific cases affecting the interest of persons or property,
as distinguished from ministerial power or authority to carry out mandates of judicial power or
the law; the power exercised by courts in hearing and determining cases before them, or some
matter incidental thereto, and of which they have jurisdiction; the power of a court to decide and
pronounce a judgment; the power which adjudicates upon and protects the rights and interests
of individual citizens, and to that end construes and applies the law. "Judicial power" implies the
construction of laws and the adjudication of legal rights. It includes the power to hear and
determine but not everyone who may hear and determine has judicial power. The term "judicial
power" does not necessarily include the power to hear and determine a matter that is not in the
nature of a suit or action between the parties.6

 3. Constitutional Definition
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.7
The 1987 Constitution, for the first time in our Constitutional history, defines "judicial power." The
definition of judicial power makes it the duty of a judge to determine
______________

6 Santiago, Jr. vs. Bautista, 32 SCRA 189.

7 Article VIII, Section 1, 2nd par.
whether a branch or instrumentality of the Government has acted in excess of or in grave abuse
of discretion. Some quarters feared that such definition may have the effect of eroding the
doctrine of "political question." Under this doctrine, the courts are considered without power to
decide questions which under the New Constitution are to be decided by the people in their
sovereign capacity, or in regard to full discretionary authority had been delegated to the
legislative or executive branch of the Government. Concretely, critics alleged that under the
New Constitution, the courts can now review an executive decision to contract a foreign loan.
The definition definitely does not eliminate the fact that truly political questions are beyond the
pale of judicial power. It is not the intention of the New Constitution to enable the courts to
substitute its own judgment for the judgment of the political departments of Government.8
While courts may not exercise the discretion granted to other departments, it may, and should,
look into the question of whether such exercise has been in grave abuse of that discretion. The
specific phraseology used is intended to stress the fact that the courts have the duty, not just
prerogative, of looking into the question of abuse. This emphasis is made necessary because
the courts, during the regime of the deposed President Ferdinand E. Marcos, repeatedly refused
to look into the question of whether the President, was abusing his power, thereby making the
Judiciary inadequate and ineffective in its role as a shield against the despotic exercise of
power.
The New Constitution reminds the courts not to abdicate its obligation to determine whether or
not the political departments have stepped beyond the authority granted by the Constitution or
the laws. It does not empower judges to supplant their decisions and substitutes their judgments
for those of the President or Congress. Simply, it mandates that courts determine whether the
limits or conditions set by law or the Constitution were in fact complied with.9
_______________

8 i.e., Executive and Legislative Departments.

9 Taken from the Article of Concom Ricardo J. Romulo on Judicial Reform Revisited, December
20, 1986 issue of Philippine

While it is the constitutional prerogative of the Supreme Court to promulgate rules for the courts;
it is not the function of the courts to legislate. Such power is exclusively vested in the Congress
of the Philippines. Should this Court change, amend or disregard those provisions of the Civil
Code by construing or applying them in a manner different from their plain unequivocal
meaning, this would be tantamount to exercising legislative functions.10
4. Judicial Review, Defined
The act of the courts to review statutes or administrative acts and to determine their
constitutionality. The first important expression of the power of judicial review after the
adoptation of the Constitution.11
5. Necessity of Judicial Power
Judicial Review exists precisely to test the validity of executive or legislative acts in appropriate
legal proceedings; there is always the possibility of their being declared inoperative and void.
Realism compels the acceptance of the thought that there would be a time-lag between the
initiation of such presidential or congressional exercise of power and the final declaration of
nullity. In the meanwhile, it would be productive of confusion, perhaps at times even of chaos, if
the parties affected were left free to speculate as to its fate being one of doom, thus leaving
them free to disobey it in the meanwhile. Since, however, the orderly processes of government,
not to mention common sense, requires that the presumption of validity be accorded an act of
Congress or an order of the President, it would be less than fair, and it may be productive of
injustice, if no notice of its existence as a fact be paid to it, even if thereafter, it is stricken down
as contrary, in the case of Presidential act, either to the Constitution or a controlling statute.12
_______________

Daily Inquirer.
10 Go Tiamco vs. Yao Boom Sim, 43 O.G. 1665.
11 Sibal: Philippine Legal Encyclopedia.
12 Municipality of Malabang vs. Benito, 27 SCRA 533.

6. Effect of Judicial Review

After the Supreme Court judicially reviewed the law and found it thereafter unconstitutional, Mr.
Justice Field has this answer: "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, as
inoperative as though it had never been passed.''13
Chief Justice Hughes explained further: "The courts below have proceeded on the theory that
the Act of Congress, having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence, affording no basis for the
challenged decree. Norton vs. Shelby Country, 118 U.S. 425, 442; Chicago, I & L Ry. Co. vs.
Hackett, 228 U.S. 599, 566. It is quite clear, however, that such broad statements as to the
effect of a determination of unconstitutionality must be taken with qualifications. The actual

existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspectswith respect to particular relations,
individual and corporate and particular conduct, private and official. Questions of rights claimed
to have become vested, of status, of prior determinations deemed to have finality and acted
upon accordingly, of public policy in the light of the nature both of the statute and of its previous
application, demand examination. These questions are among the most difficult of those which
have engaged the attention of courts, state and federal, and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justif ied.''14
7. The Courts and the Constitution
Under a written Constitution like the French, the courts do
_______________

13 Norton vs. Shelby County, 118 U.S. 425, 442 (1886). See also subject on "Effect of
Invalidity," infra for further explanation.
14 Chicot County Drainage District vs. Baxter State Bank, 308 U.S. 371; 374 (1940).
not enjoy the power to annul acts of the other departments in conflict with the Constitution. The
Constitution of the United States contains no specific grant of such power to the federal courts
either, but today due almost entirely to Chief Justice Marshall's vigorous leadership, the federal
courts' power of judicial review is a fact better accepted by and known to Americans' any single
provision of their Constitution.
Marshall's argument in the case of Marbury vs. Madison,15 that in deciding a case to which the
Constitution and a law in conflict with it both apply, courts have no choice except to apply the
former, it being superior to the latter, has been strongly criticized, since it rests on the implied
promise for which there is no express or specific warrant in the provisions of the United States
Constitution, that under a written Constitution courts have the power paramount to, if not
exclusive of, the power of the other departments to interpret and enforce the Constitution. In the
Philippines, however, the courts' power to review the acts of the Executive and Legislative
Departments is clearly defined16 and is expressly recognized in two constitutional provisions.
One denies to Congress the power to deprive the Supreme Court of its appellate jurisdiction in
"all cases involving the constitutionality of a treaty, international or executive agreement, or law,
which shall be heard by the Supreme Court en banc, and all other cases which under the Rules
of Court are required to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon."17 The
second provides that "all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question."18 Lower courts enjoy similar judicial review.
_______________

15 1 Cranch 137.
16 Article VIII, Section 1, 2nd par.
17 Article VIII, Section 4 (2).
18 Article VIII, Section 5 (2-a).
Marshall's first emphatic assertion of judicial review which was obiter dictum at that, met with
bitter opposition at the start, and its general acceptance suffered set back with its f irst concrete
application in the unpopular Dred Scott decision.19 Thereafter it gradually gained public
adherence and not with standing occasional and strong criticisms and popular disapproval of
some United States Court decisions striking down progressive legislation, it has become a
permanent fixture in the American constitutional system. Thoughtful men, however, and the
United States justices themselves, recognize that while judges could restrain constitutional
excesses on the part of Executive and Legislative officers, there is nothing to restrain the judges
themselves except their own sense of selfrestraint. Frequent decisional changes on
constitutional questions emphasize all too cutely the stark truism in Chief Justice Hughes'
observation that the Constitution is what the judges say it is. And when the solemn and
deliberate acts of the two coordinate branches seeking to promote public welfare can be
invalidated, as they have been on many occasions, by a bare majority in a divided court, with
only one or two justices in effect multiplying progressive legislation, doubts are liable to arise
about the wisdom of the system. The members of our constitutional convention for the 1935
Constitution, taking cue from the fate of President Roosevelt's New Deal legislation, corrected
the unbalance of one-man nullification of legislation, by adopting the provision requiring twothirds vote of the Supreme Court to annul a law or treaty and this is also adopted by the 1973
and 1987 Constitutions, finally, the framers of the 1987 Constitution defined the "judicial
power"20 that the courts may look into the question of whether the exercise of power of the
Executive Department has been in grave abuse of that discretion. The experience of the
framers during the regime of the deposed President Ferdinand E. Marcos, Preventive Detention
Order (PDO) was issued indiscriminately by the Military particularly to the Human Rights
Lawyers21 for their role of helping hapless persons who had come across their
_______________

19 Dred Scott vs. Sandford, 19 How. 393.

20 Article VIII, Section 1, 2nd par.
21 See Ilagan vs. Ponce Enrile, 139 SCRA 349.
path, not only political detainees, but also workers, students, teachers and urban communities.
For such pro bono publico work, they had incurred the ire of the Military.
That power of the Judiciary to declare the acts of the other departments is not the assertion of
superiority over them, is explained by Justice Laurel in the Angara case,22 as f ollows:

'The Constitution is a definition of the powers of the government, who is to determine the nature,
scope and extent of such power? 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 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 sources and guarantees to them. This is in truth all that is involved
in what is termed 'judicial supremacy' which properly is the power of the judicial review under
the Constitution. Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could lead only to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as expressed."
The function of interpreting statutes in proper cases will not be denied to the courts as their
constitutional prerogative and duty. Insofar as it is insinuated that that the Chief Executive has
the exclusive authority to say that war has not ended, and
_______________

22 Angara vs. Electoral Commission, 63 Phil. 134.

may act on the strength of his opinion and findings in contravention of the law as the courts
have construed it, no legal principle can be found to support the proposition.23
8. Test of Validity
The validity of every act of government or its officers must be tested by the Constitution which,
according to the Supreme Court, is superior to a statute, and is called the supreme law of the
land, not because it is different in nature from the latter, nor because non-compliance therewith
is jurisdictional, where it does not so provide, but because it is the fundamental and organic law.
A Constitution only differs from a statute in that the latter must provide details of the subject of
which it treats, whereas a Constitution states the general principles and builds in substantial
foundation and general framework of law and government, and for that reason a statute contrary
or in violation of the Constitution is null and void.24
The Constitution then can furnish the only admissible criterion by which to measure the validity
of governmental action. Neither the spirit of the Constitution,25 nor so-called natural justice, nor
principle of liberty, of free government, and of common right, and similar abstract or
philosophical concept, not actually expressed in the Constitution,26 are applicable standards of
validity.
9. Courts' Limitations
A. With Executive Department

The power of the President to appoint officers involves discretion which the Court cannot
control;27 that when the appointing power has once acted and the appointee has accepted the
office and done what is required of him upon its accep_______________

23 Araneta vs. Dinglasan, 84 Phil. 368.

24 Talabon vs. Provincial Warden of Iloilo, 44 O.G. 4326.
25 Mayor of Philadelphia, 21 Pa. 147, 50 Am. Dec. 759.
26 16 C.J.S. 153.
27 Lamb vs. Phipps, 22 Phil. 456; Concepcion vs. Paredes, 42 Phil. 599; Abrera vs. Wood, 45
Phil. 612.
tance, he cannot be removed therefrom, except for any of the causes designated and in
accordance with the proceedings established by law.28
And when said decision being of the President, his act of reversing that of the Secretary of
Agriculture and Natural Resources can be reviewed by the courts only insofar as to determine
whether his decision is supported by the substantial evidence rule, inasmuch as the President's
discretion is not subject to judicial control in the sense that courts can compel the President to
exercise his discretion in a particular way or manner for well known is the principle that courts
cannot by injunction or mandamus or other process, control or direct the head of the Executive
Department of the Government in the discharge of any executive duty involving the exercise of
his discretion.29
B. With Legislative Department
There is an inherent fundamental error in the course of action that the lower court followed. It
assumed that courts have the right to review the findings of legislative bodies in the exercise of
the prerogative of legislation, or interfere with their proceedings or their discretion in what is
known as the legislative process.
These, the judicial department of the government has no right or power or authority to do, much
in the same manner that the legislative department may not invade the judicial realm in the
ascertainment of truth and in the application and interpretation of the law, in what is known as
the judicial process, because that would be indirect conflict with the fundamental principle of
separation of powers established by the Constitution. The only instances when judicial
intervention may lawfully be invoked are when there has been an arbitrary exercise of the
legislative discretion.30
_______________

28 Serafin vs. Cruz, 58 Phil. 611.

29 Montilla vs. Executive Secretary, CA-G.R. No. 23832-R, Aug. 31,1960 citing 42 Am. Jur. 396397.

30 Arnault vs. Balagtas, 51 O.G. 4017.

Elsewhere in this treatise the well-known and well-established principle is considered that it 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 the 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 statute exists, and these considerations, together with the
consequences that flow therefrom, may not be traversed in the courts.31
On the question whether delivery of speeches attacking the Chief Executive constitutes
disorderly conduct for which Osmea may be disciplined, many arguments, pros and cons have
been advanced. We believe, however, that the House is the judge of what constitutes disorderly
behaviour, not only because the matter depends mainly on factual circumstances of which the
House knows best but which cannot be depicted in black and white for presentation to, and
adjudication by the courts. For one thing, if this Court assumed the power to determine whether
Osmea's conduct constituted disorderly behaviour, it would thereby have assumed appellate
jurisdiction, which the Constitution never intended to confer upon a coordinate branch of the
government. The theory of separation of powers fastidiously observed by this Court, demands in
such situation a prudent refusal to interfere. Each department,
_______________

31 Willoughby, The Constitution of the United States, Vol. 3, p. 1326.

it has been said, has exclusive cognizance of matters within its jurisdiction and is supreme
within its own sphere.32
10. Conditions For Judicial Determination of Constitutional Questions
The essence of the judicial function is to decide by the application of valid and pertinent laws,
cases or disputes between individuals or between individuals and the state concerning rights or
duties in themselves appropriate subjects of judicial cognizance.33 Courts therefore, in the
absence of specific constitutional authority, do not possess any general power to review the
Constitutionality of the acts of the other departments and will do so only in the proper case when
it becomes unavoidable.34 This necessity of determining the constitutionality of a statute is said
to arise only
1. When there is a "bona fide" case involving "an honest and actual antagonistic assertion of
rights by one individual against another,"a "real, earnest and vital controversy between the
individuals."35 "The constitutionality of a statute will not be passed on in a fictitious suit, or in a

friendly suit where there has not been the fullest disclosure of all material facts"36 The reason is
that courts do not have a general power of review of legislative acts, the judicial function being
limited to the decision of actual cases and the authority to pass on the constitutionality of
statutes being merely incidental to the determination of the rights or duties of the parties under a
law which one invokes and which his opponent repudiates as a nullity. It is no mere accident
that the two previously quoted provisions of the Constitution relating to the Supreme Court's
power to pass upon the validity of a law or treaty,37 speak of
________________

32 Osmea vs. Pendatun, L-17144, Oct. 28,1960.

33 See Black, Constitutional Law; 2nd Ed., p. 82; 16 C.J.S. 207-208.
34 16 C.J.S. 203-204.
35 Chicago & Grand Truck Railway Co. vs. Wellman, 143 U.S. 339, 36 L. ed. 176.
36 16 C.J.S. 220.
37 Article VIII, Sections 4 and 5.
the exercise of such power in "cases." Hence, without specific constitutional authority, courts do
not regard the rendering of advisory opinions as constitutional questions or indeed on any
question as embraced within their judicial functions.38 However, actions for declaratory relief
under Rule 64 of the Revised Rules of Court are appropriate "cases in which courts may pass
on constitutionality of a law."39
2. "The unchallenged rule is that the person who impugns the validity of the statute 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,"40 and not merely that he suffers in some indefinite way in
common with the people generally.41
Thus, a physician was declared not to have sufficient interest to challenge the validity of a
statute prohibiting the use of contraceptive devices and the giving of advice or assistance in the
use of the same. As applied to him the challenged statute would merely prevent him from giving
professional advice that in his opinion would help to save his patients' health or lives, but he did
not claim that enforcement of the statute would aff ect his own health.42
An accountant who, in an action for declaratory relief, alleges that the accounting law is
unconstitutional denial of equal protection because it allows accountants to practice their
profession under a trade-name but does not grant the same privilege to members of other
professions, lacks sufficient interest to maintain the action.43
So also, a person who challenged in quo warranto proceedings the right of certain of the first
senators elected under the bicameral system to take their seats after liberation pursuant to
Commonwealth Act No. 678 providing a hold-over, was held to be without requisite personality
to institute the ac_______________

38 Black, Constitutional Law, 2nd Ed., p. 103.

39 Berchard, Declaratory Judgments, 2nd Ed., pp. 25-28.
40 People vs. Vera, 65 Phil. 56.
41 Custodio vs. President of the Senate, 42 O.G. 1243.
42 Tileson vs. Ullman, 318 U.S. 44.
43 Tolentino vs. Board of Accountancy, L-3062, Sept. 28, 1951.
tion, since he did not claim to be entitled to any of the seats held by the respondents.44 And in a
suit brought to invalidate the law granting backpay to members of Congress, the Supreme Court
dismissed the petition on the ground that the only interest shown by the petitioner is that of a
government employee alleging equal rights to backpay.45 But in the Emergency Power
Cases46 The Supreme Court, while taking jurisdiction, on other grounds, over those suits
instituted by citizen taxpayers, strongly intimated that, objections to such suits for lack of
sufficient personality being merely procedural matters, the Court would in any event have
assumed jurisdiction of the cases. The Court, citing the case of Avelino vs. Cuenco,47 stated:
"above all, the transcendental importance to the public of these cases demands that they be
settled promptly and definitely, sweeping aside, if we must, technicalities of procedure." In the
same Emergency Power cases, which were five cases decided in one opinion, the court
disregard the objection that in some of the cases there was an absence of proper parties, and it
proceeded to decide all of them on the ground that one principle of law was controlling.
In the United States, a person paying a federal tax has been declared to lack sufficient
personality to question the constitutionality of a federal appropriation law,48 but he has such
interest where the same law imposing the tax also provides for the appropriation of the tax for
non-public purposes contrary to the Constitution.49 The United States Supreme Court however,
concedes that a municipal taxpayer has an immediate and direct interest in the application of
the public funds of the municipal corporation, his interest being likened to that of a stockholder
in a private corporation.50
It is well-settled that the State can challenge the validity of
_______________

44 Lumontod vs. Cuenco, 41 O.G. 894.

45 Custodio vs. President of the Senate, 42 O.G. 1243.
46 Supra.
47 93 Phil. 13.
48 Masacchusetts vs. Mellon, 262 U.S. 447.
49 U.S. vs. Butler, 241 U.S. 1.

50 Massacchusetts vs. Mellon, supra.

its own laws.51
It is however contrary to the public interest to permit a public officer, who is the defendant in a
mandamus action to compel him to perform a duty imposed upon him by a statute, to set up the
invalidity of the statute as a defense or excuse for failure or refusal to perf orm his ministerial
duty under it.52
Even when a person has sufficient interest to question the constitutionality of a statute, he may
not be permitted to do so, either because he has already waived his objections expressly or
impliedly, which he may validly do when the waiver affects only his personal or property
rights,53 or because he is precluded or estopped by the acceptance of the benefits under the
allegedly unconstitutional statute, as where one applies for and accepts, together with its
attendant benefits, a license or permit required by the statute,54 or where a person accepted an
appointment under a judiciary reorganization act which he afterwards attacked as void when his
appointment was not confirmed.55 But the mere fact that public officials have been previously
applying a certain law will not preclude the state from subsequently impugning its validity.56
3. Ordinarily, the constitutional question should be raised at the earliest opportunity, because if
not raised by the pleadings, it may not be raised at the trial, and if not raised in the trial court, it
will not be considered on appeal.57 The rule, which is subject to exception, is applicable to
criminal cases. Accordingly, it is also late to raise the constitutionality of a statute under which
the defendant was convicted, if it is made only on appeal at the oral argument and the written
memoranda thereaf ter filed.58
But in one civil case, the Supreme Court allowed an exception. The plaintiffs filed an action to
annul a deed of sale in
_______________

51 People vs. Vera, supra.

52 Cu Unjieng vs. Patstone, 42 Phil. 618.
53 I Cooley, Const. Limit, pp. 368-371.
54 Philippine Scappers, Inc. vs. Auditor General, 51 O.G. 1353.
55 Zandueta vs. De la Costa, 66 Phil. 615.
56 People vs. Vera, supra,
57 People vs. Vera, supra.
58 Robb vs. People, 68 Phil. 320.
favor of an alien upon the ground that the deed of sale was really one of mortgage over
immovable property. Upon appeal from the judgment of the trial court in favor of the defendant,
the plaintiffs raised in issue for the first time that the constitutional transgression being patent
and there being no avoidance thereof that might be set up in defense, it was the duty of the

court to pass upon the constitutional question raised for a hearing upon that question by the trial
court, would have been a waste of time.59
The constitutional issue may be raised not only in ordinary actions but in special civil actions
and special proceedings, such as mandamus, quo warranto, habeas corpus, certiorari and
prohibition. In the last case, if the writ of prohibition is directed against a lower court, it will lie if
its jurisdiction is dependent upon the challenged statute, but not if it has jurisdiction independent
of the statute, for in such case the lower court itself passes upon the constitutionality of the
statute.60 In certain cases, the question may be raised by injunction proceedings or even in an
application for this writ as provisional remedies.61
Courts do not encourage proceedings where constitutionality of statute is made a collateral
issue, for example, that the government brings an action to recover a penalty imposed by
statute on any person refusing to turn over to the Government funds or property in his custody
belonging to another and subject to a tax. The defendant then interposes the defense that law
imposing the tax on the property in his custody is unconstitutional. The illegality of the law is
said to be a collateral issue because the action is not one to recover the tax itself against the
person liable to its payment.62
4. Where the question of constitutionality is directly and necessarily involved in a justiciable
controversy and is essential to the protection of the rights of the parties.63 Thus, the question
will not be passed upon on where the issues of a par_______________

59 Mercado vs. Go Bio, 49 O.G. 5360.

60 People vs. Vera, supra.
61 Ibid.
62 U.S. vs. First Capital Nat. Bank, 13 F. Supp. 380.
63 16 C.J.S. 207.
ticular case are such that the case may be decided on another ground.64 It is the part of
wisdom, and a just respect for the legislature that renders it proper,65 for the courts not to
decide the question, unless it is unavoidable.66 For this reason, the mere fact that the statute
has been applied or enforced by the courts in previous cases, because the parties therein failed
to raise its validity in issue, will not preclude the courts from thereafter passing upon the
question when properly put in issue.67
11. Unconstitutionality, When Declared
Having properly acquired jurisdiction to determine the question of constitutionality of a statute,
courts will indulge every presumption and will resolve all doubts in favor of its validity. A statute
will therefore be sustained unless it is plainly, obviously, palpably and manifestly in conflict with
some provisions of the fundamental law.68 The power to declare a legislative enactment void is
one that will be exercised cautiously and with reluctance.69

It is an elementary principle that where the validity of a statute is assailed and there are two
possible interpretations, by one of which the statute would be unconstitutional and by the other it
would be valid, the court should adopt the construction which would uphold it.70
12. Eff ect of Invalidity
The orthodox view of the effect of an unconstitutional statute, to which our former Supreme
Court71 and many state courts have yielded their assent, is that expressed by Mr. Justice Field:
"An unconstitutional act is not a law; it confers
_______________

64 Ex Parte Blair, 253 F. 800.

65 People vs. Vera, supra.
66 Sotto vs. Commission on Elections, 76 Phil. 516.
67 McGirr vs. Hamilton, 30 Phil. 563.
68 16 C.J.S. 250-257.
69 16 C.J.S. 203-204.
70 Chippewa Indians vs. U.S., 301 U.S. 358; 31 L. ed. 1156.
71 Government vs. Springer, 50 Phil. 239.
no right; it imposes no duties; it affords no protection; it creates no office; it is, in legal
contemplation, as inoperative as though it had never been passed."72 In this case, pending
appeal to the state supreme court from the judgment upholding the constitutionality of a statute
creating a certain board, the board issued bonds pursuant to the authority of the statute. After
the statute was declared invalid by the state supreme court, a purchaser of the bonds sued for
the payment of the bonds. The United States Supreme Court dismissed the suit upon the
doctrine stated above by Mr. Justice Field that an unconstitutional statute is void ab initio.
The rigid absoluteness of this early doctrine has since been relaxed in the United States. In
Chicot County Drainage Dist. vs. Baxter State Bank,73 Chief Justice Hughes said: 'The courts
below have proceeded on the theory that the act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no
duties, and hence affording no basis for the challenged decree. It is quite clear, however, that
such broad statements as to the effect of a determination of unconstitutionality must be taken
with qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. 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. Questions of rights claimed
to have become vested of status, of prior determinations deemed to have finality and acted
upon accordingly, of public policy in the light of the nature both of the statute and of its previous
application, demand examination. These questions are among the most difficult of those which
have engaged the attention of courts, state and federal, and it is manifest from numerous

decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be

justified."
________________

72 Norton vs. Shelby, 118 U.S. 425; 30 L. ed. 176; See also subject on "Effect of Judicial
Review," supra.
73 308 U.S. 371; 84 L. ed. 329.
Consequently, a statute before the declaration of its unconstitutionality is an operative fact and
the decisions under it have the finality of "res judicata" notwithstanding the subsequent
declaration of unconstitutionality.74
The New Civil Code contains provisions concerning the effect of a declaration of invalidity. It
prescribes that "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 laws or the Constitution."75 It is not
clear from the foregoing whether it is the orthodox or the modern view that is followed by the
Civil Code. And it is a question whether the effect of a declaration of nullity is a matter for judicial
or for legislative determination. Up to this time, our Supreme Court has had no occasion yet to
reconsider its pronouncement in the case of Government vs. Springer,76 which seems to favor
the orthodox view by its citation of the case of Norton vs. Shelby County,77 in support of the
doctrine that there is no such thing as a de facto office under an unconstitutional statute.
A. Effect of Partial Invalidity
The general rule is that where part of a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion if separable from the invalid, may stand and be enforced.
But in order to do this, the valid portion must be so far independent of the invalid portion that it is
fair to presume that the Legislature would have enacted it by itself if they had supposed that
they could not constitutionally enact the other. Enough must remain to make a complete,
intelligible, and valid statute, which carries out the legislative intent. The void provisions must be
eliminated without causing results affecting the main purpose of the act in a manner contrary to
the in_______________

74 Warring vs. Caploys, 74 app. D.C. 30; 122 Fed. 642; 136 A.L.R. 1025.
75 Article 7.
76 Supra.
77 Supra,
tention of the Legislature. The language used in the invalid part of a statute can have no legal
force or efficacy for any purpose whatever, and, what remains must express the legislative will
independently of the void part, since the court has no power to legislate.78

B. Effect of Saving Clause

Occasionally, the legislature expressly states its will that the valid provisions of a statute shall be
enforced in spite of any judicial determination that certain sections of the act are constitutional.
Such an expression of the will of the legislature is generally carried out by the courts.
Such saving clauses are recognized as valid and are not invalid delegation of legislative
authority or a presentation of an inconsistent alternative.
'The principles which underlie the application of the saving clause have been well established.
In the absence of a legislative declaration that invalidity of a portion of a statute shall not affect
the remainder, the presumption is that the legislature intends the act to be effective as an
entirety. The effect of such a statutory declaration is to create, not the presumption of entirety in
effect ordinarily accorded to statutes, but an opposite presumption of separability. The Supreme
Court has stated that a saving clause clearly evidence a legislative intention not only that an
express provision found to be unconstitutional should be disregarded without disturbing the
remainder of the statute, but also that any implication from the terms of the statute which would
render them invalid not be indulged.
The saving clause is not absolute, for the reason that it is merely an aid to interpretation, and
not an inexonerable command. It is to be given a reasonable interpretation and does not
operate to save provisions which clearly would not have been inserted except upon the
supposition that the entire act was valid. The courts have steadfastly declared that the
presumption so created is rebuttable although it must be over_______________

78 Barrameda vs. Moir, 25 Phil. 44.

come by considerations which make evident the inseparability of the provisions or the clear
probability of the provisions that, the invalid part being eliminated, the legislature would not have
been satisfied with what remained, in order to defeat the entire act. When the presumption of
separability which is created by such a provision in a statute is overcome by a showing of the
indivisible character of the act in spite of the provision, the entire act must fall with any invalid
portion.
Certain criteria of a singleness of purpose of the statutes involved may indicate the futility of a
saving clause to salvage portions of an act from an invalidity which permeates other sections. A
legislative declaration that the invalidity of a portion of a statute shall not affect the remainder in
no way alters the rule that in order for a part of a statute to be upheld as separable, where
another part is unconstitutional, they must not be mutually dependent on one another x x x.
Consequently, the effectiveness of the act to carry out, without its invalid portions, the original
legislative intent in enacting it is still the true test of separability. A saving clause will not be given
effect where the invalid portions or provisions affect the dominant aim of the whole statute.79
o0o [The Power Of Judicial Review, 148 SCRA 219(1987)]