Professional Documents
Culture Documents
August 4, 2014
LLB 1
This paper will tackle about the types of democracy and identify the
democratic model used in the Philippines, the presentation of the arguments
pertaining to the nature of judicial review vis-a-vis the models of democracy
and whether it is undemocratic or otherwise.
1
Article
VIII,
Sec.
1(2)
2
Constitutional Law I Lecture, July 15, 2014. See also Largo, Joan S. “The Powerful Judiciary and the Concept of
Rule of Law in the Philippines: Correlations, Consequences and Implications”. March 6, 2013.
http://forlibertyandprosperity.files.wordpress.com/2013/03/the-powerful-judiciary-and-rule-of-law-in-the-
philippines.pdf (accessed July 29, 2014).
3
In lieu of the Judicial power as enunciated in Article 8 of the 1987 Constitution.
4
Constitutional Law I lecture, July 15, 2014. Doctrine of the supremacy of the law of the land: The constitution is the
supreme law of the land and the government rule in accordance with its provisions; which all other laws must conform
and in accordance with which all private rights must be determined and all public authority administered (as transcribed
from the said lecture).
5
As enunciated in Section 5 (2) of Article 8 of the 1987 Constitution.
6
Constitutional Law Lecture July 17, 2014
7
Philosophy of Law Lecture, August 2, 2014. See also Eugene V. Rostow. The democratic character of judicial review
(Harvard Law Review, 1952): 193-224.
Rule of Law and Democracy
David Feldman in his work Democracy, The Rule of Law, and Judicial
Review10 substantiates this “representativeness”. According to Feldman,
The widely held view is that even though there are a lot of literatures
seeking to pin down rule of law as a concept, it is still “an inherently vague
8
See Linda Maduz. "Direct democracy." Living Reviews in Democracy 2 (2010).
http://democracy.livingreviews.org/index.php/lrd/article/viewFile/lrd-2010-1/21 (accessed July 29, 2014).
9
This kind of democracy was said to have originated from the Greeks. It was at that time one of the major
process in which they decide, especially in Athens.
10
David Feldman. Democracy, The Rule of Law & Judicial Review. (1990)"
http://www.austlii.edu.au/au/journals/FedLRev/1990/1.pdf (accessed July 29, 2014).
11
Ibid,.
11-‐12.
term, meaning different things to other people”12. The components of
representativeness that I cited earlier in this paper are incorporated into the
classic liberal justification for the rule of law13.
22
See Isagani A. Cruz, and Carlos Cruz. Philippine Political Law (Central Lawbook Publishing Company,
2014).
23
This
is
mainly
based
on
Tushnet
and
Rostow’s
arguments.
24
See Ilya Somin. Democracy Judicial Review Revisited: The New Old Critique of Judicial Power.
(2003). http://www.greenbag.org/v7n3/v7n3_review_somin.pdf (accessed in July 29, 2014).
25
This was cited in Somin’s article but see also Alexander M. Bickel. The least dangerous branch: The
Supreme Court at the bar of politics (Yale University Press, 1986). Bickel was the one who coined the term
“countermajoritarian”.
26
Ibid,.
288
27
Ibid,.
288
28
See Mark Tushnet. Against Judicial Review. (Harvard Public Law Working Paper No. 09-20. March 26,
2009). http://ssrn.com/abstract=1368857 (accessed June 29, 2014).
constitutionalism. Constitutionalism is understood as a “set of political
arrangements that ensures political stability by limiting the people’s ability
to alter some policy choice”29. The negative component on the other hand,
he argues speaks about the insufficiency of the arguments of contrary to
judicial review. Furthermore, he argues that, while scholars argue that
judicial review does not satisfy the “no universal scope” criterion, it is only
focused on a single interpretation. In this sense, it cannot see judicial review
in another perspective but that of the procedural view. Ilya Somin also
argues that the critiques of judicial review often fail with what John Hart Ely
called “representation-reinforcement”. Representation-reinforcement is the
possibility that the judicial power of the courts actually strengthen
democracy30. According to her, this is one of the forerunning rebuttals to the
claim that judicial review cannot be reconciled with the basic concept of
democracy. While there was an extension of the conception of the counter-
majoritarian rule in the latter works of those against judicial review, they fail
to take into consideration the nature of democracy in different countries. In
Ilya Somin’s words:
This is very true in countries that only democratized not long ago like the
East European countries as well as most of the countries in Asia including of
course the Philippines. While it is true that countries put up a democratic
front, on a closer look the residues of dictatorship is still apparent in their
system31.
29
Ibid.
30
See Ilya Somin. Democracy Judicial Review Revisited: The New Old Critique of Judicial Power.
(2003). http://www.greenbag.org/v7n3/v7n3_review_somin.pdf (accessed in July 29, 2014).
31
This
was
based
on
one
of
the
readings
we
had
back
then
in
college
upon
preparing
for
our
report
for
South
Korea.
This was perpetrated by what they alleged as several controversial decisions
by the Supreme Court. They cited landmark cases that served as basis for the
image of the court. Some are as follows: the Javellana32 (1973), and
Lambino33 (2006) cases. The Javellana case involved the decision of the
court in 1973 where they legitimized the new political regime lead by
Marcos. The Lambino case on the other hand was about the people’s
initiative that was proposed to change the Philippine government system
which the supreme court dismissed because of not qualifying as an
amendment but a revision.
Guillermo and Garoupa argued that these cases raised the question on
whether or not the Judicial branch is still independent. The preponderance of
these fact leads to the argument that “there is a general sense that the
members of the court defer regularly to the appointer and are unable to
disregard the immediate interests of the President”. This was proven even
further in the impeachment case of former Chief Justice Renato Corona and
the current issue on DAP where the power of the president is very apparent.
However I think that this does not mean that judicial review does not help in
upholding justice in the country because with the expanded power of the
judiciary, it can now check whether there is a grave abuse of jurisdiction
amounting to lack or excess in jurisdiction as regards to the exercise of the
branch and instrumentalities of government. This nature of judicial review
can be reconciled with that of the US. According to Rostow34, the argument
over the constitutionality of judicial review in the United States have already
been settled by history. The supremacy of the constitution as the foundation
of judicial review according to Rostow is democratic. He further argues:
Democracy for him is not only limited to the people voting directly in every
issue but to be responsible for they are given the sovereign right to vote for
their representatives. He further asserts that in democratic countries, it is
hardly uncharacteristic to encourage bills of attainder and the court’s petition
regarding the function of the legislature. Moreover, the will of the people
according to him is protected by the provisions for amending the constitution
and by “the benign influence of time, which changes the personnel of
courts”. This being said, he further argues that there is nothing undemocratic
in having the judiciary act as mediators between the acts of the other
branches of government and that of the provisions outlined in the
constitution. What is even more interesting in Rostow article is that his
32
Javellana
v
Executive
Secretary
G.R.
No.
L-‐36142,
March
31,
1973.
33
Lambino
v
COMELEC
G.R.
No.
174153,
October
25,
2006
34
See
Eugene V. Rostow. The democratic character of judicial review (Harvard Law Review, 1952): 193-
224.
citing of another attack on the judicial review. Citing Thayer, he states the
former’s argument
He rebuts this contention and argues that the existence of the power of
judicial review does not result to the inefficiencies of the legislative branch,
the law making body. He says that the election of these people are primary
sociological and cultural in nature. It is a product of the political culture of
the said country. The lapses of the legislative branch in their capacity as
representatives of the people do not in any way root from the decisions of
the court. I think one might argue that given the fact that we have a rigid
constitution, the legislature is having difficulties in enacting laws that
envision change because of the stringent safeguards by the court in terms of
the process of amendment to and revisions of the constitution. The fact that
the people’s initiative is only limited to an amendment and not a revision.
This is illustrated in the cases of Santiago v COMELEC35 and Lambino.
Santiago enunciates that there should be a 12 per centum of votes of all
registered voters by which ever legislative district must be represented by
3% of all registered voters in the proposed amendment of the people and the
need for an enabling law for the said amendment. Most substantive is the
Lambino case because it shows the effort of the court to uphold the
constitution in spite of them being—as the scholars against judicial review
said—dogs of the executive.
Based on the arguments that I have put forth above, I think that
Judicial Review can be reconciled with democracy. Judicial review does not
extend to political questions and it is highly uncharacteristic for the courts of
justice to render their decision favoring injustice because of the duty and
responsibility bestowed upon them by the paramount law of the land. The
Civil code enunciates in Article 9
And article 10
The general rule is that, the courts of justice respect the wisdom of the
legislative and the executive branches of government. This was enunciated
35
G.R
NO.
127325,
March
19,
1997.
in the case of Bayan v Zamora36 where the court said
In light of the country’s political culture, I think that the claim that judicial
review is contrary to democracy is not meritorious. If we live everything to
the legislative and the executive branches without their exercise of power
being checked by an independent judiciary, the rights of the people will be
in peril. As another scholar argued “the branches most majoritarian in
theory might be the least majoritarian in practice”37.
36
G.R
No.
138570,
October
10,
2000
37
See Corinna Barrett Lain. Upside-Down Judicial Review. Geo. LJ 101 (2012): 113. And also Eugene V.
Rostow, The democratic character of judicial review. Harvard Law Review (1952): 193-224.
References
Feldman, David. Democracy, The Rule of Law & Judicial Review. (1990)"
http://www.austlii.edu.au/au/journals/FedLRev/1990/1.pdf (accessed
July 29, 2014).
Largo, Joan S. The Powerful Judiciary and the Concept of Rule of Law in
the Philippines: Correlations, Consequences and Implications. March
6, 2013.
http://forlibertyandprosperity.files.wordpress.com/2013/03/the-
powerful-judiciary-and-rule-of-law-in-the-philippines.pdf (accessed
July 29, 2014).
Somin, Ilya. Democracy Judicial Review Revisited: The New Old Critique of
Judicial Power. (2003).
http://www.greenbag.org/v7n3/v7n3_review_somin.pdf (accessed in
July 29, 2014).
Waldron, Jeremy. The Core of the Case Against Judicial Review. The Yale
Law Journal (2006): 1346-1406.