Amicus Curiae

Francisco Ed. Lim

SC’s power of judicial review

Francisco Ed. Lim

January 12, 2017

Among the three branches of government, the judiciary is perceived to be the least dangerous branch for it has influence neither over the sword nor the purse.

The judiciary is also perceived to be the weakest. Its power is inherently passive. It cannot act unless a case has been brought to it, and even in such circumstance, certain conditions must be complied with for it to take cognizance of the case.

The 1987 Constitution expanded the concept of judicial power by granting the courts the power 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 (Article VIII, Section 1). This is commonly called the expanded power of judicial review or the so-called certiorari jurisdiction of the courts.

This expanded jurisdiction has been used by practitioners as a tool to indiscriminately appeal cases to the Supreme Court.  A quick survey on the reported cases decided by the SC would show that even ejectment cases and those involving infractions of municipal ordinances are being elevated all the way to the SC for review, alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of  lower courts.

The elevation of cases to the high court under this expanded concept of judicial review unnecessarily clogs its dockets.  It curtails the SC’s function in dispensing justice. Based on its website, there are 7,494 pending as of the end of April 2015.

On the other hand, the US Supreme Court typically reviews around 70 to 80 cases per term. In fact, only 59 cases are slated for resolution in its 2017 term, involving cases such as freedom of religion, voting rights, death penalty and equal protection.

The Philippines’ highest court is not totally blameless for its clogged dockets. It is its own making. It interpreted its expanded power of judicial review as a duty that it cannot abdicate.

Limiting the application of the SC’s power of judicial review will better serve the dispensation of justice. It is humanly impossible for 15 people to intelligently decide all the cases brought up to them under this concept.

This is not to say that the idea of an expanded judicial review should be scrapped altogether. The beauty of all ideas is that they are dynamic and can adapt to the needs of the time.

In this case, while the current state of judicial review is prone to abuse, promulgation of proper decisions or rules will ultimately lead to a better performing SC.

There is sufficient legal basis for the high court to limit its power of judicial review. The Constitution does not provide that the SC must review all cases involving “grave abuse of discretion… on the part of any branch or instrumentality of the government.” On the contrary, it provides that this power is also lodged “in such lower courts as may be established by law.”

This is logical as it could not have been the intent of the framers of our Constitution to unduly burden our high court.

Ideally, the SC itself should exercise restraint in choosing cases. It is called the Supreme Court precisely because it was envisioned to take cognizance only of cases that are of extraordinary or exceptional importance to the country and its people.

Cases that are mainly policy-determining or menial should be left either to the proper branches of government or  the lower courts.

Our SC can limit such power to cases of truly national or transcendental significance. It can do this by jurisprudence or rules of procedure, which is its exclusive prerogative under the Constitution. Significantly, even those cases specifically  enumerated by the Constitution  as subject to review by the SC (such as those involving the constitutionality of a law), no less than the Constitution states that it shall exercise such power as the “Rules of Court may provide” (Article VIII, Section 5, paragraph 2).

The question is whether the SC is willing to clip its own powers.  This remains to be seen.