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Iway, Mary Ellen Cabajar



[6 sentences thesis statement - 1: JR 2: Democ 3: undemocrat 4: democrat

5: reconcile 6: synthesis]

In a presidential form of government, power is equally divided among the

three branches: executive, legislative, and judiciary.1 The separation of these
branches allow check and balances in performance of each governmental
function, so that power may not be solely vested in one person or concentrated
in a few people only.

The executive department is composed of the President, the Vice-President,

and the Cabinet; the legislative department is composed of the Congress and
the House of Representatives; and lastly, the judicial branch is made up of the
Supreme Court and the lower courts as enshrined in Section 1, Article 8 of the
1987 Constitution which reads:

The judicial power shall be vested in one Supreme Court and in

such lower courts as may be established by law.

In which from the word power it is expected that the judiciary has the
discretion to exercise this power or not; however, it is explicitly mentioned in
the same section that this power is also a duty:

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. 2

Judicial power includes judicial review. It was in the landmark case of the
United States: Marbury v. Madison, where the power of the courts to review
acts of the executive and the legislature and their accord to the Constitution,
were affirmed.

Both the executive and legislative branches are chosen by the people through
popular vote; in which democracy is evident because the will of the people is
manifested. However, the judiciary is but chosen by the President; and

Section 1 Article 8 of the 1987 Constitution

although theoretically believed to be competent interpreters of law, are still
subject to their own interests and biases. Consequently, this paper aims to
answer the following:

1. Is judicial review democratic despite the abovementioned

2. Or is it undemocratic?
3. If so, how are is democracy and judicial review reconciled?

This essay is an assessment of democracy and judicial review and if both

concepts are reconcilable despite the different arguments regarding the latters
character. Moreover, in order to validate the assessment, the indicators of
democracy according to the International Democracy Watch will be

The concept of democracy has been a very fluid one across sovereignties that
ascertaining its definition would be difficult. Demokratia come from the
Greek wordsdemos and kratos. Demos meaning people, and kratos meaning
power would signify that the strictest meaning of democracy is power of the
people; and having been set in Ancient Greece, people would pertain to the
male adult residents of the polis. Each male adult was to participate in politics
and engage in debates in the Parthenon. As population permitted then, the
concept of direct democracy was formulated. Athenians did not have to elect
representatives to voice out their opinions since everyone could be heard and
even encouraged to be heard in their debates.

In the contemporary world where societies are no longer composed of a few

city-states, just like that of the polis in Athens, direct democracy has evolved
into a representative democracy where,

branches of government act on behalf of the people and, to a

very large extent, the whole concept of representation depends
upon the ability of the people to make their wishes known to their
representatives (Black, 1961)3

This has sprung to an-almost synonymous concept of republicanism which its

essence is in the,

representation and renovation, the selection by the citizenry

of a corps of public functionaries who derive their mandate from
the people and act on their behalf (Cruz as cited in Puno)4

Eastern R. Conference v Noerr Motors, 365 US 127 - Supreme Court 1961

The Undemocratic Character of Judicial Review

Thomas Jefferson, although the Marbury v Madison case was in his favor,
contested the power of the judiciary to judicial review. He stated in a letter,

In the arguments in favor of a declaration of rights, you omit

one which has great weight with me; the legal check which it puts
into the hands of the judiciary. This is a body, which, if rendered
independent and kept strictly to their own department, merits
great confidence for their learning and integrity. In fact, what
deg, ree of confidence would be too much, for a body composed
of such men as Wythe, Blair and Pendleton? On characters like
these, the 'civium ardor prava pubentium' would make no
impression (Jefferson, as cited in Rostow 1952)

According to International Democracy (2012), there are ten indicators of

democracy. The researcher employed of the relevant indicators in order to
qualitatively assess the concepts involved. Despite the fluidity of the concept
of democracy, it has two distinct and relevant features for its determination
namely: appointment and power limitation.

Appointment is the measure where the following are answered:

How are key officials appointed or elected, and what is the

agency's governance structure (single-headed agency, multi-
headed commission, self-regulatory organization, etc.)? Who can
belong to the institution - only states or also nongovernmental
actors? Does a parliamentary body exist? Are its members
directly elected by people or are they representatives of national
parliaments? In the former case, are the election free? Do free
(private and/or public) mass media exist making citizens aware
of government alternatives?5

On the other hand, power limitation,

reflects the availability of checks and balances between the

organization's powers. Does a separation between executive,
legislative and jurisdictional powers exist? Are executive
power's acts submitted to the control of a court, and what is the
power of the latter in this context? E.g., can it block an act or
does it only produce advisory opinions? Does a clear division
between the powers of states on the one hand, and the
organizations' ones on the other exist? (ibid xxxx)


DEMOCRACY 1. Appointment
1. Appointment (Members of judiciary are
(are its members directly
2. Power Limitation
2. Power Limitation (there is a separation of
(separation of powers, powers, but judicary may
checks and balances) conduct judicial review that
"nullify" acts of other

Figure 1

In the strictest sense and adhering to the features of democracy, judicial

review is undemocratic. In the component of appointment, the fact that the
members of the judiciary are not chosen by popular vote poses the possible
absence of democracy. Possible because others do argue that for the judiciary
to be competent, they are to receive formal education (in which the people do
not have power to decide) to perform their function. On the other hand, in the
component of power limitation, it is affirmed that there is a separation of
power and independence of the judiciary in theory. But the pressing issue is
on the concern of the capability of the judiciary to nullify and invalidate
acts of the other branches (chosen via popular vote), when the judiciary are

In face value, judicial review in itself is undemocratic in character; should it

have been otherwise, there would be no necessity to reconcile democracy and
judicial review. Thus the judiciary, being unelected, is a manifestation of the
absence of democracy. Since both the executive and legislative departments
push for policy goals based on their interests and preferences and
theoretically, the interest of the people they represent, once the Court imposes
their decision upon acts of these departments, it defeats the roles of both
departments instead. (Langer 2002)

The Democratic Character of Judicial Review

Rostow (1952) purposely rebuts the issue of the appointment of judicial

review by stating that,

democracies need not elect all the officers who exercise

crucial authority in the name of the voters [the] task of
democracy is not to have the people vote directly on every issue,
but to assure their ultimate responsibility for the acts of their
representatives, elected or appointed 6

This too is supported by Justice Sereno, in his dissenting opinion in the case
of League of Cities v COMELEC, by stating that,

Our system of democracy is committed irrevocably to a

government of laws, and not of men. 7

In the issue of the nullifying and invalidating acts of the other branches despite
being unelected officials, Dean Joan Largo of the University of San Carlos
states that,

there is a legal significance in the hereby declared

unconstitutionalin which what all the courts do is to declare
the act as unconstitutionalpronouncing something that is
already there 8

The power of judicial review does not nullify or invalidate acts of legislature,
it only asserts its solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority. 9Therefore, judicial
review, does not in any way uphold the supremacy of the judicial branch, but
the Constitution. 10

Reconciliation of Judicial Review and Democracy

Diri nako magluya
Kani makatulon laway
Thomas Jefferson

See also League of Cities of the Philippines v. Commission On Elections, G.R. No. 176951
Constitutional Law 1 Lecture, July 2014, see also Tanada v Cuenco G.R. No. L-10520, February 28, 1957
Ibid., 2014
ibid., 2014