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Constitutional Litigation and the Power of Judicial Review
I. Introduction
There are three major powers of the in the Philippine government that
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,
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 democratic and republican state of the Country. A prime feature of the such
of powers. The three branches are equal hence it may not be controlled by others;
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
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
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
Legislative Branch11, and the executive acts can be reviewed by the Judiciary for
Taken in the light of the doctrine of separation of powers, the Judicial Branch
provides that:
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
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
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
The President is the Chief Executive. This means that “the President is
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
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)
The Supreme Court has acknowledged the “plenary nature of the executive
the system of checks and balances, the Bill of Rights and judicial review in case of
acts based on its constitutionality and whether they are done in grave abuse of
discretion.26
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
cases of doubt on the interference from the legislature, it is construed against it. 28 In
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
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
27 Pimentel, Jr. v. Ermita, 472 SCRA 587, 593 (2005) citing Tolentino v. COMELEC, G.R. No. 148334 (2004).
28 Id.
29 Id.
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
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
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
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
proclamation was declared void as it encroaches the power of the Legislative and
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
37 Id. at 275. In the case, the proclamation was unconstitutional insofar as it grants the Arroyo the authority to
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
dismissing the case ruling that President Marcos has factual bases for the
whether the Proclamation 1081 was subject to Court’s inquiry. 41 In the 1972
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:
If we follow such standard then it will be impossible to exercise his discretion that
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
Aquino III of reorganizing the PTC.47 Although the act is beyond the Administrative
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
president Marcos in the country poses a political question that cannot be touched by
the Court.
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
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
the executive acts of the president will always be justiciable and can be subject to
inquiry.55
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
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
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).