Republic of the Philippines
G.R. NO. 167011             April 30, 2008
SPS. CARLOS S. ROMUALDEZ AND ERLINDA R. ROMUALDEZ, petitioners, v. COMMISSION ON ELECTIONS AND DENNIS GARAY, respondents.
April 30, 2008
This case presented itself with an alluring promise ─ the rare opportunity to declare a penal provision unconstitutional and void for vagueness, in the process obliterating the impression, spawned by recent pronouncements of the Court based on an erroneous reading of applicable American jurisprudence, that such a denouement would not unfold in this jurisdiction. Quite lamentably, the majority prevented the promise from blossoming to fruition, perpetuating instead a grievous doctrinal error which is already the subject of strenuous criticism within the legal academe.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. The petition in this case has allowed the Court to engage in as thorough inquiry as there ever has been on the constitutional right to due process, to infuse vitality and sophistication in the litigation of such primordial right. Yet, in the end, instead of reinforcing a perspective more attuned to the fullest measure of the people’s democratic rights, the Court has chosen not to rise to the challenge.
The petition should have been granted. The assailed Resolution of the Commission on Elections (COMELEC) directs the filing of criminal informations against petitioners Carlos and Erlinda Romualdez for violation of Section 10 (g) and (j) of Republic Act No. 8189 (Rep. Act 8189), also known as the Voter’s Registration Act, in relation to Section 45(j) of the same law. It is Section 45(j) which criminalizes the violation of Section 10, as well as the violation of any and all other provisions of Rep. Act 8189, as an election offense. Yet in the final analysis, Section 45(j) is unconstitutional, violative as it is of the due process clause, and thus should be voided.
The case stemmed from a complaint2 dated 12 July 2000 filed with the Commission on Elections (COMELEC) Law Department by private respondents Dennis Garay and Angelino Apostol3 against petitioners, spouses Carlos and Erlinda Romualdez. The complaint alleged that petitioners violated Sections 261(y)(2) and 261(y)(5) of the Omnibus Election Code, and Section 12(3) of Republic Act No. 8189 (Rep. Act 8189), also known as the Voter’s Registration Act, such violations arising from the acts initiated by petitioners in registering as voters in Burauen, Leyte.
Petitioners had applied for registration as new voters with the Office of the Election Officer in Burauen on 9 and 11 May 2000, respectively. In their respective applications, petitioners stated that they were residents of 935 San Jose St., in Burauen. They left blank the space in the application form requiring them to state the years and months of their "period of residence" in the aforementioned municipality.4 The complaint alleged that in truth petitioners were actually residents of 113 Mariposa Loop, Mariposa St., Bagong Lipunan ng Crame, Quezon City, as well as registered voters in Precinct No. 4419-A of Barangay Bagong Lipunan ng Crame, District IV, in Quezon City. To support this factual allegation, were various certifications issued by barangay and election officers of Quezon City,5 as well as the Quezon City Voter Registration Records of the petitioners were attached to the complaint.6
The complaint further stated that oppositions had been filed against petitioners’ application for registration in Burauen. In response thereto, petitioners filed with the Office of the Election Officer in Burauen various documents evincing not only their intent to transfer their registration as voters from Quezon City to Burauen, which was their new place of residence, but the actuality that they had began to formalize such transfer pursuant to Section 12 of Rep. Act No. 8189. Particularly, said documents include letters from petitioners to the election officer of Burauen manifesting their intent to transfer their registrations, as well as their respective Affidavits of Transfer of Voter’s Registration under Section 12, Rep. Act 8189. Petitioners also explained that by reason of honest mistake, they had erroneously filed applications as new voters in Burauen, instead of as transferee voters.
The complaint likewise point out the particular provisions of law for which petitioners could be held accountable. Section 261(y)(2) and (y)(5) of the Omnibus Election Code respectively penalizes knowingly making any false or untruthful statements relative to any data or information required in the application for registration, and the re-registration anew by a previously registered voter without the filing of an application for cancellation of his previous registration. On the other hand, the failure to apply for transfer of registration records due to change of residence to another city or municipality was alleged to be in violation of Section 12 of Rep. Act No. 8189.
The matter was referred to the Commission on Elections and docketed as E.O. Case No. 2000-36. Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss. They alleged that they had been intending to reside in Burauen since 1989, and they actually took up residence therein on 9 May 2000. They claimed having left unanswered the blank space for "period of residence" in their application for registration because they were unsure what period of residence was being required.7 They also averred that as early as 18 April 2000, they had already written the election officer in Quezon City requesting the cancellation of their registration as voters in Barangay Bagong Lipunan ng Crame, but the Assistant Quezon City Election Officer had refused to acknowledge receipt of the same on the ground that the proper procedure was to file a request for transfer of voter’s registration records with the election officer of Burauen. Petitioners noted that they did file an Application for Transfer of Registration Records in Burauen, and that the same was approved. Finally, they claimed that the filing of the case was politically motivated as petitioner Carlos Romualdez was a candidate for Congress in the second district of Leyte in the 2001 elections.
On 28 November 2003, the designated Investigating Officer assigned to hear the case, Atty. Maria Norina Tangaro-Casingal, issued a resolution recommending the prosecution of petitioners for the commission of an election offense, i.e., violation of Section 10(g) and (j) in relation to Section 45(j) of Rep. Act No. 8189. This recommendation was adopted by the COMELEC en banc in a Resolution8 dated 3 February 2004.
Section 10 of Rep. Act No. 8189 states in part:
Sec. 10. Registration of Voters.— 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 contain the following data:
(a) Name, surname, middle name, and/or maternal surname;
(c) Date, and place of birth;
(e) Civil status, if married, name of spouse;
(f) Profession, occupation or work;
(g) Periods of residence in the Philippines and in the place of registration;
(h) Exact address with the name of the street and house number for location in the precinct maps maintained by the local office of the Commission, or in case there is none, a brief description of his residence, sitio, and barangay;
(i) A statement that the applicant possesses all the qualifications of a voter;
(j) A statement that the applicant is not a registered voter of any precinct; and
(k) Such information or data as may be required by the Commission. xxx
The COMELEC observed that a violation of Section 10 of Rep. Act No. 8189 is an election offense, pursuant to Section 45(j) of the same law, which reads:
Sec. 45. Election Offenses. - The following shall be considered election offenses under this Act:
x x x x
(j) Violation of the provisions of this Act.
The COMELEC found that petitioners violated Section 10 of Rep. Act No. 8189 in two ways. First, petitioners had stated under oath that they were not registered voters in any other precinct, when in fact, the records showed that they still were registered voters of Precinct No. 4419-A in Barangay Bagong Lipunan ng Crame, District IV, Quezon City, at the time they executed their application. The COMELEC pointed out that Section 12 of the same law provided for the procedure to be observed in cases of transfer of residence to another city/municipality, which involved an application for transfer of registration with the Election Officer of the new place of residence. Even though petitioners subsequently filed an application for transfer pursuant to Section 12, manifesting therein that they had erroneously filed an application as a new voter by reason of honest mistake, the COMELEC pointed out that a statutory offense such as the violation of election law is "mala prohibita" and that good faith, ignorance or lack of malice was "beside the point" in such cases.
Second, the COMELEC also stated that petitioners’ failure to fill up the blank portion of their application on "period of residence" likewise constituted a violation of Section 10(g), which specifies that the applicant state the periods of residence in the Philippines and in the places of registration.
A motion for reconsideration filed by petitioners was denied by the COMELEC through a Resolution dated 27 January 2005.9 As a result, the present petition was filed. While the petition was pending with this Court, two separate Informations dated 12 January 2006 were filed against each of the petitioners by the COMELEC with the Regional Trial Court of Burauen, and corresponding Orders of Arrest were issued by the trial court judge.
Petitioners allege before us that the COMELEC Resolution violates their constitutional right to due process, as well as their constitutional rights under Section 14(1) and (2), Article III of the Constitution. In that regard, they point out that while the complaint alleged violations of Sections 261(y)(2) and (5) of the Omnibus Election Code and Section 12 of Rep. Act 8189, they were charged instead with violation of different provisions of law altogether. Petitioners likewise argue that Section 45(j) of Rep. Act 8189 is "vague", as "it does not specifically refer to a definite provision of law the violation of which would constitute an election offense." The provision is thus "not the ‘fair notice’ required by the Constitution for provisions of this Act."
Section 45(j) is vague. It does not provide "fair notice" to the citizenry and the standards for enforcement and adjudication. In precise legal terms, I submit that Section 45(j) violates the due process clause of the Constitution, and should accordingly be nullified.
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," as we currently understand it, is admittedly ambitious, but in its elemental form, it encompasses aboriginal values ascribed to justice such as equity, prudence, humaneness and fairness.
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.
The potency of the due process clause has depended on judicial refinement, to allow for the crystallization of its abstract ideals into a set of standards, from which a deliberate determination can be had whether the provision bears operative effect following a given set of facts. As a result, various subsets to due process have emerged, including the distinction between procedural due process and substantive due process. Stated very generally, substantive due process guarantees against the arbitrary exercise of state power, while procedural due process is a guarantee of procedural fairness.10 Substantive and procedural due process are equally sacrosanct in the constitutional order, and a law that is infirm in either regard is wholly infirm.
Among the components of due process, particularly concerning penal statutes, is the fair notice requirement. The Court, through Justice Sarmiento, acknowledged in People v. Nazario11 that 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."12 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."13 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."14
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 III15 assures that an accused is "to be informed of the nature and cause of the accusation against him." Both Justice Cruz and Fr. Bernas acknowledge that 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.16 Yet our own jurisprudence has yet to expressly link the fair notice requirement with Section 14(2), Article III,17 though this need not be a contestable point since the due process clause under Section 1, Article III already embodies the fair notice requirement.
As earlier stated, 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. Sandiganbayan18 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."19 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.
A deeper analysis of the vagueness doctrine is in order.
Employing the terminology preferred by Collings, the vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due process uncertainty cases" and "substantive due process uncertainty cases."20 "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.21 Such a definition encompasses the vagueness doctrine.22 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."
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.23
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.
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.24 These three interests have been deemed by the U.S. Supreme Court as important enough to justify total invalidation of a statute,25 such invalidation warranted unless there is some intervening act that has eliminated the threat to those interests.26
In its essence, the vagueness doctrine is a critical implement to the fundamental role of the courts to rule justly and fairly.27 Uncertainty in statutes enables persons to be penalized for acts which are not precisely defined in law as criminal, or for acts which are constitutionally protected but cast within an overbroad definition of a crime.
Our special focus now lies with the "void-for-vagueness" or "procedural due process uncertainty" rule. Two coordinate functions are served by the doctrine: guidance to the individual in planning his future conduct, and guidance to those adjudicating his rights and duties.28 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.29
The requirement of certainty arose from a fundamental common-law concept, a matter of fairness, and an element of due process of law.30 No one will deny that 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.31 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.32 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."33 If the statute does not provide adequate standards for adjudication, by which guilt or innocence may be determined, it will be struck down.34
The danger of a statute that suffers from the vagueness defect cannot be underestimated. Taken to the extreme, the absence of any clear and definite standards for conviction would leave the matter of freedom of the accused solely upon the discretion of the judge, to
whom the language of the statute would offer no guide to adjudication. At worse, it could represent "the coercive force of society run loose at the whim of the [prosecutor] without adequate restraint at the level of the trial court (for want of standards by which to restrain), enforced against indigent and unrepresented defendants."35 Indeed, the chances for acquittal as against a vague statute are significantly bettered depending on the skill of the defense counsel, and the poorer an accused is, the slimmer the chances that a skilled counsel would be within means. Void-for-vagueness statutes strike special impunity at the impoverished. They smack of unmitigated heedlessness of the lot of the likely victims of their built-in uncertainty, especially the underprivileged.
Romualdez,36 cited by the ponencia, is unfortunately insensate to these constitutional concerns. That decision referenced Estrada v. Desierto37 as basis for its response to the vagueness challenge. The ponencia in Estrada did adopt and incorporate the views stated by Justice Mendoza in his Separate Opinion, particularly, that "[t]he overbreadth and vagueness doctrines then have special application only to free speech cases…[t]hey are inapt for testing the validity of penal statutes... the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing ‘on their faces’ statutes in free speech cases or, as they are called in American law, First Amendment cases. [t]hey cannot be made to do service when what is involved is a criminal statute."38
However, in his Separate Opinion to the Resolution (on the Motion for Reconsideration) dated 29 January 2002, Justice Mendoza acknowledged:
[L]et it be clearly stated that, when we said that ‘the doctrines of strict scrutiny, overbreadth and vagueness are analytical tools for testing ‘on their faces’ statutes in free speech cases or, as they are called in American law, First Amendment cases [and therefore] cannot be made to do service when what is involved is a criminal statute,’ we did not mean to suggest that the doctrines do not apply to criminal statutes at all. They do although they do not justify a facial challenge, but only an as-applied challenge, to those statutes… Neither did we mean to suggest that the doctrines justify facial challenges only in free speech or First Amendment cases. To be sure, they also justify facial challenges in cases under the Due Process and Equal Protection Clauses of the Constitution with respect to so-called ‘fundamental rights’..."39
In light of Justice Mendoza’s subsequent clarification, it is a disputable matter whether Estrada established a doctrine that "void-for-vagueness or overbreadth challenges do not apply to penal statutes," the reference thereto in Romualdez notwithstanding. However, there is no doubt that Romualdez itself, which did not admit to a similar qualification or clarification, set forth a "doctrine" that "the overbreadth and the vagueness doctrines have special application only to free-speech cases [and] are not appropriate for testing the validity of penal statutes." As a result, the Office of the Solicitor General invokes Romualdez in its present Memorandum before the Court, and the petitioners in at least one other case now pending before this Court urges the reexamination of that doctrine.
The ponente has also cited in tandem with the Romualdez precedent this Separate Opinion of Justice Mendoza for the purpose of denominating the key issue as whether the vagueness doctrine can be utilized as an analytical tool to challenge the statute "on-its-face" or "as applied." Unfortunately, we can only engage that question if we acknowledge in the first place that the doctrine of vagueness can be applied to criminal statutes, because if not (as pronounced in Romualdez), there is no point in distinguishing between on-its-face and as-applied challenges. Moreover, this subsequent Separate Opinion, especially as it may distinguish from Justice Mendoza’s earlier and more sweeping Separate Opinion, cannot be asserted as reflective of a doctrine announced by this Court. What works towards such effect is Romualdez, which again does not offer such clarificatory distinction, and which certainly does not concede, as Justice Mendoza eventually did, that "we did not mean to suggest that the doctrines [of void-for-vagueness] do not apply to criminal statutes at all" and that "neither did we mean that that doctrines do not justify facial challenges "in cases under the Due Process and Equal Protection Clauses of the Constitution with respect to the so-called ‘fundamental rights.’"
What we have thus seen is the queer instance of obiter in a latter case, Romualdez v. Sandiganbayan, making a doctrine of an obiter in an earlier case, Estrada v. Desierto.
Moreover, the controversial statement in Romualdez, as adopted from Estrada with respect to the vagueness challenge being applicable only to free speech cases, is simply not reflective of the American jurisprudential rule which birthed the vagueness doctrine in the first place.
The leading American case laying down the rules for the vagueness challenge is Connally v. General Construction Co.,40 decided by the U.S. Supreme Court in 1926. It concerned a statute creating an eight (8)-hour workday in Oklahoma, through a provision which read:
'That not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, ... and laborers, workmen, mechanics, or other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state, ... shall be deemed to be employed by or on behalf of the state. ...' (388)41
The statute further penalized violations thereof with a fine. A constitutional challenge to this statute was raised that the statutory provisions, "if enforced, will deprive plaintiff, its officers, agents and representatives, of their liberty and property without due process of law, in violation of the Fourteenth Amendment to the Federal Constitution; that they contain no ascertainable standard of guilt; that it cannot be determined with any degree of certainty what sum constitutes a current wage in any locality; and that the term 'locality' itself is fatally vague and uncertain." The U.S. Supreme Court agreed, holding:
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 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. xxx42
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.'
We are of opinion that this provision presents a double uncertainty, fatal to its validity as a criminal statute. In the first place, the words 'current rate of wages' do not denote a specific or definite sum, but minimum, maximum, and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of work done, the efficiency of the workmen, etc., as the bill alleges is the case in respect of the territory surrounding the bridges under construction. The statutory phrase reasonably cannot be confined to any of these amounts, since it imports each and all of them. The current rate of wages' is not simple, but progressive-from so much (the minimum) to so much (the maximum), including all between; and to direct the payment of an amount which shall not be less than one of several different amounts, without saying which, is to leave the question of what is meant incapable of any definite answer. See People ex rel. Rodgers v. Coler, 166 N. Y. 1, 24-25, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605.
Nor can the question be solved by resort to the established canons of construction that enable a court to look through awkward or clumsy expression, or language wanting in precision, to the intent of the Legislature. For the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant one thing rather than another, and in the futility of an attempt to apply a requirement, which assumes the existence of a rate of wages single in amount, to a rate in fact composed of a multitude of gradations. To construe the phrase 'current rate of wages' as meaning either the lowest rate or the highest rate, or any intermediate rate, or, if it were possible to determine the various factors to be considered, an average of all rates, would be as likely to defeat the purpose of the Legislature as to promote it. See State v. Partlow, 91 N. C. 550, 553, 49 Am. Rep. 652; Commonwealth v. Bank of Pennsylvania, 3 Watts & S. (Pa.) 173, 177.
In the second place, additional obscurity is imparted to the statute by the use of the qualifying word 'locality.' Who can say, with any degree of accuracy, what areas constitute the locality where a given piece of work is being done? Two men, moving in any direction from the place of operations, would not be at all likely to agree upon the point where they had passed the boundary which separated the locality of that work from the next locality. It is said that this question is settled for us by the decision of the state Supreme Court on rehearing in State v. Tibbetts, 205 P. 776, 779. But all the court did there was to define the word 'locality' as meaning 'place,' 'near the place,' 'vicinity,' or 'neighborhood.' Accepting this as correct, as of course we do, the result is not to remove the obscurity, but rather to offer a choice of uncertainties. The word 'neighborhood' is quite as susceptible of variation as the word 'locality.' Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles. See Schmidt v. Kansas City Distilling Co., 90 Mo. 284, 296, 1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16; Woods v. Cochrane and Smith, 38 Iowa, 484, 485; State ex rel. Christie v. Meek, 26 Wash. 405, 407-408, 67 P. 76; Millville Imp. Co. v. Pitman, etc., Gas Co., 75 N. J. Law, 410, 412, 67 A. 1005; Thomas v. Marshfield, 10 Pick. (Mass.) 364, 367. The case last cited held that a grant of common to the inhabitants of a certain neighborhood was void because the term 'neighborhood' was not sufficiently certain to identify the grantees. In other connections or under other conditions the term 'locality' might be definite enough, but not so in a statute such as that under review imposing criminal penalties. Certainly, the expression 'near the place' leaves much to be desired in the way of a delimitation of boundaries; for it at once provokes the inquiry, 'How near?' And this element of uncertainty cannot here be put aside as of no consequence, for, as the rate of wages may vary-as in the present case it is alleged it does vary- among different employers and according to the relative efficiency of the workmen, so it may vary in different sections. The result is that the application of the law depends, not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but upon the probably varying impressions of juries as to whether given areas are or are not to be included within particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal.43
The statute in question did not involve a proscription on free speech, but a standard of wages with a corresponding financial penalty for violation thereof. Without any consideration to the notion that the "void-for-vagueness" challenge should be limited to free speech cases, the U.S. High Court accepted the notion that a vague statute could be invalidated and then proceeded to analyze whether the statute was indeed vague. The fact that the statute was invalidated makes it clear then that the "void-for-vagueness" challenge could be employed against a penal statute.
Within the next 73 years, the U.S. Supreme Court repeatedly invalidated penal statutes on the ground of "void-for-vagueness,"44 in the cases of Cline v. Frink Dairy Co.,45 Lanzetta v. State of New Jersey,46 Papachristou v. City of Jacksonville,47 Grayned v. City of Rockford48, Smith v. Goguen49 and Kolender v. Lawson.50 More recently, in 1999, the U.S. Supreme Court reiterated the rule in City of Chicago v. Morales51 as it invalidated an anti-loitering ordinance. The decision explained the ordinance as follows:
The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "public place" is a "criminal street gang membe[r]." Second, the persons must be "loitering," which the ordinance defines as "remain[ing] in any one place with no apparent purpose." Third, the officer must then order "all" of the persons to disperse and remove themselves "from the area." Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance.52
In explaining why the ordinance suffered from the "void-for-vagueness" defect, the U.S. Supreme Court, through Senior Associate Justice John Paul Stevens, first attacked the statutory definition of "loitering:"
xxx The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance--"to remain in any one place with no apparent purpose"--does not. It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?
Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm. Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent. However, state courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.53
Next, the U.S. Supreme Court explained the principle of "fair notice" that necessitated the "void-for-vagueness" rule:
First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit. If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.
xxx Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).54
In her concurring opinion, Justice Sandra Day O'Connor offered this succinct restatement of the void-for-vagueness rule:
A penal law is void-for-vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v . Lawson , 461 U. S. 352, 357 (1983). Of these, "the more important aspect of vagueness doctrine `is ... the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I agree that some degree of police discretion is necessary to allow the police "to perform their peacekeeping responsibilities satisfactorily." See post, at 12 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "a standardless sweep ... to pursue their personal predilections." Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575). 55
Consider the lucid explanation of Gunther and Sullivan, which integrates the principles established by American jurisprudence on that point:
The concept of vagueness under the [freedom of expression clause in the] First Amendment [of the U.S. Constitution] draws on the procedural due process requirement of adequate notice, under which a law must convey ‘sufficient definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223 (1951) A law will be void on its face for vagueness if persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385 (1926). One of the purposes of this requirement is to ensure fair notice to the defendant. But the ban on vagueness protect not only liberty, but also equality and the separation of executive from legislative power through the prevention of selective enforcement. See Smith v. Goguen (415 U.S. 566): "We have recognized that the more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine – the requirement that legislatures set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement". xxx56
Prior to Romualdez, Philippine jurisprudence had recognized the susceptibility of penal statutes to the vagueness challenge, even if they did not pertain to the free exercise of speech. Nazario, earlier cited, was one such case. Another instance, was People v. Dela Piedra,57 decided in 2001, where the Court announced:
Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its. penalties. A criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.58
Dela Piedra is inconsistent with the subsequent Romualdez doctrine, yet it embodies the correct basic proposition which is sensitive to the fundamentals of the due process clause. There was, and still is, no good or logical reason for Philippine jurisprudence to adopt an opposing rule from that in American jurisprudence in relation to the void-for-vagueness doctrine. Is the doctrine that "void-for-vagueness" cannot invalidate penal statutes somehow more appropriate to the Filipino mindset than to the American way? I really could not see any reason to foster the contrary rule unless it is the intent to effectively moot in the Philippines the right of a Filipino accused to be informed of the nature of the accusation against him/her through a penal law that defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or establishes guidelines to prevent "arbitrary and discriminatory enforcement" of the law.
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.59 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.
On the premise that the statute in question contravenes the due process clause because it is vague, our jurisprudence likewise supplies the options for remedial measures which the Court can undertake. In essence, under Philippine jurisprudence, the courts possess a wide berth of discretion when confronted with a penal statute that is impermissibly vague. 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.60 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.61 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.
Yet in the United States, even as the U.S. Supreme Court has long recognized vague penal laws as contrary to the due process clause,62 it has also recognized special considerations when the assailed statute also infringes on the First Amendment. The U.S. Supreme Court, in Grayned v. City of Rockford,63 expresses thus:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "`steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked."64
One year after Grayned was decided in 1972, a divided U.S. Supreme Court handed down its decision in Broadrick v. Oklahoma,65 a ruling that would have significant impact in the analysis of First Amendment cases. Significantly, Broadrick was the main case cited by Justice Mendoza in his Separate Opinion in Estrada v. Sandiganbayan in support of his assertion that "[t]he overbreadth and vagueness doctrines then have special application only to free speech cases."66
To understand Broadrick, it should be noted that under U.S. jurisprudence, the general rule is that "an individual has no standing to litigate the rights of third persons."67 Another traditional rule is the "as applied" mode of judicial review which "tests the constitutionality of legislation as it is applied to particular facts on a case-by-case basis."68 Both these traditional rules found an exception in the overbreadth doctrine, which is animated by the principle that "a government purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."69 Particularly in regard to First Amendment cases, overbreadth carved exceptions to the traditional rules of constitutional litigation. "First, it results in the invalidation of a law ‘on its face’ rather than ‘as applied’ to a particular speaker."70 "Second, overbreadth is an exception to the usual rules on standing xxx challengers are in effect permitted to raise the rights of third parties."71
In Broadrick, the U.S. Supreme Court found the opportunity to limit the application of the overbreadth doctrine. But the constitutional challenge made therein was not limited to overbreadth for question of vagueness was also raised against a state law restricting the partisan political activities of Oklahoma state employees. In dealing with the vagueness aspect, the majority opinion concluded that the challenged provisions were not impermissibly vague, applying the standard test set forth in cases such as Grayned.
Whatever other problems there are with 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out "explicit standards" for those who must apply it. Grayned v. City of Rockford, supra, at 108. In the plainest language, it prohibits any state classified employee from being "an officer or member" of a "partisan political club" or a candidate for "any paid public office." It forbids solicitation of contributions "for any political organization, candidacy or other political purpose" and taking part "in the management or affairs of any political party or in any political campaign." Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in 818 as "partisan," or "take part in," or "affairs of" political parties. But what was said in Letter Carriers, ante, at 578-579, is applicable here: "there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest."72
However, in ruling on the claim of overbreadth, Broadrick did not utilize any previously established test or standard, but instead pronounced a new standard of "substantial overbreadth", otherwise known as "strong medicine".73 It is clear that the Court in Broadrick still recognized the distinction between vagueness and overbreadth, and resolved those two questions separately. Nonetheless, as is manifest in Justice Mendoza’s Separate Opinion in Estrada, the impression is that the same doctrines apply to both vagueness and overbreadth, notwithstanding Broadrick. Why is that so?
As earlier explained, a vague penal statute is constitutionally offensive because it fails to give fair notice to those subjected to the regulation as to what conduct is precisely proscribed. On the other hand, a statute that suffers from overbreadth is one drawn so broadly, as it penalizes protected speech or behavior as well as such acts within the right of the State to prohibit. Thus, a statute that prohibits "the commission of illegal acts within state universities" is arguably vague, as it does not sufficiently define what exactly constitutes "illegal acts". On the other hand, a statute that proscribes "the commission of acts within state universities that help promote rebellion" is arguably overbroad. Such a statute may encompass not only those acts of rebellion within the ambit of the State to penalize, but also legitimate political expressions or criticisms of the State which are fundamentally guaranteed under the free expression clause.
Another material distinction. 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.74 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.
Broadrick had alluded to the problems concerning legal standing with respect to overbreadth cases. Because the area involved was the First Amendment, litigants had traditionally been "permitted to challenge a statute not because their own right of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression."75 Yet such expansive standing was problematic for the majority in Broadrick.
The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine.76
Thus, as a means of regulating standing in overbreadth cases, the U.S. Supreme Court announced in Broadrick:
[F]acial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct - even if expressive - falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect - at best a prediction - cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. xxx To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Broadrick jointly addressed the two concerns with respect to overbreadth cases – standing and the facial invalidation of statutes. It conceded that a successful overbreadth challenge necessitated the facial invalidation of the statute, a remedy characterized as "strong medicine". In order to limit the application of such "strong medicine", the U.S. Supreme Court declared that "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."77
Do the same concerns on the overbreadth doctrine that informed Broadrick extend as well to vagueness? It must be recognized that the problem of overbreadth has no integral relation to procedural due process, which is the fundamental constitutional problem brought forth by vagueness. Moreover, the overbreadth doctrine developed amidst concerns over restrictions on First Amendment rights and can be said was formulated to bolster the guarantee of free expression. It is not as clear that the same degree of concern over the right of free expression was key to the development of the vagueness doctrine, which after all, primarily offended a different constitutional value.
Since First Amendment values were at stake, the U.S. Supreme Court, prior to Broadrick, had found it necessary to relax the rules on standing with respect to overbreadth cases, a development which the subsequent Broadrick Court found disconcerting enough as to reverse direction. Yet contrary to the insinuation in Justice Mendoza’s Estrada opinion, Broadrick should not bar challenges to vague penal statutes brought forth by those sought to be penalized under the assailed law. The restrictions on standing brought forth in Broadrick have no material relation to the legitimate concerns of a defendant who is being prosecuted under a law that defies the fair notice requirement under the due process clause.
A brief note, at this juncture. 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.
I have no dispute with the characterization of the present suit as an "as-applied" challenge, as well as the statement that third-party standing to assail the constitutionality of statutes is impermissible as a general rule. Said positions can be accommodated following our traditional rules of standing in constitutional cases, even if these rules hardly employ the terms "facial challenge" or "as-applied challenge." The difficulty with the submission’s preferred terms is that in United States jurisprudence, a "facial challenge" pertains not only to third-party standing in constitutional cases, but also the "facial invalidation" of statutes. This matter is problematic if we are to consider the holding of the U.S. Supreme Court in U.S. v. Salerno,78 penned by the conservative Chief Justice Rehnquist.
In 1987, a divided U.S. Supreme Court ruled that the "facial challenge" is "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."79 This characterization differs greatly from Justice Carpio’s analysis that "facial challenge" only pertains to standing. Salerno has given rise to another implication to the "facial challenge" under American jurisprudence – that the nullification of a statute will be justified only if it is established that under no set of circumstances would the law remain valid. Interestingly, the Separate Opinion of Justice Mendoza in Estrada also favorably cites Salerno and the above-quoted declaration therein, a citation that adds to the confusion. Yet by simply distinguishing "facial challenge" (standing) from "facial invalidation" (adjudication on the merits), we can easily divorce this holding in Salerno from the aspect of standing, since there is no material relationship between the question of standing and the quoted-pronouncement in Salerno.
Evidently, if we are to accept the Salerno proposition, and declare that the "facial invalidation" is warranted only upon demonstration that under no set of circumstances will the challenged provision be constitutional, such a doctrine would stand as the Everest of judicial review. It would, among others, consequence in the affirmation of Section 45(j).
But should we accept the Salerno proposition? Tellingly, the declaration has not been met with unanimity in the American legal community. In a subsequent case, Washington v. Glucksberg80, Justice John Paul Stevens noted in his concurring opinion that:
Upholding the validity of the federal Bail Reform Act of 1984, the Court stated in United States v. Salerno, 481 U.S. 739 (1987), that a "facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." Id., at 745. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=95-1858 - f6f4I do not believe the Court has ever actually applied such a strict standard, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=95-1858 - f7f4even in Salerno itself, and the Court does not appear to apply Salerno here. Nevertheless, the Court does conceive of respondents' claim as a facial challenge--addressing not the application of the statute to a particular set of plaintiffs before it, but the constitutionality of the statute's categorical prohibition against "aid[ing] another person to attempt suicide."81
Further, in City of Chicago v. Morales82, the U.S. Supreme Court refused to work within the parameters ostensibly set forth in Salerno. Held the U.S. Supreme Court through Justice Stevens: "There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." It is a criminal law that contains no mens rea requirement, and infringes on constitutionally protected rights. When vagueness permeates the text of such a law, it is subject to facial attack."83
Moreover, the Salerno proposition is simply alien to the Philippine experience. Our jurisprudence has traditionally deigned to nullify or facially invalidate statutes or provisions thereof without need of considering whether "no set of circumstances exists under which the [law or provision] would be valid." Among recent examples of laws or legal provisions nullified as unconstitutional by this Court are B.P. Blg. 885,84 the Marcos-issued Executive Order No. 626-A,85 Section 46 of Rep. Act No. 4670,86 Rep. Act No. 7056,87 provisions of the 2000 General Appropriations Act passed by Congress,88 and most recently, Section 47 of P.D. 198.89 Indeed, in a similar vein to the observations of Justice Stevens as to the American experience, the impossibly high standard set forth in Salerno has never been applied squarely in this jurisdiction.
If the auto-limiting philosophy set forth Salerno should have influence in this jurisdiction, it should only be to the effect that the remedy of constitutional nullification should be resorted to by the courts if there is no other means by which the unconstitutional defect of the law or legal provision can be treated. Then again, such a principle is already laid down by our accepted rules of statutory construction, such as that "a statute should be construed whenever possible in a manner that will avoid conflict with the Constitution", or that "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, and the construction that will render it invalid rejected."
Our own jurisprudence must expressly reject Salerno, if only because that case has fostered the impression that a "facial challenge," or a "facial invalidation" necessitates a demonstration that the law involved is unconstitutional in whatever application. Even though such impression is not universally accepted, our acceptance of the viability of either the "facial challenge" or "facial invalidation" in this jurisdiction without accompanying comment on Salerno might imply that the extremely high bar for judicial review set therein prevails in the Philippines.
In order to avoid any further confusion, especially that which may be brought about by Salerno, I had proposed during deliberations the following definitions for usage in Philippine jurisprudence:
As to standing
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."
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."
As to adjudication on the merits
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."
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."
I submit that these terms provide a greater degree of clarity than simply using "facial challenge" and "as-applied challenge." My subsequent discussion shall hence utilize such terms as well.
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.
For example, Section 4 states that the "precinct-level list of voters shall be accompanied by an addition/deletion list for the purpose of updating the list." If the precinct-level list of voters is not accompanied by an addition/deletion list, an election offense is committed, according to Section 45(j). But if that is so, who commits the election offense? The COMELEC? What about if the attachment addition/deletion list was somehow alleged as not being geared towards updating the list? Would that constitute an election offense?
Under Section 37, a voter who was excluded from the certified list of voters due to inadvertence or registered with an erroneous or misspelled name may file a petition for an order directing that his name be entered or corrected. Such voter is also required to attach to a "certified copy of the registration record or identification car or the entry of his name in the certified list of voters used in the preceding election, together with the proof that his application was denied or not acted upon by the Election Registration Board." If the voter fails to attach any of these requirements, no matter the reason, an election offense as defined under Section 45(j) has been committed, and the voter may be sentenced to prison. As to what precisely are the elements of this particular crime, I am at a loss to define.
Even the most innocuous of oversights can be deemed as an election offense under Rep. Act 8189. For example, Section 10 requires that the applicant-voter submit four (4) identification-size copies of his/her latest photograph. If such voter submits only three (3) photos instead of four (4), then he/she is theoretically violating a provision of Rep. Act No. 8189, and is thus committing an election offense under Section 45(j) punishable by no less than one (1) year of imprisonment without the possibility of probation. Another example, Section 14 requires that the application for registration of a physically disabled person must be prepared by a relative within the fourth degree of consanguinity, the Election Officer, or a member of an accredited citizen’s arm. If an elderly disabled widow has her trusted maid prepare the application for her, then an election offense is committed as such act violates a provision of Rep. Act No. 8189. The maid, or perhaps even the widow herself, may now face a prison term of no less than one (1) year.
In his Separate Opinion, Justice Carpio provides even more telling illustrative samples90 of crimes under Rep. Act 8189 if the draft ponencia were upheld. Indeed, one can make a parlor game out of discerning all the possible acts that constitute a crime because of Section 45(j). Yet any entertainment that can be derived out of such exercise will be muted because the consequence involves prison terms.
The very absurdity of such implausible, yet legally possible prosecutions, lend doubt as to whether the legislature had truly intended such penal consequences. Because Section 45(j) is impermissibly vague, such doubts could be entertained, to consequences that are deleterious to our freedoms. If Section 45(j) were left by the Court as is, it would be a validation that our legislators so intended to penalize so trifling an offense.
Moreover, not only does the vagueness of Section 45(j) deprive the voters, election officials, or indeed any live person (since the provisions of Rep. Act 8189 are susceptible to violation by just about anybody) of fair notice as to what conduct is exactly proscribed and criminalized. It also leaves prosecutors and judges at a loss as to how exactly to prosecute or adjudge an election offense under Section 45(j).
We can reasonably presume that save for the specific election offenses under Section 45 (a) to (j) and the specific penal clause under Section 10 of Rep. Act 8189, all the other provisions of the law were not crafted with the intent to devise a penal provision. Outside of the bare text of the provision, it would be impossible to discern the precise elements of the crime, and since these provisions were not designed as penal provisions in the first place, there was no deliberate intent to design every subject-verb agreement as an element to a crime.
For example, Section 14 provides that with respect to illiterate or disabled applicants, "[t]he fact of illiteracy or disability shall be so indicated in the application [for registration]." Shorn of any criminal context, as it most assuredly was in the minds of the legislators, the clause merely required that the fact of illiteracy or disability should be indicated in the application. Seen benignly, the only concern of the provision is that such fact be manifested in the application. Since the provision does not even mandate that it be the applicant himself or herself who should make such indication, there would be no impediment for the election officer to make the indication in behalf of the applicant.
But if indeed that clause of Section 14 does actually embody an election offense, it would be virtually impossible for the prosecutor or the judge to ascertain the elements of such crime. Facially, there would appear only to be one element of the crime, the absence of any indication in the application of the fact of illiteracy or disability. But there is no indication on the face of the provision as to who exactly commits the crime. Neither is there clarity as to how exactly such crime is precisely committed.
It bears remembering that it is the second concern of the vagueness doctrine, that the statute is precise enough that it does not invite arbitrary and discriminatory enforcement by law enforcement authorities, that is perhaps the more important aspect of the doctrine. Section 45(j) is militantly offensive to that consideration.
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.
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.
The COMELEC did point out that an election offense under Section 45(j) is malum prohibitum, which is a correct restatement of prevailing doctrine, yet a prospect that makes the provision even more disturbing. Returning to Section 14, the illiterate or disabled voter precisely requires special assistance because of his/her personal condition which impairs the ability to properly fill up the application form. As such, the likelihood of inadvertently failing to indicate the fact of illiteracy or disability is present. Since any criminal intent is irrelevant, any honest mistake unforgivable, just because Rep. Act 8189 embodies malum prohibitum offenses, the illiterate or disabled voter who inadvertently fails to indicate the fact of his/her impairment in the application simply has no defense against imprisonment, except the pity of the judge. And even then, such pity, if wielded, may exceed the discretion of the judge since the application of the malum prohibitum law simply calls for the execution of its penal clauses once the offense has been established. Dura lex sed lex, indeed.
I now wish to address certain points raised by the ponente in rebuttal of my arguments. The claim that the Court should not touch upon the constitutionality of Section 45(j) because it is not the lis mota of the case is, with due respect, absurd. While the ponencia claims that the lis mota of this case is the alleged grave abuse of discretion on the part of the COMELEC, it cannot be denied that the valid prosecution of the petitioners integrally depends on the constitutionality of Section 45(j). It appears that the real reason the majority refuses to acknowledge that the constitutionality of Section 45(j) is the lis mota is simply because they do not find that provision unconstitutional, as roundabout a path to reason as there ever has been.
The other contentions of the ponente submitted in rebuttal to my position warrant more extensive dissection.
The ponente invokes People v. Gatchalian91 in an attempt to convince that a "catch-all" penal provision is not inherently unconstitutional, since the Court in 1958, ruling 6-3, had sustained a criminal prosecution based on such a provision found in the since-repealed Minimum Wage Law92. However, with all due respect, the discussion fails to take into account distinguishing nuances and contexts that differentiate Gatchalian and its relevant statutes from the present case and Rep. Act No. 8189.
We cannot deny the fact that the void-for-vagueness constitutional challenge, as with some other standards of constitutional adjudication, had not yet found full fruition within our own jurisprudence at the time Gatchalian was decided in 1958, a year when the oldest members of the Court were still studying in law school, and the youngest among us still in short pants. Indeed, the jurisprudential appreciation then of our fundamental constitutional rights differed in several critical respects from our presently accepted standards. In 1958, evidence seized from unconstitutional searches and seizures were admissible into evidence, as the court adopted the exclusionary rule only in 1967 with Stonehill v. Diokno. In 1958, the suspension of that fundamental right – the privilege of the writ of habeas corpus – was still believed to be a political question which
could not be the subject of judicial inquiry, the adverse rule emerging only in 1971 with Lansang v. Garcia.93 In 1958, there was yet no express recognition from this Court of a constitutional right to privacy independent from the right to liberty, such recognition came only in 1968 with Morfe v. Mutuc.94 These are but a few of the more prominent examples that can be plumbed from our jurisprudence.
I raise this point for I respectfully submit that Gatchalian can conclusively settle the present case in favor of the ponente’s position only if we believe in a static and unyielding theory of jurisprudence that blindly ignores the refreshing new insights and wisdoms each new generation gifts to civilization. Our own jurisprudential history indubitably reveals that this Court does not adhere to so rigid an ideology. A vote that Section 45(j) is constitutional only for the simple reason that a like-minded provision was sustained way back in 1958 would be premised on a philosophy utterly alien to the progressive traditions of the Supreme Court.
We need to view the questions now material at bar with a fresh perspective, with an understanding that we may need to break new ground if need be, to arrive at the proper and enlightened resolution of the question. Gatchalian cannot serve as crutch to sustain the constitutionality of Section 45(j). It is eminently possible to declare the nullity of Section 45(j) without having to invalidate the core reasoning and ultimate result of Gatchalian.
In Gatchalian, the accused therein was prosecuted under Section 15(a) of the Minimum Wage Law. Said provision reads:
SEC. 15. Penalties and recovery of wage due under this Act. —
(a) Any person who willfully violates any of the provisions of this Act shall upon conviction thereof be subject to a fine of not more than two thousand pesos, or, upon second conviction, to imprisonment of not more then one year, or to both fine and imprisonment, in the discretion of the court.
The accused in Gatchalian was alleged to have violated, in particular, Section 3 of the Minimum Wage Law, which prescribed the minimum wage rates an employer "shall pay to each of his employees".
The key mark in Section 15 is its qualification that there must be a "willful violation of any of the provisions" of the Minimum Wage Law before a criminal prosecution can be had. This distinguishes from Section 45(j), which does not offer such a critical qualification of intent. The indispensable presence of "willful violation" as an element to the criminal offense supplies the penal statute with mens rea, an element which has been defined as "a guilty mind, a guilty or wrongful purpose or criminal intent." In the 1998 case of City of Chicago v. Morales.95 one of the cases which I have extensively cited, the U.S. Supreme Court had comfortably ruled that the U.S. Supreme Court has comfortably held that "a criminal law that contains no mens rea requirement infringes on constitutionally protected rights."
Crucially, the Court majority96 that decided Gatchalian expressly emphasized the fact that Section 15 expressly limited such prosecutions only to "willful violations" when it affirmed the provision.
It is clear from the above-quoted provisions that while Section 3 explicitly requires every owner of an establishment located outside of Manila or its environs to pay each of its employees
P3.00 a day on the effective date of the Act, and one year thereafter P4.00 a day, Section 15 imposes both a criminal penalty for a willful violation of any of the above provisions and a civil liability for any underpayment of wages due an employee. The intention of the law is clear: to slap not only a criminal liability upon an erring employer for any willful violation of the acts sought to be enjoined but to attach concurrently a civil liability for any underpayment he may commit as a result thereof. The law speaks of a willful violation of "any of the provisions of this Act," which is all-embracing, and the same must include what is enjoined in Section 3 thereof which embodies the very fundamental purpose for which the law has been adopted.97
Had the Court ruled Section 45(j) of the Voter’s Registration Act unconstitutional, such pronouncement will not overturn or even be intellectually inconsistent with Gatchalian. For one, there are enough textual qualifications in Section 15 as opposed to Section 45(j) that spell the difference between a constitutional penal statute and a void one. Moreover, the same constitutional considerations we have and will fully consider in this petition were not addressed in Gatchalian.
The accused in Gatchalian had premised his motion to dismiss on two grounds: that Section 3 carried only a civil liability and did not constitute a criminal offense; and assuming that Section 3 did constitute a criminal offense, the same provision did not carry any penalty penalizing it.98 These were the two distinct issues which were addressed by the majority, and also to which the three dissenters responded to. The difference between those issues as formulated in Gatchalian and those presently confronting us is self-evident.
Still, the accused in Gatchalian did offer the following argument that may be taken into account as we consider the present case. The argument pertains to the proper interpretation of Section 15(a), which the accused had argued would result in absurdity should it "be interpreted in a manner that would embrace a willful violation of any of the provisions of the law."99 As recounted in Gatchalian:
Counsel for appellee however entertains a different interpretation. He contends that if Section 15(a) should be interpreted in a manner that would embrace a wilful violation of any of the provisions of the law we would have a situation where even the officials entrusted with its enforcement may be held criminally liable which is not contemplated in the law. Thus, he contends, the Secretary of Labor may be criminally prosecuted for willfully not using all available devices for investigation [Section 4(c)], for not presenting to the Wage Board all the evidence in his possession relating to the wages in the industries for which the Wage Board is appointed and other information relevant to the establishment of the minimum wage [Section 5(p)], and for not doing all other acts which the law requires him to do under Section 6. This, he emphasizes, is absurd and should not be entertained.100
The tenor of this argument is teasingly similar to that adopted by an esteemed colleague and myself in our respective submissions. The ponente has more or less responded dismissively towards this arguments, relying on comforting platitudes such as "the wisdom of a law is beyond this Court’s function of inquiry."
Perhaps, considering that the ponente now relies on Gatchalian, it should be expected that the Gatchalian Court would have responded to the above-quoted argument in a like-manner. But it clearly did not. Instead, it emphasized:
To begin with, the Minimum Wage Law is a social legislation which has been adopted for the benefit of labor and as such it contains provisions that are enjoined to be observed by the employer. These provisions are substantive in nature and had been adopted for common observance by the persons affected. They cannot be eluded nor subverted lest the erring employer runs into the sanction of the law. On the other hand, the provisions adverted to by counsel are merely administrative in character which had been adopted to set the machinery by which the law is to be enforced. They are provisions established for observance by the officials entrusted with its enforcement. Failure to comply with them would therefore subject them merely to administrative sanction. They do not come under the penal clause embodied in Section 15(a). This is clearly inferred from Section 18(c), of Republic Act No. 602, which provides: "Any official of the Government to whom responsibility in administration and enforcement has been delegated under this Act shall be removable on the sustaining of charges of malfeasance or non-feasance in office." This specific provision should be interpreted as qualifying the penal clause provided for in Section 15(a).101
The Court in Gatchalian plainly realized and acknowledged that there are limitations to the plausible application of Section 15(a), even if these were not textually committed in the provision itself. The most sweeping of these limitations is the admonition that those administrative officials charged with correlative rights and duties under the Minimum Wage Law could not be criminally liable under Section 15(a), despite the absence of any such clarificatory language in the law itself. I myself am not too comfortable with the methodology used by the Court in so qualifying, considering the absence of any statutory support that would have indubitably justified this conclusion.102
Yet if we were to examine this passage in the present context, where considerations on the question of void-for-vagueness have fully blossomed, the Court in Gatchalian expressly acknowledged that Section 15(a) would have been untenable in some applications, such as if an administrative officer were criminally charged under that provision. In effect, the Court tacitly acknowledged in Gatchalian that Section 15(a) was indeed void-for-vagueness, and that line of attack would have been viable to any administrative officer actually charged under that provision. It would have been one thing for the Court in Gatchalian to have approached that argument by responding that the wisdom of Section 15(a) was beyond judicial inquiry. That approach would have aligned with that of the ponente. Instead, Gatchalian rejected that approach and instead expressed an opinion that current-day commentators would appreciate as an embryonic formulation of the "void-as-applied" principle.
Since it has been established that Section 45(j) infringes on procedural due process, the final inquiry should be whether the nullification of Section 45(j) is warranted.
Given the problem of vagueness that attends to Section 45(j), is facial invalidation of the statute warranted?
The practical value of facial invalidation in this case cannot be discounted. Unless Section 45(j) is nullified, it may still be utilized as a means of criminal prosecution. Because there are dozens, if not hundreds, of different contexts under which a criminal offense may carved out of Section 45(j), limiting the challenges to the provision to "as-applied" and its case-by-case method will prove woefully inadequate in addressing the elemental lack of fair notice that plagues the provision.
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.
Unfortunately, Section 45(j) is an all too easy tool for mischief of this sort. One can invent any sort of prosecution using any provision of Rep. Act No. 8189 that would fall within the ambit of the offending Section 45(j). It would not even matter if the charge is meritorious or not, just the systematic filing of complaints based on Section 45(j) is sufficient to alter the political climate in any locality.
I find it odd, suspicious even, that the COMELEC is insisting on prosecution the petitioners on Section 45(j), and not the Omnibus Election Code. The acts for which they are charged are classified as an election offense under Section 261(y) of the Omnibus Election Code which specifically charges as election offenses "any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration;" and "any voter who, being a registered voter, registers anew without filing an application for cancellation of his previous registration." I have no idea whether the COMELEC sees this case as a test case for prosecutions under Section 45(j). What I do know is that if the Court debunks the present challenge to Section 45(j), the COMELEC will be emboldened to pursue more prosecutions under Section 45(j), a prospect that would hearten the most partisan of political operatives. The result would not only be more frivolous complaints for violation of Section 45(j), but also an undue and utterly unnecessary temperature rise in the political climate.
It might be argued that a ruling that simply imposes an "as-applied invalidation" on Section 45(j) would sufficiently disquiet such concern. I disagree. Any room left for discretion or interpretation of Section 45(j) would be sufficient for one with intent to harass voters or election officials with the threat of prosecution under that provision. After all, just the mere filing of the complaint is enough to effect harassment. Besides, I submit that the acts already expressly criminalized as election offenses, whether under the Omnibus Election Code, or under Rep. Act No. 8189, already encompass the whole range of election offenses that could possibly be committed. The petitioners could have been charged instead with violating Section 261(y) of the Omnibus Election Code.
In recent years, Congress has chosen to employ phraseology similar to Section 45(j) in a number of laws, such as the Cooperative Code,103 the Indigenous Peoples Rights Act,104 and the Retail Trade Liberalization Act.105 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).
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.
No doubt, Section 45(j) and its ilk in law are dangerous provisions. It would be best if the Court send a message that this intended prosecution of the petitioners could be accomplished only through the Omnibus Election Code, which after all specifically penalizes the acts for which they are alleged to have committed.
In the case at bar, an ideal resolution would be to grant the petition and void Section 45(j) and the COMELEC resolutions authorizing prosecution under it, but without prejudice to the authorization of prosecution of the petitioners under the Omnibus Election Code, assuming of course such a tack is still legally feasible.
This solution would satisfy whatever motivation there is to sanction the petitioners, yet at the same time make it clear to the COMELEC that prosecutions under Section 45(j) of Rep. Act No. 8189 cannot avail before this Court. At the same time, the Court would be able to reiterate comforting precepts – that prosecutions under criminal laws that specifically define and particularly criminalize the acts constituting the offense are preferred over those laws that broadly define criminal offenses; that the Court will not provide sanctuary to any abusive resort to Section 45(j) of Rep. Act No. 8189; and that would-be voters who neglect to pay great care to the process of voter registration will face the sanction of the law.
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.
I respectfully dissent.
DANTE O. TINGA
1 See R. Gorospe, I Constitutional Law: Notes and Readings on Bill of Rights, Citizenship and Suffrage (2006 ed.), at 307-308; G. Balderama, Dénouement Of The Human Security Act: Tremors In The Turbulent Odyssey Of Civil Liberties, LII U.S.T. L. Rev 1, 16-21. "There is an ever-increasing clamor among legal scholars in the Philippines pushing for a re-visit of the status quo of the ‘void for vagueness’ doctrine being applied limitedly to cases involving freedom of speech." Balderama, id. at 16.
2 Rollo, pp. 81-88.
3 Who later withdrew as complainant, see id.at 23, 108.
4 See id. at 90, 92.
5 See id. at 91, 93-94, 97-98.
6 Id. at 95-96.
7 "Indeed, we [the petitioners], left that portion on ‘period of residence’ blank because we were not sure what period of residence was being required. Was it our period of residence in Burauen, Leyte, as of the date we applied for registration as voters? Or, was it the period from 1989, when we first intended to establish our residence and domicile in Burauen, Leyte until the elections on May 14, 2001? Or, was it the period from May 2000 when we applied for registration, until May 14, 2001, the date of elections? The requirement was simply not clear." Joint Counter-Affidavit with Motion to Dismiss dated 2 April 2001, rollo, pp. 32-33.
8 Resolution signed by COMELEC Chairman Benjamin S. Abalos, Sr., Rufino S.B. Javier, Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr., Virgilio O. Garcillano, and Manuel A. Barcelona Jr.
9 Signed by the same COMELEC Commissioners who signed the 3 February 2004 Resolution, with the exception of Chairman Abalos and Commissioner Javier, who this time took no part in the case.
10 See E.Chemerinsky, Constitutional Law: Principles and Powers (2002 ed.) "Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty or property. Classic procedural due process issues concern what kind of notice and what form of hearing the government must provide when it takes a particular action. xxx Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person’s life, liberty or property." Id. at 523-524.
11 G.R. No. L-44143, 31 August 1988, 165 SCRA 186.
12 Id. at 195.
15 Parenthetically, we note that Section 14(1), Article III likewise states that "no person shall be held to answer for a criminal offense without due process of law," a seeming redundancy considering Section 1, Article III. However, Fr. Bernas explains the reason for the provision in this wise: "It was pointed out that the subject was already adequately covered by Section 1. The retention of the provision, however, was preferred for reasons extraneous to the substance of the provision. Commissioner Bernas noted: "I do not think it is timely to delete this now because we have just experienced a period when there was very little respect for due process in criminal proceedings. For us now to delete this might give the message to the people that we are reducing their rights.’" J. Bernas, I The Constitution of the Republic of the Philippines: A Commentary (2003 ed.), at 480.
16 See Bernas supra note 15, at 506 (2003 ed); and I. Cruz, Constitutional Law, p. 334 (2007 ed).
17 Indeed, in his 1987 commentaries on the Constitution, Fr. Bernas observed, with respect to Section 14, Article III, that "[t]he pre-occupation of the Court has been exclusively with the procedural aspect of the right. Hence, there has been no attempt, unlike the practice in American courts, to subsume the ‘void for vagueness’ characterization of statutes under this constitutional guarantee." Bernas, supra note 15 at 387.
18 G.R. No. 152259, 29 July 2004, 435 SCRA 371.
19 Id. at 381-382.
20 R. A. Collings, Jr., Unconstitutional Uncertainty – An Appraisal. 40 Cornell L. Q. 195, 196 (1954-1955).
21 Id. at 196.
22On the other hand, "substantive due process uncertainty cases" pertain to cases where "statutory language [was] so broad and sweeping that it prohibited conduct protected by the Constitution, usually by the principles of the First Amendment," a definition which encompasses the "overbreadth" doctrine. Id. at 197.
23 Jeffries, Jr., John Calvin, Legality, Vagueness and the Construction of Penal Statutes, 71 Va. L.Rev. 189, 196 (1985).
24 S. Buck & M. Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding Principles For Constitutional Challenges to Uninterpreted State Statutes, Utah Law Review (2002), p. 466; citing Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).
26 Id. at 467.
27 "In part, the vagueness doctrine is about fairness; it is unjust to punish a person without providing clear notice as to what conduct was prohibited. Vague laws also risk selective prosecution; under vague statutes and ordinances the government can choose to prosecute based on their views or politics." Chemerinsky, supra note 10 at 911.
28 Collings, Jr., supra note 20 at 196.
29 Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77, 79 (1948).
30 21 Am Jur 2d, at 129.
31 Collings, supra note 20 at 196.
32 See Note, supra note 29 at 77.
33 See id. at 78, 79.
34 21 Am Jur 2d, at 130.
35 See Footnote No. 120, Note, The Void-for-Vagueness Doctrine in the Supreme Court , 109 U. Pa. L. Rev. 67 (1960).
36 Supra note 18.
37 421 Phil. 290 (2001).
38 Id. at 354.
39 See Resolution, G.R. No. 148560, 29 January 2002, which may be found at http://www.supremecourt.gov.ph/resolutions/toc2002/..%5Cenbanc%5C2002%5CEjan%5C148560.htm (Last visited, 15 August 2007). Emphasis supplied.
40 269 U.S. 385, 393 (1926).
41 Id. at 388.
42 Id. at 391.
43 Id. at 393-395.
44 A fairly comprehensive overview of these cases may be seen at Romualdez v. Sandiganbayan, supra note 18, at 398-401; J. Tinga, Separate Opinion.
45 274 U.S. 445 (1927)
46 306 U.S. 451 (1939).
47 405 U.S. 156 (1972).
48 408 U.S. 104 (1972).
49 415 U.S. 566 (1974).
50 461 U.S. 352 (1983).
51 527 U.S. 41 (1999).
52 Id. at 46-47.
53 Id. at 56-58.
54 Id. at 58-59.
55 Id. at 64-65.
56 K. Sullivan and G. Gunther, Constitutional Law (14th ed.) at 1289.
57 403 Phil. 31 (2001).
58 Id. at 47-48.
59 See Cruz, supra note 16, at 23; citing Dumlao v. COMELEC, 95 SCRA 392.
60 Manila Motor Co., Inc. v. Flores, 99 Phil. 738, 739 (1956).
61 See e.g., Teehankee v. Rovira, 75 Phil. 634, 643 (1945).
62 See e.g., Connally v. General Constructions, supra note 40 at 391.
63 408 U.S. 104 (1972).
64 Id. at 108-109. Emphasis supplied.
65 413 U.S. 601 (1973)
66 Supra note 38, at 430-431.
67 See U.S. v. Raines, 362 U.S. 17 (1960); Barrows v. Jackson, 346 U.S. 249 (1953).
68 G. Stone, L. Seidman, C. Sunstein, and M. Tushnet. Constitutional Law (4th ed., 2001), at 1095.
69 NAACP v. Alabama, 357 U.S. 449 (1958)
70 Gunther and Sullivan, supra note 56, at 1288.
71 Id. at 1289.
72 Broadrick v. Oklahoma, supra note 65, at 607-609.
73 See Stone, Seidman, Sunstein, and Tushnet, supra note 68, at 1097.
74 "The first amendment overbreadth doctrine, on the other hand, tests the constitutionality of legislation in terms of its potential applications." G. Stone, L. Seidman, C. Sunstein, and M. Tushnet. Constitutional Law (4th ed., 2001), at 1095.
75 Broadrick v. Oklahoma, supra note 65 at 612.
76 Id. at 613.
77 Id. at 615. In a subsequent case, City Council v. Taxpayers for Vincent,, 466 U.S. 789 (1984), the U.S. Supreme Court further clarified, "The concept of ‘substantial overbreadth’ is not readily reduced to an exact definition. It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. On the contrary, [there] must be a realistic danger that the statute itself will significantly compromise First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Id., at 801.
78 481 U.S. 739 (1987).
79 Id. at 745.
80 521 U.S. 702 (1997)
81 Id., at 739-740, J. Stevens, concurring.
82 Supra note 51.
83 Id. at 55.
84 See Tan v. COMELEC, 226 Phil. 624 (1986).
85 See Ynot v. IAC, G.R. No. 74457, 20 March 1987, 148 SCRA 659.
86 See People v. Dacuycoy, G.R. No. L-45127, 5 May 1989, 173 SCRA 90.
87 See Osmeña v. COMELEC, G.R. No. 100318, 30 July 1991, 199 SCRA 750.
88 See ACORD v. Zamora, G.R. No. 144256, 8 June 2005, 459 SCRA 578.
89 See MCWD v. Adala, G.R. No.168914, 4 July 2007, 526 SCRA 465.
90 See J. Carpio, Separate Opinion, infra.
91 104 Phil. 664 (1958).
92 Republic Act No. 602.
93 149 Phil. 547 (1971).
94 130 Phil. 415 (1968).
95 Supra note 51.
96 Justices Bengzon, Montemayor and Alexander Reyes dissented.
97 Supra note 91 at 668.
98 Supra note 91 at 666.
99 Supra note 91, at 673.
102 The Court did draw on Section 18(c) of Republic Act No. 602, which prescribed administrative penalties on administrative officers on charges of malfeasance or non-feasance in office, and concluded that "this specific provision should be interpreted as qualifying the penal clause provided for in Section 15(a) [of the Minimum Wage Law]."
103 See Sec. 124(4), Rep. Act No. 6938, which reads: "Any violation of any provision of this Code for which no penalty is imposed shall be punished by imprisonment of not less than six (6) months nor more than one (1) year and a fine of not less than One Thousand Pesos (
P1,000.00) or both at the discretion of the Court."
104 See Sec. 72, Rep. Act No. 8371, which reads in part: Any person who commits violation of any of the provisions of this Act, such as, but not limited to…"
105 See Sec. 12, Rep. Act No. 8762, which reads: "Any person who would be found guilty of violation of any provision of this Act shall be punished by imprisonment of not less than six (6) years and one (1) day but not more than eight (8) years, and a fine of at least One Million (
P1,000,000.00) but not more than Twenty Million ( P20,000,000.00)."
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