On the Operative Fact Doctrine

Law 207: MUNICIPAL CORPORATIONS

ALENTON, GREGORIO III R.

The Doctrine of Operative Fact

“An unconstitutional law has an effect before being declared unconstitutional.”1

Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of

the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity

and fair play. As a general rule, any act declared by the court to be unconstitutional has no legal effect

whatsoever – “it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is,

in legal contemplation, as inoperative as though it had never been passed.”2 The general rule is

supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall

not be excused by disuse or custom or practice to the contrary.

Hence, what is followed is that when the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of

equity and fair play.3 It nullifies the effects of an unconstitutional law by recognizing that the existence

of a statute prior to a determination of unconstitutionality is an operative fact and may have

consequences which cannot always be ignored. The past cannot always be erased by a new judicial

declaration.4 The doctrine is applicable when a declaration of unconstitutionality will impose an undue

burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a

1 PLANTERS PRODUCTS, INC. vs. FERTIPHIL CORPORATION [G.R. No. 166006, 14 March 2008]2 NORTON V. SHELBY COUNTY [118 U. S. 425] as cited in: Tan vs. Barrios [G.R. No. 85481-82; 18 October 1990]3 Republic v. Court of Appeals [G.R. No. 79732, 8 November 1993]4 Peralta v. Civil Service Commission, [G.R. No. 95832, 10 August 1992]

On the Operative Fact Doctrine

Law 207: MUNICIPAL CORPORATIONS

ALENTON, GREGORIO III R.

declaration of unconstitutionality would put the accused in double jeopardy5 or would put in limbo the

acts done by a municipality in reliance upon a law creating it.6

Stated differently, The general rule is that an unconstitutional law is void; the doctrine of

operative fact is inapplicable.

The operative fact doctrine is a rule of equity. As such, it must be applied as an exception to the

general rule that an unconstitutional law produces no effects. It can never be invoked to validate as

constitutional an unconstitutional act. The operative fact doctrine never validates or makes

constitutional an unconstitutional law. The unconstitutional law remains unconstitutional, but its

effects, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair

play. The doctrine affects or modifies only the effects of the unconstitutional law, not the

unconstitutional law itself.7 Pertinent application of this principle can be seen in the case of League of

Cities of the Philippines vs. COMELEC,8 wherein Cityhood Laws were pronounced to remain

unconstitutional as they violate Section 10, Article X of the Constitution. However, the effects of the

implementation of the Cityhood Laws prior to the declaration of their nullity, such as the payment of

salaries and supplies by the concerned local government units or their issuance of licenses or execution

of contracts, may be recognized as valid and effective.

5 Aquino, Jr. v. Military Commission No. 2, [G.R. No. L-37364, 9 May 1975]6 Municipality of Malabang v. Benito, [G.R. No. L-28113, 28 March 1969]7 League of Cities of the Philippines represented by LCP National President Jerry P. Trenas, et al. vs. Commission on Elections, et al. [G.R. No. 176951/G.R. No. 177499/G.R. No. 178056,24 August 2010]8 Ibid.