Through 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.
A 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 Constitution.
In 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:
ART. 26. 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 38.
Where 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.
In 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 judicial interpretation?
Another 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 provides:
Art. 247. The judgment of the court shall be immediately final and executory.
In 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.
However, 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.
Confronted with these legal scenarios made us pause and ponder. Is the Supreme Court guilty of judicial
legislation? Well, not really.
In the first place, it can be clearly discerned from the anatomy of the Lorino andJomoc 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.
Secondly, 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.
Truly, 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 mandate.
Indeed, 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.