B. Judicial Review

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

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1. Requisites

Requisites for the exercise of the power of judicial review:
1) There must be an actual case or justiciable controversy before this Court;
2) The question before this Court must be ripe for adjudication;
3) The person challenging the act must be a proper party; and
4) The issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of the case. (Kilusang Mayo Uno v. Aquino III, En Banc, G.R. No. 210500, 02 April 2019)

2. Political question doctrine

Political questions. 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 government. Thus, 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. (Garcia v. Executive Secretary, En Banc, G.R. No. 157584, 02 April 2009)

Same; Wisdom, not legality, of an act or measure. Political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution. (IBP v. Zamora, En Banc, G.R. No. 141284, 15 August 2000)

Same; Question of policy. In short, the term “political question” connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers 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 Legislature or executive branch of the Government.” It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (Tañada v. Cuenco, En Banc, G.R. No. L-10520, 28 February 1957)

a. When challenged

Grave abuse of discretion. When political questions are involved, the Constitution limits the determination as to whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. (IBP v. Zamora, supra.)

Constitutionally imposed limits on powers or functions. Thus, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers or functions conferred upon the political bodies  Nonetheless, even in cases where matters of policy may be brought before the courts, there must be a showing of grave abuse of discretion on the part of any branch or instrumentality of the government before the questioned act may be struck down. “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.” (J. Mendoza, Separate Opinion in Ocampo v. Enriquez, En Banc, G.R. Nos. 225973, 225984, 226097, etc., 08 November 2016)

3. Moot questions

Moot and academic. A case becomes moot and academic when the conflicting issue that may be resolved by the court ceases to exist as a result of supervening events. (Oclarino v. Navarro, G.R. No. 220514, 25 September 2019)

No more justiceable controversy. Where a case has become moot and academic, there is no more justiceable controversy, so that a declaration thereon would be of no practical value. A case becomes moot and academic when, by virtue of supervening events, there is no more actual controversy between the parties and no useful purpose can be served in passing upon the merits. Since they are constituted to pass upon substantial rights, courts of justice will not consider questions where no actual interests are involved. As a rule, courts decline jurisdiction over such cases or dismiss them on the ground of mootness. (Stradcom Corporation v. Laqui, G.R. No. 172712, 21 March 2012)

Same; Academic discussion – not necessary. An academic discussion of a case presenting a moot question is not necessary, because a judgment on the case cannot have any practical legal effect or, in the nature of things, cannot be enforced. Stated otherwise, the Court will not determine a moot question in a case in which no practical relief can be granted. (Oclarino v. Navarro, supra.)

General Rule: Courts decline jurisdiction over such cases or dismiss them on the ground of mootness. (Stradcom Corporation v. Laqui, supra.)
Exception:
While it is true that this Court may assume jurisdiction over a case that has been rendered moot and academic by supervening events, the following instances must be present:
1) Grave constitutional violations;
2) Exceptional character of the case;
3) Paramount public interest;
4) The case presents an opportunity to guide the bench, the bar, and the public; or
5) The case is capable of repetition yet evading review. (Ibid.)

a. Actual case/controversy v. Moot and academic

Actual case or controversyMoot and academic
The existence of an actual case or controversy is a condition precedent for the court’s exercise of its power of adjudication. An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims between the parties that is susceptible or ripe for judicial resolution. (Oclarino v. Navarro, 2019)On the other hand, a moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. As a rule, courts decline jurisdiction over such a case, or dismiss it on ground of mootness;8 otherwise, the court would engage in rendering an advisory opinion on what the law would be upon a hypothetical state of facts. (Ibid.)
Oclarino v. Navarro (2019)
The expiration of the respondents’ term of office operates as a supervening event that mooted the present petition. The petitioners, however, insist that the case falls under the fifth exception, i.e., the case is capable of repetition yet evading review. There are two factors to be considered before a case is deemed one capable of repetition yet evading review: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action.11  In this case, while the respondents were re-elected, their re-election was never assailed. Also, there is no sufficient showing that the respondents would seek further re-election, and even if they do, their victory is not guaranteed. Moreover, the qualifications which the petitioners alleged that the respondents lack could be subsequently cured.
Agcaoili, Jr. v. Farinas (2018)
A Writ of Habeas Corpus may no longer be issued if the person allegedly deprived of liberty is restrained under a lawful process or order of the court64 because since then, the restraint has become legal. In the illustrative case of Ilagan v. Hon. Ponce Enrile, the Court dismissed the petition for habeas corpus on the ground of mootness considering the filing of an information before the court. The court pronounced that since the incarceration was now by virtue of a judicial order, the remedy of habeas corpus no longer lies.   Like so, in Duque v. Capt. Vinarao, the Court held that a petition for habeas corpus can be dismissed upon voluntary withdrawal of the petitioner. Further, in Pestano v. Corvista, it was pronounced that where the subject person had already been released from the custody complained of, the petition for habeas corpus then still pending was considered already moot and academic and should be dismissed. This pronouncement was carried on in Olaguer v. Military Commission No. 34, where the Court reiterated that the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the petition for the issuance of the writ becomes moot and academic. Thus, with the subsequent release of all the petitioners from detention, their petition for habeas corpus has been rendered moot. The rule is that courts of justice constituted to pass upon substantial rights will not consider questions where no actual interests are involved and thus, will not determine a moot question as the resolution thereof will be of no practical value.

4. Operative fact doctrine

General Rule: The general rule is that a void law or administrative act cannot be the source of legal rights or duties. (CIR v. San Roque Power Corporation, En Banc, G.R. Nos. 187485, 196113, and 197156, 08 October 2013)
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.” (Ibid.)
Exception: 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. (Ibid.)

Operative fact doctrine. Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is unconstitutional. (League of Cities of the Philippines v. COMELEC, En Banc, G.R. No. 176951, 24 August 2010)

Same; Prior to declaration of unconstitutionality, must be complied with. A legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. (Film Development Council of the Philippines v. Colon Heritage Realty Corporation, En Banc, G.R. No. 203754, 16 June 2015)

Same; Past acts – legitimate. A void act though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application. (City Government of Makati City v. Civil Service Commission, G.R. No. 131392, 06 February 2002)

a. Requisites

Requisites for application of the operative act doctrine:
1) The existence of a legislative act or measure; and
2) Equity and fair play demands application to protect those who relied in good faith on the invalid law. (CIR v. San Roque Power Corporation, supra. cf.  Film Development Council of the Philippines v. Colon Heritage Realty Corporation, supra.)

Existence of a legislative act or measure. 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. (CIR v. San Roque Power Corporation, supra.)

Equity and fair play. The doctrine of operative fact applies as a matter of equity and fair play. This doctrine nullifies the effects of an unconstitutional law or an executive act by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences that cannot always be ignored. It applies when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. (Film Development Council of the Philippines v. Colon Heritage Realty Corporation, supra.)

Same; Effects of already accomplished acts. Therefore, in applying the doctrine of operative fact, courts ought to examine with particularity the effects of the already accomplished acts arising from the unconstitutional statute, and determine, on the basis of equity and fair play, if such effects should be allowed to stand. It should not operate to give any unwarranted advantage to parties, but merely seeks to protect those who, in good faith, relied on the invalid law. (Ibid.)

•••••

BAR EXAM QUESTION

(Question B.17, Political Law, 2019 Bar Exam)

In 2014, Congress enacted an appropriation law containing a provision that gives individual legislators the discretion to determine, post-enactment, how much funds would go to a specific project or beneficiary which they themselves also determine. Consequently, disbursements were made in the interim pursuant thereto.

Eventually, Mr. Z filed a petition questioning the constitutionality of the statutory provision on the grounds that it violates the separation of powers principle.

On the other hand, certain Congressman argued that there was nothing wrong with the provision because, after all, the power to appropriate belongs to Congress.

(b) Assuming that the provision is declared unconstitutional, should the disbursements made pursuant thereto be returned in light of the doctrine of operative fact? Explain. (2.5%)

Suggested Answer:

(b) No. Answer

Under the operative fact doctrine, a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. Accordingly, the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. Rule

In the case at bar, disbursements were already made in the interim and hence a fait accompli. Such effects need not be disturbed following the operative fact doctrine. Apply

Thus, the disbursement made need not be returned. Conclusion

•••••

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