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SEPARATE OPINION

MENDOZA, J.: chanrobles virtual law library

This suit was instituted to determine the constitutionality of certain provisions of R.A. No. 8371, otherwise known as the Indigenous Peoples Rights Act. Petitioners do not complain of any injury as a result of the application of the statute to them. They assert a right to seek an adjudication of constitutional questions as citizens and taxpayers, upon the plea that the questions raised are of transcendental importance. chanrobles virtual law library

The judicial power vested in this Court by Art. VIII, 1 extends only to cases and controversies for the determination of such proceedings as are established by law for the protection or enforcement of rights, or the prevention, redress or punishment of wrongs.¹ In this case, the purpose of the suit is not to enforce a property right of petitioners against the government and other respondents or to demand compensation for injuries suffered by them as a result of the enforcement of the law, but only to settle what they believe to be the doubtful character of the law in question. Any judgment that we render in this case will thus not conclude or bind real parties in the future, when actual litigation will bring to the Court the question of the constitutionality of such legislation. Such judgment cannot be executed as it amounts to no more than an expression of opinion upon the validity of the provisions of the law in question.² chanrobles virtual law library

I do not conceive it to be the function of this Court under Art. VIII, 1 of the Constitution to determine in the abstract whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the legislative and executive departments in enacting the IPRA. Our jurisdiction is confined to cases or controversies. No one reading Art. VIII, 5 can fail to note that, in enumerating the matters placed in the keeping of this Court, it uniformly begins with the phrase all cases. . . . chanrobles virtual law library

The statement that the judicial power includes the duty to determine whether there has been a grave abuse of discretion was inserted in Art. VIII, 1 not really to give the judiciary a roving commission to right any wrong it perceives but to preclude courts from invoking the political question doctrine in order to evade the decision of certain cases even where violations of civil liberties are alleged. chanrobles virtual law library

The statement is based on the ruling of the Court in Lansang v. Garcia,[3 in which this Court, adopting the submission of the Solicitor General, formulated the following test of its jurisdiction in such cases: chanrobles virtual law library

[J]udicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the Presidents decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily. chanrobles virtual law library

That is why Art. VII, 18 now confers on any citizen standing to question the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. It is noteworthy that Chief Justice Roberto Concepcion, who chaired the Committee on the Judiciary of the Constitutional Commission, was the author of the opinions of the Court in Lopez v. Roxas and Lansang v. Garcia.chanrobles virtual law library

Indeed, the judicial power cannot be extended to matters which do not involve actual cases or controversies without upsetting the balance of power among the three branches of the government and erecting, as it were, the judiciary, particularly the Supreme Court, as a third branch of Congress, with power not only to invalidate statutes but even to rewrite them. Yet that is exactly what we would be permitting in this case were we to assume jurisdiction and decide wholesale the constitutional validity of the IPRA contrary to the established rule that a party can question the validity of a statute only if, as applied to him, it is unconstitutional. Here the IPRA is sought to be declared void on its face. chanrobles virtual law library

The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. Invalidation of the statute on its face rather than as applied is permitted in the interest of preventing a chilling effect on freedom of expression. But in other cases, even if it is found that a provision of a statute is unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far inseparable from the rest of the statute that a declaration of partial invalidity is not possible. chanrobles virtual law library

For the Court to exercise its power of review when there is no case or controversy is not only to act without jurisdiction but also to run the risk that, in adjudicating abstract or hypothetical questions, its decision will be based on speculation rather than experience. Deprived of the opportunity to observe the impact of the law, the Court is likely to equate questions of constitutionality with questions of wisdom and is thus likely to intrude into the domain of legislation. Constitutional adjudication, it cannot be too often repeated, cannot take place in a vacuum. chanrobles virtual law library

Some of the brethren contend that not deciding the constitutional issues raised by petitioners will be a galling cop out⁴ or an advocacy of timidity, let alone isolationism.⁵ To decline the exercise of jurisdiction in this case is no more a cop out or a sign of timidity than it was for Chief Justice Marshall in Marbury v. Madison[6 to hold that petitioner had the right to the issuance of his commission as justice of the peace of the District of Columbia only to declare in the end that after all mandamus did not lie, because 13 of the Judiciary Act of 1789, which conferred original jurisdiction on the United States Supreme Court to issue the writ of mandamus, was unconstitutional as the courts jurisdiction is mainly appellate. chanrobles virtual law library

Today Marbury v. Madison is remembered for the institution of the power of judicial review, and so that there can be no doubt of this power of our Court, we in this country have enshrined its principle in Art. VIII, 1. Now, the exercise of judicial review can result either in the invalidation of an act of Congress or in upholding it. Hence, the checking and legitimating functions of judicial review so well mentioned in the decisions⁷ of this Court. chanrobles virtual law library

To decline, therefore, the exercise of jurisdiction where there is no genuine controversy is not to show timidity but respect for the judgment of a coequal department of government whose acts, unless shown to be clearly repugnant to the fundamental law, are presumed to be valid. The polestar of constitutional adjudication was set forth by Justice Laurel in the Angara case when he said that 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.⁸ For the exercise of this power is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals.[9 Until, therefore, an actual case is brought to test the constitutionality of the IPRA, the presumption of constitutionality, which inheres in every statute, must be accorded to it. chanrobles virtual law library

Justice Kapunan, on the other hand, cites the statement in Severino v. Governor General,[10 reiterated in Tanada v. Tuvera,[11 that when the question is one of public right and the object of mandamus to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient that he is a citizen and as such is interested in the execution of the laws. On the basis of this statement, he argues that petitioners have standing to bring these proceedings.[12 chanrobles virtual law library

In Severino v. Governor General,¹³ the question was whether mandamus lay to compel the Governor General to call a special election on the ground that it was his duty to do so. The ruling was that he did not have such a duty. On the other hand, although mandamus was issued in Tanada v. Tuvera, it was clear that petitioners had standing to bring the suit, because the public has a right to know and the failure of respondents to publish all decrees and other presidential issuances in the Official Gazette placed petitioners in danger of violating those decrees and issuances. But, in this case, what public right is there for petitioners to enforce when the IPRA does not apply to them except in general and in common with other citizens. chanrobles virtual law library

For the foregoing reasons I vote to dismiss the petition in this case.

[1 Lopez v. Roxas, 17 SCRA 756, 761 (1966).

[2 Muskrat v. United States, 279 U.S. 346, 55 L.Ed. 246 (1911).

[3 42 SCRA 448, 481 (1971) (emphasis on the original).

[4 Panganiban, J., Separate Opinion, p. 2.

[5 Vitug, J., Separate Opinion, p. 1.

[6 1 Cranch 137, 2 L.Ed. 60 (1803).

[7 Occea v. Commission on Elections; Gonzales v. The National Treasurer, 104 SCRA 1 (1981); Mitra v. Commission on Elections, 104 SCRA 59 (1981).

[8 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

[9 Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806 (1955).

[10 16 Phil. 366 (1913).

[11 136 SCRA 27 (1985).

[12 Kapunan, J., Separate Opinion, pp. 21-23.

[13 Supra note 10.