JUDICIAL

ACTIVISM
VS.
JUDICIAL
RESTRAINT

Submitted by:

Atty. Joselito Agapito

 TABLE OF CONTENTS

I. Introduction

II. Discussion on Judicial Activism and Judicial Restraint

A. Judicial Activism
B. Judicial Restraint

III. Identification of the Conflict

IV. Conclusion and Recommendation
I. Introduction

Some would believe that justice, or in particular, judicial decisions,

should be independent of politics; that judges and justices should stand
outside the sphere of political intrigue, and make decisions without regard
to power or wealth, but with the cold neutrality of an impartial judge.
Unfortunately, in the Philippines, this is not always the case. 1

The Supreme Court holds a quintessential position in the Philippines as it

is empowered to enquire the legal validity, implementation and
interpretation of the legislation.

The judicial system is expected to function in such a manner so as to

safeguard the rights and liberties of all the citizens while serving fair and
equitable justice. In the rapidly changing Filipino socio-economic-
political scenario, citizens expect a change in the performance and duties
by the judiciary in accordance with the changing perspectives, which
poses a challenge in ensuring justice.

The 1987 Philippine Constitution introduced several guarantees for

judicial independence, explicitly gives the Supreme Court the power of
judicial review. To be considered independent, the courts is insulated
from politics that they can function as neutral third-party arbiters between
organs of the state and between the government and the citizenry. An
independent judiciary, in turn, is important for democracies because of the
courts’ ability to prevent regressions to authoritarian rule. 2

Here, the concepts of judicial activism and judicial restraint comes into
the picture. These concepts are used to define the philosophy used by the
judges to uphold a judicial decision, being the exact opposite of each
other.

Primarily, they describe how the judges judge. While the former is a
dynamic concept that considers the changing outlook of the society, the
latter depends upon the strict interpretation of laws. These concepts will
depend upon various other doctrines and ideologies which will be
discussed.

1
http://ateneolawjournal.com/Media/uploads/7a81e301934bc1f67910525b7439ea64.pdf (last accessed June 11,
2021)

2
https://items.ssrc.org/democracy-papers/democratic-erosion/the-philippine-supreme-court-under-duterte-reshaped-
unwilling-to-annul-and-unable-to-restrain/ (last accessed June 11, 2021)
II. Discussion on Judicial Activism and Judicial Restraint

A. JUDICIAL ACTIVISM

Judicial activism is a principle contrasting to judicial restraint

whereby the jurists believe that the judges should perceive the judicial
outlook according to the transforming society. As per the Black’s Law
Dictionary, judicial activism is a philosophy of judicial decision-making
whereby judges allow their personal views about public policy, among
other factors, to guide their decisions, usually with the suggestion that
adherents of this philosophy tend to find constitutional violations and are
willing to ignore precedent .

Judicial activism/intervention cannot be personalized, it must be

institutional. It is a basic postulate that the law must be certain and not
become vulnerable to the predilections of individual judges, however well
meaning. For this, the decision ought to be based on well recognized
judicial principles which should be capable of uniform application to
different situations. It is this which gives legitimacy to the Court’s rulings
and commands respect and allegiance to the law. 3

When the executive does not make decisions in favor of the public,
the Judiciary, with the powers vested by the Constitution, rules to solve
such public grievances. This gave rise to the concept of judicial activism
which has given importance to social welfare. Sometimes, the judges
decide to interpret the law in such a manner which goes in consonance
with the existing ideologies rather than those formulated during the
drafting of the Constitution. Judicial activists hold decisions by exercising
their own will in the cases and responding to legal issues by keeping in
mind the social needs of the present day.  

The supporters of this principle believe that the law should be

interpreted in accordance with the ongoing values and conditions since
they change with the changing society. Hence, the judgments must reflect
these changes too. The courts should utilize their powers to rectify
injustice when the other branches of the government do not act in an
expected manner.  

http://www.nja.nic.in/Concluded_Programmes/2019-20/P1187_PPTs/1.JUDICIAL%20ACTIVISM%20AND
3

%20JUDICIAL%20RESTRAINT.pdf (last accessed June 12, 2021)

 Political science professor Bradley Canon has posited six
dimensions along which judge courts may be perceived as activist: 4
majoritarianism, interpretive stability, interpretive fidelity,
substance/democratic process, specificity of policy, and availability of an
alternate policymaker. David A. Strauss has argued that judicial activism
can be narrowly defined as one or more of three possible actions:
overturning laws as unconstitutional, overturning  judicial precedent , and
ruling against a preferred interpretation of the constitution.

Detractors of judicial activism charge that it usurps the power of the

elected branches of government or appointed agencies, damaging the rule
of law and democracy. 5  Defenders of judicial activism say that in many
cases it is a legitimate form of  judicial review , and that the interpretation
of the law must change with changing times.

A third view is that so-called "objective" interpretation of the law

does not exist. According to law professor Brian Z. Tamanaha,
"Throughout the so-called formalist age, it turns out, many prominent
judges and jurists acknowledged that there were gaps and uncertainties in
the law and that judges must sometimes make choices." 6

Under this view, any judge's use of  judicial discretion  will

necessarily be shaped by that judge's personal and professional experience
and his or her views on a wide range of matters, from legal and juridical
philosophy to morals and ethics. This implies a tension between granting
flexibility (to enable the dispensing of justice) and placing bounds on that
flexibility (to hold judges to ruling from legal grounds rather than
extralegal ones).

4
Canon, Bradley C. (1983). "Defining the Dimensions of Judicial Activism". Judicature. 66 (6): 236–247.

5
 Justice Antonin Scalia's dissent in Romer v. Evans; Romer, Governor of Colorado, et al. v. Evans et al. (94-1039),
517 U.S. 620 (1996).

6
Tamanaha, Brian Z. (2010). Beyond the Formalist-Realist Divide: The Role of Politics in Judging. Princeton
University Press. ISBN 978-0-691-14279-1.
 Some proponents of a stronger judiciary argue that the judiciary
helps provide checks and balances and should grant itself an expanded
role to counterbalance the effects of transient  majoritarianism , i.e., there
should be an increase in the powers of a branch of government which is
not directly subject to the electorate, so that the majority cannot dominate
or oppress any particular minority through its elective powers. 7 Other
scholars have proposed that judicial activism is most appropriate when it
restrains the tendency of democratic majorities to act out of passion and
prejudice rather than after reasoned deliberation. 8

Moreover, they argue that the judiciary strikes down both elected
and unelected official action, in some instances acts of legislative bodies
reflecting the view the transient majority may have had at the moment of
passage and not necessarily the view the same legislative body may have
at the time the legislation is struck down. Also, the judges that are
appointed are usually appointed by previously elected executive officials
so that their philosophy should reflect that of those who nominated them,
that an independent judiciary is a great asset to civil society since special
interests are unable to dictate their version of constitutional interpretation
with threat of stopping political donations.

The Supreme Court of the Philippines, like its American

counterpart, functions both as an appellate court and as a constitutional
court. 9 Unlike many countries, the Philippines does not have a separate
constitutional court. 1 0 A constitutional court is one “that deals primarily
with constitutional law. Its main authority is to rule on whether or not
laws that are challenged are in fact unconstitutional, i.e.[,] whether or not
they conflict with constitutionally established rules, rights[,] and

7
 Ely, John Hart (1980). Democracy and Distrust. Cambridge: Harvard University Press. chapters 4–6. ISBN 0-674-
19636-8.

8
Evan Zoldan, "Targeted Judicial Activism," 16 Green Bag 2d 465-66 (2014) SSRN 2310915

9
Agabin, supranote2, at 5.

10
There are approximately 56 nations with a separate constitutional court. JURIST — World Law, available at
http://jurist.law.pitt.edu/world (last accessed June 12, 2021)
 freedoms.” 1 1 In the Philippines, the Supreme Court itself is empowered to
be the final interpreter of the Constitution. 1 2 In fact, the Constitution
expressly recognizes the Court as the ultimate authority in settling “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 question.” 1 3

Between 2007 and 2010, the Philippine Supreme Court used its
expansive powers to strengthen protections for individual rights and civil
liberties. Through judicial administrative rules, the court introduced the
writs of amparo (a legal remedy to protect constitutional rights)
and habeas data (to protect informational privacy) amid widespread
reports of extrajudicial killings under then-president Arroyo. The court
also subsequently introduced the writ of  kalikasan , a legal remedy to
protect the right to a healthy environment. Through independent judicial
rulemaking, the Philippine Supreme Court proved itself to be a key actor
in Philippine democratic consolidation. Indeed, this period of judicial
activism by the court has coincided with improvements in the country’s
scores in the varieties of liberal democracy index. 1 4

The Supreme Court was inundated by constitutional issues

inseparable from political context. From the beginning of President Gloria
Macapagal-Arroyo’s term and her ascent to power in Estrada v. Desierto ,
to her final acts as President in De Castro v. Judicial and Bar Council , the
Supreme Court’s independence from the politics of the Executive and the
Legislature was constantly tested. 1 5

11
Id.

12
Supreme Court, Re: Further Clarifying and Strengthening the Organizational Structure and Administrative Set-Up
of the Philippine Judicial Academy, Administrative Matter No. 01-1- 04-SC-PHILJA [A.M. No. 01-1-04-SC-
PHILJA] (Jan. 31, 2006)

13
PHIL. CONST. art. VIII, § 5, ¶ 2 (a). Furthermore, as the ultimate authority or last interpreter of the Constitution,
the Supreme Court is empowered to “[r]eview, revise, reverse, modify, or affirm on appeal or certiorari ... final
judgments and orders of lower courts[.]” PHIL. CONST. art. VIII, § 5,

14
https://items.ssrc.org/democracy-papers/democratic-erosion/the-philippine-supreme-court-under-duterte-reshaped-
unwilling-to-annul-and-unable-to-restrain/(last accessed June 12, 2021)

15
Supra
 A clear example of “judicialization of politics” is Estrada,
involving the legitimacy of Gloria Macapagal-Arroyo’s assumption into
the Office of the President. The validity of her ascension to power was
brought about by succession due to the alleged resignation or permanent
disability of President Joseph E. Estrada, in accordance with the
Constitution. Quite interestingly, then Chief Justice Reynato S. Puno,
known to have dissented in a number of cases decided in favor of
Arroyo’s government, was the ponente of this decision. 1 6

In settling whether the principal issue was justiciable, the Court

rejected Arroyo’s invocation of the political question doctrine. 1 7 It held
that “the resignation of the sitting President that [EDSA II] caused and the
succession of the Vice President as President are subject to judicial
review.” 1 8 That is, the “principal issues for resolution require the proper
interpretation of certain provisions of the 1987 Constitution, notably
Section 1 of Article II, and Section 8 of Article VII, and the allocation of
governmental powers under Section 11 of Article VII.” 1 9 The Philippine
Supreme Court, by exercising jurisdiction over the controversy, intruded
into the Executive branch when it ruled upon the acts of the Chief
Executive, then President Estrada. 2 0 Quite ironically, when Estrada
“raised the improper application of Section 11, Article VII of the
Constitution, the Court rebuffed him, invoking the separation of powers

16
http://ateneolawjournal.com/Media/uploads/7a81e301934bc1f67910525b7439ea64.pdf (last accessed June 12,
2021)

17
Estrada, 353 SCRA at 490.

18
Id. at 493.

19
Id. at 495.

20
Sabrina M. Querubin, et al., Legitimizing the Illegitimate, Disregarding the Rule of Law in Estrada v. Desierto
and Estrada v. Macapagal-Arroyo (Paper submitted to the Irene Cortés Award for best paper in constitutional law at
the University of the Philippines), available at https://www.law.upenn.edu/ journals/jil/jilp/articles/2-
1_Queribin_Sabrina. pdf (last accessed June 12, 2021). See Estrada, 353 SCRA at 495.
 and political question doctrines, saying that the Congress’ application of
the said section was not a legal but rather a political question. 2 1

In addressing the main issue on whether Estrada resigned, the Court

used the totality test to determine the existence or non-existence of a
public official resignation. Thus, the Court sought to establish Estrada’s
intent to resign by considering his “acts and omissions, before, during[,]
and after [20 January 2001] or by the totality of prior, contemporaneous [,]
and posterior facts and circumstantial evidence bearing a material
relevance to the issue. ” 2 2 In doing so, the Court went beyond the
actuations and omissions of Estrada to establish intent, which, by its very
nature, should have only been culled from him. That is, the Court
essentially established Estrada’s resignation by focusing on political
events that demonstrated withdrawal of support for Estrada’s
government. 2 3 This was the indirect implication when the Court loosely
relied upon the contents of then Executive Secretary Edgardo J. Angara’s
diary to establish Estrada’s intent to resign. 2 4 The Court’s seemingly over-
stretched reasoning was further shown when it attributed to Estrada an
agreement between Angara and President Fidel V. Ramos regarding the
peaceful and orderly transfer of power. 2 5 Resignation being personal to
Estrada, it behooved the Court to apply the doctrine res inter alios acta
alteri nocere non debet. 2 6

In conclusion, although a more exhaustive set of substantive legal

principles could have been applied, the Court held that the resignation of

21
Querubin, et al., supra note 32.

22
Estrada, 353 SCRA at 496.

23
See Estrada, 353 SCRA at 497-99.

24
Estrada, 353 SCRA at 497-98.
25
Querubin, et al., supra note 32.

26
Id. The legal maxim res inter alios acta alteri nocere non debet means that “[t]hings done between strangers ought
not to affect a third person, who is a stranger to the transaction.” Legal Latin phrases and maxims, available at
http://www.inrebus.com/legalmaxims_r.php (last accessed June 12, 2021).
 Estrada could not be doubted against a background of public pressure
calling for change in leadership. 2 7

Thus, the concept of judicial activism has been criticized by the

legal fraternity since it goes against the doctrine of separation of powers
by interfering into the fields of the other organs of the government. It also
promotes the judges to not give a strict interpretation to the  Philippine
Constitution , thereby reducing the sanctity of the grundnorm of the nation
and opposing the intent of the makers of the Constitution.

B. JUDICIAL RESTRAINT
Judicial restraint is a legal term that describes a type of judicial
interpretation that emphasizes the limited nature of the court's power.
Judicial restraint asks judges to base their decisions solely on the concept
of stare decisis , an obligation of the court to honor previous decisions. 2 8
Judicial restraint is a theory of interpretation for the Judiciary. It is
a notion which portrays that the judges should limit the exercise of their
powers by not influencing the decision or the proceedings with their own
preferences and perspectives, rather by the constitutional and statutory
mandates. It propounds that judges must hesitate in striking down the laws
until and unless these laws are unconstitutional. The jurists supporting
judicial restraint argue that judges do not possess any policy-making
powers and hence, they should rely upon the legislative intent, stare
decisis and strict application of judicial interpretation. 2 9

Advocates of judicial restraint argue that judges do not have the

authority to act as policy makers. Among judicial restraint advocates are
Thomas Jefferson, Learned Hand and Hugo Black. Opponents argue that
activism is a necessity when the other branches of government do not act
to bring about social change. Some opponents of judicial restraint include
William J. Brennan and Ronald Dworkin.

27
http://ateneolawjournal.com/Media/uploads/7a81e301934bc1f67910525b7439ea64.pdf p. 37 (last accessed June
12, 2021)

28
https://www.thoughtco.com/a-definition-of-judicial-restraint-3303631(last visited June 13, 2021)

29
https://blog.ipleaders.in/judicial-activism-vs-judicial-restraint-indian-disarray/ (last accessed June 12, 2021)
 Throughout the United States history, several court cases have become
clear examples of both judicial restraint and judicial activism,
including  Dred Scott v. Sandford  and Brown v. Board of Education ,
respectively . 3 0

Thomas Jefferson expressed strong views in favor of judicial restraint:  

“One single object... [will merit] the endless gratitude of society: that
of restraining the judges from usurping legislation. And with no body
of men is this restraint more wanting than with the judges of what is
commonly called our General Government .” 3 1

Learned Hand
A judge who served on the   United States District Court for the
Southern District of New York   from 1909 to 1924 and on the   United
States Court of Appeals for the 2nd Circuit from 1924 to 1961. He was
also a judicial philosopher and a leading proponent of judicial
restraint.
According to the   New York Times, Hand "was committed to neither a
conservative nor a liberal agenda, but to a creed of judicial restraint
he had learned at Harvard Law School from J.B. Thayer and had
reinforced by his own experience of democracy."
Hugo Black
An associate justice on the U.S. Supreme Court from 1937 to 1971 and
a strong supporter of judicial restraint. He believed that the power of
making laws should be reserved for the legislature and wrote that
"power corrupts, and unrestricted power will tempt Supreme Court
justices just as history tells us it has tempted other judges."
This doctrine states how domestic courts will abstain from passing
judgement over the acts of a foreign sovereign done in its own territory.
Liberal restraint was shown in  Whole Woman's Health v
Hellerstedt  in which the 1973 decision of  Roe v Wade was upheld in favor

30
https://ballotpedia.org/Judicial_restraint (last accessed June 12, 2021)

31
University of Virginia Library,”Thomas Jefferson,” (last accessed June 12, 2021)
 of a woman's right to abortion. Cases on abortion have been heard since
then, and while some have placed limitations on it, or allowed individual
states to decide on those limitations, the unwillingness of the  Court to
overturn this decision remains.
Conservative restraint was shown in  Glossip v Gross   in which
support was built in favor of the continued use of  lethal injection . The
case suggested that prisoners could only challenge the method of
execution by providing an alternative method of execution. The Court
argued that it was the responsibility of the prisoner to demonstrate that
the execution method caused severe pain, not the responsibility of the
state.
In the Philippines, the common ‐ law principle of judicial restraint
serves the public interest by allowing the political processes to operate
without undue interference. 3 2

In terms of legislative acts , the principle of judicial restraint means

that every intendment of the law must be adjudged by the courts in favor
of its constitutionality, invalidity being a measure of last resort. In
construing therefore the provisions of a statute, courts must first ascertain
whether an interpretation is fairly possible to sidestep the question of
constitutionality. 3 3

The doctrine of separation of powers  imposes upon the courts

proper restraint born of the nature of their functions and of their respect
for the other departments in striking down acts of the legislature as
unconstitutional.   3 4

The judiciary will not interfere with its co-equal branches  when: 

1. There is no showing of grave abuse of discretion  

32
Sinaca vs Mula, G.R. No. 135691, September 27, 1999 

33
Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001

34
Francisco, Jr. v. The House of Representatives, G.R. No. 160261, Bellosillo J., Separate Opinion, November 10,
2003
 (a) PPA v. Court of Appeals : If there is no showing of grave
abuse of discretion on the part of a branch or
instrumentality of the government, the court will decline
exercising its power of judicial review.

(b) Chavez v. COMELEC : Judicial review shall involve only

those resulting to grave abuse of discretion by virtue of an
agency’s quasi-judicial powers, and not those arising from
its administrative functions.

2. The issue is a political question.  

Even when all requisites for justiciability have been met, judicial
review will not be exercised when the issue involves a political question.  

But see Francisco v. House of Representatives (2001). At the same

time, the Court has the duty to determine whether or not there has been
grave abuse of discretion by any instrumentality of government under its
expanded judicial review powers. (This allowed the SC to interfere in a
traditionally purely political process, i.e. Impeachment, when questions on
compliance with Constitutional processes were involved.)   3 5

III. Identification of Conflict

Supreme Court decisions become part of the law of the land by

operation of law. 3 6 When it comes to the powers of the judiciary, the
conventional view is that this wing of the government interprets the
Constitution and other laws and applies them. While deciding a particular
case, the judge has to interpret the relevant law and apply the same to the
facts, in order to reach a verdict. A specific legal provision can be
interpreted in different ways. It may also happen that the same law is
interpreted by different judges in different ways. While some judges stick
to the plain text, others try to decipher the intent of the law and apply it

35
http://www.prohealthlaw.com/2015/02/principle-of-judicial-restraint.html (last accessed June 12, 2021)

36
An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE], Republic Act No. 386, art. 8
(1950).
 accordingly. There are some judges who rely on precedents (earlier
judicial decisions) 3 7

A ruling, regardless of the quality of its reasoning or the

ingeniousness of its craftsmanship, will always be legally sound unless
the Court overturns itself in a subsequent decision.

Thus, the debate over judicial activism and restraint is as old as our
republic. Although the general meaning of the terms "judicial activism"
and "judicial restraint" is thus commonly understood, application of the
terms often is unclear, particularly in the complex regulatory context in
which policy are made. At least two sources of confusion can be
identified. First, activism and restraint are not unitary concepts, but rather
are composed of distinct, yet interrelated ideas. 3 8 Second, although the
debate over activism and restraint developed in the field of constitutional
law, a context in which the application of the concepts of activism and
restraint is relatively straightforward, the debate in recent years has
moved into the regulatory arena, a context in which the implications of a
decision in terms of activism and restraint are more complex.

To clarify the analysis of judicial activism and restraint, we should

distinguishes between "institutional" and "policy" activism and restraint.
This distinction is illustrated initially in terms of familiar constitutional
law decisions whose institutional and policy implications are easily
identified. Proponents of judicial restraint have failed to recognize this
distinction, perhaps because in the field of constitutional law institutional
and policy activism often converge. The distinction be- comes important
in the regulatory context, however, because in that context the
institutional and policy implications of a judicial decision often differ. In
particular, the distinction provides a useful tool for analyzing the Supreme
Court's recent emphasis on judicial restraint in its environmental law
decisions. 3 9

37
https://opinionfront.com/judicial-restraint-vs-judicial-activism (last visited June 13, 2021)

38
https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2559&context=vlr p. 347 (last visited June 12,
2021)

39
https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2559&context=vlr vol 42:343 (last accessed
June 12, 2021)
 The main difference between the two theories lies in the extent of
power exercised by the judiciary. While judicial restraint limits the power
of a judge to interpret law in a broad manner or strike down a legislation;
in judicial activism, the judge takes more freedom to deviate from
conventional interpretation, so that a law can be applied to a given set of
facts. He can overrule laws as well as judgments. According to the
philosophy of judicial restraint, there is no scope of interpretation of the
Constitution, and changes can be made through amendments only. In case
of judicial activism, Constitution can be interpreted in a broad manner.
According to the theory of judicial restraint, the judge must stick to the
laws enacted by the legislature and should uphold them unless they are
unconstitutional. In judicial activism, the judge can interpret laws
according to the changing needs of the society and prevent injustice.
While judicial restraint is intended to prevent judges from exercising
arbitrary power over the life and liberty of citizens, judicial activism
encourages them to exercise more power to shape social policies and to
correct injustices, especially when the other wings of the government fail
to do so.

Pros and Cons

Here are some arguments and criticisms with regard to these
theories. Judicial activism is highly effective for bringing forth social
reforms. Unlike legislature, the judiciary is exposed to the problems in the
society through the cases it hears. So it can take just decisions to address
such problems.

Through judicial activism, the judiciary is keeping a check on the

legislature that does not function properly. Actually, it is their duty to
solve those matters that plague the society. According to the supporters of
this philosophy, the judiciary intervenes only when the legislature fails to
do its job. The government may take a long time to enact a law regarding
controversial social reforms.

On the other hand, judicial restraint is highly important, even if the

legislature fails to work properly. What happens if the legislature executes
the functions of the judiciary? It is the people, who have to take steps to
resolve that problem, by selecting an efficient legislature.
 Judicial activism is contradictory to the concept of separation of
powers. It is not fair for one branch of the government to intervene and
exercise the power vested with another. When it comes to legislating, the
knowledge and expertise of the judiciary may not be sufficient. They may
not be competent enough to make major political decisions.

The legislature is elected by the people, and the elected

representatives are entrusted with the task of legislating. Unlike the
legislature, the members of the judiciary are not elected by the people and
are not supposed to legislate. The judiciary can be arbitrary and unfair.
Though the government has three organs, the judiciary has the final say in
matters of dispute. There is no other authority above the Supreme Court.
So, restraint is advisable while exercising that power.

In short, both the theories of judicial activism and restraint have

their own advantages and disadvantages. However, judges striking down
unconstitutional laws to protect public interest cannot be considered as
encroachment into the domain of the legislature. After all, judiciary is
meant for upholding justice. 4 0

Those who claim that the Supreme Court has authority to make law
are known as advocates of judicial activism. Those who teach that the
Court’s authority extends only to resolving disputes in accordance with
law made by Congress are known as judicial restraint. The controversy
over the legitimacy of the Supreme Court’s formulating social policy has
entered a new phase on the argument for judge-made law to the extreme of
its logic, thus clarifying the issue and facilitating choice of the proper
role of the Supreme Court easier.

IV. Conclusion and Recommendation

Conclusion

The integrity of the Judiciary must be protected to ensure government

stability. The analysis is that it demonstrates a consistent pro-
development pattern has prevailed in Supreme Court decisions. Although
the Court exercised institutional restraint in the majority of its decisions,

40
https://opinionfront.com/judicial-restraint-vs-judicial-activism (last visited June 13, 2021)
the pro-development results are not explainable solely as the product of
neutral exercise of institutional restraint, these decisions reflect policy
activism by the court.

In a number of significant decisions the Court abandoned the principles of

institutional restraint in order to reach a pro-development result.
Moreover, in many cases the Court's exercise of institutional restraint
seems inconsistent with statutory language or legislative history.

Thus it is not intended to suggest that court should disregard their

institutional limitations in order to pursue a judicial policy agenda, but
rather suggest that recognition of these limitations neither difficult
institutional questions nor ensures that resolution of these questions will
remain free from influence of policy considerations. Instead, it urge the
courts to be more aware of and more candid in acknowledging the policy
considerations that underlie their decisions. Such candor will not prevent
courts from pursuing their policy preferences at the expense of those
chosen by other governmental institutions. But candor does make judicial
policy choices available for public scrutiny. In a system in which judges
enjoy substantial independence, public scrutiny not institutional restraint
is the best protection against unwarranted policy activism.

It is true that if judges take up the tasks of the executive and legislature in
their own hands then some issues are bound to arise such as lack of
expertise and distorting the doctrine of separation of powers. Though the
Court has not made any declaration on rendering decisions based on non-
legal considerations, the implications of its decisions reflect the Court’s
recognition of the need to protect the welfare of society. But then the
Philippine scenario also requires the creativity and application of personal
minds of the judges while interpretation due to the complexity of cases in
the present times.  Perhaps this difficulty rests on the greater caution that
the Court needs to take when it acts as a political Court.

Recommendation

It is recommended that the judiciary must take cognizance of the matter

when an appropriate case is presented before it. By virtue of its expanded
power to review grave abuse of discretion, the courts certainly possess the
 requisite authority to rule on the matter. It is no coincidence that the
provision on judicial power is couched in general terms. This is precisely
to make it susceptible to judicial interpretation when the exigency of the
situation arises.

In the words of Justice Cruz, “an assertive and activist Supreme Court is
likely to venture boldly into the realm of political questions and claim the
right to resolve them according to its own lights even at the risk of
antagonizing the other departments. On the other hand, a timorous
judiciary will probably cling to the conventions and in the interest of
harmony, or perhaps its own convenience and security, choose not to rush
in where angels fear to thread.” 4 1

Stated otherwise, the formulation of our policy is a shared responsibility

of the three branches of the government. It behooves the Court, in Justice
Laurel’s words, “to make the hammer fall, and heavily” where the acts of
the President betray the people’s will as enshrined in the Constitution .

41
Isagani A. Cruz, Philippine Political Law, 470-471 (2014).