Indefinitely temporary

The Supreme Court’s (SC) temporary restraining order (TRO) on the implementation of the Expanded Value Added Tax Law (RA 9337, E-VAT) once more highlights the seemingly enormous power of the judiciary vis a vis the other branches of the government. Ever since the issuance of the Petrochem and the Manila Hotel decisions, the SC has been under fire for allegedly engaging in judicial legislation or encroaching upon the powers of the other branches of the government. If it could temporarily but indefinitely stop the implementation of a law upon proper petition filed by proper parties questioning the constitutionality of a portion thereof prior to a full blown hearing of the case, the SC seems to be actually enjoying some form of judicial supremacy over the legislative branch. But this perception is more apparent than real.

The Constitution itself endows the SC with this power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction ordinance or regulation unconstitutional (Section 5 [a] and [b] Article VIII). In fact the "judicial power" has been expanded by the Constitution to include not only the "authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable or the redress of wrongs for violation of such rights (Lopez vs. Roxas 17, SCRA 756), but also power to "determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The exercise of judicial review of the E-VAT law is but an aspect of the judicial power. It does not mean judicial supremacy but the performance of a duty specifically enjoined upon it by the fundamental law of the land as part of a system of checks and balances (Dabuet vs. Roche Pharmaceuticals, Inc. 149 SCRA 386). The SC can exercise this judicial review if there is an actual case calling for it, if the governmental act being challenged has an adverse effect on the person challenging it, and if such person/s has/have personal or substantial interest as to sustain direct injury by its enforcement. In a number of cases the SC has refrained from touching on the issue of constitutionality of any act or law if it can be avoided or if it is not the main issue of the controversy.

In the E-VAT case, the constitutional question is centered mainly on the provision giving the President the power to raise the vat rate from 10 to 12 percent by Jan-uary 2006. Such delegation of the legislative power is constitutional if the law itself set forth the policy to be carried out or implemented by the President and has sufficiently fixed determinate or determinable limits or conditions to which the President must conform in increasing the rate. In this case, it has been contended that the conditions imposed by Congress already exist now so there is no more need to still delegate such power to the President in January next year. It could have fixed the rate in the very law itself instead of still delegating it to the President.

This provision indeed appears to be of doubtful constitutionality. The only problem is that the SC stopped the implementation of the entire law itself. The defect in some minor parts has affected the entire body of the law. And compounding the problem is the unfortunate fact that a TRO issued by the SC unlike the TRO issued by the lower courts has no fixed duration. For all intents and purposes it has the same effect as a writ of preliminary injunction which is usually issued only after giving the other side the opportunity to present sufficient arguments and reasons why the implementation of the law should not be enjoined even temporarily. These are the important points which the SC should consider in resolving this case.

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