Judicial Review
Friday, October 9, 2020
10:41 PM
• Power of Judicial Review (Article VIII, Section 4 (2))
○ The power to declare a law, treaty, international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation, in the courts, including the regional trial
courts.
○ The judiciary enforces and upholds the supremacy of the Constitution.
○ The determination of whether a specific rule or set of rules issued by an administrative
agency contravenes the law or the constitution is within the jurisdiction of the regular
courts.
ORIGINS AND CONSTITUTIONAL BASIS
• Court has been given the power to review discretionary acts of the political branches of
government, thus raising concerns that it could become the most dangerous branch of
government.
• Courts were assigned broader powers under the 1987 as a consequence of the judiciary's
subservience under Marcos regime.
○ During the regime, the SC avoided confrontation with Marcos by invoking the "political
question" doctrine - claiming that the issues raised before it were better decided by other
branches of government.
○ The 1987 Constitution removed that option and the Court has interpreted its power broadly;
almost every political issue, now, has reached the SC.
○ Under the new Constitution, the Court has been called a component of the legislative
process.
• Judicial review is conferred on the judicial branch of the government by Section 1, Article VIII of
the 1987 Constitution: "… 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."
ANGARA vs. ELECTORAL COMMISSION
 The Judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
 Our Constitution… that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances. And subject
to specific limitations and restrictions provided in the said instrument.
 This moderating power is granted by clear implication from Section 2 of Article VIII of
our Constitution
 When the judiciary mediates to allocate constitutional boundaries, 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.
(Judicial Supremacy)
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 Lis Mota - courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution
but also because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
 The system itself is not "the chief palladium of constitutional liberty… the people who
are authors of this blessing must also be its guardians.. Their eyes must be ever ready
to mark, their voice to pronounce… aggression on the authority of their constitution."
(James Madison)
 Judicial review is indeed an integral component of the system of checks and balances
which, together with the corollary principle of separation of powers, forms the
bedrock of our republican form of government, and insures that its vast powers are
utilized only for the benefit of the people it serves.
 Separation of powers - a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But 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.
Expanded Certiorari Jurisdiction - the Court now has the power "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."
Courts of justice determine the limits of power of the agencies and offices of the government as
well as those of its officers. The judiciary is the final arbiter on the question whether or not a
branch of government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess or lack
of jurisdiction.
Political Questions - are those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government.
Grave abuse of discretion - is simply capricious or whimsical exercise of judgment that is patent
and gross as to amount to an evasion of positive duty or a virtual refusal to preform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.
○ Courts are without power to directly decide matters over which full discretionary authority
has been delegated to other branches of government.
MANTRUSTE SYSTEMS, INC. vs. CA - There can be no justification for judicial interference in
the business of an administrative agency, except when it violates a citizen's constitutional
rights, or commits a grave abuse of discretion, or acts in excess of, or without jurisdiction.
REQUISITES FOR EXERCISE OF JUDICIAL REVIEW
For a court to exercise this power, certain requirements must first be present:
○ An actual case or controversy calling for the exercise of judicial power;
○ The person challenging the act must have "standing" to challenge it; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct inquiry as a result of its enforcement;
○ The question of constitutionality must be raised at the earliest possible opportunity; and ○
The issue of constitutionality must be the very lis mota of the case.
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ACTUAL CASE OR CONTROVERSY
• Means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.
• Cannot be exercised in vacuo. The function of the court is to determine controversies between
litigants and not to give advisory opinions. Can only be exercised with a bona fide case or
controversy which involves the statute sought to be reviewed and does not include the power to
rule on a hypothetical situation. Courts do not adjudicate academic questions to satisfy scholarly
interest, however intellectually challenging.
• There is no case or controversy when the issue becomes moot - when it ceases to present
justiciable controversy because of supervening events, so that a determination of the issue would
have no practical use. Case will likely be dismissed.
 PORMENTO vs. ESTRADA - the court is not empowered to decide moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the result as to the
thing in issue in the case before it. When a case is moot, it becomes non-justiciable.
An action is considered "moot" when it no longer presents a justiciable controversy
because the issues involved have become academic or dead or when the matter in
dispute has already been resolved and hence, one is not entitled to judicial
intervention unless the issue is likely to be raised again between the parties.
 RE: COMPLAINT AGAINST THE HON. CHIEF JUSTICE RENATO C. CORONA DATED SEPTEMBER
14, 2011 FILED BY INTERPETAL RECREATIONAL CORPORATION - dismissed for having become
moot and academic.
• The SC may decide cases moot if:
○ There is a grave violation of the Constitution;
○ The situation has an exceptional character and the paramount public interest is involved;
○ The constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public;
○ The case is capable of repetition but has evaded review.
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PROPER PARTY
Legal standing or locus standi - defined as a "personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is
being challenged."
He must establish that he has suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action.
A proper party is one who has sustained or is in immediate danger of sustaining an injury as a
result of the act complained of. In some cases, SC dispenses with the requirement that the
petitioner has experienced or is in actual danger of suffering direct and personal injury.
Cases involving the constitutionality of penal legislation are a different kind of constitutional
litigation. These cases require a closer judicial scrutiny of locus standi.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
○ The cases involve constitutional issues;
○ For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is constitutional.
○ For voters, there must be a showing of obvious interest in the validity of the election law in
question;
○ For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and
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○ For legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
• Establishments which publish and broadcast - have the standing to assert the constitutional
freedom of speech, right to public information and freedom of the press
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT vs. REYES - SC
decided on behalf of marine mammals that were threatened by the exploration,
development and exploitation of petroleum resources. "The need to give the Resident
Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino
citizen, as a steward of nature, to bring a suit to enforce our environmental laws."
EARLIEST OPPORTUNITY
• The question of unconstitutionality of the act should have been raised in the proceedings in the
court below.
 ARCETA vs. MANGROBANG - Defendants in an anti-bouncing checks case should have
moved to quash the separate indictments or moved to dismiss the cases in the trial courts
on the ground of unconstitutionality of the law.
 UMALI vs. GUINGONA, JR. - the constitutionality of the Presidential Commission on
AntiGraft and Corruption was raised in the motion for reconsideration of an RTC's decision.
The Court did not entertain the constitutional issue because it was belatedly raised at the
RTC.
• The Court, in the exercise of sound discretion, can take cognizance of the constitutional issues
raised by the parties.
 CARBONILLA vs. BOARD OF AIRLINES REPRESENTATIVES - when an administrative regulation
is challenged as unconstitutional, a party may raise its unconstitutionality "on every
occasion that the regulation is being enforced." A contrary rule would mean that a law,
would lapse into constitutionality by the mere failure of the proper party to promptly file a
case to challenge the same.
LIS MOTA
• Literally means "the cause of the suit or action."
• Arises from presumption of validity accorded executive and legislative acts of our co-equal
branches of the government.
• Rooted in the principle of separation of powers.
• The petitioner who claims otherwise has the burden of showing first that the case cannot be
resolved unless the constitutional question he raised is determined by the Court.
• A person who claims that a law is unconstitutional has the burden of showing the case cannot be
resolved unless the disposition of the constitutional question that he raised is unavoidable.
EFFECT OF DECLARATION OF UNCONSTITUTIONALITY
• General Rule: an unconstitutional acts is not a law; it confers no right; it imposes not duties; it
affords not protection; it creates no office; it is in legal contemplation as inoperative as though it
had never been passed.
• Orthodox view: When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern. Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the Constitution." (Article 7 of the
New Civil Code)
• The "Operative Fact" Doctrine cannot apply unless there is a law or executive issuance that is
invalidated by the Court.
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• The Court recognizes that when it declares a law unconstitutional or abandons a doctrinal
interpretation of such law, acts may have been performed under the impression of the
constitutionality of the law or the validity of its interpretation.
 EO No. 386 declared unconstitutional - the courts have proceeded on the theory that the
Act of Congress, having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence affording no basis for
the challenged decree. (Chicot County Drainage District vs. Baxter State Bank)
• The doctrine is concerned with the consequences of the acts performed under the
unconstitutional law. The SC applies the doctrine "when a declaration of unconstitutionality will
impose an undue burden on those who have relied on the invalid law."
 YAP vs. THENAMARIS SHIP'S MANAGEMENT AND INTERMARE MARITIME AGENCIES, INC.
was applied when a declaration of unconstitutionality would have put the accused in double
jeopardy or would put in limbo the acts done by a municipality in reliance upon a law
creating it
 RUTTER vs. ESTEBAN - the Court sustained the right of a party under the Moratorium Law,
although the right accrued before law was declared unconstitutional.
• SC has been careful in applying the doctrine especially when the public interest is concerned.
 PLANTERS PRODUCTS, INC. vs. FERTIPHIL CORPORATION - the Court refused to apply the
doctrine: We cannot allow PPI to profit from an unconstitutional law. Justice and equity
dictate that PPI must refund the amounts paid by Fertiphil.
 PHILIPPINE COCONUT PRODUCERS ASSOCIATION vs. DEL ROSARIO - SC refused to apply the
doctrine saying that: Applying Operative Fact Doctrine would not only be iniquitous but
would also serve injustice to the Government, to the coconut industry, and to the people,
who, whether willingly or unwillingly, contributed to the public funds, and therefore expect
that their Government would take utmost care of them and that they would be used no less,
than for public purpose.
• The SC applied the doctrine to potential liability of officials for violations of the Constitution in
ARAULLO vs. AQUINO III - SC declared the Development Acceleration Program (DAP) and its
implementing issuances constitutionally infirm. The doctrine "can apply only to the program,
activity or project that can no longer be undone, and whose beneficiaries relied in good faith on
the validity of the DAP, but cannot apply to the authors, proponents and implementors of DAP,
unless there are concrete findings of good faith in their favor by the proper tribunals determining
their criminal, civil, administrative and other liabilities."
PARTIAL UNCONSTITUTIONALITY; THE SEPARABILITY CLAUSE
• When a statute is in part unconstitutional and it is possible to discard the unconstitutional part
without affecting the valid part, only the unconstitutional part of the statute will be discarded.
• Separability clause - typically included towards the end of a law.
○ Creates the presumption that Congress "intended separability, rather than complete nullity
of the statute."
• An entire law may be invalidated if part of it is unconstitutional despite the presence of a
separability clause.
TATAD vs. SECRETARY OF THE DEPARTMENT OF ENERGYN - the separability clause only
creates a presumption that the act is severable. It is merely an aid in statutory
construction… A separability clause does not clothe the valid parts with immunity from the
invalidating effect the law gives to the inseparable blending of the bad with the good. The
separability clause cannot also be applied if it will produce an absurd result. If the
separation of the statute will defeat the intent of the legislature, separation will not take
place despite the inclusion of a separability clause in the law.
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• SC in one case required the presence of a separability clause to preserve the unobjectionable parts
of a law. The Court found a portion of a tax ordinance illegal but voided the entire law because
there was no separability clause. (Cagayan Electric Power and Light Co., Inc. vs. City of Cagayan de
Oro)
• SC reduced the significance of a separability clause. It held that a separability clause is not
controlling and the courts may invalidate the whole statute where what is left, after the void part,
is not complete and workable. (FILM DEVELOPMENT COUNCIL OF THE PHILIPPINES vs. COLON
HERITAGE REALTY CORPORATION)
• Since 1987, no statute is presumed nonseverable, regardless of whether there is a severability
clause in the challenged statute. The core of the doctrine has not changed since its inception and
the only aspect of the doctrine that has ever been overruled is the early presumption of
nonseverability for statutes lacking a severability clause.
WHEN JUDICIAL REVIEW IS NOT EXERCISED
• The power of judicial review can only be exercised in connection with a bona fide case of
controversy, which involves the statute sought to be reviewed.
MONTESCLAROS vs. COMELEC - petitioners challenged an attempt by Congress to
reschedule the SK elections so that they could participate as voters and candidates. A
proposed bill, which the petitioners would want the SC to strike down as unconstitutional,
postponing the elections to a later date would render such petitioners ineligible for
participation as a function of the age limitation requirement.
 The SC ruled that it could not exercise the power of judicial review over the proposed bill.
First of all, the petitioners were amenable to a resetting of the SK elections to the date on
which the elections were to be reset. Hence, there was no actual controversy.
 There was also no legally demandable and enforceable rights and duties arising from
the proposed bill because it was not a law. Judicial intervention in declaring the
proposed bill constitutional or unconstitutional would amount to the rendering of an
advisory opinion on an act of Congress. SC held that it may only exercise judicial
review after the bill was enacted and has become law, and not before it created
rights.
IN RE: SUPREME COURT JUDICIAL INDEPENDENCE vs. JUDICIARY DEVELOPMENT FUND - SC
cannot stop Congress from passing laws that will abolish the Judiciary Development Fund. A
bill produces no legal effects until it is passed into law. The judiciary is mandated to
interpret laws and cannot speculate on the constitutionality of a bill that may or may not be
enacted. It cannot rule on mere speculations or issues that are not ripe for judicial
determination.
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