FACIAL CHALLENGE

A facial challenge refers to the call for the scrutiny of an entire law or provision by identifying its flaws or defects, not only on the basis of its actual operation on the attendant facts raised by the parties, but also on the assumption or prediction that the very existence of the law or provision is repugnant to the Constitution.35 This kind of challenge has the effect of totally annulling the assailed law or provision, which is deemed to be unconstitutional per se. The challenge is resorted to by courts, especially when there is no instance to which the law or provision can be validly applied.36

In a way, a facial challenge is a deviation from the general rule that Courts should only decide the invalidity of a law "as applied" to the actual, attending circumstances before it.37 An as-applied challenge refers to the localized invalidation of a law or provision, limited by the factual milieu established in a case involving real litigants who are actually before the Court.38 This kind of challenge is more in keeping with the established canon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."39 Should the petition prosper, the unconstitutional aspects of the law will be carved away by invalidating its improper applications on a case-to-case basis.40 For example, in Ebralinag v. Division of Superintendent of Schools of Cebu,41 the Court exempted petitioner-members of the religious group Jehovah’s Witness from the application of the Compulsory Flag Ceremony in Educational Institutions Act on account of their religious beliefs. The Court ruled that the law requiring them to salute the flag, sing the national anthem, and recite the patriotic pledge cannot be enforced against them at the risk of expulsion, because the law violated their freedom of religious expression. In effect, the law was deemed unconstitutional insofar as their religious beliefs were concerned.

Because of its effect as a total nullification, the facial invalidation of laws is deemed to be a "manifestly strong medicine" that must be used sparingly and only as a last resort.42 The general disfavor towards it is primarily due to the "combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes."43

Claims of facial invalidity "raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.’"44