JUDICIAL REVIEW

Article VIII, Sec. 5 and 6 provide for the powers of the Supreme Court

1) the irreducible jurisdiction of the Supreme Court

2)the auxiliary administrative powers

The power of judicial review is the Supreme Court’s power to declare any law
unconstitutional.

Judicial power- is the power of the court to settle actual controversies between
real conflicting parties through the application of a law. It therefore necessarily
involves a search for an applicable law.

Modern constitutionalism separates the government from sovereignty. Sovereignty

belongs to the people and the Constitution is the written instrument through which
the people entrust to government a measure of its own sovereignty and no more.

REQUISITES FOR THE EXERCISE OF JUDICIAL REVIEW

ESSENTIAL REQUISITES

1. Actual case or controversy

- for the Court to be able to exercise the power of judicial review, there must
be before it an actual case calling for the exercise of judicial power

-existing controversy which is both ripe for resolution and susceptible of judicial
interpretation

2. Legal standing/locus standi (raised by the proper party)

-a person has standing to challenge the governmental act only if he has “a

personal and substantial interest in the case such that he has sustained or will
sustain, direct injury as a result of its enforcement.
-right of appearance in a court of justice in a legal question

-Elements of standing

1) the petitioner must have suffered injury in fact which can be legal,
economic or environmental

2) the injury must be traceable to the challenged governmental act

3) the injury must be redressable by the remedy being sought by

petitioner

Members of the Congress, as a body, have standing to challenge an

unconstitutional act has been recognized.

Taxpayer’s suit- in cases involving expenditure of public funds, a taxpayers had

standing to sue if it can be shown that there has sufficient interest in preventing the
illegal expenditure, and that he will sustain a direct injury as a result of the
enforcement of the questioned statute

*Court has an open discretion to entertain the case or not

* the action being challenged must be the exercise of the spending or taxing
power of Congress

3. Ripeness

-Question must be ripe for adjudication

-A constitutional question is ripe for adjudication when the governmental act

being challenged has had a direct adverse effect on the individual challenging it.

-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 be considered on
appeal ; Exception- a) Court may determine the time when a question affecting
constitutionality of a statute should be presented b) Court will not touch the issue
of unconstitutionality unless it really is unavoidable or is the very 4. lis mota (the
cause of the suit or action)

4. Consitutionality is the very lis mota- main issue of the entire controversy
POLITICAL QUESTIONS

Political questions- 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 (sec. 18 (Tañada v. Cuenco)

Concerned on the issues dependent upon the wisdom and not the legislative

Judicial question are questions which are legally demandable and enforceable

Guidelines:

1. a textually demonstrable constitutional commitment of the issue to a political

department

2. a lack of judicially discoverable and manageable standards for resolving it

3. impossibility of deciding without an initial policy determination of a kind clearly

for non-judicial discretion

4. impossibility of a court’s undertaking independent resolution without expressing

lack of respect due coordinate branches of government

5. an unusual need for unquestioning adherence to a political decision already

made

6. potentiality of embarrassment from multifarious pronouncements by various

departments on one question

Kinds of political questions

1. textual kind- there is found a textually demonstrable commitment of the issue

to a political department

Example: the matter of the disciplinary power of the legislature over its own
members
 -similar to the textual type of political questions are some matters involving
foreign relations traditionally placed in the hands of the executive such as
recognition of diplomatic immunity

2. Functional type- where there is lack of judicially discoverable and manageable

standards for resolving it; or impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion

3. Prudential type- impossibility of a court’s undertaking independent resolution

without expressing lack of respect due coordinate branches of government; an
unusual need for unquestioning adherence to a political decision already made;
potentiality of embarrassment from multifarious pronouncements by various
departments on one question

EFFECT OF DECLARATION OF UNCONSTITUTIONALITY

Art. 7 of the Civil Code

When the courts declare a law to be inconsistent with the Constitution, the law
shall be void and the Constitution shall govern. Administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution.

Orthodox view

Under this rule, an unconstitutional act is not a law; it confers no right; it imposes
no duties; it affords no protection; it creates no office; it is, in legal contemplation,
inoperative, as if it had not been passed. It is therefore stricken from the statute
books and considered never to have existed at all. Not only the parties but all
persons are bound by the declaration of unconstitutionality, which means that no
one may thereafter invoke it nor may the courts be permitted to apply it in
subsequent cases. It is, in other words, a total nullity. As expressed in Art. 7 of the
Civil Code

The second or modern view is less stringent. Under this view, the court in passing
upon the question of constitutionality does not annul or repeal the statute if it finds
it in conflict with the Constitution. It simply refuses to recognize it and determines
the rights of the parties just as if such statute had no existence. The court may give
its reasons for ignoring or disregarding the law, but the decision affects the parties
only and there is no judgment against the statute. The opinion or reasons of the
court may operate as a precedent for the determination of other similar cases, but it
does not strike the statute from the statute books; it does not repeal, supersede,
revoke, or annul the statute. The parties to the suit are concluded by the judgment,
but no one else is bound.

1. The Orthodox View - The law is void if on its face it does not enjoy any
presumption of validity because it is patently offensive to the Constitution. It
produces no effect, creates no effect, and produces no duty.

- if the law is inconsistent with the Constitution, then the latter shall
govern

- if the law has been declared unconstitutional, it is presumed that no law

existed at all

- traditional 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, as
inoperative as though it had never been passed. (NORTON vs. SHELBY COUNT
118 U.S. 425, 442 [1886], ARTICLE 7 NCC)

2. The Modern View - The law is voidable if on its face it enjoys the presumption
of unconstitutionality. The law becomes inoperative only upon the judicial
declaration of its invalidity. The declaration produces no retroactive effect.

- Under this view, the court in passing upon the question of constitutionality does
not annul or repeal the statute if it finds it in conflict with the Constitution. It
simply refuses to recognize it and determines the rights of the parties just as if such
statute had no existence. (CRUZ, CONSTITUTIONAL LAW, 1991, 32-33, citing
NORTON vs. SHELBY, 118 U.S. 425 and SHEPARD vs. BARREN, 194 U.S.
553) But certain legal effects of the statute prior to its declaration of
unconstitutionality may be recognized. (PELAEZ vs. AUDITOR GENERAL 15
SCRA 569)

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.

PARTIAL UNCONSTITUTIONALITY

Where a portion of statute is rendered unconstitutional and the remainder valid, the
parts will be separated, and the constitutional portion upheld.

But when the parts of the statutes are so mutually dependent and connected, as
conditions, considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole and if all could not be
carries in to effect, the legislature would not pass the residue independently, then if
some parts are unconstitutional, all the provisions which are thus dependent, must
fall with them.

Requisites for partial unconstitutionality:

(1) The Legislature must be willing to retain the valid portion(s), usually shown by
the presence of a separability clause in the law; and

(2) The valid portion can stand independently as law. (IN RE: CUNANAN 94 Phil.
534, SALAZAR vs. ACHACOSO 183 SCRA 145)