Chapter 11

Judicial Review and the Judicialization of Politics

The Beginning

 Judicial review owes its beginnings to John Marshall, who was the secretary of state under the
administration of federalist John Adams and the Chief Justice under the administration of Adam’s successor,
THOMAS JEFFERSON!
 Adams ran for re-election and lost to Republican Thomas Jefferson. With the republicans gaining majority
of the executive and legislative, Adams decided to pack the judiciary with Federalist by midnight
appointments. He appointed several judges before leaving office. The judges commissions were signed,
sealed and waiting only to be delivered. Marshall as the secretary of state, failed to deliver 17 commissions,
one of which belongs to Marbury. He then assumed the position of Chief Justice of the SC with Madison
replacing him as secretary of state. Jefferson, angry because of the court packing scheme of Adams,
prevented Madison from delivering the commissions.
 This prompted Marbury to file a petition before the supreme court (Marbury v Madison) to mandamus
Madison to deliver Marbury’s commission. Adams, knowing that Jefferson with not honor the mandamus
if granted, struck down the law that provided the SC the power to Mandamus another office as
Unconstitutional. This not only effectively prevented the Judiciary from appearing weak but also gave them
a new power, the power of judicial review.

Judicial Review in a Colonial Setting: Paramountcy of police power

 Civil Governor William Taft launched the policy of attraction. He attracted the illustrados by perpetuating
feudal oligarchy. He also attracted the middle class by promising government positions as municipal
officers, members of the civil service and members of the colonial legislature. But he stopped at the
judiciary saying “ It is the basis of civil rights and liberty, no Filipino jurist could have an adequate conception
of what practical civil liberty is”
 Taft saw the Judiciary as a corrupt figure that can be bought with money or power. He then replaced Filipino
judges with Americans. He reduced the members of the supreme court from 9 to 7 and reduced the Filipinos
into a minority of 3 with 4 americans as majority. Thus the American-dominated highcourt consistently
upheld the validity of executive actions taken by the Governor General.

SC invalidates welfare legislation

 The Filipino legislature started passing social welfare and economic legislation designed to meet the
problems of neo-colonial economy. The Filipino legislature passed laws designed to solve the rice crisis and
women and child labor, etc, all of which was invalidated by the supreme court. The congress then passed a
law increasing membership in the SC to 15 and nominated 4 filipinos to fill up the vacancy. The US senate
aborted this scheme by refusing confirmation of the four. Undeterred, the congress passed an act which
increased the vote requirement for invalidating a statute from absolute majority to 2/3vote. This was
incorporated in the 1935 constitution.

Nationality Trumps Judicial Review

 By the time Filipinos came to constitute the Supreme Court, the courts political power was already clipped.
The 1935 constitution adopted the 2/3 vote rule required to invalidate or to nullify a law passed by the
legislature. In this era the only significant constitutional decision of the SC which defied the presidential
power were the so-called emergency power cases.
  In 1972 the court was put to the test and failed. It did not rule on cases that challenged the validity of
Martial law and kept on invoking the political question doctrine and validated the sham ratification of the
1973 constitution. This led to the dismissal of the majority of the justices in the SC in 1986, under the theory
that the new regime was a “revolutionary govt”
 The 1987 constitution restored the SC to a position of strength. It lessened the 2/3 vote to an absolute
majority , which made it easier for the court to invalidate an act by the executive and the legislative. The
new constitution expanded judicial power and enshrined the power of the SC to rule on the factual basis of
the declaration of Martial Law. Judicial review can now be used to restrain the powers of the political
departments.

The rise of Judicial Power

 EDSA revolution led to the judicialization of politics or the in institutionalization of judicial supremacy as a
check on political power.
 The court was vested the power to legislate in the guise of rule-making. This can be seen in the power of
the court to promulgate rules for the protection of human rights. The new judiciary, born out of trauma of
our martial law experience, was expected to protect not only human rights but as well as to preserve the
democratic form of government

Erosion on the Technical restraints on the judicial review

 Restraints under the 1935 constitution:

o Actual case or controversy
o Ripeness
o Standing
o Mootness
o Political question doctrine
 These restraints were eroded by chipping away at the elements that constitute these or by constitutional
fiat
o Standing gave way to taxpayer suits, citizen suits and the doctrine of transcendental importance
o Ripeness or mootness now fall under actual case or controversy, but may be overlooked by the
supreme court in important public policy cases.
o Political question doctrine- emasculated by the new judicial power

Politization of the Judiciary

 Arroyo, in her term as president from 2001-2010, appointed all of the justices that comprised the SC. And
upon her exit from the presidential office, she, thru midnight appointment, appointed corona as the CJ of
the SC (and several judges din). Effectively depriving the new administration the power to make its own
appointments.
 In 2012 was impeached for allegedly participating in partisan politics by siding with Arroyo. This was
established by questioning the many cases decided by the Supreme Court while corona was CJ. The
opposition claimed that the decisions were partial and were dictated by personal considerations and not
by principled justification.