Академический Документы
Профессиональный Документы
Культура Документы
1.Introduction, p. 220
2.No Precise Definition For Judicial Review, p. 220
3.Constitutional Definition, p. 221
4.Judicial Review, Def ined, p. 223
5.Necessity of Judicial Review, p. 223
6.Effect of Judicial Review, p. 224
7.The Courts and The Constitution, p. 224
8.Test of Validity, p. 228
9.Courts' Limitation, p. 228
A.With Executive Department, p. 228
B.With Legislative Department, p. 229
10.Conditions For Judicial Determination of Constitutional Questions, p. 231
11.Unconstitutionality, When Declared, p. 236
12.Effect of Invalidity, p. 236
A.Effect of Partial Invalidity, p. 238
B.Effect of Saving Clause, p. 239
________________
1. Introduction
The authority to hear and settle disputes concerning rights and duties between persons or
between government and private individuals is referred to as judicial power. Such judicial power
is vested in one Supreme Court and in such lower courts as may be established by law.1
The Supreme Court, by tradition and in our system of judicial administration, has the last word
on what the law is: it is the final arbiter of any justiciable controversies. There is only one
Supreme Court from whose decision all other courts should take their bearings.2 And it is in this
Court where all roads of relief and legal remedies lead to an end.3
However, no matter how good the laws are if the Judges do not apply them promptly and fairly,
there will be no justice. Equal justice must prevail in order that democracy may survive.
The proper exercise of the authority of the courts requires legislative action: (1) defining such
enforceable and demandable rights and/or prescribing remedies for violations thereof; and (2)
determining the court with jurisdiction to hear and decide said controversies or disputes, in the
regional court and/or on appeal.4
Thus, the Congress has the power to define, prescribe, and aportion the jurisdiction of various
courts but it cannot deprive the Supreme Court of its jurisdiction over cases enumerated in the
Constitution.5
2. No Precise Definition For Judicial Power
The phrase "judicial power" is not capable of precise definition which would be applicable to all
cases. The term has been variously defined as the authority to determine the rights of
_______________
3. Constitutional Definition
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.7
The 1987 Constitution, for the first time in our Constitutional history, defines "judicial power." The
definition of judicial power makes it the duty of a judge to determine
______________
While it is the constitutional prerogative of the Supreme Court to promulgate rules for the courts;
it is not the function of the courts to legislate. Such power is exclusively vested in the Congress
of the Philippines. Should this Court change, amend or disregard those provisions of the Civil
Code by construing or applying them in a manner different from their plain unequivocal
meaning, this would be tantamount to exercising legislative functions.10
4. Judicial Review, Defined
The act of the courts to review statutes or administrative acts and to determine their
constitutionality. The first important expression of the power of judicial review after the
adoptation of the Constitution.11
5. Necessity of Judicial Power
Judicial Review exists precisely to test the validity of executive or legislative acts in appropriate
legal proceedings; there is always the possibility of their being declared inoperative and void.
Realism compels the acceptance of the thought that there would be a time-lag between the
initiation of such presidential or congressional exercise of power and the final declaration of
nullity. In the meanwhile, it would be productive of confusion, perhaps at times even of chaos, if
the parties affected were left free to speculate as to its fate being one of doom, thus leaving
them free to disobey it in the meanwhile. Since, however, the orderly processes of government,
not to mention common sense, requires that the presumption of validity be accorded an act of
Congress or an order of the President, it would be less than fair, and it may be productive of
injustice, if no notice of its existence as a fact be paid to it, even if thereafter, it is stricken down
as contrary, in the case of Presidential act, either to the Constitution or a controlling statute.12
_______________
Daily Inquirer.
10 Go Tiamco vs. Yao Boom Sim, 43 O.G. 1665.
11 Sibal: Philippine Legal Encyclopedia.
12 Municipality of Malabang vs. Benito, 27 SCRA 533.
existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspectswith respect to particular relations,
individual and corporate and particular conduct, private and official. Questions of rights claimed
to have become vested, of status, of prior determinations deemed to have finality and acted
upon accordingly, of public policy in the light of the nature both of the statute and of its previous
application, demand examination. These questions are among the most difficult of those which
have engaged the attention of courts, state and federal, and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justif ied.''14
7. The Courts and the Constitution
Under a written Constitution like the French, the courts do
_______________
13 Norton vs. Shelby County, 118 U.S. 425, 442 (1886). See also subject on "Effect of
Invalidity," infra for further explanation.
14 Chicot County Drainage District vs. Baxter State Bank, 308 U.S. 371; 374 (1940).
not enjoy the power to annul acts of the other departments in conflict with the Constitution. The
Constitution of the United States contains no specific grant of such power to the federal courts
either, but today due almost entirely to Chief Justice Marshall's vigorous leadership, the federal
courts' power of judicial review is a fact better accepted by and known to Americans' any single
provision of their Constitution.
Marshall's argument in the case of Marbury vs. Madison,15 that in deciding a case to which the
Constitution and a law in conflict with it both apply, courts have no choice except to apply the
former, it being superior to the latter, has been strongly criticized, since it rests on the implied
promise for which there is no express or specific warrant in the provisions of the United States
Constitution, that under a written Constitution courts have the power paramount to, if not
exclusive of, the power of the other departments to interpret and enforce the Constitution. In the
Philippines, however, the courts' power to review the acts of the Executive and Legislative
Departments is clearly defined16 and is expressly recognized in two constitutional provisions.
One denies to Congress the power to deprive the Supreme Court of its appellate jurisdiction in
"all cases involving the constitutionality of a treaty, international or executive agreement, or law,
which shall be heard by the Supreme Court en banc, and all other cases which under the Rules
of Court are required to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon."17 The
second provides that "all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question."18 Lower courts enjoy similar judicial review.
_______________
15 1 Cranch 137.
16 Article VIII, Section 1, 2nd par.
17 Article VIII, Section 4 (2).
18 Article VIII, Section 5 (2-a).
Marshall's first emphatic assertion of judicial review which was obiter dictum at that, met with
bitter opposition at the start, and its general acceptance suffered set back with its f irst concrete
application in the unpopular Dred Scott decision.19 Thereafter it gradually gained public
adherence and not with standing occasional and strong criticisms and popular disapproval of
some United States Court decisions striking down progressive legislation, it has become a
permanent fixture in the American constitutional system. Thoughtful men, however, and the
United States justices themselves, recognize that while judges could restrain constitutional
excesses on the part of Executive and Legislative officers, there is nothing to restrain the judges
themselves except their own sense of selfrestraint. Frequent decisional changes on
constitutional questions emphasize all too cutely the stark truism in Chief Justice Hughes'
observation that the Constitution is what the judges say it is. And when the solemn and
deliberate acts of the two coordinate branches seeking to promote public welfare can be
invalidated, as they have been on many occasions, by a bare majority in a divided court, with
only one or two justices in effect multiplying progressive legislation, doubts are liable to arise
about the wisdom of the system. The members of our constitutional convention for the 1935
Constitution, taking cue from the fate of President Roosevelt's New Deal legislation, corrected
the unbalance of one-man nullification of legislation, by adopting the provision requiring twothirds vote of the Supreme Court to annul a law or treaty and this is also adopted by the 1973
and 1987 Constitutions, finally, the framers of the 1987 Constitution defined the "judicial
power"20 that the courts may look into the question of whether the exercise of power of the
Executive Department has been in grave abuse of that discretion. The experience of the
framers during the regime of the deposed President Ferdinand E. Marcos, Preventive Detention
Order (PDO) was issued indiscriminately by the Military particularly to the Human Rights
Lawyers21 for their role of helping hapless persons who had come across their
_______________
'The Constitution is a definition of the powers of the government, who is to determine the nature,
scope and extent of such power? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument sources and guarantees to them. This is in truth all that is involved
in what is termed 'judicial supremacy' which properly is the power of the judicial review under
the Constitution. Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented. Any attempt at abstraction
could lead only to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as expressed."
The function of interpreting statutes in proper cases will not be denied to the courts as their
constitutional prerogative and duty. Insofar as it is insinuated that that the Chief Executive has
the exclusive authority to say that war has not ended, and
_______________
The power of the President to appoint officers involves discretion which the Court cannot
control;27 that when the appointing power has once acted and the appointee has accepted the
office and done what is required of him upon its accep_______________
friendly suit where there has not been the fullest disclosure of all material facts"36 The reason is
that courts do not have a general power of review of legislative acts, the judicial function being
limited to the decision of actual cases and the authority to pass on the constitutionality of
statutes being merely incidental to the determination of the rights or duties of the parties under a
law which one invokes and which his opponent repudiates as a nullity. It is no mere accident
that the two previously quoted provisions of the Constitution relating to the Supreme Court's
power to pass upon the validity of a law or treaty,37 speak of
________________
court to pass upon the constitutional question raised for a hearing upon that question by the trial
court, would have been a waste of time.59
The constitutional issue may be raised not only in ordinary actions but in special civil actions
and special proceedings, such as mandamus, quo warranto, habeas corpus, certiorari and
prohibition. In the last case, if the writ of prohibition is directed against a lower court, it will lie if
its jurisdiction is dependent upon the challenged statute, but not if it has jurisdiction independent
of the statute, for in such case the lower court itself passes upon the constitutionality of the
statute.60 In certain cases, the question may be raised by injunction proceedings or even in an
application for this writ as provisional remedies.61
Courts do not encourage proceedings where constitutionality of statute is made a collateral
issue, for example, that the government brings an action to recover a penalty imposed by
statute on any person refusing to turn over to the Government funds or property in his custody
belonging to another and subject to a tax. The defendant then interposes the defense that law
imposing the tax on the property in his custody is unconstitutional. The illegality of the law is
said to be a collateral issue because the action is not one to recover the tax itself against the
person liable to its payment.62
4. Where the question of constitutionality is directly and necessarily involved in a justiciable
controversy and is essential to the protection of the rights of the parties.63 Thus, the question
will not be passed upon on where the issues of a par_______________
It is an elementary principle that where the validity of a statute is assailed and there are two
possible interpretations, by one of which the statute would be unconstitutional and by the other it
would be valid, the court should adopt the construction which would uphold it.70
12. Eff ect of Invalidity
The orthodox view of the effect of an unconstitutional statute, to which our former Supreme
Court71 and many state courts have yielded their assent, is that expressed by Mr. Justice Field:
"An unconstitutional act is not a law; it confers
_______________
72 Norton vs. Shelby, 118 U.S. 425; 30 L. ed. 176; See also subject on "Effect of Judicial
Review," supra.
73 308 U.S. 371; 84 L. ed. 329.
Consequently, a statute before the declaration of its unconstitutionality is an operative fact and
the decisions under it have the finality of "res judicata" notwithstanding the subsequent
declaration of unconstitutionality.74
The New Civil Code contains provisions concerning the effect of a declaration of invalidity. It
prescribes that "when the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to laws or the Constitution."75 It is not
clear from the foregoing whether it is the orthodox or the modern view that is followed by the
Civil Code. And it is a question whether the effect of a declaration of nullity is a matter for judicial
or for legislative determination. Up to this time, our Supreme Court has had no occasion yet to
reconsider its pronouncement in the case of Government vs. Springer,76 which seems to favor
the orthodox view by its citation of the case of Norton vs. Shelby County,77 in support of the
doctrine that there is no such thing as a de facto office under an unconstitutional statute.
A. Effect of Partial Invalidity
The general rule is that where part of a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion if separable from the invalid, may stand and be enforced.
But in order to do this, the valid portion must be so far independent of the invalid portion that it is
fair to presume that the Legislature would have enacted it by itself if they had supposed that
they could not constitutionally enact the other. Enough must remain to make a complete,
intelligible, and valid statute, which carries out the legislative intent. The void provisions must be
eliminated without causing results affecting the main purpose of the act in a manner contrary to
the in_______________
74 Warring vs. Caploys, 74 app. D.C. 30; 122 Fed. 642; 136 A.L.R. 1025.
75 Article 7.
76 Supra.
77 Supra,
tention of the Legislature. The language used in the invalid part of a statute can have no legal
force or efficacy for any purpose whatever, and, what remains must express the legislative will
independently of the void part, since the court has no power to legislate.78