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Judicial activism in the Philippines

By Artemio V. Panganiban

The stirring American debate on the rightful role of the judiciary I discussed last Monday finds reverberations in the Philippines.

UNLIKE THE AMERICAN CONSTITUTION, HOWEVER, our present Constitution is more explicit about the role of the judiciary. Thus, Section 1 of Article VIII of our Constitution provides: “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 provision has two parts. The first lays down the ordinary power of judicial review, which is “to settle actual controversies involving rights which are legally demandable and enforceable.” The second articulates the extraordinary or certiorari or expanded responsibility of the judiciary to decide issues involving grave abuse of discretion.

By imposing upon all judges the duty to determine issues of grave abuse of discretion, our Constitution has thereby mandated them to be activists. To stress, the Constitution imposes this intervention as a duty, not just as a power or as an authority. Power can be relinquished, but a duty cannot under any circumstance be evaded.

UNDER THE DOCTRINE OF SEPARATION OF POWERS, the three great branches of our government (the Congress, the Presidency, and the Judiciary led by the Supreme Court) are supreme in their own spheres. Nonetheless, the judiciary is mandated to review, and if needed, to invalidate laws passed by Congress and/or executive orders issued by the Presidency for their repugnance to the Constitution or for grave abuse of discretion. Yet, it cannot interfere with how Congress enacts laws via its INTERNAL rules, or how the Presidency confidentially communicates INTERNAL orders to its subalterns.

However, when the Constitution imposes conditions, limitations, or restrictions in the exercise of a power vested in Congress or the Presidency, the judiciary, IMHO, may pass upon the exercise of such power but only to determine whether the constitutionally imposed conditions, limitations, or restrictions have been observed.

An example is the SECOND impeachment complaint lodged against then CJ Hilario G. Davide Jr. Indisputably, the Constitution has given the House of Representatives the “exclusive power to initiate all cases of impeachment.” However, it also provides that “no impeachment proceeding shall be initiated against the same official more than once within a period of one year.”

The Court, in Francisco v. House of Representatives (Nov. 10, 2003) dug into its expanded powers and deemed this provision as a “condition or limitation”; consequently, it restrained the House from continuing with the second complaint filed within the prohibited period. Reluctantly, after several days that tested its adherence to the rule of law, the House obeyed.

THAT THE JUDICIARY MUST NOT ONLY BE ACTIVIST BUT ALSO LIBERTARIAN is clearly shown in our Bill of Rights that replicates the libertarian jurisprudence of the US Supreme Court (I mentioned last week) that spelled out famous phrases like “separate is not equal,” “read him his rights,” “one-man-one-vote,” and “fruit of the poisonous tree.” The US judges anchor their libertarianism on jurisprudence that can be changed anytime but Philippine judges anchor theirs on their impregnable Constitution.

The clear activist mandate of our fundamental law to nullify gravely abusive acts is not found in the US Constitution. Thus, American magistrates are accorded the luxury of choosing between being passivists or activists in their philosophical leaning. This luxury is denied to all Philippine judges.

Judge Soliman M. Santos Jr., who recently retired from the Regional Trial Court of Naga City, has seriously taken this mandate upon himself as splendidly shown in his decisions and his administrative supervision over his court.

I have written about him at least three times (Jan. 21, 2018, Oct. 11, 2020, and Nov. 8, 2020). I must quickly add that I have never written about any trial judge as many times and in as many subjects as I have about him. He has authored several books but his most recent, appropriately titled “Judicial Activist,” will be released soon. He has requested me to write the Foreword.

Judge Sol brought to the bench his activism during his student days and his years as a young human rights lawyer. In this sense, I find him a soulmate because I, too, was a student activist as the youngest president of the Far Eastern University Central Student Organization and as a cofounder and president of the National Union of Students of the Philippines, the largest student organization in our country since then up to now.

Though he brought his activism to the judiciary, regretfully he did not get to the Supreme Court where his decisions could have added wisdom and luster to the “Philippine Reports” and the “Supreme Court Reports Annotated.” At any rate, my regret is now partially comforted by his new book. (This article was first posted on the last April 11, 2023. -Ed)


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