Rrl Thesis Jd October 12, 2015

7/25/2019 Rrl Thesis Jd October 12, 2015

1/9

Singson, Jean Ben G. Oct. 6, 2015

JD1A Legal Research and Thesis riting

Re!ie" o# Related Literat$re

The legal proposition that I have suggested mainly concerns the realm of public

law. Public law talks about the exercise of power by public authorities, such as local

authorities or government departments Public !aw Pro"ect, n.d.#. It is therefore implied

that when a public body acted wrongfully, or the decision rendered is unfair and

detrimental to some, it may be challenged and oppose through $# complaints

procedure, or %# "udicial review. It is upon this premise where I based my thesis topic,

for the reason that "udicial review, being an instrument used to check and balance

other public bodies, is of great importance to our legal system. &e are living in a society

where masses have become more aware, if not critical, about the social, economic,

political, and legal issues surrounding them. Public bodies, a local authority or agovernment, may not be able to hide all the anomalies and mishaps in the bureaucracy.

The social media has become an instrumental tool or an avenue for public awareness

and social action. 'owever, awareness is "ust the first step. (ll must pass through the

legal process in order to attain such end. The responsibility of assuring harmony and

balance in the government does not solely rely upon as critical masses or watch dog as

they may say#, the initiative should emanate within themselves, the three branches of

the government. ( very effective way of assuring this is through the "udiciary)s power of

"udicial review. *efore delving into that issue, I would briefly discuss first what public law

is all about.

%. &$'lic La" and &$'lic Bod(

To reiterate, public law is a branch of law which talks about the exercise of power by

public authorities, such as local authorities or government departments. It talks about

the duties, rights, obligations, and "urisdictions of such instrumentalities in dealing with

the daily governmental affairs. +orollary to this is the corresponding punishments and

sanctions that a public authority may receive for not complying with its constitutional

mandate Public !aw Pro"ect, n.d.#.

Public law provides and restricts the capacity of a public body. The following are

example of public bodies -overnment ministers, departments and agencies, localauthorities including social services, housing departments and local education

authorities#, health authorities, the police, prisons, courts, statutory tribunals, coroners)

courts, and regulatory and supervisory bodies. ne way of distinguishing whether a

body is public or private, is through determine which law control them. ne is a public

body when it is controlled by a mandates of a public law principle/s. It is authori0ed by

an act of the legislature to perform its public function. Private bodies on the other hand


2/9

are those which act in a private capacity, for instance as an employer, or in a contractual

relationship with a supplier. Its actions or inactions are governed by private, not public

laws Public !aw Pro"ect, n.d.#.

'ow does public law affect our daily lives1 2oes it present a topic of great concern1

That answer to this a no3brainer. -iven that public bodies are acting within their publiccapacity, their acts are vital to our society for their actions are always, ideally, geared

towards the public good. They are presumed to have the capacity and knowledge to

serve the public for the general welfare of our society. Thus, if a public authority,

whether intentional or unintentional, caused an act which severely paraly0ed, or caused

detriment to our society, it is "ust and fair to provide for penalties and sanctions. Is within

their constitutional mandate to act in accordance with public law principles. They have

to follow these rules with strict adherence. They must act lawfully, meaning they must

follow the law, they must not do things they do not have legal authority to do, or use

their powers to do something improper. It is also of great importance that public bodies

should act reasonably and follow fair procedure Public !aw Pro"ect, n.d.#.

-iven the established fact that public law greatly affects us, it is then logical that if

one act might cause damage to the public good, one shall also be entitled to challenge

a decision or an act of a public body. ne may also be able to challenge a failure to

make a decision, or a delay in making a decision, by a public body. In short, people also

carry the burden of proof that maladministration was present in the system. It is

however not our primary duty to initiate such acts, there are safeguards which

represents us in times like this. It is embedded in our $456 constitution the principle of

checks and balances to ensure that the separate branches of government are

performing their duties and make sure that no branch is overlapping with the "urisdiction

of the other. In this paper, I will discuss the importance of the power of "udicial review

and suggest where such power should be timely and appropriately applied because not

in all cases this may be applied for it may violate the principle of separation of powers.

%%. J$dicial Re!ie"

ne way of addressing issues in our society is through "udicial review. 7ection % of

(rt 8III prescribes the power of the "udiciary which reads, 9udicial power includes the

duty of the courts of "ustice 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 "urisdiction on the part of anybranch or instrumentality of the -overnment. Prescribed within this power is the power

to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law of the

:ules of +ourt may provide, final "udgments and orders of lower courts in; as

mentioned in 7ection < %# of (rt. 8III. =urthermore under 7ection


3/9

provide, final "udgments and orders of lower courts in> all cases in which the

constitutionality or validity of any treaty, international or executive agreement, law,

presidential decree, proclamation, order, instruction, ordinance, or regulation is in

?uestion. This grant of power to the "udiciary entails a huge responsibility. This will

enable the "udiciary to oversee whether the executive and legislative department are

performing within their "urisdiction and more importantly, uphold the rule of the supremelaw of the land.

(. +oncrete and (bstract 9udicial :eview

In relation to this, it would be of better help if we categori0e "udicial review into

two namely $# concrete "udicial review and %# abstract "udicial review. !ike when

interpreting or ascertaining the intention of a legislator, where one can use intrinsic or

extrinsic aid, the "udiciary may also opt to review legislations through concrete or

abstract "udicial review. +oncrete "udicial review is the recourse that the "udiciary may

take when facts are already presented in a specific case. The purpose of a concretereview is to determine whether the facts of a ?uestioned statute is in consonance with a

higher3order norm, say for example a federal constitution or a state constitution

=eldman, %@@6#.-iven this, the application of a concrete review may only be availed of

in the course of a trial or appeal to determine the substantive issue =eldman, %@@6#.

(bstract "udicial review on the other hand, is used when a legislative provision is

suspected of being intrinsically inconsistent with a higher3order norm =eldman, %@@6#.

In this type of "udicial review, facts of related cases are not the primary consideration in

evaluating a challenged provision. !ike concrete review, its purpose is to whether or not

a legislative provision is inconsistent with higher3order legal norm. (lthough the two may

be stark in some aspects, their goals are one and the same. In real3life practicehowever, one might find it hard to distinguish between the two as both may go along

hand in hand in resolving legal issues. The reality of concrete review can display at

least some of the characteristics of abstract review, and vice3versa =eldman, %@@6#. In

resolving a problematic legislation, one may opt to consider circumstances other than

the present actual case, hence, in a way, one is doing abstract review. 'owever, it is

also necessary to consider the present factual case as it is the one immediately needing

the resolution. In most cases, both intra and inter are used in arriving at a decision. *y

this I mean, facts outside the case, which is intra, and facts within the case which is

inter. It is beneficial to think progressively, but one must make sure that present

circumstances are also given due notice.

*. Pre3enactment 9udicial :eview and Post3enactment 9udicial :eview

(s important as what is mentioned preceding this paragraph, these dichotomy of

pre3enactment and post3enactment "udicial review is also of great significance. &hat we

are differentiating here is not the method, but the instance or time when one may

conduct a "udicial review. Pre3enactment or pre3legislative "udicial review is performed


4/9

before a bill becomes a law. *ills are scrutini0ed, discussed, and reviewed and from

there decides whether a bill, or some of its provision, is incompatible with a high3order

legal norm.

In some "urisdictions, like +anada and in =rance, the constitution allows for the

"udiciary, or a ?uasi3"udicial body, to exercise a review function before a bill is passed or

enters into force =eldman, %@@6#. To illustrate, I will cite concrete examples for each.

=or pre3enactment "udicial review

In +anada section


5/9

In our context, what the constitution permits is the post3enactment "udicial review.The "udiciary is only allowed to enter a picture once a complaint is filed regarding theconstitutionality or applicability of a statute> enrolled bill therefore is beyond is province.There are many contentions regarding the applicability of a pre3enactment "udicial in ourcountry, more so in a democratic country. The main reason why many are arguing

against this is because, as many claims, it would violate the fundamental principle ofseparation of powers thereby making the "udiciary functionally part of the political ratherthan legal process. (lso, the issue of precision and accurateness comes in to thepicture. Dven if a special part3"udicial, part3political body is created to do the "ob likethe +onseil constitutionnel in =rance# the status of an opinion given pre3legislatively is?uestionable =eldman, %@@6#. This issue is connected with the classification I havediscussed above, the abstract or concrete review, for in a pre3enactment "udicial reviewthe type of review being done is an abstract review. Eeaning, the consideration of factsis not significant. &hat the "udiciary will do is imagine a fact or circumstance to which alaw will apply and from there decide where it is pre"udicial and contrary to a higher3orderlegal norm, a constitution. The burden, hence, lies on the wisdom and prospective

thinking of an ad"udicator thereby making it susceptible to errors. This notion, as I willdiscuss in the proceeding chapters of this paper, although somewhat true, is morebeneficial that detrimental in our context.

%%%. )##ect o# an *nconstit$tional Stat$te

This issue is very vital in this paper for this is the instance, the declaration of astatute as unconstitutional, that this proposed amendment will try to address. &hatare the effects of these kinds of statues to the society1 &hat are its effects to thosepeople who relied on them1

(s discussed in Republic of the Philippines vs. Court of Appeals, there are twopossible views on the effects of a declaration of an unconstitutional statute. To wit

The first is the orthodox view. Bnder this rule, as announced in Forton v.7helby, an unconstitutional act is not a law> it confers no right> it imposesno duties> it affords no protection> it creates no office> it is, in legalcontemplation, inoperative, as if it had not been passed. It is thereforestricken from the statute books and considered never to have existed atall. Fot only the parties but all persons are bound by the declaration ofunconstitutionality, which means that no one may thereafter invoke it normay the courts be permitted to apply it in subse?uent cases. It is, in otherwords, a total nullity.

The second or modern view is less stringent. Bnder this view, the court inpassing upon the ?uestion of constitutionality does not annul or repealthe statute if it finds it in conflict with the +onstitution. It simply refuses torecogni0e it and determines the rights of the parties "ust as if such statutehad no existence. The court may give its reasons for ignoring ordisregarding the law, but the decision affects the parties only and there isno "udgment against the statute. The opinion or reasons of the court mayoperate as a precedent for the determination of other similar cases, but itdoes not strike the statute from the statute books> it does not repeal,


6/9

supersede, revoke, or annul the statute. The parties to the suit areconcluded by the "udgment, but no one else is bound :epublic of thePhilippines vs. +ourt of (ppeals, $44A#.

-iven the definitions above, we can deduce that the nullity may apply prospectivelyand retroactively depending on the circumstance and when e?uity and fair play may be

of strong consideration. &hen the court ad"udge a statute as unconstitutional, that law isdeemed void and ineffective. This act which violates the constitution has no power andcan, of course, neither build up nor tear down. It can neither create new rights nordestroy existing ones. It is an empty legislative declaration without force =ield, $4%G#.This type of legislations then, are of no use and significance to our society they arecarrying dead weight which are doing no good in our society. f course, before the lawmay assail the validity of a statue, there must first be a part which challenges it. ( partywhich was directly in"ured, or in the future, may be in"ured by that statute. This thereforemanifests that there was a problem in the legislative process to which it hadundergone before becoming a legitimate law. Dncroachment of the constitutionalmandate, which is the primary consideration when formulating a statute, is a serious

issue which must not be ignored. Fot only does it entail monetary cost to the litigantsbut it also affords them the very essence of time.

In our context, we presume that our legislators are immensely knowledgeable in law.Therefore, the sole power of legislation, is granted upon the legislative department,except of course in times of emergency when that power may be conferred upon the+hief Dxecutive. ( bill undergoes a process where it is sub"ected in a series of scrutiny,for it, before becoming a law, to be in perfect compatibility with our constitution. (fterrefining and polishing a bill, the legislators will then present it to the chief executive forfinal approval. This way, there will be a proper check and balance between the twodepartments. &hen then can the "udiciary come into the picture1 It is only after the bill

has become a law, and only when the constitutionality of that statute is ?uestioned,when the "udiciary may take cogni0ance =ield, $4%G#. Is it improper or violative if the

"udiciary)s power of "udicial review be resorted to at an earlier stage of the legislativeprocess, say for example that "udicial review be inserted in between the passing of a billfrom the legislative to the executive department. 7o that the "udiciary may review it anddetect, if there is any, defects and incongruences to a statute and the constitution1 Thisway, we are in effect preventing rather than curing. (s the saying goes, prevention isbetter than cure.

%+. Searation o# &o"ers

(s stated in 7ection $, (rticle $ of the $456 +onstitution, The Philippines is ademocratic and republican 7tate. 7overeignty resides in the people and all governmentauthority emanates from them. *y democratic we mean direct democracy and byrepublican we imply representative democracy. The essence of republicanism lies inideas of representation and innovation. &ithin this idea of republicanism lies theprinciple of separation of powers. In its essence, separation of powers means thatlegislation belongs to +ongress, execution to the executive, settlement of legalcontroversies to the "udiciary. Dach is prevented from invading the domain of others.


7/9

*ernas, +ommentary G


8/9

:epublic of the Philppines vs. +ourt of (ppeals. $44A#. -.:. Fo. 646A%. 7upreme+ourt of the Philippines, decided $44A. (ccessed fromhttp//www.lawphil.net/"ud"uris/"uri$44A/nov$44A/grL646A%L$44A.html . 2ate

(ccessed ctober $$, %@$


9/9

8. Dffect of an Bnconstitutional 7tatute8I. +ost of !itigation

8II. The remedies to these problemsThe need for pre3legislative "udicial review#

efficiency and our law makers have tendency to pass law for private interest

rather than public interest. ': has a bad reputationMM Presumption of

knowledge of law should not be applied in the ph. Therefore, dapat ma

sub"ect sila sa "udicial review at the earliest opportune timeMM8III. 'owever, this should not be viewed negatively as 9ustice !aurel once stated

that ;There is more truism and actuality in the interdependence than in

independence and separation of powers; validation to pinch the veil of

separation of powers#

9B2I+I(! :D8ID& FT !D-I7!(TIF=: PB*!I+ P!I+N, :2D: F(E(IF IT

Preventive measure lang itoMM I= FT T (*7!BTD!N D!IEIF(TD

BF+F7TITBTIF(! 7T(TBD7, (T!D(7T T *D (*!D T :D2B+D T'DE

E(N 'BE(F D::: P(2IF, PD: E(7 +:D2I*!D (F2 CF&!D2-(*!D

(F2 9B2I+I(:N CD7( 7( !D-I7!(T:7 F( E(7 P:FD T D:::#

P(:(F- -8D:FEDFT IFTD:8DFTIF *( 7( =:DD E(:CDTM P(:( E(7

D==I+IDFT (T E(I&(7(F (F- E(:CDT/D+FEI+ =(I!B:D#

Rrl Thesis Jd October 12, 2015

Documents

Transcript of Rrl Thesis Jd October 12, 2015