Judicial review as antithesis of arbitrary gov’t

The most essential quality of the rule of law is, adopting Charles McIlwain’s phrase, the limitation of government by law, and under our scheme of government, it is the Supreme Court to which the power to limit government by law is ultimately entrusted. We call this the power of judicial review. By this mechanism, the Supreme Court authoritatively interprets the laws passed by Congress, and then keeps the government within the limits assigned to it by these laws. Our founding fathers found this to be the wisest arrangement for the good governance of our country, and our political experience since independence has not changed this belief.

Now, in a clear display of political expediency, our President announces that he wants these powers of the Court clipped for ruling against the legality of his acts. His populist thinking tells him that the people will be behind him in this move. Unwittingly, he is raising his hand against the very foundations of the rule of law in this country. He seeks to destroy what Justice Thurgood Marshall calls the sine qua non of constitutionalism—judicial review by an independent judiciary.

The irony is that, to support his position, he glorifies a sorry chapter in our country’s history when the Court during the martial law years refused to look into the legality of the declaration of martial law by President Ferdinand Marcos, forgetting that it was his own martyred father, Benigno Aquino Jr., who challenged martial law in the Court.

The first excuse of all absolute rulers is the belief that they can act better to promote the welfare of the people if they are not constrained by law. Absolute rulers govern solely according to their will, and they impress the people with their initial accomplishments. But history teaches a severe lesson. The rule of the absolute monarch or tyrant inevitably becomes arbitrary for two reasons. It rests on a discretion that is unguided by known principles of law, and, left unchecked, leads to corruption and violation of basic human rights.

The rule of law as the antithesis of arbitrary government requires known legal rules to govern human conduct and an authority that can act against unchecked discretion. In its elementary application, the state is forced to guarantee one of the most basic social needs of men, which is certainty in social relations. Ever since men began to see the wisdom of limited government, they asked to be told beforehand of the laws that would affect their lives, liberties and properties. This was a crucial development because, in the first place, the absolute ruler does not want to be hobbled by rules. There was a Roman emperor who was asked to publish his rules for the information of his subjects. He reduced his edicts into writing, but hung these to a post so high that no one could read their contents.

In 1610, the English House of Commons said to their king: Among many other points of happiness and freedom which your Majesty’s subjects have enjoyed … there is none which they have accounted more clear and precious than this, to be guided and governed by certain rule of law.

But the certainty of law, although indispensable, was not enough. The king could issue certain rules, as he did at times, but if these were unreasonable, capricious, or despotic, these could not be in accordance with the rule of law. It took another revolution, the one that led to the English Settlement of 1688, that established the doctrine of limited government. From then on, the monarch governed, but only according to law, the enactment of which was vested in the representatives of the people in Parliament.

It was to the credit of the early English judges like Edward Coke of holding even Parliament to the dictates of what they believed was a higher law. They were referring to the common law, the body of customary law that developed into the law of the land, the English equivalent of the Latin phrase per legem terrae. The legal theory of the omnipotence of Parliament dated back only to 1688. Yet the function of Parliament, as Ivor Jennings observed, was not to destroy the common law but to fulfill it, and the statutes it enacted like the Bill of Rights of 1689 were landmarks of an already growing liberal tradition in England.

We can see in this development the articulation of distinct powers among the different branches of government for the protection of the people’s liberties. This became the working principle for the government organized under the US constitution of 1787. In the place of the common law was a written charter that prescribed in black and white the limits to government power, and the role of the courts in enforcing the common law became the power of judicial review that held government accountable to constitutional limitations.

With no specific provision in the US constitution on judicial review, Chief Justice Marshall deduced its existence, in the 1803 historic case of Marbury vs Madison, from assumed fundamental principles underlying the constitution. He declared that it was emphatically the province and duty of the judicial branch to say what the law is, and that an act contrary to the constitution is not law. More than two centuries of successful assertion of this principle has made judicial review a permanent fixture in US constitutionalism.

The Philippines has taken a step further by explicitly recognizing the power of judicial review in its constitutions, and save for the period under martial law, our Supreme Court has always asserted its power to adjudicate disputes under them. The most that critics did was to caution self-restraint in its exercise. But not to eliminate it. (Even at the height of his disagreement with the courts over his New Deal legislation, Franklin Delano Roosevelt never rebuked the institution of judicial review.)

Our President has no qualms in doing this. It is a move for which he can cite no precedent and claim no moral authority.

Mario Guariña III is a former associate justice of the Court of Appeals.