Daniel D. Besina Jr.

September 23, 2020

LLM
Subject: Judicial Review in Modern Constitution
Professor: Fr. Ranhilio Aquino
French Constitutionalism and Judicial Independence

Discussion:

Republicanism has two essential features, representation and renovation.

Representation is manifested by the fact that it is the people who will choose their
representatives to run the government through the exercise of the latter’s right to vote
in an election. It is well to note that sovereignty resides in the people and all
government authorities emanate from them; hence, the source of power belongs to the
people. Those public officials who were elected by the people to run the government
were given responsibilities and duties pursuant to existing laws and the fundamental
law. Accordingly, the author of the Constitution is the people, in effect; it is the latter
who gave these responsibilities to the elected officials. The elected officials are invested
also with power to appoint other officials in different branches pursuant to law or the
Constitution. Therefore, it is as if the people themselves chose their officials both elective and
non-elective (appointive) to run the government.

Separation of powers is a concept that is present to every republican state.

Powers are allocated to different branches of government so that the same will not be
concentrated in one department only. Accordingly, the power to enact laws belongs to
the Legislative branch, the power to implement the laws is vested in the Executive
branch, and the power to interpret the laws lies with the Judiciary. In the Philippines, it
is the Constitution which demarcated the border between these three great branches of
the government by setting forth therein their respective powers and limitations of the
same. There are instances however when one branch invalidly encroaches the
prerogatives of the other branch. But who will say then that there is invalid
encroachment? Since it is the fundamental law which enumerated the powers of the
different branches and the fact that the judiciary is vested by the Constitution to
interpret the law (which includes the Constitution), it is the latter who can validly
declare whether or not there is invalid encroachment.

Noteworthy is the fact that the doctrine of separation powers is not absolute. A
republican state gives recognition as well to the Doctrine of Checks and Balances. The
excesses of the other branch may be checked or even be nullified by the other branch. In
our setting, the Supreme Court can nullify a proclamation made by the executive
branch if the same is repugnant to the Constitution or if the latter acted with grave
abuse of discretion. Therefore, non-elective officials like the justices of the Supreme
Court can legitimately check the actions of the elected official like the President of the
Republic of the Philippines. The Republic of the Philippines adheres to the principle of
Constitutional Supremacy. Again, according to the Constitution it is the sovereign
people who are the source of power. And the people can choose their representatives
because of the republican nature of our system of government. These representative
officials of ours in turn appoint officials to the different branches (like the justices of the
Supreme Court). And our Constitution invested to the judiciary the power to check
whether or not there is grave abuse of discretion on the part of any branch or
instrumentality of the government as provided in Article VIII Section 1 of the 1987
Constitution. Simply put, a body of unelected men and women (justices of the Supreme
Court) can legitimately check the decisions and actions of the elected representatives of
the people (like the President) because the people themselves, through the Constitution, said
so.