NAPA, Clarizza Grace D.C.

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Constitutional Litigation and the Power of Judicial Review

JUDICAL REVIEW AND THE EXECUTIVE PREROGATIVE

I. Introduction

There are three major powers of the in the Philippine government that

distributed to the respective departments.1 Jurisprudence has recognized the three

branches through the actual division in the Constitution.2 First, Section 1 of Article

VI provides that legislative power shall be vested in the Congress of the Philippines,

consisting of a Senate and a House of Representatives.3 Second, Section 1 of Article

VII provides that the executive power shall be vested in the President of the

Philippines. Executive power includes the power to carry into effect the national

laws adopted by the Legislative department and to take care that the law be faithfully

executed.4 Third, Section 1 of Article VIII provides that the judicial power shall be

vested in one Supreme Court and in such lower courts as may be established by law. 5

The existence of the tripartite division of the government is consistent with

the democratic and republican state of the Country. A prime feature of the such

government is the presidential system of government with the doctrine of separation

of powers. The three branches are equal hence it may not be controlled by others;

1 ISAGANI A. CRUZ, PHILIPPINE POLITICAL LAW 69 (1991 ed.).

2 Angara v. Electoral Commission, 63 SCRA 139, 156 (1936).
3 PHIL. CONST. art VI, § 1.

4 PHIL. CONST. art VII, § 1.

5 PHIL. CONST. art VIII, § 1.
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Constitutional Litigation and the Power of Judicial Review

each branch is separate and distinct from other branches and may only exercise

powers lodged with it.6 Corollary to the separation is the system of checks and

balances – it is means of which one department is allowed to resist encroachments

upon its prerogatives or to rectify mistakes or excesses committed by the other

departments.7 Despite the doctrine of separation of powers, “blending of powers”

still results. Although it is desirable that there be a certain degree of independence

among the three branches of government, “it is not in the public interest for them to

deal with each other at arms’ length or with a hostile jealousy of their respective

rights as this might result in frustration of the common objectives of the

government.”8

The Chief Executive can be considered as the “single most powerful official

in our land.”9 Unlike in the other Branches in which the powers are watered down

to several officials (the Congress and the Justices, the executive power is vested in

the president of the Philippines. 10 The Executive Power, although strong, is of course

subject to the checks and balances. An instance would be the appointment powers

6 Perfecto V. Fernandez, Separation of Powers As Juristic Imperative, 58 Philippine Law Journal 245, at 245-
246 (1983).
7 CRUZ, supra note 1, at 71.
8 Id., at 69.

9 Secretary of Justice v Lantion, 322 SCRA 160, 221 (2002) (J. Puno, dissenting opinion).
10 Id.
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Constitutional Litigation and the Power of Judicial Review

of the President may be subject to the Commission of Appointments under the

Legislative Branch11, and the executive acts can be reviewed by the Judiciary for

grave abuse of discretion.12

Taken in the light of the doctrine of separation of powers, the Judicial Branch

exercises judicial power. Section 1 of Article VIII of the Present Constitution

provides that:

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.13

Judicial review is not just a power but a duty. Presently worded, the judicial power

includes two parts: (1) the traditional judicial review and (2) the expanded

jurisdiction under the second clause pertains to broader aspect of judicial power

whereby courts are enabled to review the discretion of the political departments of

the government.14 Normally, courts abstain from interfering with the activities of the

political branches of government in policy making and implementation. However,

11 PHIL. CONST. art VII, § 16.

12 PHIL. CONST. art VIII, § 1.
13 PHIL. CONST. art VIII, § 1.
14 CRUZ, supra note 1, at 226.
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Constitutional Litigation and the Power of Judicial Review

the courts step in when there is grave abuse in discretion on the part of the Executive

or Legislative Branches. Though, the Supreme Court shall refrain from exercising

its judicial power should there be no justiciable controversy presented before it or

adjudication.15 One of which are political questions which concern not the legality,

but the wisdom and discretionary powers of a particular act or measure of the

political departments and the sovereign act of the people.16

II. The Executive Powers

The President is the Chief Executive. This means that “the President is

‘Executive of the Executive of the Government of the Philippines and no other.’” 17

The Constitution enumerated specific powers of the President.18 However in the case

of Marcos v. Manglapus, the Court held that the powers of the President are not

limited to what are expressly listed and scattered within the Constitution. 19

15 Montesclaros v. COMELEC 384 SCRA 269 (2002).

16 IBP v. Zamora 338 SCRA 81, 105 (2000).
17 FR. JOAQUIN BERNAS, THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER 278 (2011 ed.).

18 Id.
19 Id., at 279 citing Marcos v Manglapus 178 SCRA 760 (1989).
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Constitutional Litigation and the Power of Judicial Review

The enumerated powers of the Chief Executive under Article VII are: (1)

Appointment powers;20 (2) Power and Supervision over executive departments and
21
bureaus; (3) Commander-in-Chief of all armed forces of the Philippines; 22 (4)

Pardoning powers;23 and (5) Foreign affairs power.24

The Supreme Court has acknowledged the “plenary nature of the executive

power” in its decisions.25 Albeit powerful, it is still limited by the Constitution on

the system of checks and balances, the Bill of Rights and judicial review in case of

grave abuse of discretion.

III. Judicial Intervention: Jurisprudential Discussion and Analysis

As discussed, the Judicial Department has the power to review executive

acts based on its constitutionality and whether they are done in grave abuse of

discretion.26

20 PHIL. CONST. art VII, § 16.

21 PHIL. CONST. art VII, § 17.
22 PHIL. CONST. art VII, § 18.

23 PHIL. CONST. art VII, § 19.

24 PHIL. CONST. art VII, § 21.

25 Ocampo v. Enriquez, Brion Dissent citing Sanlakas v. Executive Secretary, G.R. No. 159085 (2004).
26 PHIL. CONST. art VIII, § 1.
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Constitutional Litigation and the Power of Judicial Review

Power of Appointment

The nature of the power to appoint is political and executive in nature. 27 In

cases of doubt on the interference from the legislature, it is construed against it. 28 In

the case of Pimentel v. Ermita, ad interim appointments by then-President Arroyo

were put in question, and the court made a ruling on the appointment (despite being

moot and academic) holding it valid as there was no violation of the Constitution. 29

In contrast, wherein the appointment of the same former president of Acting Defense

Secretary Agra to be Acting Solicitor General was declared unconstitutional by the

Supreme Court.30 In both cases, the same power was in review. The Supreme Court

intervene in the matter as there was a constitutional provision that was allegedly

violated corresponding to the issue.31

27 Pimentel, Jr. v. Ermita, 472 SCRA 587, 593 (2005) citing Tolentino v. COMELEC, G.R. No. 148334 (2004).
28 Id.
29 Id.

30 Funa v. Agra, 691 SCRA 196, 225 (2013).

31 In Pimentel, the Constitutional power of the President to appoint ad interim was being questioned provided

under PHIL. CONST. art. VIII § 16 and in the case of Funa, the prohibition on concurrent designation of office
was raised provided under art. IX-B § 7 ¶ 2.
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Constitutional Litigation and the Power of Judicial Review

Section 18 of Article VII of the Constitution32

The factual necessity of calling out the armed forces is something that is for

the President to decide, but the Court may look into the factual basis of declaration

to determine if it was done outside constitutional limits or with grave abuse of

32 PHIL. CONST. art. VII § 18 states that:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
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Constitutional Litigation and the Power of Judicial Review

discretion amounting to lack of jurisdiction. 33 When the grant of power is qualified,

conditional or subject to limitations, the issue of whether the prescribed

qualifications or conditions have been met or the limitations respected, is

justiciable.34 In the power of the Commander-in-Chief, the judicial inquiry goes not

to the correctness of the decision but on the arbitrariness.35 This was reiterated in

2006 when former President Gloria Macapagal-Arroyo issued Presidential

Proclamation 1017 declaring state of emergency. 36 Although some part of the

proclamation was declared void as it encroaches the power of the Legislative and

those not related enforcing the law against lawless violence.37

The Court has recently ruled on a review on a declaration of martial law. In

the case Lagman v. Medialdea, Incumbent President Rodrigo Roa Duterte issued

Proclamation No. 216 declaring a state of martial law and the privilege of the writ

of habeas corpus in the whole of Mindanao.38 The court ruled that the factual basis

of the declaration is in ambit of a justiciable inquiry in court. 39 The review by the

33 IBP v. Zamora, 338 SCRA 81, 108 (2000).

34 Id., at 105-106.
35 Id., at 131.
36 David v. Macapagal-Arroyo 489 SCRA 160, 226.

37 Id. at 275. In the case, the proclamation was unconstitutional insofar as it grants the Arroyo the authority to

promulgate decrees. She can merely enforce but not legislate.

38 Ocampo v. Enriquez, G.R. 225973, at 5 (2016).
39 Id., at 22.
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Constitutional Litigation and the Power of Judicial Review

Court is only on the facts prior declaration. This is consistent to Aquino v. Enrile,

this was popularly known as the Habeas Corpus cases during the Marcos regime. In

the decision of then-Chief Justice Makalintal, the state of rebellion prior

Proclamation of the State of Martial in the Philippines in 1972, is present.40 Thus

dismissing the case ruling that President Marcos has factual bases for the

proclamation. However, there is difference on the justiciability of the issue of

whether the Proclamation 1081 was subject to Court’s inquiry. 41 In the 1972

Constitution, absent of the Court’s expanded jurisdiction, the then-Chief Justice

together with the majority found that there is a justiciable issue ruling on the factual

bases. Although some of the justices find that this is purely political and be outright

dismissed.42 Justice Del Castillo stated that in reviewing this extraordinary power of

the Commander-in-Chief:

Judicial review does not extend to calibrating the President’s

decision pertaining to which extraordinary power to avail given a
set of facts or conditions. To do so would be tantamount to an
incursion into the exclusive domain for the Executive and
infringement on the prerogative of the President.

If we follow such standard then it will be impossible to exercise his discretion that

should be able to prevent further danger of rebellion/invasion.43

40 Aquino v. Enrile 59 SCRA 183, 568 (1973)

41 Id, at 631.
42 Id.
43 Lagman v. Medialdea, G.R. No. 231658, at 49 (2017).
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Constitutional Litigation and the Power of Judicial Review

Faithful Execution Clause

The President “shall ensure that the laws be faithfully executed.” 44 This clause

makes the Executive power broad enough to be flexible and consistent with its

plenary nature.45 The President can do all means necessary ensure that laws, whether

general or special, are obeyed. 46 In the case of Biraogo v. Philippine Truth

Commission (PTC), it questioned the executive act of former President Benigno

Aquino III of reorganizing the PTC.47 Although the act is beyond the Administrative

code, the faithful execution clause justifies it. 48

As discussed earlier, the powers of the president does not limit itself to the

express grants of the Constitution but there are residual powers that the Executive

possesses.49 This power bear out from this duty of the president to ensure faithful

execution of laws.50 In the case of Marcos v. Manglapus, when it was first coined

questioning the act President Corazon Aquino in refusing the return of former

44 Ocampo, G.R. No. 225973, at 11 (J. Brion Separate Concurring)

45 Id.
46 BERNAS, supra note 14 at, at 307
47 Biraogo v. Philippine Truth Commission, 637 SCRA 78, 139 (2010).
48 Id., at 214.
49 BERNAS, supra note 14.
50 Id.
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Constitutional Litigation and the Power of Judicial Review

president Marcos in the country poses a political question that cannot be touched by

the Court.

In the case of Ocampo v. Enriquez, the executive act of President Duterte

ordering the remains of former President Ferdinand Marcos to be buried in the

Libingan ng mga Bayani. The Court ruled that questioning this act pose a political

question there being no grave abuse of discretion.51 Although the Court still made

rulings on the substantive merits of the case. One of the Constitutional raised that

according to the petitioners to be violated is the faithful execution clause. 52 The

Court held that it is best construed as an obligation to carry out laws and it does not

contravene to the statutes.53 In the separate concurring opinion of Justice Brion, the

faithful execution clause shall not be an excuse to constitutionalize issues that

primarily involve “manner.”54 The clause is not a constitutional standard, if so then

the executive acts of the president will always be justiciable and can be subject to

inquiry.55

51 Ocampo, G.R. No. 225973, at 12.

52 Id., at 16.
53 Id., at 18.

54 Ocampo, G.R. No. 225973, at 11 (J. Brion Separate Concurring)

55 Id.
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Constitutional Litigation and the Power of Judicial Review

In the decision in Marcos, the former President Aquino relied on that the

return of the Marcoses will cause destabilization of the country56 while in Ocampo,

based his decision that it shall promote national healing and forgiveness. 57 In both

cases the wisdom of the President has motivated the acts that is not within the Court’s

jurisdiction.

IV. Conclusion

In the cases discussed, the Supreme Court has been consistent with the rulings

of the executive acts. It upholds it when its purely discretionary and beyond

constitutional inquiry. The faithful execution clause although in the constitution

cannot be an excuse to constitutionalize the acts of the President.58 In both cases

Marcos and Ocampo, the concept of the political determination of the President.

When the court finds the executive act can be subject of the its inquiry, it is

because that there is an underlying Constitutional standard that shall be obeyed. The

Supreme Court tends to stick with the corners of the constitution in reviewing a

political act such as executive. In the words of Justice Malcolm:

56 Marcos, 177 SCRA at 696

57 Ocampo, G.R. No. 225973, at 11.
58 Id.
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Constitutional Litigation and the Power of Judicial Review

“Just as the Supreme Court, as the guardian of constitutional

rights, should not sanction usurpations by any other department of
the government, so should it as strictly confine its own sphere of
influence to the powers expressly or by implication conferred on
it by the Organic Act.”59

When the facts are complicated, sometimes even controversial, the divergence in

opinion becomes more manifest. Resolving these matters, however, is precisely the

role of the Supreme Court — it is to rule on facts that are complex, complicated, and

controversial based on the laws available, with the resulting decision transforming

into the law of the land. The Supreme Court ensures that the Constitution prevails

by enforcing its provisions, “otherwise, these would not be legal norms but political

moral norms.”60

59 Manila Electric Co. v. Pasay Transportation Co., 57 Phil 600, 605 (1932).
60 Carmelo V. Sison, The Supreme Court and the Constitution, 67 Philippine Law Journal 308, 321 (1993).