Judicial Legislation

By J. Myrna Dimaranan Vidal

The Judiciary has been invariably perceived as the weakest among the three branches of government considering that it does not have the
power of the purse, nor does it have the power of the sword. The constitution only vested it with a pen to interpret the laws including the
constitution itself. On the contrary, with the words that flow from its judicial pen, the Judiciary may likewise be described as the strongest
branch since it has the power to pronounce, with certainty, that a law is invalid. And the people, including the other branches of government,
have no choice but to obey its decree. In other words, as US Chief Justice MARSHALL said, it is for the court to say what the law is. Stated
differently, the judiciary is the last bulwark of power.
Consistent with its goal to strengthen the democratic process, the Philippine Constitution grants the Supreme Court an additional power to
promulgate rules that would protect the constitutional rights of our people. This rule making power was expanded to complement the
awesome legislative power of Congress, such as the one vested by the Constitution upon the Supreme Court. Section 5, Article VIII of the 1987
Constitution provides:
Section 5. The Supreme Court shall have the following powers:
xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar and legal assistance to the underprivileged. xxx
Significantly, the aforequoted constitutional provision is the basis of the issuance of the Writ of Amparo which is the legal weapon to shield the
people from violators of their constitutional and human rights.
Through the years, the Judiciary, in taking its pen to strike at governmental actions, has been accused of legislating, instead of interpreting laws.
Judicial legislation takes place when a court steps in to craft missing parts or to fill in the gaps in laws or when it oversteps its discretional
boundaries and goes beyond the law to coin doctrines or principles where none was before.
A classic example of judicial legislation in the United States is the case of Roe vs. Wade, wherein the US Supreme Court, on 22 January 1973,
struck down anti-abortion law in the United States by holding that the right to abortion is impliedly allowed in the US Constitution.
In the Philippines, there is likewise an increasing perception that our courts are guilty of judicial legislation. The case of Republic vs.
Orbecido (GR No. 154380, 5 October 2005) has met several questions as it allegedly expanded the concept enunciated in Article 26 of the
Family Code, which provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.
In interpreting the second paragraph of the aforequoted article, the Supreme Court, in Orbecido, ruled that the situation therein includes cases
involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them became a naturalized
foreign citizen and obtained a divorce decree capacitating him or her to remarry. The Filipino spouse should likewise be permitted to remarry as
if the other party was an alien at the time of solemnization of the marriage. The said ruling has solicited questions from the legal circles, such
as: 1) is the aforesaid rule applicable to foreign divorces obtained before the effectivity of the Family Code?; 2) is the ruling tantamount to
judicial legislation considering that the Supreme Court had in effect amended Art 26, par. 2 of the Family Code, a substantive law?; 3) is the
issue not a matter of legislation by Congress, rather than judicial interpretation?
Another situation which raised perplexity among the legal practitioners is the interpretation made by the Supreme Court on Article 247 of the
Family Code vis-a-vis actions for declaration of presumptive death of absent spouse under Article 41, 2
nd
paragraph, of the Family Code, which
is a summary proceeding. Article 247 provides:
Art. 247. The judgment of the court shall be immediately final and executory.
In construing the aforequoted provision, the High Court, in Republic vs. Lorino (GR No. 160258, 19 January 2005), essentially ruled that an
appellate court acquires no jurisdiction to review a judgment which, by express provision of law, as in Article 247, supra, is immediately final
and executory.
However, in Republic vs. Court of Appeals and Jomoc (GR No. 163604, 6 May 2005), the Supreme Court, in resolving the core issue in said case,
allowed the review by the Court of Appeals of a judgment on an action for declaratory relief.
Confronted with these legal scenarios made us pause and ponder. Is the Supreme Court guilty of judicial legislation? Well, not really.
In the first place, it can be clearly discerned from the anatomy of the Lorino and Jomoc rulings that there is no contradiction to talk about.
Evidently, the mode of review correctly availed of by the OSG in theJomoc case was a Petition for Certiorari under Rule 65 of the Revised Rules
of Court, whereas, the Lorino case involved a Notice of Appeal which was erroneously given due course by the RTC. Thus, both cases do not
actually contradict with each other.
Secondly, it bears noting that the judicial power is vested in the Supreme Court which is empowered by the Constitution to exercise the power
of judicial review. Thus, the magistrates could not shirk their duties as arbiters on the basis that the issue raised in a case is rather gray. The
court is expected to declare that black is black and white is white. Thus, however doubtful or difficult the situation is, the court has no choice
but to exercise its bounden obligation to hear and decide the controversy brought before it. Necessarily, it is not allowed to abandon its vested
jurisdiction.
Truly, the Judiciary has a significant role to fulfill in an orderly society. It must take an active role in the adjudication of disputes. Perforce, as the
sole interpreter of the law and dispenser of justice, the power of the judicial pen should not be decreased by the adverse opinions of the other
branches of government or of the other sectors of the community, be it the left or the right. Naturally and expectedly, decisions of the High
Tribunal and its exercise of rule making power may receive either public acceptance or criticisms. It may either be praised or accused of going
beyond its mandate.
Indeed, the judicial power is a power that can make a difference. The power is weak only in the hands of weaklings; the power is puny only to
those whose minds no longer dream and dare.