Alegre, Anavie R.

August 4, 2014
LLB 1

Can Judicial Review be reconciled with Democracy?

Section 1 Article 8 of the 1987 Constitution declares that Judicial
power be vested to one Supreme Court and in such lower courts may be
established by law. 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 government
1
. The conception of judicial
power is expanded in the 1987 constitution
2
. The courts are given the
discretion to check the exercise of the legislative and the executive branches
of their discretionary powers
3
. However, this does not mean that the
judiciary is superior compared to the other branches of government, but
rather it is the manifestation of the supremacy of the constitution
4
. The
purpose of this is to make sure that the exercise of the other branches of
government of their discretionary powers does not trample upon the inherent
rights of the people.

Judicial Review is a component of judicial power
5
. It is testing the
validity of executive and legislative acts in light of their conformity and
unconformity to the constitution in line with the checking function of the
Judiciary
6
. This being said, the process in which the Judiciary exercises this
judicial power is still in question. Notwithstanding the fact that they are still
composed of people having their own biases and principles in life, worth
mentioning is that fact they are not at all accountable to the people because
they are not elected but appointed by the President
7
. What does this mean for
the people then? Judicial review is very crucial in terms of keeping the
balance in society. Most people depend on this power to review the actions
of the other branches but can this suffice? Or is it that the nature of judicial
review is undemocratic in of itself?

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
Aiticle 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

There are two kinds of Democracy: Direct and Representative
Democracies. According to Maduz
8
direct democracy refers to a system
where the people rule themselves directly by participating in all forms of
decision making in the polis
9
. She further states that


according to its advocates direct democracy involves, the
extensive and active engagement of citizens in the self-governing
process.


On the other hand, she describes representative democracy as a


a system in which the citizens role is essentially restricted
to the election of officers in charge of representing the
interests and views of citizens within a fixed framework of the
rule of law.


David Feldman in his work Democracy, The Rule of Law, and Judicial
Review
10
substantiates this representativeness. According to Feldman,


ordinary issues are beyond the grasp of ordinary citizens
and the populace is therefore restricted to an electoral choice
between groups of aspiring leaders who will represent
them in parliament and choose a government.


Characteristic of this conception of representative democracy are the
accountability of public officers, consultation from the people in the form of
majority vote cast in a plebiscite to ratify the decisions that the constituent
body created
11
. These are manifestations of public participation. The
principle of the rule of law as enunciated in Feldmans work deals many
with judicial review as a checking function of the judiciary. Feldman states
the three meanings of the rule of law: a state of order under law; government
under law; and substantive restrictions on legislative power, he emphasizes
the last two meanings are particularly relevant in the dynamics of the rule of
law and the limitation of government.


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
Ibiu,. 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 law
13
.


Judicial Review was critiqued as to be undemocratic
14
. One of the
vehement forerunners of this view was Waldron
15
. According to Lever,
Waldron has two essential claims on this matter, the first one is that it is
difficult to protect rights through judicial review because the evidence on the
matter is still inconclusive
16
. The second is that the courts are superior
compared to the legislative body. According to him
17
, this is problematic
because the legislative branchas it is composed of the representatives
coming from the different districts of the Philippineis more egalitarian in
nature and would be granted the presumption of fairness when it comes to
the decision making process of what is good for the country. Waldron
further argues that


Judicial review is vulnerable to attack on two fronts. It does not,
as is often claimed, provide a way for society to focus clearly on
the real issues at stake when citizens disagree about rights. . .

And it is politically illegitimate, so far as democratic values are
concerned: by privileging majority voting among a small number
of unelected and unaccountable judges, it disenfranchises
ordinary citizens and brushes aside cherished principles of
representation and political equality.


The first claim of Waldron can be illustrated in terms of the discrepancies
with regards to how the courts judge a particular issue. Like for example in
the Taada v Tuvera
18
and Philippine Veterans Bank Employee Union v
Judge Vega
19
, the issues in this case was about publication, however, the
rulings with regards to this issue were different. Even though they might
argue that in the latter case, publication was not really the main issue and the
first division of the court not the Supreme Court en banc decided it, this just
clearly shows how inconclusive and indeterminate the decisions of the court
are. This indeterminacy is one of the reasons why it is difficult to protect
rights. With regards to his second claim, I do not agree. I think judicial
review doesnt really make the judiciary superior compared to the other

12
This was citeu in Joan S. Largo. 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) originally in the words of Tom Nachbar, Judge Advocate US
Army Reserve.
1S
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).
14
This has been a long stanuing view especially in Ameiican }uiispiuuence because of }uuicial
Activism in Ameiican couits.
1S
See also Jeremy Waldron. The core of the case against judicial review (The Yale Law Journal (2006),
1346-1406.
16
Lever, Annabelle. Democracy and judicial review: are they really incompatible? (Perspectives on
Politics 7, no. 04, 2009), 805-822. The said thesis is also referred to as the substantive thesis.
17
Ibiu,. 8u6.
18
136 SCRA 27
19
G.R. No. 105364, June 28, 2001.
branches of the government because in Philippine Jurisprudence even
though our present constitution the 1987 constitution has an expanded
power for the judiciary, there still has to be a distinction between purely
political questions and what not
20
. Political questions are questions are
questions answered by the people in their sovereign capacity, it also refers to
the discretionary powers of the branches of government
21
. The leading
doctrine involving political questions is enunciated in Taada v Cuenco, as
Cruz explained, it allowed the courts to inquire into whether or not the
prescribed procedure for amendment has been observed
22
.


Most of the critiques on judicial review pertain to its procedural
implications
23
. Judicial review as being incompatible with democracy is
commonly known as countermajoritarian difficulty
24
. In Ilya Somins
paper entitled Democracy Judicial Review Revisited: The New Old Crtique
of Judicial Review, she reviewed three works of prominent proponents of the
case against judicial review. One of them was Alexander Bickel. Bickels
argument
25
was that the root difficulty is that judicial review is a
countermajoritarian force in our system. For him and other scholars after
him, judicial review is a deviant institution in American democracy. This
was rooted to the fact that the members of the judiciary is not accountable to
the people but to their appointers. The countermajoritarian concept came
from the notion that it is absurd for such a branch that is composed of people
that are merely appointed to override the decisions of the legislature which is
the branch that represents the people
26
. Another interesting point is that
while Bickels concept of countermajoritarian difficulty is focused more on
the constitutional issues, other scholars after him, specificially David
Shoenbrods Democracy by Decree expanded the conception of
countermajoritarian difficulty to the statutory interpretation decisions that
allow the courts to control public policy by means of consent decrees
27
.


Tushnet
28
of the Harvard Law School presents the two components of
the critique to judicial review. Judicial review he says has both positive and
negative components. On the positive side, he argues democracies entail that
the people should be allowed to choose their polity rights either directly as
a referenda, or through mechanisms of representation that give them control
over public policy choice. There is however a missing component to this,
Tushnet says that it does not say anything that can reconcile democracy with

2u
Constitutional Law 1 Lectuie, }uly 17, 2u14, see also !"#"$" & '()*+, u.R No. L-1uS2u, Febiuaiy
28, 19S7.
21
Ibiu, see also -."*+/0+, & 1,(0) ,2 3)4.)0)*5"5/&)0 u.R. No. 16u261, Novembei 1u, 2uuS.
22
See Isagani A. Cruz, and Carlos Cruz. Philippine Political Law (Central Lawbook Publishing Company,
2014).
2S
This is mainly baseu on Tushnet anu Rostow's aiguments.
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).
2S
This was cited in Somins 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
Ibiu,. 288
27
Ibiu,. 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 peoples 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
democracy
30
. 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 Somins words:


Many other nations have very dubious democratic credentials.
To the extend that international legal institutions constrain the
power of non democratic governments, there is no counter-
majoritarian rule at all


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
system
31
.


In Guillermo and Garoupas paper entitled the Role of the Supreme
Court in Unstable Democracies: The Case of the Philippines Supreme
Court, An Empirical Analysis 1986-2010 they have described the
relationship of the court to the populace. They claimed that the Supreme
Court of the Philippines enjoyed independence even in the Marcos
Dictatorship and became popular when former President Cory Aquino came
into power. However, by the late 1990s, they said that the court has lost the
prestige and popularity it once had and by the 2000s experienced
aggravating perceptions about its role. Guillermo and Garoupa argue that


notwithstanding the institutional and constitutional safeguards in
place, there has been clear and significant erosion in judicial
independence.



29
Ibiu.
Su
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).
S1
This was baseu on one of the ieauings we hau back then in college upon piepaiing foi oui iepoit
foi South Koiea.
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 Javellana
32
(1973), and
Lambino
33
(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 peoples
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 Rostow
34
, 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:


But democracies need not elect all the officers who
exercise crucial authority in the name of the voters.
Admirals and generals can win or lose wars in the exercise
of their discretion. The independence of judges in the
administration of justice has been the pride of communities
which aspire to be free.


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 courts 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

S2
6"&)77"*" & 89)+(5/&) :)+.)5".; u.R. No. L-S6142, Naich S1, 197S.
SS
Lambino v C0NELEC u.R. No. 1741SS, 0ctobei 2S, 2uu6
S4
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
formers argument


if the propertied classes come to regard the courts as
their protectors against popular government they will
neglect government.


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 peoples initiative is only limited to an amendment and not a revision.
This is illustrated in the cases of Santiago v COMELEC
35
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 beingas the scholars against judicial review
saiddogs 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


No judge or court shall refuse to render judgment by reason of
silence, obscurity and insufficiency of laws.


And article 10


In case of doubt in the interpretation and the application of
laws, it is presumed that the legislative body intended justice
and right to prevail.


The general rule is that, the courts of justice respect the wisdom of the
legislative and the executive branches of government. This was enunciated

SS
u.R N0. 127S2S, Naich 19, 1997.
in the case of Bayan v Zamora
36
where the court said


For while it is conceded that Article VIII, Section 1, of the
Constitution has broadened the scope of judicial inquiry into areas
normally left to the political departments to decide, such as those
relating to national security, it has not altogether done away with
political questions such as those which arise in the field of foreign
relations. The High Tribunals function, as sanctioned by Article
VIII, Section 1, is merely (to) check whether or not the
governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In
the absence of a showing (of) grave abuse of discretion
amounting to lack of jurisdiction, there is no occasion for the Court
to exercise its corrective powerIt has no power to look into what
it thinks is apparent error.


In light of the countrys 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
.



























S6
u.R No. 1S8S7u, 0ctobei 1u, 2uuu
S7
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


Bickel, Alexander M. The least dangerous branch: The Supreme Court at
the bar of politics. Yale University Press, 1986.

Cruz, Isagani A and Cruz, Carlos. Philippine Political Law. Central
Lawbook Publishing Company, 2014.

Escresa, Laarni, and Nuno Garoupa. Testing the Logic of Strategic
Defection: The Case of the Philippine Supreme CourtAn Empirical
Analysis (19862010). Asian Journal of Political Science 21, no. 2
(2013): 189-212.

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).

Freeman, Samuel. Constitutional democracy and the legitimacy of judicial
review. Law and Philosophy 9, no. 4 (1990): 327-370.

Hutchinson, Allan C. Hard Core Case against Judicial Review. (2008).
http://cdn.harvardlawreview.org/wp-
content/uploads/pdfs/hutchinson.pdf accessed on July 29, 2014).

Lain, Corinna Barrett. Upside-Down Judicial Review. Geo. LJ 101 (2012):
113.

Lever, Annabelle. Democracy and judicial review: are they really
incompatible?." Perspectives on Politics 7, no. 04 (2009): 805-822.

Maduz, Linda. Direct democracy. Living Reviews in Democracy (2010).
http://democracy.livingreviews.org/index.php/lrd/article/viewFile/lrd-
2010-1/21 (accessed June 29, 2014).
Rostow, Eugene V. The democratic character of judicial review. Harvard
Law Review (1952): 193-224.

Tushnet, Mark. Against Judicial Review. Harvard Public Law Working
Paper No. 09-20. March 26, 2009. http://ssrn.com/abstract=1368857
(accessed June 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.