Mendoza, J.

, Separate Opinion:
1. CONSTITUTIONAL LAW; SUPREME COURT; JUDICIAL POWER
EXTENDS ONLY TO ACTUAL CASES AND CONTROVERSIES. — The judicial
power vested in this Court by Art. VIII, § I extends only to cases and controversies
for the determination of such proceedings as are established by law for the
protection or enforcement of rights, or the prevention, redress or punishment of
wrongs. I do not conceive it to be the function of this Coat under Art. VIII, § 1 of
the Constitution to determine in the abstract whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the legislative and executive departments in enacting the IPRA. Our jurisdiction
is confined to cases or controversies. No one reading Art. VIII, §5 can fail to note
that, in enumerating the matters placed in the keeping of this Court, it uniformly
begins with the phrase "all cases.
2. ID.; ID.; ID.; CASE AT BAR. — In this case the purpose of the suit is not
to enforce a property right of petitioners against the government and other
respondents or to demand compensation for injuries suffered by them as a result
of the enforcement of the law, but only to settle what they believe to be the
doubtful character of the law in question. Any judgment that we render in this case
will thus not conclude or bind real parties in the future, when actual litigation will
bring to the Court the question of the constitutionality of such legislation. Such
judgment cannot be executed as it amounts to no more than an expression of
opinion upon the validity of the provisions of the law in question.
3. ID.; ID.; JUDICIAL POWER; DUTY TO DETERMINE GRAVE ABUSE OF
DISCRETION PRECLUDES COURT FROM INVOLVING POLITICAL QUESTION
DOCTRINE TO EVADE CERTAIN CASES. — The statement that the judicial power
includes the duty to determine whether there has been a grave abuse of discretion
was inserted in Art. VIII, §1 not really to give the judiciary a roving commission to
right any wrong it perceives but to preclude courts from invoking the political
question doctrine in order to evade the decision of certain cases even where
violations of civil liberties are alleged.
4. ID.; ID.; ID.; RESOLUTION OF ABSTRACT CONTROVERSIES WILL
UPSET BALANCE OF POWER. — Judicial power cannot be extended to matters
which do not involve actual cases or controversies without upsetting the balance
of power among the three branches of the government and erecting, as it were,
the judiciary, particularly the Supreme Court, as a third branch of Congress, with
power not only to invalidate statutes but even to rewrite them.
5. ID.; ID.; ID.; ID.;-CASE AT BAR. — Yet that is exactly what we would be
permitting in this case were we to assume jurisdiction and decide wholesale the
constitutional validity of the IPRA contrary to the established rule that a party can
question the validity of a statute only if, as applied to him, it is unconstitutional.
Here the IPRA is sought to be declared void on its face.
6. ID.; STATUTES; FACIAL CHALLENGE TO STATUTE, NOT ALLOWED;
EXCEPTION. — The only instance where a facial challenge to a statute is allowed
is when it operates in the area of freedom of expression. In such instance, the
overbreadth doctrine permits a party to challenge the validity of a statute even
though as applied to him it is not unconstitutional but it might be if applied to
others not before the Court whose activities are constitutionally protected.
Invalidation of the statute "on its face" rather than "as applied" is permitted in the
interest of preventing a "chilling" effect on freedom of expression. But in other
cases, even if it is found that a provision of a statute is unconstitutional, courts
will decree only partial invalidity unless the invalid portion is so far inseparable
from the rest of the statute that a declaration of partial invalidity is not possible.
7. ID.; SUPREME COURT; CONSTITUTIONAL ADJUDICATION CANNOT
TAKE PLACE IN A VACUUM. — For the Court to exercise its power of review
when there is no case or controversy is not only to act without jurisdiction but also
to run the risk that, in adjudicating abstract or hypothetical questions, its decision
will be based on speculation rather than experience. Deprived of the opportunity
to observe the impact of the law, the Court is likely to equate questions of
constitutionality with questions of wisdom and is thus likely to intrude into the
domain of legislation. Constitutional adjudication, it cannot be too often repeated,
cannot take place in a vacuum.
8. ID.; ID.; JUDICIAL REVIEW; RATIONALE IN REFUSAL TO RESOLVE
ABSTRACT CONTROVERSIES. — To decline the exercise of jurisdiction where
there is no genuine controversy is not to show timidity but respect for the
judgment of a co-equal department of government whose acts, unless shown to
be clearly repugnant to the fundamental law, are presumed to be valid. The
polestar of constitutional adjudication was set forth by Justice Laurel in
the Angara case when he said that "the power of judicial review is limited to actual
cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota, presented." For the exercise of this power is legitimate only in the last
resort, and as a necessity in the determination of real, earnest, and vital
controversy between individuals. Until, therefore, an actual case is brought to test
the constitutionality of the IPRA, the presumption of constitutionality, which
inheres in every statute, must be accorded to it.
(Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385
|||

(Resolution), [December 6, 2000], 400 PHIL 904-1115)

MENDOZA, J.:

This suit was instituted to determine the constitutionality of certain

provisions of R.A. No. 8371, otherwise known as the Indigenous Peoples Rights
Act. Petitioners do not complain of any injury as a result of the application of the
statute to them. They assert a right to seek an adjudication of constitutional
questions as citizens and taxpayers, upon the plea that the questions raised are
of "transcendental importance."
The judicial power vested in this Court by Art. VIII, §1 extends only to cases
and controversies for the determination of such proceedings as are established
by law for the protection or enforcement of rights, or the prevention, redress or
punishment of wrongs. 1 In this case, the purpose of the suit is not to enforce a
property right of petitioners against the government and other respondents or to
demand compensation for injuries suffered by them as a result of the enforcement
of the law, but only to settle what they believe to be the doubtful character of the
law in question. Any judgment that we render in this case will thus not conclude
or bind real parties in the future, when actual litigation will bring to the Court the
question of the constitutionality of such legislation. Such judgment cannot be
executed as it amounts to no more than an expression of opinion upon the validity
of the provisions of the law in question. 2
I do not conceive it to be the function of this Court under Art. VIII, §1 of the
Constitution to determine in the abstract whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
legislative and executive departments in enacting the IPRA. Our jurisdiction is
confined to cases or controversies. No one reading Art. VIII, §5 can fail to note
that, in enumerating the matters placed in the keeping of this Court, it uniformly
begins with the phrase "all cases. . . ."
The statement that the judicial power includes the duty to determine
whether there has been a grave abuse of discretion was inserted in Art. VIII, §1
not really to give the judiciary a roving commission to right any wrong it perceives
but to preclude courts from invoking the political question doctrine in order to
evade the decision of certain cases even where violations of civil liberties are
alleged.
The statement is based on the ruling of the Court in Lansang v. Garcia, 3 in
which this Court, adopting the submission of the Solicitor General, formulated the
following test of its jurisdiction in such cases:
[J]udicial inquiry into the basis of the questioned proclamation can
go no further than to satisfy the Court not that the President's decision
is correct and that public safety was endangered by the rebellion and
 justified the suspension of the writ, but that in suspending the writ, the
President did not act arbitrarily.
That is why Art. VII, §18 now confers on any citizen standing to question the
proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus. It is noteworthy that Chief Justice Roberto Concepcion,
who chaired the Committee on the Judiciary of the Constitutional
Commission, was the author of the opinions of the Court in Lopez
v. Roxas and Lansang v. Garcia.
Indeed, the judicial power cannot be extended to matters which do not
involve actual cases or controversies without upsetting the balance of power
among the three branches of the government and erecting, as it were, the
judiciary, particularly the Supreme Court, as a third branch of Congress, with
power not only to invalidate statutes but even to rewrite them. Yet that is exactly
what we would be permitting in this case were we to assume jurisdiction and
decide wholesale the constitutional validity of the IPRA contrary to the established
rule that a party can question the validity of a statute only if, as applied to him, it
is unconstitutional. Here the IPRA is sought to be declared void on its face.
The only instance where a facial challenge to a statute is allowed is when it
operates in the area of freedom of expression. In such instance, the overbreadth
doctrine permits a party to challenge the validity of a statute even though as
applied to him it is not unconstitutional but it might be if applied to others not
before the Court whose activities are constitutionally protected. Invalidation of the
statute "on its face" rather than "as applied" is permitted in the interest of
preventing a "chilling" effect on freedom of expression. But in other cases, even
if it is found that a provision of a statute is unconstitutional, courts will decree only
partial invalidity unless the invalid portion is so far inseparable from the rest of the
statute that a declaration of partial invalidity is not possible.
For the Court to exercise its power of review when there is no case or
controversy is not only to act without jurisdiction but also to run the risk that, in
adjudicating abstract or hypothetical questions, its decision will be based on
speculation rather than experience. Deprived of the opportunity to observe the
impact of the law, the Court is likely to equate questions of constitutionality with
questions of wisdom and is thus likely to intrude into the domain of legislation.
Constitutional adjudication, it cannot be too often repeated, cannot take place in
a vacuum.
Some of the brethren contend that not deciding the constitutional issues
raised by petitioners will be a "galling cop out" 4 or an "advocacy of timidity, let
alone isolationism." 5 To decline the exercise of jurisdiction in this case is no more
a "cop out" or a sign of "timidity" than it was for Chief Justice Marshall in Marbury
v. Madison 6 to hold that petitioner had the right to the issuance of his commission
as justice of the peace of the District of Columbia only to declare in the end that
after all mandamus did not lie, because §13 of the Judiciary Act of 1789, which
conferred original jurisdiction on the United States Supreme Court to issue the
writ of mandamus, was unconstitutional as the court's jurisdiction is mainly
appellate.
Today Marbury v. Madison is remembered for the institution of the power
of judicial review, and so that there can be no doubt of this power of our Court,
we in this country have enshrined its principle in Art. VIII, §1. Now, the exercise of
judicial review can result either in the invalidation of an act of Congress or in
upholding it. Hence, the checking and legitimating functions of judicial review so
well mentioned in the decisions 7 of this Court.
To decline, therefore, the exercise of jurisdiction where there is no genuine
controversy is not to show timidity but respect for the judgment of a coequal
department of government whose acts, unless shown to be clearly repugnant to
the fundamental law, are presumed to be valid. The polestar of constitutional
adjudication was set forth by Justice Laurel in the Angara case when he said that
"this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota, presented." 8 For the
exercise of this power is legitimate only in the last resort, and as a necessity in
the determination of real, earnest, and vital controversy between
individuals. 9 Until, therefore, an actual case is brought to test the constitutionality
of the IPRA, the presumption of constitutionality, which inheres in every statute,
must be accorded to it.
Justice Kapunan, on the other hand, cites the statement
in Severino v. Governor General, 10 reiterated in Tañada v. Tuvera, 11 that "when
the question is one of public right and the object of mandamus to procure the
enforcement of a public duty, the people are regarded as the real party in interest,
and the relator at whose instigation the proceedings are instituted need not show
that he has any legal or special interest in the result, it being sufficient that he is a
citizen and as such is interested in the execution of the laws." On the basis of this
statement, he argues that petitioners have standing to bring these proceedings. 12
In Severino v. Governor General, 13 the question was
whether mandamus lay to compel the Governor General to call a special election
on the ground that it was his duty to do so. The ruling was that he did not have
such a duty. On the other hand, although mandamus was issued in Tañada v.
Tuvera, it was clear that petitioners had standing to bring the suit, because the
public has a right to know and the failure of respondents to publish all decrees
and other presidential issuances in the Official Gazette placed petitioners in
danger of violating those decrees and issuances. But, in this case, what public
right is there for petitioners to enforce when the IPRA does not apply to them
except in general and in common with other citizens?
For the foregoing reasons I vote to dismiss the petition in this case.
(Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385
|||

(Resolution), [December 6, 2000], 400 PHIL 904-1115)