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 government1. The conception of judicial power is expanded in the 1987 constitution2. The courts are given the discretion to check the exercise of the legislative and the executive branches of their discretionary powers3. 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 constitution4. 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 power5. 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 Judiciary6. 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 President7. 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 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

There are two kinds of Democracy: Direct and Representative Democracies. According to Maduz8 direct democracy refers to a system where the people rule themselves directly by participating in all forms of decision making in the polis9. 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 Review10 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 created11. 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 Ibid,. 11-12.

term, meaning different things to other people12. The components of representativeness that I cited earlier in this paper are incorporated into the classic liberal justification for the rule of law13. Judicial Review was critiqued as to be undemocratic14. One of the vehement forerunners of this view was Waldron15. 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 inconclusive16. The second is that the courts are superior compared to the legislative body. According to him17, 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 18and Philippine Veterans Bank Employee Union v Judge Vega19, 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 cited 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. 13 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 standing view especially in American Jurisprudence because of Judicial Activism in American courts. 15 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 Ibid,. 806. 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 not20. 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 government21. 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 observed22. Most of the critiques on judicial review pertain to its procedural implications23. Judicial review as being incompatible with democracy is commonly known as countermajoritarian difficulty24. 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 argument25 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 people26. 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 decrees27. Tushnet28 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 20 Constitutional Law 1 Lecture, July 17, 2014, see also Taada v Cuenco G.R No. L-10520, February 28, 1957. 21 Ibid, see also Francisco v House of Representatives G.R. No. 160261, November 10, 2003. 22 See Isagani A. Cruz, and Carlos Cruz. Philippine Political Law (Central Lawbook Publishing Company, 2014). 23 This is mainly based on Tushnet and Rostows 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 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 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 peoples ability to alter some policy choice29. 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 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 system31. 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 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 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 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:

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 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 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 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 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 35 G.R NO. 127325, March 19, 1997.

in the case of Bayan v Zamora36 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 practice37. 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

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.