Judicial power and the amended Constitution

Published February 27, 2018, 10:00 PM

by Mario Casayuran and Vanne Elaine Terrazola

J. Art D. Brion (RET.)
J. Art D. Brion (RET.)


By J. Art D. Brion (RET.)


A necessary consequence of federalism under an amended Constitution is the restructuring of the laws of the land.

Highest in the restructured hierarchy of laws would be the federal constitution that serves as the nation’s highest law with the supreme authority to define the federal structure. This structure delineates the scope and powers of the federal government and the federal regions, as well as each region’s exclusive areas of governance. Each federal region can further define, through its own set of statutory laws, how its exclusive areas of governance shall operate.

This kind of structure, affecting governance and the laws, must necessarily impact on the structure of the judiciary whose own judicial power is defined by the federal constitution.

An ideal arrangement, to give order and coherence to this complexity, is to provide for a constitutional court whose exclusive task is the interpretation of the federal and the regional constitutions. Existing separately from the constitutional court would be the various levels of federal and regional courts whose jurisdictions pertain to the resolution of disputes based on violations of rights established under federal and regional statutes.

Order and coherence follow since the constitutional court reigns supreme over all constitutional issues, whether they be related to the federal or the regional constitutions, while the federal and regional courts prevail on all matters pertaining to their respective areas of exclusive governance.

As the interpreter of constitutional rules, the judiciary plays a very sensitive role in the country’s governance. This difficult task became more so when the 1987 Constitution re-defined judicial power to include the authority “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.”

Interestingly, the 1987 Constitution did not only grant the judiciary an added power; it also couched the addition as a duty imposed on the courts. This formulation has gained recognition and acceptance over the last 30 years as a major constitutional weapon in the citizens’ arsenal for exacting accountability from all levels of government.

For lack of any specifically applicable procedural law, recourse to the courts’ expanded power has been through an ad hoc remedy – a petition for certiorari that the Rules of Court provides to address the grave abuse of discretion that triggers the exercise of the courts’ expanded power. This usage though is not consistent with the strict function of certiorari that, historically, is the established remedy for the higher court’s control of the lower judicial and quasi-judicial bodies’ exercise of discretion in the course of adjudication.

Expanded judicial power, as defined in the 1987 Constitution, directly addresses, not only gross adjudicative excesses, but the excessive exercise of discretion by the executive and legislative departments of government as well. This wide coverage renders obvious that the expanded judicial power goes beyond the present Rules of Court provisions on certiorari; it involves much more and should thus stand on a higher substantive and procedural plane.

Notably, it was the judiciary’s expanded power that affected citizens cited to secure redress against the executive and the legislative departments’ DAP and PDAF excesses under the Aquino government.

The executive and legislative departments, as can be expected, have not welcomed the courts’ expanded power, complaining that it has resulted in “judicial overreach” and has given the judiciary the authority to intrude into essentially executive and legislative prerogatives. Implicit in this view is the claim that an imbalance in the separation of powers has resulted from the judiciary’s expanded power.

The claim, to be sure, is not without its merit. But the constitutional expansion did not come without its justification – to address past abuses in the exercise of executive and legislative discretion hiding behind the cloak of unreviewable “political question.” In short, it was a measure rendered imperative by past bitter and costly experience.

That the expanded power might have resulted in the clogging of the courts’ dockets is not without factual basis either, as the invocation of the courts’ expanded power has indeed proliferated since 1987. Expanded power adherents, however, claim that the proliferation is a function of the degree of excesses committed within government and is not per se attributable to the nature of the power exercised.

In any case, they counter that the clogging of the courts, if at all true, is a small price to pay compared to the benefits the expanded power has brought with it. Clogging, too, is a problem that is within the power of the courts to control.

In the coming constitutional debates, the court’s expanded power shall expectedly be hotly debated, as this power has indeed upset the equilibrium that the pre-1987 separation of powers arrangement had established. The contemplated Constituent Assembly is too good a chance to be missed, too, by those intent on restoring their past ascendancy.

In fact, a monumental battle over the use of the judiciary’s expanded power may come sooner and in a mode more heated than the constitutional debates, because of a potential case within the judiciary’s own backyard.

Some legal quarters have been heard speculating about the use of the Court’s expanded power – in addition to the Court’s supervisory authority over the Judicial and Bar Council – to seek the review and nullification of the JBC’s actions when it nominated Chief Justice Ma. Lourdes Sereno for the position of chief, despite her failure to submit her complete set of SALNs as the JBC had required.

They claim, too, that the JBC glossed over the chief justice’s psychological exam results which allegedly did not meet the JBC’s standards.

The lawyers-proponents creatively argue that if the JBC actions had been void, then no valid appointment could have followed; the chief justice whose appointment came from a “poisoned process” can thus be removed from office through the exercise of the court’s own expanded jurisdiction without need for an impeachment proceeding.

Interesting times, indeed.


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