Judicial Review and Democracy

While views of various authors are in favor of the undemocratic nature of judicial review,
I view such in a more contrastive manner. According to Cobb, Judicial review is an
undemocratic extension of the undemocratic nature of the Constitution itself, a
document protecting the rights of property over the rights of people. 1 He considers
judicial power as a mere thing of wax in the hands of the Judiciary, which they may
twist and shape into any form they please. In the actual situation of our judiciary
system, it can be inferred in some of the decisions of our courts that despite the similar
facts of the case, decisions tend to be shaky and inconsistent. For instance the case of
Carino vs. Carino where the Supreme Court ruled that a marriage is still bigamous even
if the previous marriage was void, it is presumed valid. Subsequently, in Valdez vs.
Regional Trial Court, they reversed the decision previously made and ruled that a
marriage is not bigamous if previous marriage was void. The inconsistency is may
convince us that judicial power, according to Thomas Jefferson, "To consider judges as
the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed,
and one which would place us under the despotism of an oligarchy. 2 He claims that
judicial review and democracy can never reconcile based on the facts that such power
is viewed as a destroyer of the peoples freedom to enact laws and execute acts.
I believe that Cobbs view on judicial review is misplaced. There are limitations to the
said power and such are provided for in the Constitution. Such power was vested upon
the judiciary by the people in the guise of the Constitution. The power was granted in
order to protect the rights of the people to make sure that all acts and laws abide to the
Constitution as made by the people themselves. It is interesting to note the point of
Annabelle Lever on the function of judicial review in the aim to value rights and seek to
protect them, so that the issue between them is not whether rights ought to be
protected, but how such protection should be institutionalized. 3 This convinces me that
judicial review is not undemocratic for the power was vested upon the judiciary through
the enactment of the Constitution by the people in their sovereign democratic state.
Their approval of the same manifests their acceptance to the provisions stated therein.
1 David Cobb. The Case Against Judicial Review. Program on Corporation, Law and
Democracy. http://www.poclad.org/BWA/2007/BWA_2007_FALL.html (accessed August 4,
2016)
2 David CobbThe Case Against Judicial Review. Program on Corporation, Law and
Democracy. http://www.poclad.org/BWA/2007/BWA_2007_FALL.html (accessed August 4,
2016)
3 Annabelle Lever. Is Judicial Review Undemocratic?. http://www.alever.net/DOCS/Is
%20Judicial%20Review%20Undemocratic.pdf (accessed August 4, 2016)

It was the people who freely and willingly inferred power to the judiciary as provided for
in section 1, article VIII of the 1987 Constitution. The fact that the acts executed by the
executive department and the laws promulgated by the legislative department may be
declared unconstitutional by the Court does not mean to undermine the democracy of
these acts and laws. All the Court does is exercise power given to it by the Constitution
and uphold its supremacy, consequently the supremacy of those who made it who are
the people. The power of judicial review must not be construed as taking away the
rights of the people to enact laws or execute acts freely but must be taken in the sense
that the power only protects that right and those affected by it. I have come to view
judicial review in a different manner as that of Cobb and fairly similar to that of Lever.
On January 17, 1981, Martial Law officially ended and freedom was restored in the
Philippines4. The then president, Pres. Corazon Aquino, along with the people enacted
the 1987 Constitution and was ratified by more than votes on February 2, 1987 at a
National Plebiscite called upon in order to put the Constitution into effect. 5 The nation
was asked to answer the question Do you vote for the ratification of the proposed
Constitution of the Republic of the Philippines with the Ordinance appended thereto? 6
The people manifested their acceptance to the new constitution which was truly
reflective of the ideals and aspiration of the Filipino people. 7 As stated in the preamble
of the same constitution, the people intended to build a just and humane society and
establish a Government that shall embody our ideals and aspirations. 8
According to Sec. 1, Art. II of the 1987 Constitution, the Philippines is a democratic and
republican State. Sovereignty resides in the people and all government authority
emanates from them. Thus, the peoples approval of the Constitution carries with it their
approval to the provisions stated therein. The fact that it was the people who made and
ratified the Constitution, it only shows that the powers the latter creates came from the
4 Official Gazette, http://www.gov.ph/featured/declaration-of-martial-law/ (accessed
August 4, 2016)
5 Jodesz Gavilan, Fun Facts: 1987 Philippine Constitution, Rappler. February 02, 2016,
http://www.rappler.com/newsbreak/iq/121019-fast-facts-1987-philippine-constitution.
(accessed August 4, 2016)
6 Official Gazette, http://www.gov.ph/constitutions/constitution-25-years/ (accessed
August 4, 2016)
7 Isagani Cruz, Philippine Political Law (Quezon City: Central Book Supply, Inc., 2014).
8 Official Gazette. The Constitution of the Republic of the Philippines. Retrieved from
http://www.gov.ph/constitutions/1987-constitution/ (accessed on August 4, 2016)
Page | 2

people themselves and with their consent. Among the provisions of the 1987
Constitution that create powers were the those that pertain to the different powers
vested in the three departments of the government namely the legislative (Sec. 1, Article
VI), executive (Sec. 1, Article VII) and judiciary (Sec. 1, Article VIII) branches. Among
those powers was judicial power vested in the judiciary. 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. This allows the Supreme Court to
allocate constitutional boundaries or invalidate the acts of a coordinate body. 9Although
such may seem to manifest superiority over other departments but what the judiciary
actually upholds here is the supremacy of the Constitution and not its own supremacy.
Neither does it constitute a conflict with democracy in the sense that the courts have the
power to invalidate laws approved through a democratic process. We must all keep in
mind that this power emanated from the Constitution and such was made by the people
manifested in the State in its sovereign capacity. Thus, it was them who granted such
power in exercise of democracy restored in the land. The people might not have elected
for the appointment of judges to exercise the power, but the fact that the power was
created by them through the Constitution make it appear that they have indirectly
elected them. Anyways, appointed judges may constantly change but the power
remains the same.
Furthermore, having such power must not be construed as having complete control of
the acts of the other departments. The Constitution sets limitations to this power and
such pertain to actual cases raised by parties with legal standing at the earliest
opportunity with an issue regarding its constitutionality. Judicial power may seem
supreme but it is restricted for 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
secures and guarantees to them. Additionally, judicial review must not be viewed as an
abuse of discretion for first, it is expressly stated in the Constitution and we have the
doctrine of separation of powers. The separation of powers is still intact which
according to Justice Laurel, is intended to secure action, to forestall over-action, to
prevent despotism and to obtain efficiency. 10 In Angara vs. Electoral Commission, the
9 Isagani Cruz, Philippine Political Law (Quezon City: Central Book Supply, Inc., 2014).
10 Isagani Cruz, Philippine Political Law (Quezon City: Central Book Supply, Inc., 2014).
Page | 3

separation of powers is a fundamental principle in our system of government. Each

department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. The doctrine was indeed to promote
interdependence among the three branches of the government. Cited in that same
case, it does not follow from the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the various departments
of the government. This justifies the judiciarys power to check into other departments
for any grave abuse of discretion in the exercise of their powers conferred into it by the
Constitution. As a matter of fact, it is stated in section 1, article XIII of the 1987
Constitution that the Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good which, in all cases, applies also to the
executive department. The people did not intend to grant power to the judiciary that
would undermine the democracy of the law-making process because the power to
invalidate these laws are limited to those that do not comply with the Constitution itself.
The people through the legislative and the executive branches can freely enact laws
and administrative acts as conferred in them by the Constitution or incidental to their
powers as the case may be. Judicial review is meant to protect the rights of the people
and not suppress it. It is in judicial review that competent authorities decide on whether
or not such act or law is what the people want in reference to the Constitution (similar to
the decision between right and wrong). As in the case where the constitutionality of the
Development Accelaration Program (DAP) was questioned by the Supreme Court. It
was held that such was declared unconstitutional for it illegally disburses in a speedy
manner public funds and grave abuse of discretion by the executive branch was
apparent. The declaration was on the purview that right and justice must prevail at all
times and such as manifested in the Constitution itself.
Therefore, in my opinion, judicial review and democracy can neither reconcile or not
reconcile at all. They are to be viewed separately in a cause-and-effect manner:
democracy being the cause and judicial review being the effect. Judicial power does not
mean that the judiciary is supreme over all other departments in the government.
Neither does it have the power to interfere with the acts of the other departments that
goes beyond its jurisdiction as provided for by the Constitution. Furthermore, it does not
eradicate the democracy in the enactment of laws and other statutes. It simply means
that once jurisdiction of any of the branch has been breached or grave abuse of
Page | 4

discretion has occurred, the judiciary can exercise its power of judicial review for the
benefit of those whose rights have been abused. The laws are there; the process of
making the laws are still intact and democracy of such process still observed. It just so
happens that the judiciary upholds the supremacy of the Constitution made by the
people and anything in violation of that gives them the power to invalidate the same
(Doctrine of Constitutional Supremacy). The Constitution was made to protect the
people and to promote the common good and it is the duty of the judiciary to ensure the
same. It is also interesting finally to note that the Constitution, as expressly stated in the
preamble, was made to secure to ourselves and our posterity the blessings of
independence and democracy.

Bibliography

Official Gazette. The Constitution of the Republic of the Philippines.

Retrieved

from

http://www.gov.ph/constitutions/1987-constitution/

(accessed on August 4, 2016)

Cobb, D. (2007). The Case Against Judicial Review. Program on
Corporation,

Law

and

Democracy.

Retrieved

http://www.poclad.org/BWA/2007/BWA_2007_FALL.html

from

(accessed

on

August 4, 2016)
Lever, A. Is Judicial Review Undemocratic? Unversity of College London
and

University

of

Reading.

Retrieved

from

http://www.alever.net/DOCS/Is%20Judicial%20Review

%20Undemocratic.pdf (accessed August 4, 2016)

Official
Gazette.
Retrieved
http://www.gov.ph/featured/declaration-of-martial-law/

from
(accessed

on

August 4, 2016)
Gavilan, J. (2016). Fun Facts: 1987 Philippine Constitution. Rappler:
February

02,

2016.

Retrieved

from

http://www.rappler.com/newsbreak/iq/121019-fast-facts-1987

philippine-constitution. (accessed on August 4, 2016)

Official
Gazette.
Retrieved
http://www.gov.ph/constitutions/constitution-25-years/

from
(accessed

on

August 4, 2016)
Page | 5

Cruz, I. (2014). Philippine Political Law. Quezon City: Central Book

Supply, Inc., 2014 ed.

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