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Lawaddict_16

In this essay, I have meticulously and exhaustively conducted this research


for the purpose of explaining why there is a conflict between the power of
the courts of judicial review to the public and to the elected public
authorities. By finding out these controversies and issues, I might come up
to a number of solution toward these conflicting parties by undergoing to
the source of the problem first and provide legal justification of the courts
acts as well as to give harmony to the public judgment and that the court
may be appreciated in doing its obligation and duty towards the State.
I will thoroughly explain why this is so in the following paragraphs but first
lets start on the basic.
What really is the use or judicial review in our society and who or what
vested such power to the Supreme Court?
In accordance to the 1987 Constitution of the Philippines Article VIII,
Section five (2), the power of judicial review is the Supreme Courts power
to declare a treaty, international or executive agreement, law, president
decree, proclamation, order, instruction, ordinance, or regulation
unconstitutional.
This power, however, vested by the Constitution to the Supreme Court,
produced certain questions by concerned parties having to witness the
Supreme Courts supremacy over the laws by rendering judgments to the
laws or decisions of some public authorities as unlawful or unconstitutional.
The controversies of judicial review
and possible solutions and
explanations for its reconciliation to
the Public


These questions were debated thoroughly and caught the interest of the
public since it involves the issue where the Judiciary is alleged to be having
more power over the Legislative when there is supposed to be no
encroachment of each branch of the government and equal distribution of
powers that is subject to limitations and functions.
The controversies that I will mention in the following paragraph will be
mainly about the problem of the judicial review being vested to the
Supreme Court and the consequences of such power to the public and at
the same time to the elected public officials.
The first controversy that I will tackle will be about the superiority of the
Judiciary to the Legislative. After reading various sources, I have come up to
a realization that there will come a time that the judicial branch have the
tendency to be superior over the legislative to the point of view wherein
the legislative can make, repeal and revise a law but it cannot mandate the
judiciary on how to act upon it. The judiciary on the other hand, can
invalidate the laws made, repealed and revised by the legislative by simply
invoking their right of judicial review and declaring such law to be
unconstitutional. This is the reason why I am convinced that the judiciary
can check to the two branches of the government while no branch of the
government can check their actions and decisions. The Supreme Court can
manipulate what the law is.
This will lead me to the second controversy that I have encountered by
conducting my research which is about the famous judicial activism. Judicial
activism by definition means judicial rulings suspected of being based on
personal or political considerations rather than on existing law. This issue
emphasizes on the very fact that judges have the prerogative on whatever
the decision that they will make without facing any consequences if ever
they would err in conducting decisions since there is no law providing
certain sanctions for the erred decisions of the court. They are not being


Footnotes:
1) The 1987 Constitution of the Republic of the Philippines of Judicial Review vested by the Constitution to the Supreme Court.
2) Muskrat v United States, 219 US 346 (1911)
3) Lopez v Roxas, 17 SCRA 756, 761 (1966)
4 )Preamble of the Constitution p. 1 (1987 Constitution of the Philippines)
5) Definition of judiciary review under the Judicial power vested by the 1987 Constitution of the Republic of the Philippines
6) Alexander Bickel of Yale Law School, majoritarian difficulty.
7) George F. Will, The Value of Activism
8) George F. Will Judicial Review: Why so Controversial.
9) Wikipedia.com for the definition of judicial review and judicial restraint
10) Larry Alexander, What is the Problem of Judicial Review
11) The problem of judicial review (BRUTUS, Anti-Federalist Papers 78-82 1787) the power of judiciary part one and part two.
12) Challenging the cuts: A guide to Judicial Review Adam Wagner
13) On the costs and benefits of aggressive judicial review of agency action., Cass R. Sunstein.
14) Canons of Statutory Construction Dennis B. Funa
15) OCA v Necessario, (A.M No. MTJ-07-1691)


threatened to be cautious enough with their decisions since there are no
sanctions or penalties for certain acts. Courts have the right to question all
possible controversies of the law regarding with constitutionality but none
can question the courts with their decisions.
The third controversy that I will tackle will be about the power of the
Supreme Court to exalt the powers of the government but is subject to no
control. The Supreme Court can make or break the other two branches of
the government in performing their own duties and obligations or uplift
them and give them sufficient power to conduct certain acts without
restraining them at all even if it is beyond their limit as long as the court
keeps silent. This controversy seems to point out to the judges having their
own personal preference executed through their decisions that would
negate the true meaning and spirit of the law made by the legislators with
the intent for the betterment of social conduct, improvement of the
happiness of the majority and enrichment of liberty in those enacted laws
but will be only be put to naught due to the fact that the decisions for their
validity will be at stake in the hands of the judiciary.
The fourth and last controversy that I would like to give emphasis relating
to judicial review would be in accordance to Alexander Bickel of Yale Law
School called the majoritarian difficulty wherein the phrase means that
some oppose or see a problem with the judicial branch's ability to
invalidate, overrule or countermand laws that reflect the will of the


majority wherein judges seems to be scrutinized by the public since it is
contrary to what the majority or the public believes in. For instance, there
was an issue to the judgment of the Supreme Court rendering certain acts
of some public authorities acting out of compassion to the public by using
their position of office but may be beyond the powers given to them by the
Constitution and thus, the Supreme Court, even contrary to the morals and
compassion to the public, they still restrained these public authorities from
committing such acts but rendering such decision of being unlawful. This
has ultimately made the public bitter towards the Supreme Court in
rendering their judgment against public. It somehow created an impression
that the interference of the courts towards checking the actions of the
elected public authorities can sometimes be the reason why there is not
much action given by these elected officials to the public.
The four controversies that I have mentioned are the factors that I believe
contribute a huge amount of negativity in the publics view in terms of the
power of the court in using their right of judicial review.
Although, If Im given the liberty to share my thoughts in regards to my own
analysis to the judicial review whether it is something worth keeping or
abolishing, I strongly believe that the judges are still worthy of trust and
they should remain to function accordingly of powers vested to them by
the Constitution. The power is neither an excess nor insufficient given to
them by the Constitution itself rather they are self-limiting and is not
subject for abuse. The reason why I am convinced that democracy of the
people and that of the judicial review can be actually reconciled by
reducing the indifference of these conflicting parties.
Some people just fail to see that this power is strongly and strictly
manipulated by the Constitution ensuring that there will be such limitation
and bounds to the court; that this power doesnt come with a price to the


Footnotes:
1) The 1987 Constitution of the Republic of the Philippines of Judicial Review vested by the Constitution to the Supreme Court.
2) Muskrat v United States, 219 US 346 (1911)
3) Lopez v Roxas, 17 SCRA 756, 761 (1966)
4 )Preamble of the Constitution p. 1 (1987 Constitution of the Philippines)
5) Definition of judiciary review under the Judicial power vested by the 1987 Constitution of the Republic of the Philippines
6) Alexander Bickel of Yale Law School, majoritarian difficulty.
7) George F. Will, The Value of Activism
8) George F. Will Judicial Review: Why so Controversial.
9) Wikipedia.com for the definition of judicial review and judicial restraint
10) Larry Alexander, What is the Problem of Judicial Review
11) The problem of judicial review (BRUTUS, Anti-Federalist Papers 78-82 1787) the power of judiciary part one and part two.
12) Challenging the cuts: A guide to Judicial Review Adam Wagner
13) On the costs and benefits of aggressive judicial review of agency action., Cass R. Sunstein.
14) Canons of Statutory Construction Dennis B. Funa
15) OCA v Necessario, (A.M No. MTJ-07-1691)


court along with its judges in maintaining their positions and by exerting
such power of validation to both governmental branches.
For the next paragraph I will freely enumerate why reconciliation may be
possible between the judicial review and democracy can be thoroughly
applied in dealing with these unelected judges conducting decisions for the
public or having the last say to every judgment with no prejudice intended
any party at all.
The first controversy that I have mentioned earlier is about the superiority
of the judiciary over the legislative branch. This is actually a
misinterpretation of the common public towards the function of the
judiciary. In referring to the 1987 Constitution explicitly provided in Article
8 Section 2 (1) that judicial power involves the application of law to actual
controversies, its exercise presupposes the existence of an applicable law.
Unless there is an applicable law, courts are without power to settle
controversies. They cannot therefore function more than what is provided
and is subject for an explanation for their judgment by providing legal
justification.
IT was mentioned in the same controversy that the courts have the right to
question all possible questions in regards to the constitutionality of an act
or law but nothing can question the courts. This is actually a wrong
perspective, in my own opinion since the courts are actually being limited


since they cannot act without proper due process as provided by the
Constitution wherein the courts have a wide discretion in terms of passing
a constitutional dimension but has a burden that the court is to exercise
great political powers while still acting as a court. And just what Justice
Laurel said, And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments:
it does in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the
Constitution. The courts are given the power to review the other branches
if ever there is a grave abuse of discretion but the courts are also subject to
limitation and scope by the Constitution itself. The reason why there is a
doctrine of separation of powers.
The Second controversy is about judicial activism. The antonym for judicial
activism would be judicial restraint wherein the judges of the courts are
being urged to restrain themselves from asserting certain provisions of the
law to be unconstitutional unless they are forced to do so due to the
necessity of such issue that might affect constitutional rights or
fundamental rights that might prejudice the injured parties. The judges are
obliged to keep in might the presumption validity of laws wherein it was
conducted and made with due process of law and declaring it to be
unconstitutional should be the last option of the court unless of course it is
lis mota.
The courts in accordance to the statutory provisions, should apply the law if
it is clear and free ambiguity and interpret only if it is contrary and may be
prejudicial to the concerned parties and must in be conformity to what the
legislative intent is and keep in mind that in interpreting the law, The spirit
of the law would prevail and that the courts would insure that justice is
served to those who deserve it in accordance to Article 10 of the Civil Code
of the Philippines.


Footnotes:
1) The 1987 Constitution of the Republic of the Philippines of Judicial Review vested by the Constitution to the Supreme Court.
2) Muskrat v United States, 219 US 346 (1911)
3) Lopez v Roxas, 17 SCRA 756, 761 (1966)
4 )Preamble of the Constitution p. 1 (1987 Constitution of the Philippines)
5) Definition of judiciary review under the Judicial power vested by the 1987 Constitution of the Republic of the Philippines
6) Alexander Bickel of Yale Law School, majoritarian difficulty.
7) George F. Will, The Value of Activism
8) George F. Will Judicial Review: Why so Controversial.
9) Wikipedia.com for the definition of judicial review and judicial restraint
10) Larry Alexander, What is the Problem of Judicial Review
11) The problem of judicial review (BRUTUS, Anti-Federalist Papers 78-82 1787) the power of judiciary part one and part two.
12) Challenging the cuts: A guide to Judicial Review Adam Wagner
13) On the costs and benefits of aggressive judicial review of agency action., Cass R. Sunstein.
14) Canons of Statutory Construction Dennis B. Funa
15) OCA v Necessario, (A.M No. MTJ-07-1691)


As for the third controversy discussed, it is about the superiority of the
Supreme Court in having the power to exalt the government but subject to
no control while this might be true since if the judge erred in rendering a
decision no penalty or sanction is to be served as a consequences to the
said judge. However, in maintaining such position, a judge must insure to
conduct certain obligation and duties to preserve his position or term of
office without being at risk or being stripped off from his position as
mentioned in the case of OCA vs Necessario wherein it was stated that the
judges have the burden of responsibility to live up to the strictest standards
of competence, honesty, and integrity in the public service.
This is the burden of the judges to maintain as long as they are seated in
their office wherein they are expected to conduct acts that are in
accordance to the laws by maintaining the highest degree of integrity to
insure the publics trust is earned and without jeopardizing the judgment of
the public towards the credibility of the courts to render decisions justly.
Any judges CAN be stripped off from their positions or be dismissed in their
term of office if they are found to be guilty in doing what is contrast to
what is expected to them by the public.
Due to this fact, I believe that they are not IMMORTAL in terms of their
positions or term of office. They even suffer self-restraint in maintaining
such credibility and are subject to ridicule once they have violated to what
is expected of them. For me, this condition of being a judge is just if they


are to function in validating a law for its constitutionality. This immense
power of the court comes with a great price.
The fourth and last controversy here is that in relation to the majoritarian
difficulty as stated by Alexander Bickel of Yale Law School. This means that
the judicial decision rendered by the courts have the tendency to be against
the majority and has the tendency to be scrutinized by the people
regarding with its validity or acceptability for the public since it is in
contrast to the will of the people.
This issue is quite a sensitive one in terms of reconciling the judicial review
of unelected judges to the people due to the grounds of various factors. 1)
The judges conducting judgment and interference is NOT elected by the
people the reason why the people dont feel obligated in terms of such
errors since they did not give up their consent to the judges directly. 2) the
judges decisions have the tendency to be in conflict with publics interest
and 3) the judges are constantly questioned with their decisions and its
motive on why they rendered these certain decision rather than how and
what their basis are.
For providing solutions for these vital conflicts between the courts and the
people towards reconciliation in the grounds of majoritarian difficulty,
the basis of this solution would be found in the preamble of the
Constitution wherein it stated in order to build a just and humane society
meaning the Constitution has emphasized its goal in making a society just
by providing three distinct branches performing each function in
accordance to the power given by the constitution and is subject to such
limitations. Another line in the preamble would be, a government that
shall embody our ideals and aspirations meaning that the government that
is subject to stipulations for the promotion of the ideals of the people have
the obligation to achieve what is duly just and right for the governed. In
performing these distinct roles and obligations the authors of the


Footnotes:
1) The 1987 Constitution of the Republic of the Philippines of Judicial Review vested by the Constitution to the Supreme Court.
2) Muskrat v United States, 219 US 346 (1911)
3) Lopez v Roxas, 17 SCRA 756, 761 (1966)
4 )Preamble of the Constitution p. 1 (1987 Constitution of the Philippines)
5) Definition of judiciary review under the Judicial power vested by the 1987 Constitution of the Republic of the Philippines
6) Alexander Bickel of Yale Law School, majoritarian difficulty.
7) George F. Will, The Value of Activism
8) George F. Will Judicial Review: Why so Controversial.
9) Wikipedia.com for the definition of judicial review and judicial restraint
10) Larry Alexander, What is the Problem of Judicial Review
11) The problem of judicial review (BRUTUS, Anti-Federalist Papers 78-82 1787) the power of judiciary part one and part two.
12) Challenging the cuts: A guide to Judicial Review Adam Wagner
13) On the costs and benefits of aggressive judicial review of agency action., Cass R. Sunstein.
14) Canons of Statutory Construction Dennis B. Funa
15) OCA v Necessario, (A.M No. MTJ-07-1691)


Constitution have foreseen the possible abuse of such power vested to the
governmental institutions and is therefore subject to limitations and that
burden of responsibility has to be given to a branch of the government that
is composed of such authorities that are well versed with the law by
attaining the highest degree of morality with the strictest rules implied for
the authorities given by this power and still is subject to limitation by
performing any other act besides that. By maintaining such purity of the
said branch, the trust of the people, the unelected judges, although
unelected directly by the people shall conduct himself worthy of respect of
the people by maintaining his integrity above everything else. Even when
the judges are in conflict of the publics interest, the judges must still be in
conformity with the constitution, being well versed with the law having
attaining such degree of studying law itself, can be a legal justification
wherein the judges are there to serve as shield to public authorities who
may abuse their discretion on certain acts that may jeopardize the other
branch of the government. The court will always restrain itself from
declaring the law to be unconstitutional due to the presumption of validity
but then again, if it is to hinder a domino effect or that certain act may
jeopardize certain branches or acts of the government upon approval, the
obligation of the court is to prevent it by declaring its constitutionality and
in order to be understood by the people, the court must then provide a
thorough explanation on why that law or act is considered to be
unconstitutional providing just and legal grounds to support their


declaration. Lastly, in order for the judicial review to be harmonious to the
people without being bias, without giving any prejudice to the parties
concerned while still performing their duty and obligation is to be thorough
enough with the law as to with themselves. Provide sufficient justification
on why and how on the grounds of invalidity. People may tend to point
fingers when things go wrong or may be against with what the expected
result is but with the diligence of the court, I believe that even in not
elected just as long as they have maintained a high quality of integrity and
honesty, as well as proving their intelligence of the law, The public in return
shall respect their acts and will be trusting to the this branch of the
government that is often underappreciated with its obligations and
protections towards the fundamental rights of the governed against the
abusive public authorities who sought deception to the public if there is no
interference by the court.