This is the exception to the general rule that a law declared by the Supreme Court as unconstitutional is void. What the doctrine implies is that a law remains to be operative and constitutional until the same has been declared void. Thus, the law that has been declared as unconstitutional remains to be operative prior to the declaration of the Supreme Court on its unconstitutionality.

The doctrine does not stem from any statute but is based on fair play and equity. It operates when the declaration of a law's unconstitutionality will result in undue burden to those who rely on the law that is presumed to be legal and constitutional until declared otherwise.

It must be noted, however, that the doctrine of operative fact does not make an unconstitutional law valid and constitutional. It merely erases the effects of its unconstitutionality before it is judicially declared as void.

Abbot Laboratories Philippines, et al. vs Perlie Alcaraz GR No. 192571, July 23, 2013

Case Doctrine:

Compliance with the certification against forum shopping is separate from and independent of the avoidance of the act of forum shopping itself.


The respondent Alcaraz was the Regulatory Affairs and Information Manager of Aventis Pasteur Philippines who showed interest in applying as a Medical and Regulatory Affairs Manager, a position that was published by the petitioner Abbot Laboratories in the newspaper. When the petitioner formally offered the position to the respondent, the latter accepted the position. It was on May 23, 2005 that Walsh, Almazar and Bernardo formally handed to the respondent a letter terminating her employment with the detailed explanation for her termination. The respondent then filed a complaint for illegal dismissal with damages against the petitioner and its officers. The Labor Arbiter upheld the termination of probationary employment of the respondent holding that the termination was justified with no evidence showing that the officers of the Abbot Lab acted in bad faith when terminating her services.

The NLRC annulled and set aside the ruling of the Labor Arbiter which prompted the petitioners to file before the Court of Appeals a petition for certiorari with prayer for issuance of a temporary restraining order and writ of preliminary injunction. Meanwhile, the action of the petitioner on its motion for reconsideration of the CA’s resolution in the second CA petition was denied that became final on January 10, 2011 because the petitioner failed to file a timely appeal on the said decision. Alcaraz, in her comment, raised the issue on forum shopping when the petitioner filed its second petition to the CA pending the resolution of the motion for reconsideration that they filed earlier in the December 10, 2009 decision. Alcaraz further contends that the petitioners failed to comply with certification requirement under Section 5, Rule 7 of the rules of court when they failed to disclose in their petition filed on June 16, 2010 Memorandum of Appeal filed before the NLRC.


Whether or not the petitioner violated the rule against forum shopping and have violated the certification requirement under Section 5, Rule 7 of the Rules of Court.

Carlito C. Encinas v PO1 Alfredo Agustin, Jr and PO1 Joel Caubang GR No. 187317, April 11, 2013

Case Doctrine:

There is forum shopping when litis pendencia or res judicata is present.


The petitioner Encinas was the Provincial Fire Marshall of Nueva Ecija. He was charged administratively with grave misconduct and conduct prejudicial to the best interest of the service in violation of the Administrative Code of 1987. He was dismissed from the service. The two respondents were holding the positions of Fire Officer I. He petitioner filed a petition for review on certiorari under rule 45 of the Rules of Court assailing the decision of the Court of Appeals affirming the decision of the Civil Service Commission to dismiss the petitioner from the service.

The case arose when the petitioner allegedly required the respondents to pay him P5,000 in order not to relieve them from their station at the Cabanatuan City and re-assign them to a far flung area. The respondents decided to pay in fear of the re-assignment, but they manage to come up with P2,000 only causing the petitioner to order for their re-assignment to Cuyapo and Talugtug.

As a result, the respondents decided to file a complaint for illegal transfer before the Bureau of Fire Protection and at the same time filed another complaint before the Civil Service Commission Regional Office in Pampanga and the Civil Service Commission in Cabanatuan. Based on the filed complaints, the petitioner alleges that the respondents are guilty of forum shopping by filing the two identical complaints. The petitioner claims that the charges of dishonesty, grave misconduct and conduct prejudicial to public interest that were filed before the Civil Service Commission and the BFP are in violation of the rules against forum shopping.


Is there a violation on the rules against forum shopping?

Conflict of Laws Doctrines


       Lex situs (where the property is situated)
      character of immovable property as an isolated object (law of the place where the land is situated)

Immovable property as the factor not the parties


       Lex domicilii (owner’s domicile)
       Lex situs (where the property is situated)
       Lex loci actus (place where the transaction was completed and the proper law of the forum)

Proper law of transfer (state which has the most real connection with the transfer)

Article 16 of the Civil Code

“Real property as well as personal property is subject to the law of the place where it is situated”


       Law of the place where the property is located


       The formalities of a contract to convey property are governed by the lex situs.
       Lex situs also applies to the essential validity of the transfer unless the lex intentionis is clearly established.
       The lex situs also governs the effects of the conveyance of properties.


       Where the transaction does not affect transfer of title to or ownership of the land. In this case the proper law of the transfer which is the lex intentionis or lex voluntatis is the governing law.
       In contracts where real property is offered by way of security for the performance of an obligation such as loan, the principal contract is the loan while the mortgage of the land is only an accessory. The mortgage of the land is governed by the rule of lex situs but the loan contract is governed by the rules on ordinary contracts.
       Testate and intestate succession and capacity to succeed are governed by the national law of the decedent. (Article 16, par. 2, Civil Code)

Kuroda v Jalandoni, 83 Phil 171


Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines was charged before the Philippine Military Commission for war crimes. As he was the commanding general during such period of war, he was tried for failure to discharge his duties and permitting the brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the Japanese forces, in violation of of the laws and customs of war.

Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive Order No. 68, is unconstitutional. He further contends that using as basis the Hague Convention’s Rules and Regulations covering Land Warfare for the war crime committed cannot stand ground as the Philippines was not a signatory of such rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the two US prosecutors cannot practice law in the Philippines.


If A and B, who are married couple, agreed to hire C to implant their egg and sperm cells and bear the child in C’s own womb, who is the deemed to be the mother of the child in the eyes of the law in the Philippines?

It is apparent that A, B and C have entered into a contract of surrogacy. Surrogacy is the process where another woman carries and delivers a child in behalf of another couple. It involves the transplantation of the couple’s egg and sperm cells, usually through artificial insemination to the surrogate mother. By nature, the surrogate mother becomes the replacement of the natural mother of the child. In this case, A and B are considered to be the putative parents of the child while C takes the role of the surrogate mother. In the absence of surrogacy law in the Philippines, the legal issue now redounds to the question of who then becomes the mother of the child upon birth.

Jasper Rodica vs Atty. Manuel Lazaro et al, AC No. 9259, August 23, 2012

"The power to disbar or suspend ought always to be exercised on the preservative and not on the vindicative principle, with great caution and only for the most weighty reasons."


This is a disbarment complaint filed by Rodica against the respondent Atty. Lazaro on grounds of gross and serious misconduct, deceit, malpractice, grossly immoral conduct and violation of the Code of Professional Responsibility.

On May 5, 2011, William Strong was arrested and detained by the Bureau of Immigration for allegedly being involved in an international gang and conspiracy in Brazil on fraud involving the creation of hundreds of dollars in illegal securities. Strong requested his friend Philip Apostol to look for a lawyer. Apostol recommended the Lazaro Law Office represented by Atty. Manuel Lazaro and his associates who initially declined but later accepted to handle the deportation case. 

Strong initiated giving the information that his deportation case may be due to the complaint filed by his live-in partner Jasper Rodica before the RTC against the Hillview Marketing Corporation for recovery and possession and damages involving a property they have in Boracay which is represented by Atty. Tan. Rodica was represented by Atty. Ibutnande in this case. Apparently, Rodica claimed that Atty. Manuel met with Atty. Tan to discuss the settlement package on the deportation case they filed against Strong on the condition that Rodica withdraws her complaint from the RTC of Cebu. 

On May 25, 2011 the Bureau of Immigration rendered a judgment deporting Strong to leave the country. On  June 6, 2011 Rodica filed before the RTC a motion to withdraw her complaint against Hillview. Rodica now alleges that after Strong was deported and withdrawing the case before the RTC, she was deceived by Atty Manuel et al for over settlement of 7 million which was allegedly extorted from her after misrepresenting that the withdrawal of the case before the RTC is only a part of the settlement package.

It appears on the record that Atty. Espejo, an associate of the Lazaro Law office helped in drafting the Manifestation with Motion to Withdraw Motion for Reconsideration after Rodica pleaded him to prepare the motion and was requested further to indicate the name of the Lazaro Law Office including the name of Atty. Manuel and Atty. Michelle to give more weight on the pleading. Rodica promised Atty. Espejo to talk to Atty. Manuel about it. The case before the RTC was actually dismissed on March 29, 2011 for failure to show cause of action but a motion for reconsideration was filed by Rodica. 

Whether or not the allegations of Rodica merit the disbarment of the respondents. 


The court ruled that Rodica failed to overcome the presumption of innocence of the respondents. As a general rule, lawyers enjoy the presumption of innocence and the burden of proof rests upon the complainant to clearly prove the allegations made against them. The required quantum of proof is preponderance of evidence which is an evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.

On Rodica's claim with regards to the settlement package, the court find it without merit because she withdrew her complaint only after the deportation of Strong. It was also evident on record that the said case was already dismissed even before the deportation case was filed only she filed a motion for reconsideration. Therefore, it cannot be said that her withdrawal of the complaint is a settlement consideration regarding the deportation case of Strong. Moreover, Strong is not a party to the case she filed before the RTC therefore there is no connection between these 2 cases. 

There was sufficient preponderance of evidence that was presented that the cause of her withdrawal of the complaint is to facilitate the sale of her property in Boracay. According to Atty. Espejo who helped Rodica draft the motion for withdrawal of the complaint, the said withdrawal is for the purpose of selling her property to Apostol. Apostol further corroborated that he told Rodica he is willing to purchase the property once it is free from any pending case. Rodica promised him to work on the termination of the pending case attached to the property to make the sale. 

On her claim to have paid 7 million to Atty. Manuel et al, she failed to substantiate such claim despite showing off withdrawals from her bank account certain amount of money after failing to prove that the said amount was paid to the respondents. Moreover, the court held that Rodica is not a client of Lazaro Law Office. They merely handled the deportation case of Strong.

As for Atty. Espejo, the court found him to have aided Rodica for misrepresenting before the court that she was aided by the Lazaro Law Office when in fact she is not. Atty. Espejo explained that Rodica assured him to talk to Atty. Manuel and Atty. Michelle about including their name on the pleading but she did not do so. Atty. Espejo should have known better that Atty. Ibutnande was the counsel on record on the case before the RTC and therefore it is not his duty to prepare said pleading. He also should have known that all pleadings before the court are acted based on merit or the lack of it and not by the name of the law firm. However, the court give due recognition on the fact that Atty. Espejo expressed remorse on his conduct and made a sincere apology to the RTC for wrongly employing the name of the Lazaro Law Office and that he was newly admitted to the Bar in 2010, the court find it proper to give him a warning to become more prudent on his actuation in the practice of his profession.

The complaint for disbarment was dismissed.