• The disputed doctrine of judicial supremacy


    THIS may disappoint some of my readers, or lead others to wonder whether I have abandoned constitutional principles.

    But in the interest of fairness and objectivity, I feel duty-bound to state that I do not believe the Supreme Court’s decision on the Disbursement Acceleration Program (DAP) is the absolutely final word on the subject, even though I have hailed it as a landmark ruling and a possible “tipping point” in national politics and governance.

    After the decision was handed down, I embarked on a search for authoritative materials that will shed light on the issue. I did so out of both curiosity and skepticism, and the distant possibility that the court may revise or reverse its ruling. Philconsa on judicial supremacy

    When the president and chairman of the Philippine Constitution Association (Philconsa) — Rep. Martin Romualdez and former presidential legal counsel Justice Manuel Lazaro — declared the other week that there is such a thing as “judicial supremacy,” which should leave in no doubt the finality of the SC ruling, I thought their opinion might render my research moot and academic.

    My readings say otherwise, however. Indeed, the claim of supremacy only makes the matter more debatable.

    Constitution silent on SC as final arbiter
    I began my research with Philippine sources, particularly the 1987 constitution and certain rulings of the SC. The following points were quickly established:

    First, The Constitution is silent on SC as final arbiter on judicial supremacy. The powers of the SC are expressly enumerated in Section 5, Article VIII of the charter, and nowhere affirms either.

    Second, The Constitution introduced some new provisions (as distinct from the 1935 and 1973 constitutions), notably The provision that judicial power now includes the duty of the Supreme Court not to refuse to decide a case on the ground that the question or issue raised involves a political question.

    Third, In his separate and dissenting opinion in the DAP case, Associate Justice Arturo Brion underscores the importance of keeping all three branches of the government in balance. He wrote:

    “While we have the duty to pass upon the validity of the DAP, we must, at the same time, do so fully aware of the consequences of our decision. As I have said, the highest stakes are involved for the country…

    “If the DAP is unconstitutional, then we should unequivocally so declare as we did in the PDAF case, but we should do this with an eye on consciously protecting our institutions, whether they be executive, legislative or judicial; we cannot aim to destroy or weaken, or impose the superiority that the Constitution did not grant us. Our aim should be to maintain the balance intended by our Constitution, the guiding instrument that must at all times reign supreme.”

    “The superiority that the Constitution did not grant us” shows plainly that Justice Brion does not entertain any claim of judicial supremacy for the High Court.

    The US and judicial review
    The Philconsa position is more widely discussed in American politics and US jurisprudence.

    US chief justice John Marshall affirmed the judiciary’s leading role in interpreting laws and determining their constitutionality with his court’s unanimous assertion of judicial review in Marbury v. Madison (1803).

    First, the decision declared that “it is emphatically the province and duty of the judicial department to say what the law is.”

    Second, it declared that the Supreme Court has the duty of weighing laws against the Constitution, and invalidating those that are inconsistent with it.

    In their authoritative book on the US Congress and its members (CQ Press, 2008), professors Roger Davidson, Walter Oleszek and Frances Lee provide an informative discussion of judicial review and the following findings:

    1. Although since the US civil war, the Supreme Court has invalidated 159 congressional statutes, in whole or in part, the court does not necessarily have the last word in saying what the law is. Its interpretation of laws may be questioned and even reversed.

    One study found that 121 of the court’s interpretive decisions had been overriden in the 1967-1990 period, an average of ten per Congress.

    2. The US high court is not the sole judge of what is or is not constitutional. Courts routinely accept customs and practices developed by the other two branches. When courts do strike down an enactment, Congress may turn around and pass laws that meet the court’s objections or achieve the same goal by different means.
    Judicial supremacy: A doctrine challenged
    Turning now to the doctrine of judicial supremacy, there’s no question that it is widely popular in this country. Most Filipinos look at the idea as reassuring.

    The doctrine is of vital importance today, because many burning issues in our public life are hanging upon the question of whether the Supreme Court can be challenged in its recent rulings on the constitutionality of the DAP and PDAF. And whether the tag-team of President Aquino and Congress can legally clip the powers of the SC.

    In this light, judicial supremacy sounds like a neat solution. But significantly, there is much disagreement over the doctrine.

    Author William J. Watkins, Jr. writes: “JUDICIAL SUPREMACY IS THE gospel of modern American constitutional law. It is the doctrine that the Supreme Court has the last word on most of the country’s important issues from electing a president to campaign finance reform to treatment of the Guantanamo detainees.”

    Watkins reports that in recent years there have been few critics of judicial supremacy. When someone of influence has questioned the doctrine, they have been excoriated in the media and academic press. For example, when then-Attorney General Edwin Meese questioned the doctrine in 1986, academe all but called for his political exile. Faced with criticism from left and right, Meese backpedaled.

    Some American legal scholars have criticized judicial supremacy as a case of “judicial over-extension.”

    Even more critical is Professor Larry D. Kramer, dean of the Stanford Law School, whose 2005 book, “The People Themselves: Popular Constitutionalism and Judicial Review” (Oxford University Press, 2005) is a comprehensive attack on the doctrine of judicial supremacy.

    Kramer contends that the standard interpretation of Marbury that John Marshall declared the Court to be the final arbiter of the Constitution is erroneous. At most, the Court may make reference to the Constitution when deciding a case.

    Had Marshall truly declared the Supreme Court to be the final arbiter, President Jefferson would likely have had him sent to federal jail.

    Jefferson denied that the judiciary was the final arbiter of the Constitution. To give any one “co-equal” branch such a power would make it “despotic.” Of course, a final arbiter is needed if the branches cannot reach an accommodation on certain issues. And for Jefferson this ultimate power resided in the people—the ultimate sovereign in the American system.

    A tripartite system: No one supreme
    What emerged from my research is the fact that the contentions between the Supreme Court and Congress and the Executive are even more intense in the US than here in the Philippines.

    The tension between policymaking by lawmakers versus judge-made decisions is perennial.

    The most sensible conclusion I reached is this:

    The Judiciary, like congress and the president, is an important forum for resolving the political, social and economic conflicts in Philippine society.

    All three branches of government constantly interact to shape and influence the laws our people will live under.

    Through this process of interaction, says legal scholar Louis Fisher, “all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values.”

    All this just brings us back to the premise where our political system begins. Ours is a system of three separate powers and branches of government: the legislative, the executive and the judicial.

    No branch is supreme over the others. And all must protect and obey the Constitution.



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    1. “Judicial Supremacy” only means that the judicial branch of the government, of which the Supreme Court is the highest, has the ultimate power to interpret the laws and Constitution of the land, as emanating from the “Juducial Review” power granted to it by the Constitution, which the two other branches must obey. It means the Judiciary has the exclusive jurisdiction, to the exclusion of the two othe branches, to decide on what the law or the Constitution means which form part as law of the land and must prevail over the two other branches. In relation to the power of the Legislative to enact and make laws, including appropriation acts, such power must conform to the Constitution. On other hand, in relation to the power of Executive to enforce and implement the laws and the Constitution, such executive acts must to conform to laws and Constitution. The three branches are “co-equal” in terms of each power to exercise it within its exclusive jurisdiction and no one reign supreme over the other. All three branches must respect and obey the Constitution, as the supreme law of the land, the soul and spirit of which fully resides on the people.
      Applying the current Supreme Court (SC) rulings on the PDAF and DAP, the SC is not asserting its supremacy but has merely exerted its Constitutional-given power of judicial review by way of interpreting the law and the Constitution as it relates to the power of purse of a Congress and Executive (Order) on implementation of the budget GAA.
      In the proper exercise of its power, the SC found PDAF and DAP unconstitutional for reasons therein explained. As such, the Legislative and Executive must obey and respect such SC decisions and must stop actions therein forbidden. It is not an exertion of Judicial Supremacy but a proper exercise of Judicial Review power mandated by the Constitution.

    2. But all of these does not mean that the Supreme Court is more powerful than the other branches of our government. Each are supreme in their own territory. Surely, with regards to the interpretation of laws, our courts have the the final and binding authority. The reason is simple. That is the nature of their power and duties in the government. With regards to lawmaking, that is the job of Congress and clearly, our legislature has the supreme authority on such matter. With regards to the implementation of laws passed by Congress and interpreted by our courts, that is the sole duty of the Executive branch. Clearly, that is only one of the powers of the Executive branch. If there is someone who is more powerful than any branch in the government, the best bet is the President. He is the head of state, the head of the government, the sole implementer of the national budget, the commander-in-chief of the armed forces, the top authority figure of the national police force, etc. Those are only few of the figures of authority and power the President represents. If we should lessen anyone’s power or reach, the answer is pretty obvious.

    3. I can’t blame you if you have based almost all of your references to US jurisprudence. We have based our Constitution and early jurisprudence with American roots but I believe that we have already departed from US, at least jurisprudentially. The basis of judicial review in US Judiciary especially that of their Supreme Court is solely established by a legal precedent while ours was established by none other than but the supreme law of our land. The power of judicial review is explicitly mentioned and even expanded in our Constitution. While US Judiciary cannot touch purely political questions, our courts can and should as it is their constitutional duty.

      “The judicial power shall be vested in one Supreme Court and in such lower courts as 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 the Government.” (Section 1, Article VIII, 1987 Constitution)

      The aforementioned provision clearly states that it is the duty of the courts “…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.” Regarding the DAP and PDAF controversies, the Supreme Court rightfully concluded that there was a grave abuse of discretion amounting to lack of jurisdiction for members of Congress to be involved with the implementation of projects or programs of the Government which is solely a duty of the Executive branch and a grave abuse of discretion amounting to excess of jurisdiction for the Executive branch, specifically the President, to transfer savings against the explicit conditions of the Constitution using public welfare as a basis for the recognized lapse of…

    4. Congress and SC are dorks of laws while the pres. is executioner of laws. The constitution of the citizens controls them all because absolute power resides on citizens foot to fill the streets with demonstrators burning tires to suffocate abusive govt. officials. The Congress and SC are blabbering creatures that is suppose to be patriotic officials working in harmony to create or interpret laws in tune with the constitution. Whatever they come up with must be acceptable to law abiding citizens because if not then hell will break lose. The president as executioner can Not mess around law makers.
      BSAiii being brainless retarded had pocketed congress through DAP is messing around law makers harmonious relationship by castigating the SC which did not abide on his fantasies. BSAiii as retarded creature of fantasy with out knowledge of intellectual governance had created chaos. Impeach the retarded president.

    5. Bonifacio Claudio on

      It’s so painful to read this article which is a perversion of our understanding that the wrong done to the Filipino people by the connivance of the executive & legislative branches in plundering the coffers of the gov’t could be avenged by the full force of the cudgels of the supreme court… It’s like dousing cold water on the burning embers of hope. This is an abominable misapplication of an idea despicably distorting its meaning and good intentions. Good day, sir…

      • Eustaquio Joven on

        I can’t understand why the DAP was ever brought to the SC. It only served to complicate a simple issue. I think this thing called DAP is nothing but a cover for a multiple illegal use of funds, punishable by imprisonment and fines under Art. 220 of the Revised Penal Code. Isn’t this a job for the Ombudsman, or any interested groups or individuals?

    6. eltee mulawin on

      >>> As long as this 1987 Philippines Constitution exist, all leaders and co-leaders and members of the government shall protect it and abide by the Rule of Law.

    7. eltee mulawin on

      >>> As long as this 1987 Philippines Constitution exist, all leaders and co-leaders and members of the government shall protect it and abide by the Rule of Law.

    8. Mr. Makabenta: I do believe that each age, each time, each case, need their own interpretations of laws which we believe to be immutable, but which are in fact susceptible to differing construction. What we now have, in the Philippines, at this time, necessitates a strong judiciary to balance the executive-legislative collusion in several issues, which do not need to be re-enumerated. This, I think, is what Rep. Romualdez and Justice Lazaro have in mind when they refer to ‘judicial supremacy’. When the time comes that the Executive and Legislative are truly independent of each other, then the Judiciary need only be co-equal. This is what the ‘checks and balances’ doctrine truly envision–“keep[ing] any one branch [or two, in the Philippine case at present–comment in brackets mine] from making disastrous policies or laws that will harm the nation.” (WikiAnswers) The President’s reactions–wanting Congress to redefine ‘savings’, wanting charter change to ‘clip’ the powers of the Supreme Court–show that indeed, the Supreme Court is truly filling a badly needed role. And it is to prevent the resurgence of another dictatorship in our country.

    9. For me your article give us an open mind so I tried my best reading this although I am not as has bright mind as your other fan readers to thoroughly understand your point of thought, for me yours is an excellent research that might enlighten others. I think the doctrine of judicial supremacy should not be the feeling of some of our justices. They should have to balance between what could be the good and bad in our society or that minimize hatred and coolness in running government. Because of DAP decision like you have been stirred up too. So what should our society be confronting again?

    10. P. Akialamiro on

      The three branches of the government should and must be equal to each other. But, in the particular question about PDAF and DAP, it is only proper that the SC is the last arbiter. Who else could have interpreted the propriety and legality of the accumulation, manipulation and expenditure of these funds if not the SC, when Congress was remiss of its power of the purse? In effect, the Executive branch abused the dispensation of these funds, particularly the DAP, with its partial use of the alleged bribe to members of congress. While the SC, in a way, acted to ‘subvert’ the acts of the other branches of the government, it didn’t necessarily mean that it is above the other branches of the government.

    11. Yen you have done a scholarly well researched thesis on the subjects. CONGRATULATIONS! PNoy is setting a bad example by threatening to clip the SC powers to check the excesses of the President. I supported Cory Aquino before but now I repented for having supported them through and through. The veiled intentions of Pres. Aquino to tinker the Constitution is nothing new. It is obvious that he is suffering from a delusional syndrome. I call on the right thinking Filipinos to ignore PNoy’s call to amend the Constitution – because this is highly divisive. Kawawa naman ang Pinas pag natuloy itong maitim at masamang balak ni PNoy. I call on the right thinking Pinoys to pressure Aquino to step down, the sooner the better.

    12. What does the CO-EQUALITY of the three branches of government means? Does it mean the CONSTITUTION (which is the supreme law of the land created by the people thru their CONCON representatives) can be interpreted by the three co-equal branches of government separately? And since they are co-equal, no INTERPRETATION must be held SUPREME over the other. Is that what we are saying here? In our present case the ADMINISTRATIVE and the LEGISLATIVE agree on what the CONSTITUTION say about their DAP and PDAF for obvious SELFISH reasons. The Judiciary says otherwise. But if the SUPREME COURT is not so supreme after all, who will have the JUDICIAL SUPREMACY to decide on the matter?

    13. This is what the 1987 Constitution says That the President of the Philippines has the constitutional duty to ensure the faithful execution of the Laws (Sect 17, Article VII)while the Courts are expressly granted the power of Judicial Review (Sect I, Article VIII) including the power to nullify or interpret the Laws . which DAP and PDAF both falls on those abuses and violation committed by both the executive and the legislature. Mr Makabenta, please read the 1987 Philippine Constitution for your verification of what I have posted . thank you.

    14. I’m deeply disturbed with this article today. The concept of “judicial supremacy” has just been taken into such disarray and in such an erroneous concept. Thus, I’m compelled to shed light.
      The author is right in this premise:
      “Ours is a system of three separate powers and branches of government: the legislative, the executive and the judicial. No branch is supreme over the others. And all must protect and obey the Constitution.”
      He missed the point that in law a personal opinion doesn’t weigh anything if it is not backed up with a statutory provision and that it should be interpreted in its totally and not in its fragmented parts put together to prove a self-serving point view. Anyone can give his personal opinion but at the end of the day, the law prevails and it shall be applied.
      These are the very important things that the author missed in his so-called “legal research”:
      The constitution fixes certain limits on the independence of each department. In order that these limits may be observed, the Constitution gives each department certain powers by which it may definitely restrain the other from exceeding their authority. A system of checks and balances is thus formed.
      Art. 8 Sec 5 (2) (a) and (b) of the 1987 Constitution expressly recognize Judicial Review which refers to the power of the Supreme Court to test the validity of governmental acts in light of their conformity with the constitution. “Judicial Review is not an assertion of superiority by the Court over the other departments, but an expression of the supremacy of the Constitution”, which in turn led to the accepted role of the Court as “the ultimate interpreter of the Constitution”
      For the court to take cognizance of a case for judicial review, certain requisites has to be satisfied and they just don’t just pounce at any issue at hand and exercise their powers upon it. There should be a justiciable controversy raised in court by a party with substantial legal standing to question such a…

    15. Lex Rex – The Law is King and none of the three branches of the government can claim it is the King!

    16. Ruben V. Calip on

      Mr. Makabenta, you are right to begin this column with that first sentence. Yes, I am disappointed. You have proved yourself by this column to be after the truth and not just interested in criticizing President Aquino. Congratulations.
      This article will of course encourage Aquino and the Goebbells and Goehring clones in his administration to continue trashing the Supreme Court and make the Justices’ commendable, law-respecting and patriotic rulings against PDAF and DAP and other excesses of the administration.
      You will now probably get a call, not from Lacierda or Coloma, but your former colleague (with Teddy Boy Locsin), Manuel Quezon III.

    17. Who would then the final arbiter be if there were abuses committed by either the Legislative or Executive?

    18. Horacio B. Freires on

      “No branch is supreme”. . .The Constitution made a grave error then. .

      Let’s have a ‘cha-cha’. . and call it “NON-SUPREME COURT”. . and make the ‘DISCRETIONARY FUNDS’. . .’THE LUMP SUM FUNDS’. . .SUPREME LAW OF THE LAND. .

      It seems the author of this article . . in the manner by which he allows the play of POLARITY to shift his opinion to a more chaotic Philippines. . .has been DAP-ed….

      A DAP-ed intellect is always making a statement that. . . “NO MEDIA IS SUPREME”

    19. The Supreme Court, however, primarily exists to interpret laws, and in the same manner that it bows to the executive as far as implementing laws, and to the legislative as far as enacting laws, these two branches should give more weight to the SC’s decisions as far as questions of law are concerned. In other words, the three branches really are equal in power that without the SC’s power of interpretation of laws, the judiciary would be less equal than the other two.

    20. I may not be a lawyer, but for you to say that ” No one of the branches of the gov’t is supreme over each other” and all must obey and protect the Constitution. But if we have an executive (the President) who disrespect the law and who thinks He is above the law i.e. the President wants to clip the power of the Supreme Court, Don’t you think that it is a classic example of disobedience ,that he is in violation of the Philippines Constitution he is suppose to uphold as a President? His statement is a proof of it and impeachable, isn’t it?

    21. Your thesis re the non supremacy of the SC seem to be a foregone conclusion looking at how extensive your research was to back it up. To me it looks like you were given this assignment to bolster the chances of the pending MR against the DAP decision and dutifully you accommodated. You feared that some of your readers will be disappointed with this piece let me assure you I am.

      • I don’t see it that way. On the contrary, the writer posits that it is the duty and responsibility not only of the Executive and Legislative but the Judiciary as well to obey and protect the Constitution. I have just summarized the author’s thesis in my comment. This means the MR will have to be decided on this basis.

      • Truly, I was disappointed… The write up was not thoroughly prepared, it was not spontaneously written… the thought have all gone in disarray, and I do not believe, this was the thinking of Mr Makabenta. This was spoon-fed to him… what was in the spoon – may be DAP money…

    22. The high degree of scholarship in this opus is evident. I appreciate the writer’s due diligence to research on the concepts supporting his thesis – that judicial supremacy is not exactly a true statement underlining the relationship of the 3 co-equal branches of government. In fact, the writer shows supremacy cannot be claimed by either one of them. Supremacy belongs only to the people and the expression of their will as to the way they want to be governed is the Constitution. It therefore behooves the 3 branches of government to protect and obey the Constitution, the expression of the people’s collective will.

      Good writing, Mr. Macabenta, I hope many readers will follow your treatise and be enlightened.

      • There is no judicial supremacy for the simple reason that SC is compose only of 15 old dilapidated creatures. It has no armed army of its own except the law abiding citizens which weilds the absolute power in any democratic country in existence.