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First word
WITH all due respect to the Supreme Court and our learned justices, my discussion group on national issues want to know if we would be at risk of contempt of the high court, if the following questions were posed to the body:
1. Where does it say in our Constitution that the Supreme Court has the power of judicial review, meaning that it can undo decisions of the representative branches who are duly elected by the people?
2. If they set store by the1803 decision of the US Supreme Court in the case of Marbury v. Madison, this will not wash.
In the US today, there are some in the legal community who contend that the government should abandon judicial review because it is too controversial and hard to defend.
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They cite the opinion of Prof. Emerita Kay Lawson of San Francisco State University, who wrote: “Marbury v. Madison was a classic case of executive-legislative struggle in which the winner was the judiciary.”
We must ask how did the court magically produce this bewildering result?
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The only plausible answer is that the US high court through then-Chief Justice John Marshall willed it so. The court arrogated for itself the power of judicial review and got away with it.
Does the US decision confer a similar power on the Filipino judiciary? Don’t we have our own constitution?
Why then is our Supreme Court following the example of this blatant violation of the principle of constitutional government, which by definition means limited government. Judicial review power has no limits.
Alexander Hamilton, one of the great US founding fathers, foresaw the problem with the tripartite separation of power. He wrote in Federalist No. 78 a defense of the power of judicial review. He maintained that despite the power of judicial review, the judiciary would be the weakest of the three branches of government because it lacked the strength of the sword or the purse.
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“The judiciary,” wrote Hamilton, “has neither force nor will, but only judgment.” He recognized that the power to declare government acts void implied the superiority of the courts over the other branches. But this power, he contended, simply reflects the will of the people, declared in the Constitution as opposed to the will of the legislature, expressed in its statutes. Judicial independence guaranteed by lifetime tenure and protected salaries, frees judges from executive and legislative control, minimizing the risk of their deviating from the law established in the Constitution.
“If judges make a mistake, the people or their elected representatives have the means to correct the error through constitutional amendments and impeachments.”
The Marbury v. Madison ruling is an illustrative example, a case of overreaching by the US Supreme Court.
Analogously, is the ruling by our Supreme Court in the impeachment case of Vice President Sara Duterte a piece of overreaching?
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