Monday, July 7, 2008

"Void for vagueness" doctrine in the Philippines

In the recent case of SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ vs. COMMISSION ON ELECTIONS and DENNIS GARAY, EN BANC, G. R. No. 167011, April 30, 2008, the petitioners contended, inter alia, that Section 45(j) of the Voter’s Registration Act was void for being vague as it did not refer to a definite provision of the law, the violation of which would constitute an election offense; hence, it ran contrary to Section 14(1) and Section 14(2), Article III of the 1987 Constitution (due process clause).

The Commission on Election (Comelec) charged the petitioners with violations of Section 10(g) and (j), in relation to Section 45(j) of the Voter’s Registration Act.

In a split decision, with Justices Carpio, Tinga, et. al., dissenting, the Philippine Supreme Court En Banc rejected the “void for vagueness” theory of the petitioners.

Section 10(g) and Section 10(j) of Republic Act No. 8189, provides that a qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter. The application shall, inter alia, contain the following data: Periods of residence in the Philippines and in the place of registration and a statement that the application is not a registered voter of any precinct.

Section 45(j) of the same Act provides, inter alia, that the following shall be considered election offenses under this Act: “Violation of any of the provisions of this Act”.

The Court rejected the argument of the petitioners, in line with their void for vagueness theory, that Section 45(j) of Republic Act No. 8189 made no reference to a definite provision of the law, the violation of which would constitute an election offense.

Generally, the void-for-vagueness doctrine holds that “a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application”.

However, the Court held that facial invalidation or an “on-its-face” invalidation of criminal statutes is not appropriate. It stated that doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools to test "on their faces" statutes in free speech cases or American First Amendment cases. They cannot apply “when what is involved is a criminal statute”. With respect to such statute, the rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' According to the Court, “vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant”.

The Court held that “to this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity."

It added that while it had been previously “mentioned in passing” in some cases, “the void-for-vagueness concept has yet to find direct application in our jurisdiction”.

The Court stated that an "on-its-face" invalidation of criminal statutes would result in “a mass acquittal of parties whose cases may not have even reached the courts”. Such invalidation would constitute “a departure from the usual requirement of actual case and controversy" and “permit decisions to be made in a sterile abstract context having no factual concreteness”.

It held that “the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary”.

It added that “the combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided."

It stated that an on-its-face invalidation of statutes is generally disfavored because it is a "manifestly strong medicine" that must be employed "sparingly and only as a last resort."

In determining the constitutionality of a statute, it added, “its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged”. For judicial review to be exercised, “there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or anticipatory”.

The Court added that “the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct”.

It stated that “claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct."

A person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.

A facial challenge on the ground of overbreadth is “the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid”.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application." And like overbreadth, it is said that “a litigant may challenge a statute on its face only if it is vague in all its possible applications”.

TheCourt stated that the test in determining whether a criminal statute is void for uncertainty is “whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice”. The vagueness doctrine “merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude”.

Interpreting Section 45 of Republic Act No. 8189, the Court held that it makes a recital of election offenses under the Act. Section 45(j) is provides that a violation of any of the provisions of Republic Act No. 8189 is an election offense. “The challenged provision renders itself to no other interpretation. A reading of the challenged provision involves no guesswork. We do not see herein an uncertainty that makes the same vague”, the Court added. “Notably, herein petitioners do not cite a word in the challenged provision, the import or meaning of which they do not understand”.

According to the Court, a statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act.

The words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, unless it is evident that the legislature intended a technical or special legal meaning to those words. The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed.

An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.

The Court stated that criminal laws by legislative fiat intend to punish not only those expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the law.

It added that the phraseology in Section 45(j) is employed by Congress in a number of our laws. These provisions have not been declared unconstitutional.

Every statute has in its favor the presumption of validity. “To justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative”. In the case at bar, the Court held that petitioners failed to overcome the heavy presumption in favor of the law and that its constitutionality must be upheld in the absence of substantial grounds for overthrowing the same.

Further, the Court stated that Courts will refrain from touching upon the issue of constitutionality unless it is truly unavoidable and is the very lis mota. In the case at bar, the lis mota is the alleged grave abuse of discretion of the COMELEC in finding probable cause for the filing of criminal charges against petitioners.

I wish to digest the dissenting opinion of Justice Carpio below:

1. Petitioners’ constitutional attack on Section 45(j) under the due process clause puts in issue two other requirements for the validity of a penal statute. First, a penal statute must prescribe an ascertainable standard of guilt to guide courts in adjudication. Second, a penal statute must confine law enforcers within well-defined boundaries to avoid arbitrary or discriminatory enforcement of the law.

2. 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.

3. 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.

4. A petitioner may mount a “facial” challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute. To mount a “facial” challenge, a petitioner has only to show violation under the assailed statute of the rights of third parties not before the court. This exception allowing “facial” challenges, however, applies only to statutes involving free speech. The rationale for this exception allowing a “facial” challenge 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 refuse to speak to avoid being charged of a crime. The overbroad or vague law chills him into silence.

The third exception to the prohibition against third-party standing is termed the “overbreadth doctrine.” A person generally can argue that a statute is unconstitutional as it is applied to him or her; the individual cannot argue that a statute is unconstitutional as it is applied to third parties not before the court. For example, a defendant in a criminal trial can challenge the constitutionality of the law that is the basis for the prosecution solely on the claim that the statute unconstitutionally abridges his or her constitutional rights. The overbreadth doctrine is an exception to the prohibition against third-party standing. It permits a person to challenge a statute on the ground that it violates the First Amendment (free speech) rights of third parties not before the court, even though the law is constitutional as applied to that defendant. In other words, the overbreadth doctrine provides that: “Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.”

5. The overbreadth doctrine is closely related to the vagueness doctrine. Both doctrines are often simultaneously invoked to mount “facial” challenges to statutes violating free speech. The doctrines of overbreadth and vagueness, as devices to mount “facial” challenges to penal or non-penal statutes violating free speech, are not applicable to the present petition for two reasons. First, petitioners here assert a violation of their own constitutional rights, not the rights of third-parties. Second, the challenged statute - Section 45(j) of RA No. 8189, does not involve free speech. Thus, any invocation of the doctrines of overbreadth and vagueness to mount a “facial” challenge in the present case is grossly misplaced.

6. As conduct – not speech – is its object, the challenged provision must be examined only “as applied” to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness [under a “facial” challenge].

7. The overbreadth and the vagueness doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. 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.

8. The present petition indisputably involves an “as applied” challenge to the constitutionality of Section 45(j) of RA No. 8189. As an “as applied” challenge, petitioners may raise any constitutional ground to strike down Section 45(j). In this “as applied” challenge, petitioners may invoke the overbreadth and vagueness doctrines to test the constitutionality of Section 45(j).

9. The threshold issue on the constitutionality of Section 45(j) now turns on three tests: First, does Section 45(j) give “fair notice” or warning to ordinary citizens as to what is criminal conduct and what is lawful conduct? Put differently, is Section 45(j) so vague that ordinary citizens must necessarily guess as to its meaning and differ as to its application? Second, is Section 45(j) so vague that it prescribes no ascertainable standard of guilt to guide courts in judging those charged of its violation? Third, is Section 45(j) so vague that law enforcers - the police and prosecutors - can arbitrarily or selectively enforce it? If Section 45(j) meets all the three tests, it complies with the due process clause and is therefore constitutional. If it fails any one of the three tests, then it is unconstitutional and the two Informations against petitioners based on Section 45(j) should be quashed.

10. RA No. 8189 contains 52 sections and some 235 sentences, 149 paragraphs, and 7,831 words. Section 45(j) of RA No. 8189 makes “violation of any of the provisions” of RA No. 8189 a criminal offense, in addition to violations expressly specified in Section 45(a) to (i). The ordinary citizen has no way of knowing which provisions of RA No. 8189 are covered by Section 45(j) even if he has before him a copy of RA No. 8189. Even Judges and Justices will differ as to which provisions of RA No. 8189 fall under Section 45(j). The prosecution office of the Comelec has not specified which provisions of RA No. 8189 fall under Section 45(j). There is no legal textbook writer who has attempted to enumerate the provisions of RA No. 8189 that fall under Section 45(j). Members of the Commission on Elections will certainly dispute that failure by the Commission to reconstitute lost or destroyed registration records constitutes a crime on their part.

11. Under RA No. 8189, law enforcement officers have wide latitude to choose which provisions of the law to consider a crime since there is no specific enumeration of provisions falling under Section 45(j). Prosecutors can choose to prosecute only those who violate certain provisions of RA No. 8189. Judges trying violators of the law have no ascertainable standard to determine the guilt of a person accused of violating Section 45(j). There is no certainty which provisions of RA No. 8189 fall under Section 45(j). Section 45(j) makes a blanket, unconditional declaration that “violation of any of the provisions” of RA No. 8189 constitutes a crime. Certainly, the lawmaker did not intend that trivial and harmless violations, or omissions for cause, should constitute a crime under Section 45(j). Unfortunately, there is no way of knowing with certainty what these trivial and harmless violations or omissions are. Everyone will have to guess as to what provisions fall under Section 45(j), and their guesses will most likely differ from each other.

12. A provision in an elaborate and detailed law that contains a catch-all provision making it a crime to violate any provision of such law does not give “fair notice” to the ordinary citizen on what constitutes prohibited conduct or permitted conduct under such law. Section 45(j) does not draw reasonably clear lines between lawful and unlawful conduct such that the ordinary citizen has no way of finding out what conduct is a prohibited act. The ordinary citizen will have to guess which provisions of RA No. 8189, other than those mentioned in Section 45(a) to (i), carry a penal sanction.

13. If Section 45(j) had enumerated the specific provisions within its coverage, then reasonable clear lines would guide the ordinary citizen as to what acts are prohibited. Section 45(j) does not specify those provisions and thus fails to draw reasonable clear lines. If Section 45(j) is strictly applied, the ordinary citizen may simply decline to exercise his right of suffrage to avoid unintentionally committing a crime. Section 45(j) is a trap even to the most educated citizen.

14. A penal law void for vagueness is not made valid by a specification in the Information correcting the vagueness in the law. No court of law has adopted a doctrine that the prosecutor has the power to correct a vagueness in a penal law. Whether a law is void for vagueness under an “as applied” challenge must be tested under the provisions of the law as found in the statute books, and not as interpreted by the prosecutor in the Information.

15. There is no basis in the claim that any discussion on the possible provisions of RA No. 8189 that may fall within the coverage of Section 45(j) constitutes a “facial” challenge on such provisions of RA No. 8189. This is gross error. What is void for vagueness is the provision “violation of any of the provisions of this Act,” and not any of the unnamed provisions that may be violated. No other provision in RA No. 8189 is being challenged as unconstitutional, only Section 45(j). The provisions possibly falling within the coverage of Section 45(j) must be discussed to illustrate that the ordinary citizen has no way of knowing with certitude what provisions of RA No. 8189 fall within the coverage of Section 45(j). The discussion shows that the ordinary citizen has no fair notice that these are the provisions falling within the coverage of Section 45(j). What is being challenged is the constitutionality of Section 45(j), which is so vague that it could cover any of the provisions discussed above.

16. This Court must revisit Gatchalian’s holding that makes a crime “not only those (acts) expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the law.” Unlike the U.S. Fair Labor Standards Act after which our Republic Act No. 602 was patterned, RA 602 does not specify the provisions of the law the violation of which is declared unlawful. This Court must categorically rule that only acts expressly declared unlawful or prohibited by law, and penalized as such, are crimes. Acts not expressly declared unlawful or prohibited can never give rise to criminal liability. Any ambiguity in the law whether an act constitutes a crime is resolved in favor of the accused.

17. To punish as crimes acts not expressly declared unlawful or prohibited by law violates the Bill of Rights. First, the Constitution provides that “[N]o person shall be held to answer for a criminal offense without due process of law.” Due process requires that the law expressly declares unlawful, and punishes as such, the act for which the accused is held criminally liable. The void for vagueness doctrine is aimed precisely to enforce this fundamental constitutional right. Second, the Constitution provides that “[I]n all criminal prosecutions, the accused shall x x x enjoy the right x x x to be informed of the nature and cause of the accusation against him.” This right of the accused requires that the Information states the particular act the accused committed in violation of a specific provision of a law defining such act a crime.

18. A blanket and unconditional declaration that any violation of an elaborate and detailed law is a crime is too imprecise and indefinite, and fails to define with certitude and clarity what acts the law punishes as crimes. Such a shotgun approach to criminalizing human conduct is exactly what the void for vagueness doctrine outlaws.That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with the ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

19. The dividing line between what is lawful and unlawful conduct cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.

20. Section 45(j) is a penal statute. Penal statutes are construed strictly against the state and liberally in favor of the accused. The purpose is not to allow a guilty person to escape punishment through a technicality but to provide a precise definition of the prohibited act. To constitute a crime, an act must come clearly within the spirit and letter of the penal statute. Otherwise, the act is outside the coverage of the penal statute. An act is not a crime unless clearly made so by express provision of law. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not made clearly so by the statute.

21. Section 45(j) does not specify what provisions of RA No. 8189, if violated, carry a penal sanction. Section 45(j) merely states that “violation of any of the provisions” of RA No. 8189 is a crime. In addition to the provisions covered by Section 45(a) to (i), there are many other provisions of RA No. 8189 that are susceptible of violation. Section 45(j), however, does not specify which of these other provisions carry a penal sanction if violated. Thus, Section 45(j) fails to satisfy the requirement that for an act to be a crime it must clearly be made a crime by express provision of law.

May I also digest the dissenting opinion of Justice Tinga:

1. A vague criminal statute at its core violates due process, as it deprives fair notice and standards to all – the citizens, the law enforcement officers, prosecutors and judges. No person shall be deprived of life, liberty or property without due process of law. The due process clause makes legally operative our democratic rights, as it establishes freedom and free will as the normative human conditions which the State is bound to respect. Any legislated restrictions imposed by the State on life, liberty or property must be in accordance with due process of law. The scope of “due process” encompasses values ascribed to justice such as equity, prudence, humaneness and fairness.

2. Section 45(j) is vague. It does not provides “fair notice” to the citizentry, as well as the standards for enforcement and adjudication. Thus, the section violates the due process clause and thus deserves to be struck down.

3. Substantive due process guarantees against the arbitrary exercise of state power, while procedural due process is a guarantee of procedural fairness. Substantive and procedural due process are equally sacrosanct in the constitutional order, and a law that is infirm in either regard is wholly infirm.

4. A statute violates due process, and thus repugnant to the Constitution, if it fails “to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid.” Such flaw is one characteristic of a vague statute, the other being that “it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.” Both attributes earmark a statute as “vague”, the generally accepted definition of a vague statute being one that lacks comprehensible standards that people “of common intelligence must necessarily guess at its meaning and differ as to its application.”

5. Even though the “fair notice” rule is integral to due process itself, it finds realization in still another provision of our Bill of Rights. Section 14(2), Article III assures that an accused is “to be informed of the nature and cause of the accusation against him.” This constitutional right extends not only to the criminal information against the accused, but also to the language of the statute under which prosecution is pursued. Yet our own jurisprudence has yet to expressly link the fair notice requirement with Section 14(2), Article III, though this need not be a contestable point since the due process clause under Section 1, Article III already embodies the fair notice requirement.

6. A penal statute that violates the fair notice requirement is marked by vagueness because it leaves its subjects to necessarily guess at its meaning and differ as to its application. What has emerged as the most contentious issue in the deliberations over this petition is whether such vagueness may lead to the nullification of a penal law. Our 2004 ruling in Romualdez v. Sandiganbayan states: “It is best to stress at the outset that the overbreadth and the vagueness doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes.” The time has come to reconsider that statement. Rooted in unyielding formalism and deprived of guidance from basic constitutional tenets, that dicta disenchants the rights of free people, diminishing as it does, the basic right to due process.

7. The vagueness doctrine is a specie of “unconstitutional uncertainty,” which may involve “procedural due process uncertainty cases” and “substantive due process uncertainty cases.” “Procedural due process uncertainty” involves cases where the statutory language was so obscure that it failed to give adequate warning to those subject to its prohibitions as well as to provide proper standards for adjudication. Such a definition encompasses the vagueness doctrine. This perspective rightly integrates the vagueness doctrine with the due process clause, a necessary interrelation since there is no constitutional provision that explicitly bars statutes that are “void-for-vagueness.”

8. Void-for-vagueness derives from the basic tenet of criminal law that conduct may not be treated as criminal unless it has been so defined by an authority having the institutional competence to do so before it has taken place. It requires that a legislative crime definition be meaningfully precise.

9. The inquiry into whether a criminal statute is “meaningfully precise” requires the affirmative satisfaction of two criteria. First, does the statute fairly give notice to those it seeks to bind of its strictures? Second, is the statute precise enough that it does not invite arbitrary and discriminatory enforcement by law enforcement authorities? Unless both criteria are satisfied, the statute is void for vagueness.

10. There are three concerns animating the vagueness doctrine. First, courts are rightly concerned that citizens be fairly warned of what behavior is being outlawed; second, courts are concerned because vague laws provide opportunities for arbitrary enforcement and put the enforcement decisions in the hands of police officers and prosecutors instead of legislatures; finally, where vague statutes regulate behavior that is even close to constitutionally protected, courts fear a chilling effect will impinge on constitutional rights. These three interests have been deemed by the U.S. Supreme Court as important enough to justify total invalidation of a statute, such invalidation warranted unless there is some intervening act that has eliminated the threat to those interests.

11. It is clear that some substantial degree of definiteness should be required of penal statutes, for if a person is to be charged with knowledge of all his rights and duties under a statute regardless of whether he has read or understood it, fundamental fairness requires that he be given at least the opportunity to discover its existence, its applicability, and its meaning. While the due process requirements of publication are designed to fill the first of those needs, the due process requirements of definiteness are designed to fill the latter two.

12. A criminal statute should be definite enough to give notice of required conduct to those who would avoid its penalties, and to guide the judge in its application and the attorney defending those charged with its violation. The rules must be definite enough to enable the judge to make rulings of law which are so closely referable to the statute as to assure consistency of application. In addition, the statute must serve the individual as a guide to his future conduct, and it is said to be too indefinite if “men of common intelligence must necessarily guess at its meaning and differ as to its application.” If the statute does not provide adequate standards for adjudication, by which guilt or innocence may be determined, it will be struck down.

13. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.

14. It is clear that a criminal statute may be nullified on the ground of void-for-vagueness. What are the requisites that must obtain before a suit predicated on such ground may be brought before the courts? Assuming that the suit successfully demonstrates the vagueness of the statute or provision of law, what remedy can the courts apply? There are orthodox precepts in Philippine law that may find application in the resolution of void-for-vagueness cases. Long established in our jurisprudence are the four requisites for judicial inquiry: an actual case or controversy; the question of constitutionality must be raised by the proper party; the constitutional question must be raised at the earliest possible opportunity; and the constitutional question must be necessary to the determination of the case itself. These requisites would accommodate instances such as those in the present case, where the constitutional challenge to the penal law is raised by the very persons who are charged under the questioned statute or provision.

15. The general rule is that an unconstitutional act is not law; it confers no rights, imposes no duties, affords no protection, creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. At the same time, there are doctrines in statutory construction that authorize the courts to allow the survival of the challenged statute or provision of law. It is a well-settled rule that a statute should be construed whenever possible in a manner that will avoid conflict with the Constitution. Where a statute is reasonably susceptible of two constructions, one constitutional and the other unconstitutional, that construction in favor of its constitutionality shall be adopted while the construction that renders it invalid rejected.

16. In the case of overbroad statutes, it is necessary to inquire into the potential applications of the legislation in order to determine whether it can be unconstitutionally applied. In contrast, the constitutional flaws attached to a vague statute are evident on its face, as the textual language in itself is insufficient in defining the proscribed conduct.

17. Justice Carpio offers his own analysis of “facial challenge” and “as-applied” challenge. His submission discusses both concepts from the perspective of standing, contending that the present suit cannot be considered as a “facial challenge”, or a challenge against the constitutionality of a statute that is filed where the petitioner claims no actual violation of his own rights under the assailed statute, but relies instead on the potential violation of his or other persons’ rights. Instead, according to Justice Carpio, the present suit may be considered as an “as-applied” challenge, the traditional approach where the petitioner raises the violation of his constitutional rights irrespective of the constitutional grounds cited.

18. The ability of a petitioner to bring forth a suit challenging the constitutionality of an enactment or provisions thereof, even if the petitioner has yet not been directly injured by the application of the law in question, is referred to as a “facial challenge.”

19. The ability of a petitioner to judicially challenge a law or provision of law that has been specifically applied against the petitioner is referred to as an “as-applied challenge.”

20. The nullification on constitutional grounds by the courts of a provision of law, or even of the entire statute altogether, is referred to as “facial invalidation.

21. The invalidation of the application of a provision of law or a statute only insofar as it applies to the petitioner and others similarly situated, without need to nullify the law or provision thereof, is referred to as “as-applied invalidation.

22. The Court, this time and through this case, should reassert that the vagueness challenge is viable against penal statutes. The vagueness challenge is a critical defense to all persons against criminal laws that are arbitrarily drawn, formulated without thoughtful deliberation, or designed to yield to the law enforcer the determination whether an offense has been committed. Section 45(j) of Rep. Act 8189 is indeed a textbook example of a vague penal clause. The ponencia submits that Section 45(j) does not suffer from the infirmity as it ostensibly establishes that violation of any provision of Rep. Act No. 8189 is an election offense. I cannot accept the proposition that the violation of just any provision of Rep. Act No. 8189, as Section 45(j) declares with minimal fanfare, constitutes an election offense punishable with up to six (6) years of imprisonment. Section 45(j) categorizes the violation of any provision of Rep. Act 8189 as an election offense, thus effectively criminalizing such violations. Following Section 46 of the same law, any person found guilty of an election offense “shall be punished with imprisonment of not less than one (1) year but not more than six (6) years.” Virtually all of the 52 provisions of Rep. Act 8189 define an act, establishes a policy, or imposes a duty or obligation on a voter, election officer or a subdivision of government. Virtually all of these provisions are susceptible to violation, the only qualifier being that they incorporate a verb.

23. Our Philippine criminal laws are predicated on crimes that have precisely defined elements, and the task of the judge is to determine whether these elements have been proven beyond reasonable doubt. For the most part, each crime currently defined in our penal laws consist of only a handful of elements, providing the judge a clearly defined standard for conviction or acquittal. That is not the case for a penal provision predicated on “any violation of this Act.” A legislative enactment can consist of 100 provisions. Each provision may describe just one act, right, duty or prohibition, or there could be several contained in just one provision. The catch-all penal provision ostensibly criminalizes the violation of any one right, duty, or prohibition, of which there could be hundreds in just one statute. Just any one of these possibly hundreds of acts mentioned in the law is an element of the consummated crime under the catch-all provision such as Section 45(j), thus greatly increasing the risk for conviction under such a provision. There could be literally hundreds of ways that a catch-all provision in just one law could become the source of imprisonment.

24. Obviously, broader standards lead to broader discretion on the part of judges. Some judges may tend towards a narrow application of a provision such as Section 45(j), while others might be inclined towards its broad application. What is certain is that no consistent trend will emerge in criminal prosecutions for violations of provisions such as Section 45(j), a development that will not bode well for the fair and consistent administration of justice. Provisions such as Section 45(j) do nothing for the efficient administration of justice. Since such a provision is laced with unconstitutional infirmity, I submit it is the task of the Court to say so, in order that the courts will need not be confronted with this hydra of statutory indeterminacy.

25. The very vagueness of Section 45(j) makes it an ideal vehicle for political harassment. The election season will undoubtedly see a rise in the partisan political temperature, where competing candidates and their camps will employ every possible legal tactic to gain an advantage over the opponents. Among these possible tactics would be the disenfranchisement of voters who may be perceived as supporters of the other side; or the disqualification of election officers perceived as either biased or impartial enough to hamper a candidate with ill-motives. The disenfranchisement of voters or the disqualification of election officers could be accomplished through prosecutions for election offenses. Even if these prosecutions do not see fruition, the mere filing of such charges could be enough to dampen enthusiasm in voting, or strike fear in conducting honest and orderly elections.

26. In recent years, Congress has chosen to employ phraseology similar to Section 45(j) in a number of laws, such as the Cooperative Code, the Indigenous Peoples Rights Act, and the Retail Trade Liberalization Act. I know from my own experience that this is the product of a legislative predilection to utilize a standard template in the crafting of bills. I have come to believe that this standard phraseology constitutes a dangerous trend, and a clear stand from this Court that Section 45(j) is unconstitutional for being void-for-vagueness would make the legislature think twice before employing such terminology in the laws that it passes. The problem is less obvious if the law in question contains only a few provisions, where any person can be reasonably expected to ascertain with ease what particular acts are made criminal. However, in more extensive laws such as Rep. Act No. 8189 or the especially long codes, such expectation could not be reasonably met. I am aware that compliance with the requisites for the publication of laws is considered legally sufficient for the purposes of notice to the public, but I submit that a measure of reason should be appreciated in evaluating that requirement. If a law runs 400 pages long, with each sentence detailing an act that is made criminal in nature, the doctrine “ignorance of the law excuses no one” should not be made a ready and convenient excuse, especially if, as in Rep. Act 8189, the act is made criminal only by implication of a provision such as Section 45(j).

27. We should think of the public good that would prevail if the Court makes the stand that Congress cannot criminalize a whole range of behavior by simply adding a multi-purpose, catch-all provision such as Section 45(j). Congress will be forced to deliberate which precise activities should be made criminal. Such deliberate thought leads to definitive laws that do not suffer the vice of void-for-vagueness. These definite laws will undoubtedly inform the people which acts are criminalized, a prospect wholly consonant with constitutional guarantees of fair notice and due process.

28. Sad to say, the majority’s ruling today is beyond comprehension. No good will come out of it. For one, it opens a Pandora’s box of all sorts of malicious wholesale prosecutions of innocent voters at the instance of political partisans desirous to abuse the law for electoral gain. It emboldens Congress to continue incorporating exactly the same provision in the laws it enacts, no matter how many hundreds of acts or provisions are contained in the particular statute. For that matter, it signals that vague penal laws are acceptable in this jurisdiction. Left unabated, the doctrine will be reflexively parroted by judges, lawyers and law students memorizing for their bar exams until it is accepted as the entrenched rule, even though it simply makes no sense. Bad folk wisdom handed down through the generations is soon regarded as gospel truth. I sincerely hope the same mistake is not made with the lamentable doctrine affirmed by the majority today.



By:


Atty. MANUEL J. LASERNA JR.


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