The "activist Court and Constitution"

"To constitutionalize a preference into a right is to remove it from majoritarian determination and to turn it over to unelected judges...for judicial review." (Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights 168 (2004))

With the recent moves of the Court in dealing with constitutional issues, they have been accused of encroaching on the constitutionally granted powers of both the legislative and the executive. However, this must not be taken on its face since the 1987 Constitution itself allows the Courts to check whether the actions of the other branches of the government are in consonance with the constitution. The thesis of this paper is that The 1987 Constitution expanded the judiciary's powers and duties, after this branch's passivity during martial law, despite the theoretically countermajoritarian character of action by unelected Justices. The judiciary's perceived activism arises from these intentionally expanded powers. The Court is now invoking other powers, in addition to its primary power of judicial review, and is accused of judicial legislation in the broad use of its rule making power to enforce constitutional rights. Nevertheless, the broad use of this power is sanctioned by the 1987 Constitution ratified by the people, and the pursuit of this constitutional design actually furthers democracy. And the people themselves has given their blessings to the Court to be proactive in guarding the provisions of the Constitution.

I. An Activist 1987 Constitution

Chief Justice Reynato Puno says that what we have is not an activist court, but an activist constitution. This statement finds it truth with the political history of our country and how our present constitution is a reaction the past Marcos regime where the judiciary fell used the doctrine of political question to steer clear from deciding issues that affect the fundamental rights of the people. The writ of habeas corpus was suspended and when that remedy proved inadequate, President Marcos wielded the state's ultimate weapon by declaring martial law. The President's exercise of his commander-in-chief powers distorted the distribution and balance of state powers. The legislature was shut down; the executive became the dominant branch of government; and the exercise of certain political and civil rights was diminished. The rearrangement of powers and its effects on individual rights brought to the limelight the judiciary and its power of judicial review. Demand was made for the Highest Court of the land to exercise its power of review, to set aside the presidential proclamation of martial law, and to void the 1973 Constitution's ratification. It is difficult to imagine a more momentous case that ever confronted the Supreme Court. The Supreme Court decided these cases by following the traditional and prudential path in constitutional litigations. It declined to strike down the acts of the Chief Executive and the ratification by the people of the 1973 Constitution on the ground that they constitute political questions. The passivity with which the Supreme Court wielded the power of judicial review drove those who sought grievance for their complaints to take the streets. Thus we now have the 1987 Constitution, the product of a people's revolution. It established a strong judiciary and gave it extra strength by expanding the definition of judicial power. The 1987 Philippine Constitution is explicit about the role of the judiciary in the government. Section 1 of Article VIII of our Constitution states:

"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."

This section of the constitution divides the power of the judiciary into two main sections. The first part of judicial power is often uncontroversial and straightforward. The power of the courts "to settle actual controversies involving rights which are legally demandable and enforceable" is considered as the ordinary power of the courts and is the original reason for the establishment of the courts. However the second part of judicial power embodies the expanded responsibility of the judiciary to decide issues involving grave abuse of discretion on the part of any branch or instrumentality of government, including the legislative and the executive departments. The Constitution has even vested the court with additional prerogatives, aside from its ordinary and extraordinary review authority.

Former Chief Justice and Constitutional Commissioner Roberto Concepcion was the main proponent of the second part of the judicial power of the court. He said that " the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

Former Chief Justice Artemio Panganiban has said that "By imposing upon all judges (not just the appellate justices) the duty to determine issues of grave abuse of discretion, our Constitution has thereby mandated them to be activists." This is described as a duty and not a power or privilege of the court. Thus, the power of judicial review is a responsibility that is not only bestowed but more importantly imposed on the judiciary. The courts cannot therefore shy away from an imposed constitutional obligation less it be guilty of reverting back to the days of martial law. The 1987 Constitution has expanded the judiciary's powers and duties, after this branch's passivity during martial law, despite the theoretically countermajoritarian character of action by unelected Justices. The judiciary's perceived activism arises from these intentionally expanded powers.

The Judiciary now is wielding its expanded judicial power to the hilt. The judiciary is not abusing its power when the courts carry out their constitutionally-assigned function. The Court is now invoking other powers, in addition to its primary power of judicial review, and is accused of judicial legislation in the broad use of its rule making power to enforce constitutional rights. It must be stressed that what is extraordinary in the court is not its use of the ordinary power of judicial review but its new role of using all its expanded power. This expanded power can be divided into two: decisional judicial legislation and rule-making judicial legislation.