Comparative Study Legal Standing Draft

8/3/2019 Comparative Study Legal Standing Draft

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Jinkee O. Bantug

Comparative Constitutional LawProfessor Bruce Frohnen

Comparative Study on the Legal Standing Doctrineunder the U.S. Constitution and 1987 Philippine Constitution

I. INTRODUCTIONThe 1935 Constitution of the Republic of the Philippines, the progenitor of the

current 1987 Constitution of the Philippines, was written pursuant to the Tydings-

McDuffie Act of the United States, which created the Philippine Commonwealth. The

framers of the 1935 Constitution did not have much freedom in choosing any form of

government they wanted as it had to be approved by the colonial government of the

United States. Thus, the 1935 Constitution was a spitting image of the United States

Constitution except the federal features of the U.S. government and the provision giving

the Philippine president emergencypowers.1

The 1987 Constitution of the Philippines, however, born out of the People Power

Revolution which ended the 20-year dictatorial regime of former President Ferdinand E.

Marcos, departed in several respects from that of the U.S. Constitution. One of these is

on judicial power. Filipino constitutionalist Father Joaquin Bernas once said, Our new

Constitution has cut the umbilical cord to American jurisprudence.2

This paper is a comparative study on the judicial power provision embodied in

the U.S. Constitution and in the 1987 Philippine Constitution as it shapes the legal

1Government Structure, Accessed 22 October 2011. http://countrystudies.us/philippines/79.htm

2Artemio V. Panganiban, Judicial Activism in the Philippines, Philippine Law Journal, Vol. 79, No. 2-03, Accessed

22 October 2011. law.upd.edu.ph/plj/images/files/PLJ volume 79/PLJ volume 79 number 2 -03- Artemio V.

Panganiban - Judicial Activism in the Philippines.pdf


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standing concept between the two jurisdictions in the realm of judicial review. In

doing so, this paper aims to unravel the institutional judicial philosophy between the

two constitutional provisions that is, the tendencyof the Philippine Supreme Court to

embrace judicial activism and the deliberate effort to exercise judicial restraint on the

part of the U.S. Supreme Court, on the other hand. The difference in this judicial

philosophyis demonstrated on how the concept of legal standing or locus standiis used

as a tool to advance such philosophybythese two supreme courts.

II. LEGAL STANDING DOCTRINE IN THE LIGHT OF THECONSTITUTIONAL PROVISIONS ON JUDICIAL POWER IN THE U.S.CONSTITUTION AND IN THE 1987 PHILIPPINE CONSTITUTION

A. Legal Standing Doctrine in the U.S. ConstitutionArticle III, Section 2, Clause 1 of the U.S. Constitution provides:

The judicial Power shall extend to all Cases, in Lawand Equity, arising under this Constitution, the Laws of theUnited States, andTreaties made, or which shall be made,

under their Authority; - to all Cases affecting Ambassadors,other public Ministers and Consuls; - to all Cases ofadmiralty and maritime jurisdiction; - to Controversies towhich the United States shall be a Party; - to Controversies between two or more States; - between Citizens ofdifferentStates; - between Citizens of the same State claiming Landsunder Grants ofdifferent States.

The U.S. Supreme Court has interpreted Article III legal standing to require that

(1) the plaintiff have suffered an injuryin fact, or at least, an imminent harm, (2) caused

bythe defendant, (3) that a favorable court ruling would redress.3

3Daniel C. Garnaas-Holmes, Taxpayer Standing: Maintaining Separation of Powers while Ensuring Democratic

Administrative Action, Boston College International and Comparative Law ReviewVol. 31, Issue 2 (2008). Accessed

22 October 2011, http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1032&context=iclr&sei-


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invalid but that he has sustained or is immediately in

danger of sustaining some direct injury as the result of its

enforcement, and not merely that he suffers in some

indefinite way in common with people generally.6

The Supreme Court in the ,Frothingham case, enunciated the legal injury test

which emphasized the need for plaintiffs to allege an injury which had to be definite,

direct and personal to the him/her and which is differentiated from the public at large.7

Thus, albeit there was an allegation of violation of constitutional provisions on

the part of the legislative department, the U.S. Supreme Court declined to pass upon the

merits of the case because appellants, particularlyappellant taxpayer, failed to show that

she had sustained or is immediately in danger of sustaining some direct injury as the

result of the laws enforcement. The rationale of the decision was anchored mainlyon

the principle of separation of powers which in turn, translates to policy restraints

adopted bythe Court in the saiddecision. This principle of separation of powers would

had been undermined had the Supreme Court proceeded to review the act of the

legislature, even if the law would have found constitutional, as the process of reviewing

per se, would have been tantamount to asserting its authority over the co-equal branch

of the government.8

6Ibid.http://www.lexis.com/research/retrieve?_m=7a71e736ff9a492f9074d9c6923cc680&csvc=le&cform=byCitati

on&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzkzSkAb&_md5=b539211fb008e29c9a5717e56fa2d1e9#

1100-4777

Joseph J. Guinta, Standing, Separation of Powers, and the Demise of the Public Citizen, The American University

Law Review Vol. 24:835 (1975). Accessed 22 October 2011,

http://www.wcl.american.edu/journal/lawrev/24/giunta.pdf?rd=18

In his article, Standing, Separation of Powers, and the Demise of the Public Citizen, supra, Mr. Joseph J. Guinta

expressed the view, based on his appreciation of the text of the Frothingham Opinion that, Had the Court reached

the merits, it would have been compelled to assert its authority over that of the other branches by deciding

whether their actions should stand. Accessed 22 October 2011,

http://www.wcl.american.edu/journal/lawrev/24/giunta.pdf?rd=1


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On the other hand, in the case ofHardin v. Kentucky Utilities Co,9the Supreme

Court upheld respondent KentuckyUtilities Companys legal standing to challenge the

legality of the act ofTennessee Valley Authority (TVA), which was created under the

Tennessee ValleyAuthorityAct, in supplying power in two small Tennessee towns. The

Court declared that its previous ruling that the economic injury resulting from lawful

competition cannot in and of itself confer legal standing on the injured business to

question the legality of any aspect of its competitor operations does not apply in this

particular case. The Court painstakinglywent through the legislative historyof the TVA

Act and held that when the particular statutoryprovision invoked reflects a legislative

purpose to protect a competitive interest, such as in this case, the injured competitor has

standing to require compliance therewith.

In sustaining the legal standing of the respondent in the Hardin case, the

Supreme Court did not abandon the rationale of its decision in the Frothingham case. It

actuallyreinforced the same byaffirming the legitimacyof the Congress own sphere in

the constitutional order, that is, its power to create statutory rights and thereby

permitting the judicial system to protect the same. Once again, the Court affirmed that

its constitutional judicial power is inextricablyrestrained bythe powers of the other co-

equal branches of the government.

The Supreme Court, in the 1984 case ofAllen v. Wright et. al.,10 applied a more

stringent application of legal standing compared with the Frothingham case. In this

case, plaintiffs were black parents whose children attended public schools in seven

9390 U.S.1 (1968)

http://www.lexis.com/research/retrieve?_m=4bd387a3ed3bfac558ccec8e00d6d33f&csvc=le&cform=byCitation&_

fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzkzSkAb&_md5=d6bc36197a1ab255e09dfa3d1b84a5d710

468 U.S. 737 (1984)

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_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAb&_md5=71fac5c64afa39769548b4c69e6ca3cd


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states in school districts undergoing desegregation. They filed a class action against

government officials, alleging that the Internal Revenue Service (IRS) had not adopted

sufficient standards and procedures to fulfill the mandate of the provisions of the

Internal Revenue Code (IRC) that raciallydiscriminatory schools be denied both tax-

exempt status and eligibility for tax-deductible contributions under Section 170 of the

Code. The plaintiffs alleged two injuries resulting from the IRSs allegedly unlawful

conduct: First, they are harmed by the mere fact of Government financial aid to

discriminatory private schools. Second, the federal tax exemptions to racially

discriminatory private schools in their communities impair their ability to have their

public schools desegregated.

The U.S. Supreme Court denied legal standing to the plaintiffs by applying the

three-pronged constitutional test of standing, which required that: (1) the injury

suffered byplaintiffs be distinct and palpable, (2) that the injurybe fairly traceable to

the challenged conduct, and (3) that relief from the injury be likely to result from a

favorable decision. The first prong requires that the injurysuffered bythe plaintiffs be

judicially cognizable. The second and third prongs form the causation element of the

standing inquiry which means that the plaintiffs injury be caused directly by the

defendants conduct.11

In the Frothingham case, the U.S. Supreme Court held that the administration of

any statute, which is likely to produce additional taxation to be imposed upon a vast

number of taxpayers is a matter of public concern and not merely that of an individual.

11Teresa Wynn Roseborough, Allen v. Wright: Standing Beyond the Bounds of Article III. North Carolina Law

Review, 63 N.C.L. Rev. 1015 (1985), Accessed 28 October 2011,

http://www.lexis.com/research/retrieve?_m=7a382191cc10038a35a81fe2cff6ba05&csvc=le&cform=byCitation&_f

mtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzV-zSkAA&_md5=f8a6ce8d21af58002281075dd2754a45


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This maysignifythat if a good number of population, let us saya million, comes to the

court, to challenge an appropriation act or a statute whose administration requires the

outlayof public money, the Court, stretching farther its reasoning in the Frothingham

case, mayfind the plaintiffs with legal standing to challenge such statute.12

However, this possibility of a million plaintiffs acquiring a legal standing to

challenge an enforcement of a statute is completelydiscarded in the Allen case. The

U.S. Supreme Court in the Allen case, ruled that while the diminished ability of

plaintiffs children to receive an education in a racially integrated school was an injury

differentiated from the public at large, the line of causation between this injuryand the

IRSs grant of tax exemptions to raciallydiscriminatoryschools was too weak on which

to anchor their legal standing. The required line of causation would be present only if

plaintiffs had alleged that there were enough racially discriminatory private schools

receiving tax exemptions in their communities for withdrawal of tax-exempt status to

make an appreciable difference in public-school integration. The Court noted that it was

entirelyspeculative whether withdrawal of tax exemptions from raciallydiscriminatory

schools would affect public school integration.13

The Court anchored its finding of insufficient line of causation on the doctrine of

separation of powers. Accordingly, the case-or-controversy clause of Article III of the

U.S. Constitution underscores the fact that it is not the judiciary, but rather the

executive branch, which is assigned the dutyof taking care that the laws are faithfully

12This assumes the non-applicability of a class action which is recognized under Rule 23 of U.S. Federal Rules of

Civil Procedure.13

Teresa Wynn Roseborough, Allen v. Wright: Standing Beyond the Bounds of Article III, supra.


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executed. Thus, the Court cannot proceed to resolve the merits of the case without

running afoul of that structural principle.14

Thus, we can see that the causation element of Article III standing test demands a

veryexacting measure of injuryon the part of the plaintiffs and that any intimation of

speculative description of harm directly caused by government action immediately

strips off the plaintiffs of their legal standing in court. This prudential approach in

judicial decision-making gives paramount importance to the doctrine of separation of

powers. This approach on legal standing is dimly recognized in Philippines

jurisprudence even though the 1987 Philippine Constitution strongly echoes the

doctrine of separation of powers enshrined in the U.S. Constitution.

B. Legal Standing Doctrine in the 1987 Philippine ConstitutionArticle III, 1 of the 1987 Philippine Constitution states:

Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a grave abuseofdiscretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentalityof the government.

The first component of the judicial power refers to the ordinarypower of judicial

review, which is to settle actual controversies involving rights which are legally

demandable and enforceable. The second component refers to the extraordinary or

certiorari or, the expanded responsibility of the judiciary to decide issues involving

14Allen v. Wright, et. al. supra note 10.


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grave abuse ofdiscretion on the part of anybranch or instrumentalityof government,

including the legislative and the executive departments.15

In Kulasang Mayo Uno Labor Center v. Garcia, Jr.16, the Supreme Court

elucidated on the requirement of legal standing under Article III, 1 of of the 1987

Philippine Constitution, thus:

In Lamb v. Phipps, we ruled that judicial power is the power to hearanddecide causes pending between the parties who have the right to suein the courts of law and equity. Corollaryto this provision is the principleof locus standi of a party litigant. One who is directly affected by and whose interest is immediate and substantial in the controversy has thestanding to sue. The rule therefore requires that a party must show apersonal stake in the outcome of the case or an injury to himself that canbe redressed bya favorable decision so as to warrant an invocation of thecourts jurisdiction and to justify the exercise of the courts remedialpowers in his behalf.

Thus, the elements ofdoctrine of legal standing used by the U.S. Supreme Court

and the Philippine Supreme Court are evidentlythe same. The element of personal and

substantial interest in the case such that the partyhas sustained or will sustain direct

injuryas a result of a government act that is being challenged as opposed to a general

interest or grievances shared by other members of the public at large, is likewise

applied bythe Philippine Supreme Court. However, the Philippine Supreme Court, in a

plethora of cases, has departed from the restrained application by the U.S. Supreme

Court in the exercise of its judicial review. When confronted with constitutional issues

or statutory validity of government actions, the Philippine Supreme Court has shown

15Artemio V. Panganiban, Judicial Activism in the Philippines, supra note 2.

16G.R. No. 115381, (1994), http://www.lawphil.net/judjuris/juri1994/dec1994/gr_115381_1994.html


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much tolerance in entertaining lawsuits with less exacting demonstration of legal

standing as measured against that which is applied bythe U.S. Supreme Court.

In the case ofPascual v. Secretary17, the Philippine Supreme Court recognized

the legal standing of the petitioner as a taxpayer and also the Provincial Governor of

Rizal to file the action for declaratoryrelief with injunction which aimed to declare the

unconstitutionalityof certain provisions of Republic Act No. 115381 which appropriates

a portion of the public fund for the construction of feeder roads in the province of Rizal.

The petitioner claimed that the members of the Congress were made to believe that the

projected feeder roads were public roads but they were actually private streets of a

private subdivision owned bya private citizen. Thus, petitioner sought that unless the

enforcement of those provisions is enjoined by the Court, the respondents would

continue to execute those illegal provisions of law to the irreparabledamage, detriment

and prejudice not onlyto the petitioner but to the Filipino nation.

The Court reasoned that Frothingham cannot be applied to the Philippines

because the relationship between a Filipino taxpayer and the national government is not

the same as the relationship between an American taxpayer and the Federal

Government, but more analogous to the relationship between an American taxpayer and

his/her state government. Hence, in the Philippines, the injurypurportedlysuffered by

a taxpayer in cases of alleged unlawful disbursement of public funds or what we call the

taxpayers suit, is considered acceptably personal, substantial and direct to give

him/her standing in court.18

17G.,R. No. L-10405, 29 December 1960, http://www.lawphil.net/judjuris/juri1960/dec1960/gr_l-10405_1960.html

18Solomon F. Lumba, The Problem of Standing in Philippine Law, Asian Law Institute Working Paper Series No.

003 (July 2009), Accessed 28 October 2011, http://law.nus.edu.sg/asli/pdf/WPS003.pdf.


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The liberalized approach by the Philippine Supreme Court in the law of standing

is fullydemonstrated in the judicial construct called transcendental importance. In

cases impressed with transcendental importance, the question of the plaintiff or

petitioners legal standing is irrelevant in view of the transcendental importance to the

public of the issues involved in the case.

In the case ofKilusang Mayo Uno v. Garcia,19the Supreme Court explained the

importance that the transcendental importance doctrine plays in the realm of judicial

review, thus:

Assuming arguendo that petitioner is not possessed of the standingto sue, this court is ready to brush aside this barren procedural infirmityand recognize the legal standing of the petitioner in view of thetranscendental importance of the issues raised. And this act of liberalityisnot without judicial precedent. As early as the EmergencyPowers Cases,this Court had exercised its discretion and waived the requirement ofproper party. In the recent case of Kilosbayan, Inc., et al. v. TeofistoGuingona, Jr., et al., we ruled in the same lines and enumerated some ofthe cases where the same policy was adopted, viz: . . A party's standingbefore this Court is a procedural technicalitywhich it may, in the exercise

of its discretion, set aside in view of the importance of the issues raised. Inthe landmark Emergency Powers Cases, [G.R. No. L-2044 (Araneta v.Dinglasan); G.R. No. L-2756 (Araneta v. Angeles); G.R. No. L-3054(Rodriguez v. Tesorero de Filipinas); G.R. No. L-3055 (Guerrero v.Commissioner of Customs); and G.R. No. L-3056 (Barredo v. Commissionon Elections), 84 Phil. 368 (1949)], this Court brushed aside thistechnicalitybecause "the transcendental importance to the public of thesecases demands that they be settled promptly and definitely, brushingaside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R.No. L-2621)." Insofar as taxpayers' suits are concerned, this Court haddeclared that it "is not devoid ofdiscretion as to whether or not it should

be entertained," (Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it"enjoys an open discretion to entertain the same or not." [Sanidad v.COMELEC, 73 SCRA 333 (1976)].

xxx xxx xxx

19G.R. No. 115381, 23 December 1994, http://www.lawphil.net/judjuris/juri1994/dec1994/gr_115381_1994.html


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In line with the liberal policyof this Court on locus standi, ordinarytaxpayers, members of Congress, and even association of planters, andnon-profit civic organizations were allowed to initiate and prosecuteactions before this court to question the constitutionality or validity oflaws, acts, decisions, rulings, or orders of various government agencies or

instrumentalities. xxx. We did no less in De Guia v. COMELEC (Supra)where, although we declared that De Guia "does not appear to have locusstandi, a standing in law, a personal or substantial interest," we brushedaside the procedural infirmity "considering the importance of the issueinvolved, concerning as it does the political exercise of qualified votersaffected by the apportionment, and petitioner alleging abuse ofdiscretionand violation of the Constitution byrespondent.

C. The Political Context of the Disparate Treatment of the Legal StandingDoctrine under the 1987 Philippine Constitution and the U.S.Constitution

Based on the foregoing, it is clear that cases which touch on the legality or

constitutionality of government actions, the Philippine Supreme Court unabashedly

disregards the doctrine of separation of powers and proceeds to review the merits of the

case based on assertion of violation of constitutional or statutoryrights of the litigants.

Notwithstanding that the issues raised are the validityof executive rules and regulations

issued by a government agency or the exercise by the legislative department to

apportion congressional districts, as long as there is an allegation of violation of some

enshrined constitutional rights, the Philippine Supreme Court would trivialize the

challenge on the lack of legal standing of the plaintiff or petitioner and construe it

merely as a procedural infirmity which can be brushed aside in view of the

transcendental importance to the public of the issues involved. This is in stark contrast

with the substantive significance that the U.S. Supreme Court accords to the element of

legal standing on justiciabilityof a certain issue, thus:


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Thus, the Supreme Court of the Philippines, when it is engaged in judicial review,

is less oblivious to the doctrines of separation of powers or political question than its

counterpart in the United States because its Constitution is designed for the judicial

power to step on the sphere belonging to the other branches of the government, even if

it is a legitimately within the intent and meaning of the doctrines, when there is a

potential danger of even the slightest irregularity in the actions of the other

branches of the government. This is the political order which the Filipinos affirmed

when theyratified the Constitution in 1987 that is, for the judiciaryto playa proactive

role in protecting their constitutional and statutoryrights.

On the other hand, the United States has never been under any authoritarian

regime before. Hence, it sees no need to tilt the balance of constitutional power in favor

of any branch under certain circumstances. It could be said that there are certain

political mechanisms such as those inherent in the federal features of its government

which prevent the excessive arrogation of power by the other two branches of the

government, but judicial review is not one of those mechanisms. Thus, U.S. Supreme

Courts judicial philosophy is to exercise judicial restraint in cases where actions of the

other two branches of the government are challenged by litigants. The Court will not

proceed to review the merits of the case unless the litigant meets its interpretation on

the constitutional standard of legal standing otherwise, it will be guiltyof violating the

doctrine of separation of powers. For the Court, this practice of self-restraint is

paramount to uphold its non-partisan stance in the political sphere of the government

and thus, preserve the confidence of the people in its impartiality and independence.


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This was articulated byJustice Frankfurter in his Concurring Opinion in the caseDennis

v. United States23

But how are competing interests to be assessed? Since theyare notsubject to quantitative ascertainment, the issue necessarily resolves itselfinto asking, who is to make the adjustment? Who is to balance the relevantfactors and ascertain which interest is in the circumstances to prevail? Fullresponsibility for the choice cannot be given to the courts. Courts are notrepresentative bodies. They are not designed to be a good reflex of ademocratic society. Their judgment is best informed, and therefore mostdependable, within narrow limits. Their essential quality is detachment,founded on independence. History teaches that the independence of thejudiciary is jeopardized when courts become embroiled in the passions ofthe dayand assume primaryresponsibilityin choosing between competingpolitical, economic and social pressures.

III. CONCLUSION

A comparative study of the legal standing doctrine incorporated under the

judicial power provisions of the U.S. Constitution and the 1987 Philippine Constitution

reveals that the expansion or contraction in its application is a function of the social and

political history which gave birth to those Constitutions. The values and principles

engraved in those Constitutions are concretized by the judicial philosophy adopted by

the countrys Supreme Court. The relaxed application of the legal standing by the

Philippine Supreme Court and its restrained application by the U.S. Supreme Court

demonstrate the inclination towards judicial activism of the former and judicial

restraint by the latter. In either case, these judicial philosophies serve as the Courts

anchor in their faithful commitment to serve their own Constitutions.

23341 U.S. 494 (1951),

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Comparative Study Legal Standing Draft

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