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 Laws are repealed only by subsequent ones, and their violation or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

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.

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 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.