1.

Concept
a. Judicial power, traditional and expanded meaning – Art. 8, Sec. 1
Art 8, Sec 1. The 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.
i. Political Question Doctrine
- 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. It is concerned with issues dependent upon the wisdom, not legality of a
particular measure.”
- a question of policy

b. Requisites for the proper exercise of the power of judicial review

- It is well-settled that no question involving the constitutionality or validity of a law or governmental act may be heard and
decided unless the following requisites for judicial inquiry are present:
1. there must be an actual case or controversy calling for the exercise of judicial power;
2. the person challenging the act must have the standing to question the validity of the subject act or issuance;
3. the question of constitutionality must be raised at the earliest opportunity;
4. the issue of constitutionality must be the very lis mota of the case. 

i. Actual case or controversy

- is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute

2) Advisory opinion
An advisory opinion is an interpretation of the law as it applies to a set of facts provided in writing by the individual
requesting the opinion. The purpose of an advisory opinion is to provide guidance to an official or employee before the
official or employee engages in an action that may be prohibited.

This same principle underlies the basic doctrine that courts are to refrain from issuing advisory opinions. Specifically as regards this Court, only
constitutional issues that are narrowly framed, sufficient to resolve an actual case, may be entertained.

First. 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. A question is ripe for
adjudication when there is an actual act that had been performed or accomplished that directly and adversely affected the
party challenging the act.19

Declaratory relief – Sec, 1, Rule 63 of the Rules of Court, as amended. It is a special civil action brought by a person:
1. interested under a deed, will, contract or other written instrument, or
2. whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation before
breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of
his rights or duties thereunder (Sec. 1, Rule 63).

- International Court of Justice – Article 96, Chapter XIV of the UN Charter

1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory
opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General
Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their
activities.

3) “Moot and academic”

 Moot and Academic. An action is considered "moot" when it no longer presents a justiciable controversy because the
issues involved have become “academic” or dead or 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.

Exceptions:
1. There is a grave violation of the Constitution;
2. The exceptional character of the situation and the paramount public interest are involved;
 3. When the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and
4. The case is capable of repetition yet evading review.
i. The challenged action was in its duration too short to be fully litigated prior to its cessation or
expiration
ii. There was a reasonable expectation that the same complaining party would be subjected to the same
action

ii. Proper party (“locus standi” or legal standing)

The constitutional question must be raised by the proper party. A proper party is one who has sustained or is in imminent
danger of sustaining an injury as a result of the act complained of. To be a proper party, one must have “legal standing”, or
locus standi.
It was clarified that the term “interest” means a material interest, an interest in issue affected by the challenged official act,
as distinguished from mere interest in the question involved, or a mere incidental interest.

1) General Rule: “direct injury test”

“Direct Injury Test”: The established rule that the constitutionality of a law or administrative issuance can be challenged by
one who will sustain a direct injury as a result of the enforcement of the statute.

There are now eight (8) exceptions to the general rule on direct injury test. The first 5 are enumerated in David v.
Macapagal-Arroyo:
(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
(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as
legislators.
(6) as stewards of nature (via Writ of Kalikasan), as discussed in Resident Mammals v. Sec. Angelo Reyes.
(7) judicial review on martial law proclamation and suspension of the privilege of the writ of habeas corpus – a
citizen’s suit questioning the validity of the proclamation, in Lagman v. Executive Secretary.
(8) a citizen’s suit invoking a public right that is violated, as laid down in the case of Padilla v. Congress (this
seems to be a catch-all provision).
2) Prohibition against third-party standing - “As applied” and Facial Challenges

2) Prohibition against third-party standing - “As applied” and Facial Challenges

“As applied” challenge - The petitioner who claims a violation of his constitutional right can raise any constitutional ground
–
1. absence of due process,
2. lack of fair notice,
3. lack of ascertainable standards,
4. overbreadth, or
5. vagueness.

Petitioners challenge the constitutionality of Section 45(j) "as applied" to them in a live case under which they face
prosecution. This is the traditional "as applied" approach in challenging the constitutionality of any statute. 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.

Prohibition against third-party standing - 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.

The Court outlined the schools of thought on whether the void-for- vagueness and overbreadth doctrines are equally
applicable grounds to assail a penal statute. It held (by citing the cases of Romualdez vs. Sandiganbayan and Estrada vs.
Sandiganbayan) that the two doctrines have special application only to free-speech cases, and are not appropriate for
testing the validity of penal statute. Citing the Separate Opinion of Justice Mendoza (important):
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 "when 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.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two
respects:
(1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.

The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms.

A facial challenge is likewise different from an as-applied challenge.

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.

Hence, Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness
doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio
explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines
are used to mount ‘facial’ challenges to penal statutes not involving free speech."

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.66

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.67

iii. Earliest opportunity; Exceptions?

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. Whether the earliest opportunity was in the pleadings and
processes prior in time in the same case, but whether the grounds for the constitutional objection was already apparent
when the prior case was being heard, regardless of the vertical or horizontal nature of the case in which it could have been
raised. Failure to pass the horizontal test of "earliest opportunity" certainly calls for the application of estoppel.
iv. The “lis mota” of the case / necessity of deciding constitutional question
- Even if all the requisites for judicial review of a  constitutional matter are present in a case, this Court will not
pass upon a constitutional question unless it is the lis mota of  the case or if the case can be disposed of on some
other grounds, such as the application of the statute or general law.

2) Doctrine of Purposeful Hesitation

- - Every court, is charged with the duty of a purposeful hesitation before declaring a law unconstitutional, on the
theory that the measure was first carefully studied by the executive and the legislative departments and
determined by them to be in accordance with the fundamental law before it was finally approved.

3) 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. This is an exception to the general rule that says an
unconstitutional law is void. This only applies as a matter of equity and fair play.