By J. Myrna Dimaranan Vidal
Judiciary has been invariably perceived as the weakest among the
three branches of government considering that it does not have the
power of the purse, nor does it have the power of the sword. The
constitution only vested it with a pen to interpret the laws
including the constitution itself. On the contrary, with the words
that flow from its judicial pen, the Judiciary may likewise be
described as the strongest branch since it has the power to
pronounce, with certainty, that a law is invalid. And the people,
including the other branches of government, have no choice but to
obey its decree. In other words, as US Chief Justice MARSHALL said,
“it is for the court to say what the law is”.
Stated differently, the judiciary is the last bulwark of power.
with its goal to strengthen the democratic process, the Philippine
Constitution grants the Supreme Court an additional power to
promulgate rules that would protect the constitutional rights of our
people. This rule making power was expanded to complement the awesome
legislative power of Congress, such as the one vested by the
Constitution upon the Supreme Court. Section 5, Article VIII of
the 1987 Constitution provides:
5. The Supreme Court shall have the following powers:
Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar and
legal assistance to the underprivileged. xxx
the aforequoted constitutional provision is the basis of the issuance
of the Writ of Amparo which is the legal weapon to shield the
people from violators of their constitutional and human rights.
the years, the Judiciary, in taking its pen to strike at governmental
actions, has been accused of legislating, instead of interpreting
laws. Judicial legislation takes place when a court steps in to craft
missing parts or to fill in the gaps in laws or when it oversteps its
discretional boundaries and goes beyond the law to coin doctrines or
principles where none was before.
classic example of judicial legislation in the United States is the
case of Roe vs. Wade, wherein the US Supreme Court, on 22
January 1973, struck down anti-abortion law in the United States by
holding that the right to abortion is impliedly allowed in the US
the Philippines, there is likewise an increasing perception that our
courts are guilty of judicial legislation. The case of Republic
vs. Orbecido (GR No. 154380, 5 October 2005) has met several
questions as it allegedly expanded the concept enunciated in Article
26 of the Family Code, which provides:
All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and
a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law.
interpreting the second paragraph of the aforequoted article, the
Supreme Court, in Orbecido, ruled that the situation therein
includes cases involving parties who, at the time of the celebration
of the marriage were Filipino citizens, but later on, one of them
became a naturalized foreign citizen and obtained a divorce decree
capacitating him or her to remarry. The Filipino spouse should
likewise be permitted to remarry as if the other party was an alien
at the time of solemnization of the marriage. The said ruling has
solicited questions from the legal circles, such as: 1) is the
aforesaid rule applicable to foreign divorces obtained before the
effectivity of the Family Code?; 2) is the ruling tantamount to
judicial legislation considering that the Supreme Court had in effect
amended Art 26, par. 2 of the Family Code, a substantive law?; 3) is
the issue not a matter of legislation by Congress, rather than
situation which raised perplexity among the legal practitioners is
the interpretation made by the Supreme Court on Article 247 of the
Family Code vis-a-vis actions for declaration of presumptive death of
absent spouse under Article 41, 2nd paragraph, of the
Family Code, which is a summary proceeding. Article 247
Art. 247. The judgment of the court shall be
immediately final and executory.
construing the aforequoted provision, the High Court, in Republic
vs. Lorino (GR No. 160258, 19 January 2005), essentially ruled
that an appellate court acquires no jurisdiction to review a judgment
which, by express provision of law, as in Article 247, supra,
is immediately final and executory.
in Republic vs. Court of Appeals and Jomoc (GR No. 163604, 6
May 2005), the Supreme Court, in resolving the core issue in said
case, allowed the review by the Court of Appeals of a judgment on an
action for declaratory relief.
with these legal scenarios made us pause and ponder. Is the Supreme
Court guilty of judicial legislation? Well, not really.
the first place, it can be clearly discerned from the anatomy of
the Lorino and Jomoc rulings that there is no
contradiction to talk about. Evidently, the mode of review correctly
availed of by the OSG in the Jomoc case was a Petition for
Certiorari under Rule 65 of the Revised Rules of Court, whereas,
the Lorino case involved a Notice of Appeal which was
erroneously given due course by the RTC. Thus, both cases do
not actually contradict with each other.
it bears noting that the judicial power is vested in the Supreme
Court which is empowered by the Constitution to exercise the
power of judicial review. Thus, the magistrates could not shirk their
duties as arbiters on the basis that the issue raised in a case is
rather gray. The court is expected to declare that black is black and
white is white. Thus, however doubtful or difficult the situation is,
the court has no choice but to exercise its bounden obligation to
hear and decide the controversy brought before it. Necessarily, it is
not allowed to abandon its vested jurisdiction.
the Judiciary has a significant role to fulfill in an orderly
society. It must take an active role in the adjudication of disputes.
Perforce, as the sole interpreter of the law and dispenser of
justice, the power of the judicial pen should not be decreased by the
adverse opinions of the other branches of government or of the other
sectors of the community, be it the left or the right.
Naturally and expectedly, decisions of the High Tribunal and its
exercise of rule making power may receive either public acceptance or
criticisms. It may either be praised or accused of going beyond its
the judicial power is a power that can make a difference. The
power is weak only in the hands of weaklings; the power is puny only
to those whose minds no longer dream and dare.