Checks and Balances in the Philippines

Note: I wrote this article way back January 2006 for my Political Science 153 class taken at UP Baguio under Attorney Isagani G. Calderon. You may copy the article provided that you'll properly cite the source.

The separation of powers, as essential feature of a constitutional government, was classically expounded by Montesquieu in a much celebrated chapter of the Espirit de lois. In his discussion of the English Constitution, he drew a sharp and logical distinction between the legislative, the executive and the judicial powers and insisted that they should be handled by separate and distinct bodies.

The principle of the separation of powers has been adopted in the Philippines in order to avoid arbitrary rule and abuse of authority. The so called checks and balances among the three major departments of the government - executive, legislative and the judiciary – are no more than means of control by each and upon each of the departments (Sison, 1993:309). To further elaborate the principle, Chief Justice Cesar Bengzon also stressed in his address delivered at the Ateneo de Manila University that: “the so called checks and balances among the three major departments of the government are no more than means of control by each and upon each of the departments. It is the duty of the departments to exercise moderation in their dealings with one another and their treatment of the public interest” (Ventura, 1996:183).

Hence, the principle of the separation of powers is basically instituted in the Philippines constitution for the purpose of impeding each branch from trespassing and seizing the power vested to others. Moreover, the provisions of the constitution in establishing limitations on the exercise of government authority also provide means of moderation. The principle of the separation of powers does not necessarily mean that “absolute exclusivity with respect to such powers as properly belongs to each branch. In a democratic system this maybe shared by two or more of the other branches” (Arellana, 1993:323)

In this system, the judiciary, in terms of political and financial strength, is the weakest of the three co equal branches of the government. Cortez (1993:2950 also added that “the judicial department having neither the power of the purse nor of the sword is considered as the weakest of the three main departments of government”. On the contrary, however, it is tasked with the burden of refeering endless political disputes and conflicts among the more contentious branches – the legislative and the executive. The Supreme Court also possesses the power to decide cases and controversies. The supreme court cannot and will not allow itself to be made an instrument of politics, nor be a privy to any attempt at the perpetration of injustice (Supreme Court annotated, 1998:235).

Furthermore, even though the Supreme Court is considered as the weakest among the three departments, “the 1987 Constitution strengthens it by providing for a broadened power of political review over political questions, granting fiscal autonomy and reducing the role requirement for a declaration of unconstitutionality to the concurrence of a simple majority of the members who actually took part in the deliberation on the issues in the case and voted thereon” (Cortes, 1993:295). In addition, Article 8 of the New Civil Code states that:
“judicial decisions applying or interpreting the laws or the constitution shall form a part of the legal system of the Philippines ”. (, January 31, 2006, Civil Code of the Philippines )

The principle of prospectivity has also been applied to judicial decisions which, although in themselves not laws, are nevertheless evidence of what the laws mean. A compelling rationalization of prospectivity principle of judicial decisions is well set forth in the off-cited case of Chicot county Drainage District v. Baxter States Bank. The Chicot Doctrine advocates the imperative necessity to take account of the actual existence of a statute prior to its nullification, as an operative fact negating acceptance of a “principle of absolute invalidity” (Gorospe, 2004:1529).

Thus, the court’s decisions have taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter States Bank, to wit: “the courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties and hence affording no basis for the challenged decree…” (Gorospe, 2004:1529).

Since the power of the Supreme Court to declare acts of both the executive and the legislative branches of the government as null and void is bestowed directly in the Philippines constitution, it can be inferred, therefore, that the supreme court is superior over the other two departments. To some extent, this is quite true. However, Cortez emphasized that the power of the judiciary to declare the validity or constitutionality of the acts of the executive and the legislative does not necessarily reflects the superiority of the judicial department. Instead, as she further argued, it indicates the “supremacy of the constitution over a statute, treaty or presidential act which violates the constitution” (1993:295). The Supreme Court commonly nullifies the acts of legislatures and executives that conflict with the state constitution (Aquino, 2002:12). In his speech delivered at the Ateneo de Manila University, Chief Justice Bengzon uttered that: “…we in the judiciary are pledged to the cause of moderation. Before rendering judgment, we hear the parties patiently, we consider the evidence diligently, we study the law and the precedents and follow the dictates of reason and equity. In the exercise of our power of review, we are careful not to encroach on the areas of exclusive competence of the other branches, showing deference to their will or determination…”(Ventura, 1996:183).

Thus, since the constitution is the supreme law of the land, the courts, in deciding cases, must be able to make final, fair and binding interpretations of the law.Additionally, Article VIII, Section 1 of the 1987 Philippine Constitution also stressed that: “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”.

Apparently, the above statement indicates that the Supreme Court is a constitutional office beyond the power of the Congress to abolish. Courts may be established or abolished by law but subject to observance of a new rule found in Section 2, second paragraph of Article VIII that “no law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members”.

Judicial power refers to the authority exercised by that department of government which is charged with the declaration of what the law is and its construction. It can also be defined as the power of the court to decide and pronounce a judgment and to carry it into effect between persons and parties who bring a case before it for decision (Nolledo, 1987:129). One example of the judicial power of the judiciary is to suspend the execution of decision. For instance, the decision sentencing petitioner to death penalty pursuant to Republic Act 7659 became final. Upon motion of petitioner, the Supreme Court issued a restraining order restraining his execution on the ground that there is a possibility that Congress might repeal Republic Act 7659. Respondent argued that temporary restraining in effect granted petitioner a reprieve, which was the exclusive prerogative of the President (Jimenez, 2003:327). The legislative branch, however, “provided for it” when it enacted Republic Act Number 7659 and “became effective on December 1993” (, January 29, 2006, Battles over Life and Death).

Further, the constitutional provision granting the President the power to grant reprieves cannot be interpreted as denying the power of courts to control the enforcement of their decisions after their finality. An accused who has been convicted by final judgment still possesses collateral rights, and these can be claimed in the appropriate court. For instance, a convict who becomes insane after his final conviction cannot be executed while in a state of insanity (Jimenez, 2003:327). Therefore, the suspension of such a death sentence is an exercise of judicial power.

The Power of Judicial Review: An Obstruction to Democratic Process
Judicial review has been defined as the power granted to the Supreme Court “to decide the validity of acts” of the other two branches of the government – namely, executive and legislative (Grolier Encyclopedia, 1997:464). In addition, quoting directly from Oxford Dictionary of Law (1997:252), judicial review is interpreted as: “the simplified procedure by which, since 1997, prerogative and other remedies have been obtainable in the high court against inferior courts, tribunals and administrative authorities. On an application for judicial review of a decision, the court may grant certiorari, mandamus, prohibition, declaration or injunction”.

Thus, through the power of judicial review, decisions and acts of both the executive and the legislative branches of the government can be overruled by the Supreme Court as not conforming to the law or constitution. Legislative as well as executive acts are nullified if courts declare them as unconstitutional. Furthermore, Cortez (1993::293) also emphasized that the Supreme Court has the “power to decide cases and controversies affecting the validity of acts” of the other branches of the government and “to strike them down should they violate the constitution.”

Quoting the words of Bickel from Sison’s article (1993:311) she argued that the power judicial review is undemocratic because if the decisions and acts of both the legislative and the executive is declared as unconstitutional, the Supreme court “thwarts the will of representative of actual people of the here and now; it exercise control, not in behalf of the prevailing majority but against it”. Sison (ibid.,) also argued that:
“…judicial review may have the tendency over time to seriously weaken the democratic process. This is so, because the correction of legislative mistakes comes from the outside, and the people thus lose the political experience and the moral education and stimulus that come from fighting the question out in ordinary way and correcting their own errors. The tendency of a common and easy resort to the great function…is to dwarf the political capacity of the people, and deaden its sense of moral responsibility”.

Now, the basic question to be raised here is this: Does judicial review obstruct the democratic process in the Philippines ? (to be continued)


  1. LOL the only thing that I always remember in my law subject was in every rule there's an exception hehehe visiting through Bloggers Exchange

  2. Hey Anne, thanks for visiting my site!


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