Singson, Jean Ben G.

JD1A

Oct. 6, 2015
Legal Research and Thesis Writing

Review of Related Literature

The legal proposition that I have suggested mainly concerns the realm of public
law. Public law talks about the exercise of power by public authorities, such as local
authorities or government departments (Public Law Project, n.d.). It is therefore implied
that when a public body acted wrongfully, or the decision rendered is unfair and
detrimental to some, it may be challenged and oppose through (1) complaints
procedure, or (2) judicial review. It is upon this premise where I based my thesis topic,
for the reason that judicial review, being an instrument used to check and balance
other public bodies, is of great importance to our legal system. We are living in a society
where masses have become more aware, if not critical, about the social, economic,
political, and legal issues surrounding them. Public bodies, a local authority or a
government, may not be able to hide all the anomalies and mishaps in the bureaucracy.
The social media has become an instrumental tool or an avenue for public awareness
and social action. However, awareness is just the first step. All must pass through the
legal process in order to attain such end. The responsibility of assuring harmony and
balance in the government does not solely rely upon as critical masses (or watch dog as
they may say), the initiative should emanate within themselves, the three branches of
the government. A very effective way of assuring this is through the judiciarys power of
judicial review. Before delving into that issue, I would briefly discuss first what public law
is all about.
I.

Public Law and Public Body

To reiterate, public law is a branch of law which talks about the exercise of power by
public authorities, such as local authorities or government departments. It talks about
the duties, rights, obligations, and jurisdictions of such instrumentalities in dealing with
the daily governmental affairs. Corollary to this is the corresponding punishments and
sanctions that a public authority may receive for not complying with its constitutional
mandate (Public Law Project, n.d.).
Public law provides and restricts the capacity of a public body. The following are
example of public bodies: Government ministers, departments and agencies, local
authorities (including social services, housing departments and local education
authorities), health authorities, the police, prisons, courts, statutory tribunals, coroners
courts, and regulatory and supervisory bodies. One way of distinguishing whether a
body is public or private, is through determine which law control them. One is a public
body when it is controlled by a mandates of a public law principle/s. It is authorized by
an act of the legislature to perform its public function. Private bodies on the other hand

are those which act in a private capacity, for instance as an employer, or in a contractual
relationship with a supplier. Its actions or inactions are governed by private, not public
laws (Public Law Project, n.d.).
How does public law affect our daily lives? Does it present a topic of great concern?
That answer to this a no-brainer. Given that public bodies are acting within their public
capacity, their acts are vital to our society for their actions are always, ideally, geared
towards the public good. They are presumed to have the capacity and knowledge to
serve the public for the general welfare of our society. Thus, if a public authority,
whether intentional or unintentional, caused an act which severely paralyzed, or caused
detriment to our society, it is just and fair to provide for penalties and sanctions. Is within
their constitutional mandate to act in accordance with public law principles. They have
to follow these rules with strict adherence. They must act lawfully, meaning they must
follow the law, they must not do things they do not have legal authority to do, or use
their powers to do something improper. It is also of great importance that public bodies
should act reasonably and follow fair procedure (Public Law Project, n.d.).
Given the established fact that public law greatly affects us, it is then logical that if
one act might cause damage to the public good, one shall also be entitled to challenge
a decision or an act of a public body. One may also be able to challenge a failure to
make a decision, or a delay in making a decision, by a public body. In short, people also
carry the burden of proof that maladministration was present in the system. It is
however not our primary duty to initiate such acts, there are safeguards which
represents us in times like this. It is embedded in our 1987 constitution the principle of
checks and balances to ensure that the separate branches of government are
performing their duties and make sure that no branch is overlapping with the jurisdiction
of the other. In this paper, I will discuss the importance of the power of judicial review
and suggest where such power should be timely and appropriately applied because not
in all cases this may be applied for it may violate the principle of separation of powers.
II.

Judicial Review

One way of addressing issues in our society is through judicial review. Section 2 of
Art VIII prescribes the power of the judiciary which reads, 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 the Government. Prescribed within this power is the power
to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law of the
Rules of Court may provide, final judgments and orders of lower courts in: as
mentioned in Section 5 (2) of Art. VIII. Furthermore under Section 5, Paragraph 2(a) of
Art. VIII, the constitution conferred upon the judiciary the power to review, revise,
reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may

provide, final judgments and orders of lower courts in; all cases in which the
constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question. This grant of power to the judiciary entails a huge responsibility. This will
enable the judiciary to oversee whether the executive and legislative department are
performing within their jurisdiction and more importantly, uphold the rule of the supreme
law of the land.
A. Concrete and Abstract Judicial Review
In relation to this, it would be of better help if we categorize judicial review into
two: namely (1) concrete judicial review and (2) abstract judicial review. Like when
interpreting or ascertaining the intention of a legislator, where one can use intrinsic or
extrinsic aid, the judiciary may also opt to review legislations through concrete or
abstract judicial review. Concrete judicial review is the recourse that the judiciary may
take when facts are already presented in a specific case. The purpose of a concrete
review is to determine whether the facts of a questioned statute is in consonance with a
higher-order norm, say for example a federal constitution or a state constitution
(Feldman, 2007).Given this, the application of a concrete review may only be availed of
in the course of a trial or appeal to determine the substantive issue (Feldman, 2007).
Abstract judicial review on the other hand, is used when a legislative provision is
suspected of being intrinsically inconsistent with a higher-order norm (Feldman, 2007).
In this type of judicial review, facts of related cases are not the primary consideration in
evaluating a challenged provision. Like concrete review, its purpose is to whether or not
a legislative provision is inconsistent with higher-order legal norm. Although the two may
be stark in some aspects, their goals are one and the same. In real-life practice
however, one might find it hard to distinguish between the two as both may go along
hand in hand in resolving legal issues. The reality of concrete review can display at
least some of the characteristics of abstract review, and vice-versa (Feldman, 2007). In
resolving a problematic legislation, one may opt to consider circumstances other than
the present actual case, hence, in a way, one is doing abstract review. However, it is
also necessary to consider the present factual case as it is the one immediately needing
the resolution. In most cases, both intra and inter are used in arriving at a decision. By
this I mean, facts outside the case, which is intra, and facts within the case which is
inter. It is beneficial to think progressively, but one must make sure that present
circumstances are also given due notice.
B. Pre-enactment Judicial Review and Post-enactment Judicial Review
As important as what is mentioned preceding this paragraph, these dichotomy of
pre-enactment and post-enactment judicial review is also of great significance. What we
are differentiating here is not the method, but the instance or time when one may
conduct a judicial review. Pre-enactment or pre-legislative judicial review is performed

before a bill becomes a law. Bills are scrutinized, discussed, and reviewed and from
there decides whether a bill, or some of its provision, is incompatible with a high-order
legal norm.
In some jurisdictions, like Canada and in France, the constitution allows for the
judiciary, or a quasi-judicial body, to exercise a review function before a bill is passed or
enters into force (Feldman, 2007). To illustrate, I will cite concrete examples for each.
For pre-enactment judicial review:
In Canada section 53 of the Supreme Court Act of 1985 allows the
Supreme Court to give advisory opinions on a range of constitutional
questions, whether of fact or of law, if required to do so by the Governor
of Canada in Council (in reality, by the government of the day). In
France, bills may be referred to the Conseil constitutionnel, a hybrid
political-judicial body,1 for a decision as to constitutionality which binds
the Parliament: a loi which is held to be unconstitutional cannot be
promulgated or implemented until either the constitution or the bill is
amended (Feldman, 2007).

Post-enactment review on the other hand is applied in the following

cases:
The United Kingdoms constitution is of that kind. Government bills are
scrutinised within government. All bills are then scrutinised by one or,
more usually, both of the two Houses of Parliament. During that process,
scrutiny by one of the legislative Committees or on the floor of the
House(s) may include discussion of the compatibility of particular
provisions with higher-order norms, including human rights and
constitutional rules. Specialist select committees, such as the
Constitutional Affairs Committee in the House of Commons, the
Constitution Committee in the House of Lords, or the Joint Committee on
Human Rights, can review and report on the compatibility of bills with
standards falling within their respective terms of reference. The judiciary
does not become involved at that stage. Only after a bill has been
passed and has become an Act of Parliament does the judiciary have a
review jurisdiction. In the UK, this is restricted to reviewing compatibility
with Convention rights under the Human Rights Act 1998 and with
European Community law (Feldman, 2007).

In the first example, the judiciary is given the power to review bill prior to its
approval. The second example on the other hand, illustrates both pre-enactment and
post-enactment review. In United Kingdom, pre-enactment review is conferred upon the
executive and legislative department (parliament). They only scrutinize bills within
themselves without the participation of the judiciary. It is only after the bill becomes a
law where the judiciary may come in, thus post-enactment review. But for the sake of
our topic, we should disregard the pre-enactment review of the parliament for what is
the center of our topic is judicial review, not legislative or executive review of a
legislation.
1

In our context, what the constitution permits is the post-enactment judicial review.
The judiciary is only allowed to enter a picture once a complaint is filed regarding the
constitutionality or applicability of a statute; enrolled bill therefore is beyond is province.
There are many contentions regarding the applicability of a pre-enactment judicial in our
country, more so in a democratic country. The main reason why many are arguing
against this is because, as many claims, it would violate the fundamental principle of
separation of powers thereby making the judiciary functionally part of the political rather
than legal process. Also, the issue of precision and accurateness comes in to the
picture. Even if a special part-judicial, part-political body is created to do the job (like
the Conseil constitutionnel in France) the status of an opinion given pre-legislatively is
questionable (Feldman, 2007). This issue is connected with the classification I have
discussed above, the abstract or concrete review, for in a pre-enactment judicial review
the type of review being done is an abstract review. Meaning, the consideration of facts
is not significant. What the judiciary will do is imagine a fact or circumstance to which a
law will apply and from there decide where it is prejudicial and contrary to a higher-order
legal norm, a constitution. The burden, hence, lies on the wisdom and prospective
thinking of an adjudicator thereby making it susceptible to errors. This notion, as I will
discuss in the proceeding chapters of this paper, although somewhat true, is more
beneficial that detrimental in our context.
III.

Effect of an Unconstitutional Statute

This issue is very vital in this paper for this is the instance, the declaration of a
statute as unconstitutional, that this proposed amendment will try to address. What
are the effects of these kinds of statues to the society? What are its effects to those
people who relied on them?
As discussed in Republic of the Philippines vs. Court of Appeals, there are two
possible views on the effects of a declaration of an unconstitutional statute. To wit:
The first is the orthodox view. Under this rule, as announced in Norton v.
Shelby, an unconstitutional act is not a law; it confers no right; it imposes
no duties; it affords no protection; it creates no office; it is, in legal
contemplation, inoperative, as if it had not been passed. It is therefore
stricken from the statute books and considered never to have existed at
all. Not only the parties but all persons are bound by the declaration of
unconstitutionality, which means that no one may thereafter invoke it nor
may the courts be permitted to apply it in subsequent cases. It is, in other
words, a total nullity.
The second or modern view is less stringent. Under this view, the court in
passing upon the question of constitutionality does not annul or repeal
the statute if it finds it in conflict with the Constitution. It simply refuses to
recognize it and determines the rights of the parties just as if such statute
had no existence. The court may give its reasons for ignoring or
disregarding the law, but the decision affects the parties only and there is
no judgment against the statute. The opinion or reasons of the court may
operate as a precedent for the determination of other similar cases, but it
does not strike the statute from the statute books; it does not repeal,

supersede, revoke, or annul the statute. The parties to the suit are
concluded by the judgment, but no one else is bound (Republic of the
Philippines vs. Court of Appeals, 1993).

Given the definitions above, we can deduce that the nullity may apply prospectively
and retroactively depending on the circumstance and when equity and fair play may be
of strong consideration. When the court adjudge a statute as unconstitutional, that law is
deemed void and ineffective. This act which violates the constitution has no power and
can, of course, neither build up nor tear down. It can neither create new rights nor
destroy existing ones. It is an empty legislative declaration without force (Field, 1926).
This type of legislations then, are of no use and significance to our society they are
carrying dead weight which are doing no good in our society. Of course, before the law
may assail the validity of a statue, there must first be a part which challenges it. A party
which was directly injured, or in the future, may be injured by that statute. This therefore
manifests that there was a problem in the legislative process to which it had
undergone before becoming a legitimate law. Encroachment of the constitutional
mandate, which is the primary consideration when formulating a statute, is a serious
issue which must not be ignored. Not only does it entail monetary cost to the litigants
but it also affords them the very essence of time.
In our context, we presume that our legislators are immensely knowledgeable in law.
Therefore, the sole power of legislation, is granted upon the legislative department,
except of course in times of emergency when that power may be conferred upon the
Chief Executive. A bill undergoes a process where it is subjected in a series of scrutiny,
for it, before becoming a law, to be in perfect compatibility with our constitution. After
refining and polishing a bill, the legislators will then present it to the chief executive for
final approval. This way, there will be a proper check and balance between the two
departments. When then can the judiciary come into the picture? It is only after the bill
has become a law, and only when the constitutionality of that statute is questioned,
when the judiciary may take cognizance (Field, 1926). Is it improper or violative if the
judiciarys power of judicial review be resorted to at an earlier stage of the legislative
process, say for example that judicial review be inserted in between the passing of a bill
from the legislative to the executive department. So that the judiciary may review it and
detect, if there is any, defects and incongruences to a statute and the constitution? This
way, we are in effect preventing rather than curing. As the saying goes, prevention is
better than cure.
IV.

Separation of Powers

As stated in Section 1, Article 1 of the 1987 Constitution, The Philippines is a

democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them. By democratic we mean direct democracy and by
republican we imply representative democracy. The essence of republicanism lies in
ideas of representation and innovation. Within this idea of republicanism lies the
principle of separation of powers. In its essence, separation of powers means that
legislation belongs to Congress, execution to the executive, settlement of legal
controversies to the judiciary. Each is prevented from invading the domain of others.

(Bernas, Commentary 656, 2009 ed.) This implies the non-delegability of powers which
implies that a power definitely assigned by the Constitution to one department can
neither be surrendered nor delegated by that department, nor vested by statute in
another department or agency (Agpalo, 2009). There are however exemptions to this,
which may validate the case for a pre-enactment judicial review. Namely these are (1)
Systems of Checks and Balances and (2) Existence of Overlapping Powers. The
system of checks and balances is intended to maintain equilibrium in the exercise of
functions of the different branches of government. It is a mechanism resorted to in order
to make sure that one is doing or overdoing the power mandated to it by the
constitution. The second restriction on the other hand, is best explained by the words of
Justice Laurel: The classical separation of governmental powers, whether viewed in the
light of the political philosophy of Aristotle, Locke or Montesquieu, or of the postulations
of Mabini, Madison or Jefferson, is a relative theory of government. There is more truism
and actuality in interdependence than in independence and separation of powers, for as
observed by Justice Holmes in a case of Philippine origin, we cannot lay down 'with
mathematical precision and divide the branches into watertight compartments' not only
because 'the great ordinances of the Constitution do not establish and divide fields of
black and white but also because 'even the more specific of them are found to terminate
in a penumbra shading gradually from one extreme to the other (Luzon Stevedoring
Corporation vs. Social Security Commission, 1970). These restrictions, although not
strictly in adherence to the principle of separation of powers, is still towards the same
end, which is to (1) secure action, (2)To forestall overaction, (3) To prevent despotism,
and (4) To obtain efficiency (Agpalo, 2009). We must emphasize the fourth goal of
separation of powers because this is what pre-enactment judicial review might achieve,
if the judiciary may be granted such power.
Reference List:
Agpalo, Ruben E. (2009). Statutory Construction 6 th Edition. Manila: Rex Publishing. Pp.
58-74.
Bernas, Joaquin. (2009). The 1987 Constituion of the Republic of the Philippines.
Manila: Rex Publishing. Pp. 675-677.
Feldman, David. (2007). Judicial Review of Legislation. Accessed from:
http://www.law.cam.ac.uk/faculty-resources/10005569.doc.
Date
Accessed:
October 11, 2015.
Field, Oliver P. (1926). Effect of an Unconstitutional Statute. Indiana Law Journal: Vol.1,
Issue
1.
Accessed
from:
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?
article=1096&context=ilj. Date Accessed: October 11, 2015.

Republic of the Philppines vs. Court of Appeals. (1993). G.R. No. 79732. Supreme
Court
of
the
Philippines,
decided
1993.
Accessed
from:
http://www.lawphil.net/judjuris/juri1993/nov1993/gr_79732_1993.html.
Date
Accessed: October 11, 2015.
Public

Law Project. (n.d.). An Introduction to Public Law. Accesed

http://www.publiclawproject.org.uk/data/resources/4/PLP_Short_Guide1_1305.pdf. Date Accessed: October 11, 2015.

from:

V.
VI.

Effect of an Unconstitutional Statute

Cost of Litigation

VII.

The remedies to these problems(The need for pre-legislative judicial review)

efficiency and our law makers have tendency to pass law for private interest
rather than public interest. HOR has a bad reputation!! Presumption of
knowledge of law should not be applied in the ph. Therefore, dapat ma
subject sila sa judicial review at the earliest opportune time!!
However, this should not be viewed negatively as Justice Laurel once stated
that: There is more truism and actuality in the interdependence than in
independence and separation of powers (validation to pinch the veil of
separation of powers)
JUDICIAL REVIEW NOT LEGISLATION
FOR PUBLIC POLICY, ORDER NAMAIN ITO

VIII.

Preventive measure lang ito!! IF NOT TO ABSOLUTELY ELIMINATE

UNCONSTITUTIONAL STATUES, ATLEAST TO BE ABLE TO REDUCE THEM
(MAY HUMAN ERROR PADIN, PERO MAS CREDIBLE AND KNOWLEDGABLE
AND JUDICIARY KESA SA LEGISLATORS NA MAS PRONE TO ERROR)
PARANG GOVERNMENT INTERVENTION BA SA FREE MARKET! (PARA MAS
EFFICIENT AT MAIWASAN ANG MARKET/ECONOMIC FAILURE)