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Alegre, Anavie R.

August 4, 2014

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 government”1. 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)  
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.
philippines.pdf (accessed July 29, 2014).
In lieu of the Judicial power as enunciated in Article 8 of the 1987 Constitution.
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).
As enunciated in Section 5 (2) of Article 8 of the 1987 Constitution.
Constitutional Law Lecture July 17, 2014
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

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 Feldman’s 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

See Linda Maduz. "Direct democracy." Living Reviews in Democracy 2 (2010). (accessed July 29, 2014).
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.
David Feldman. Democracy, The Rule of Law & Judicial Review. (1990)" (accessed July 29, 2014).
11  Ibid,.  11-­‐12.  
term, meaning different things to other people”12. 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 branch—as it is composed of the representatives
coming from the different districts of the Philippine—is 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 Tañada 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 doesn’t 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.
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)" (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),
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 Tañada v Cuenco, as
Cruz explained, it allowed the “courts to inquire into whether or not the
prescribed procedure for amendment has been observed”22.

Most of the critiques on judicial review pertain to its procedural

implications23. Judicial review as being incompatible with democracy is
commonly known as “countermajoritarian difficulty”24. In Ilya Somin’s
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. Bickel’s
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
Shoenbrod’s 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 decrees”27.

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  Tañada  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,
23  This  is  mainly  based  on  Tushnet  and  Rostow’s  arguments.    
24  See Ilya Somin. Democracy Judicial Review Revisited: The New Old Critique of Judicial Power.
(2003). (accessed in July 29, 2014).
25  This was cited in Somin’s 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
26  Ibid,.  288  
27  Ibid,.  288  
28  See Mark Tushnet. Against Judicial Review. (Harvard Public Law Working Paper No. 09-20. March 26,
2009). (accessed June 29, 2014).
constitutionalism. Constitutionalism is understood as a “set of political
arrangements that ensures political stability by limiting the people’s ability
to alter some policy choice”29. 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 Somin’s 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

In Guillermo and Garoupa’s 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

29  Ibid.  
30  See Ilya Somin. Democracy Judicial Review Revisited: The New Old Critique of Judicial Power.
(2003). (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 people’s
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 court’s 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-
citing of another attack on the judicial review. Citing Thayer, he states the
former’s 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 people’s 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 being—as the scholars against judicial review
said—dogs 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 Tribunal’s 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 power…It has no power to look into what
it thinks is apparent error”.

In light of the country’s 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 practice”37.

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.

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 Court—An Empirical
Analysis (1986–2010). Asian Journal of Political Science 21, no. 2
(2013): 189-212.

Feldman, David. Democracy, The Rule of Law & Judicial Review. (1990)" (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).
content/uploads/pdfs/hutchinson.pdf accessed on July 29, 2014).

Lain, Corinna Barrett. Upside-Down Judicial Review. Geo. LJ 101 (2012):


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).
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.
(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.
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). (accessed in
July 29, 2014).
Waldron, Jeremy. The Core of the Case Against Judicial Review. The Yale
Law Journal (2006): 1346-1406.