From judicialization to politicization of the judiciary: the Philippine case

Tate (1994: 190) suggests that judicialization occurs when ‘the Court [assumes jurisdiction over] a wide variety of policy processes that would otherwise be the responsibility of the executive and legislature, that is, the majoritarian institutions’. Like Tate, Hirschl (2008) sees judicialization as characterized by a growing reliance on judicial bodies and processes. Unlike Tate, however, Hirschl (2008: 2) looks closely at a particularly fascinating type of judicialization—the ‘judicialization of mega-politics’—the reliance on courts and judicial processes to address ‘core moral predicaments, public policy questions, and political controversies’ and ‘matters of outright and utmost political significance that often define and divide whole polities’. He cites as examples ‘electoral outcomes and corroboration of regime change to foundational collective identity questions, and nation-building processes pertaining to the very nature and definition of the body politic as such’ (Hirschl 2008: 2).

As for ‘politicization of the court’, the author understands it as the growing recognition by the public of the court as a partisan player in politics alongside the erosion of court’s public image as an impartial and independent arbiter of disputes (Haynie 1998: 462). The application of this concept to the present study will be discussed further below. But to distinguish judicialization from politicization of the court at this point, the former refers to the growing reliance on courts and their processes to decide on matters that traditionally fall within the jurisdiction of executive and legislative bodies. The latter meanwhile refers to growing perception of the court as a partisan and possibly a coopted decisionmaking body instead of an impartial and independent arbiter of conflicts.

Judicialization in the Philippines post-Marcos

To understand the process of judicialization in the Philippines and its recent shift toward politicization of the judiciary, a quick review of Supreme Court history since 1987 and a discussion of significant rulings may be helpful. The government structure set up by the 1987 Constitution is characterized by separation of powers, an emasculated presidency, bicameralism, and a multiparty system. Early in the presidency of Corazon Aquino, the first president after Marcos, and particularly under the watch of Chief Justice Claudio Teehankee Sr., the functions of the Supreme Court varied.

Predictably, the most significant cases presented for judicial review in the early years of the Aquino presidency concerned the ousted Ferdinand Marcos, his family, and alleged cronies; the validity of martial law-era policies and court rulings; and efforts to rectify transgressions associated with the Marcos dictatorship. In most of these the Court espoused an anti-Marcos position. To justify its rulings, it would often assert that it was simply being faithful to the 1987 Constitution, presenting itself as guardian of the constitution.

Still, it bears recalling that the 1987 Constitution was designed to be antiauthoritarian and anti-Marcos. The composition of the Supreme Court as reconstituted in 1987 revealed a similar anti-authoritarian, anti-Marcos predisposition. At least five of the original members of the Supreme Court were reputed to be Marcos critics. Teehankee and Vicente Abad Santos had been dissenters in the Marcos-era Supreme Court. Pedro Yap, as a delegate to the 1971 Constitution Convention, had voted against provisions of the 1973 Constitution which gave Marcos total control of the Philippine government. Marcelo Fernan had been a member of the opposition in the National Legislature and Andres Narvasa had been a member of the Agrava fact-finding body that found the military culpable for the assassination of Benigno Aquino Jr. in 1983. The other members of the court were reputedly independent-minded legal scholars and human rights or libertarian advocates.

Chief Justice Teehankee was highly supportive of President Aquino and worked to ensure that court rulings were unanimous. When Marcelo Fernan became Chief Justice in mid-1988, however, he ushered in a court that was less sympathetic to the president and more inclined to invalidate her appointments and subject government economic policies to judicial review.

In Civil Liberties Union v. Executive Secretary (1991), the Fernan-led Court rejected presidential orders allowing cabinet members to assume additional governmental positions. In Brillantes v. Yorac (1990), it invalidated Aquino’s appointment of the respondent as acting chair of the Commission of Elections (COMELEC). Voting 9–6 in Laurel v. Garcia (1990), the court prohibited the president from selling Philippine property in Roponggi, Japan. In Garcia v. Board of Investments (1989)—a decision widely criticized by businesspeople as judicial meddling in economic policy-making—it rejected a foreign investor’s decision to relocate its petrochemical plant. Significantly, in cases that evoked bad memories of martial law and the Marcos dictatorship, the Fernan court issued decisions that libertarians and human rights advocates found alarming. For instance, it upheld the legality of military checkpoints in Valmonte v. De Villa (1989) and warrantless arrests in subversion cases in Umil v. Ramos (1991).

But the Fernan court did not always nullify government policy choices. In

Other political decisions followed. For instance, Lambino v. Comelec (2006) dismissed as a ‘constitutionally infirm [people’s] initiative’ the Malacañang-supported signature drive to jumpstart transformation of the bicameral presidential system into a unicameral parliamentary system; and Province of North Cotabato v. Government of the Republic of the Philippines (2008) invalidated the memorandum of agreement on ancestral domain between the Philippine government and the Moro Islamic Liberation Front (MILF). In all these cases the Supreme Court ruled against President Arroyo, reaffirming its image as an independent body and asserting its key role as guardian of the Constitution. But—in a decision reversing its original ruling in Senate v. Ermita (2006)—in Neri v. Senate (2008) the court upheld petitioner Romulo Neri’s invocation of executive privilege during a Congressional hearing on the scandal-plagued ZTE-National Broadband Network (NBN) Project. As will be seen below, Neri has a significant place in the history of the Court.

Clearly, to this point the post-Marcos court had not been sparing in its exercise of judicial review. However, it must be emphasized that it did not always invalidate government action. Moreover, in many instances where government action was invalidated, the court appeared to have convincing constitutional or other legal grounds, according to observers and commentators (e.g., Bernas 1999, Bernas 2000, Cruz and Datu 2000, Bernas 2003, Panganiban 2004, Bernas 2007, etc.). Sometimes, however, the justifications the Court provided were not at all persuasive. For instance, legal scholars have found less than satisfactory the ruling on Estrada’s resignation in Estrada v. Arroyo (see Paguia 2003, Bernas 2001, Cruz 2001). In any event, the preceding section has cited various occasions which suggest that Philippine politics was being judicialized. The following section discusses factors that contributed to that process.

Drivers of judicialization in the Philippines

The 1987 Constitution provided the impetus for judicial intrusion into Philippine politics. It essentially created a Supreme Court designed to serve as ‘a check on the executive and legislative powers’ (Agabin 1996: 193). In Section 1, Article VIII, it explicitly gave that court and lower courts the power of judicial review:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
     Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.

Note, too, that judicial review is defined as a ‘duty’: The constitution has imposed on the Philippine Supreme Court and lower courts the duty to determine whether any branch or instrumentality of government has committed a grave abuse of discretion. This implies that if the Supreme Court should refuse to look into how the political branches are exercising discretion, it would be violating its constitutional duty. Section 1, Article VIII, thus justifies not only judicial intrusions but also recurrent judicial intrusions.

Agabin (1996) adds that provisions in the 1987 Constitution have increased the likelihood of the Supreme Court invalidating decisions and actions of the Philippine president or Congress. Comparing the present constitution with previous ones, he finds, significantly, that the voting requirement for nullifying a treaty, international or executive agreement, or law has changed from two-thirds of the entire court to a mere majority of those who actually take part in deliberations.

(Agabin 1997: 183–4)

The strengthening of judicial power by the present constitution has to be appreciated in relation to the weakening of the political bodies that a number of constitutional provisions stipulate. The most significant appear to be those provisions which impose limits on the terms of elected officials and limits on the executive’s exercise of martial law powers. Empowering the judiciary while weakening the political branches clearly encourages judicialization.

The Philippine constitution has also granted the Supreme Court what appear to be law-making powers. According to Section 5, paragraph 6, Article VIII, the Supreme Court has the power to

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, [or] modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

In 2008 the Supreme Court promulgated the writ of amparo to contain an alarming rise in extrajudicial executions. This was followed by the writ of kalikasan in April 2010 to address urgent environmental concerns. In other jurisdictions, such actions would be seen as symptoms of judicial activism because they preempt executive and legislative action on such matters.

As might be expected, jurisprudential principles or doctrines can also be used to justify judicial activism. Orosa (2004: 601–10) identifies a number of jurisprudential doctrines that the Philippine Supreme Court has invoked to justify its ‘activist’ rulings, among them (a) the constitution is supreme; (b) the welfare of the people is the supreme law (salus populi est suprema lex doctrine); and (c) the doctrine of ‘transcendality’ or ‘transcendental importance’, which is often invoked to justify the setting aside of procedural requirements. Of course, precedents and stare decisis can be invoked to support activist rulings—a previous activist decision can serve as precedent for future activist decisions. The accumulation of activist rulings epitomizes the process of judicialization.

Thus, constitutional, institutional, and structural factors favored the rise of judicial activism and the advance of judicialization in the Philippines. Still, it is the text of the constitution, supported by reliance on the concept of constitutional supremacy, which is the major driving force behind the judicialization of politics. As Agabin (1997) suggests, the Philippines ‘constitutionalized’ judicial activism. The build-up of judicial power and the weakening of the prerogatives of Philippine political branches are attributable to the desire of delegates to the 1986 Constitution Commission to prevent a return to authoritarianism. An empowered and independent judiciary with broad and explicit review powers was envisioned as a safeguard against dictatorship and corruption. (Note, however, that Ferdinand Marcos himself placed a premium on constitutionalism—or at least its appearance.)

Rule of law, though a slippery idea, is generally associated with the impartial application of stable rules (Weingast 1997). It is often equated with the perception that rules are applied consistently and justices rule consistently. The brief historical review of the post-Marcos Supreme Court showed that reversals do occur and the policy direction of court rulings can vary from time to time. Periodic ruling reversals, the shifts in policy direction the court has endorsed in its decisions, intermittent episodes where the court invalidates executive or legislative actions, conflicts between how the court and political bodies read the laws, the frequent rulings by a divided court, the failure of authorities to enforce court decisions, the refusal of citizens to follow court rulings, and the leniency authorities display towards convicted celebrities and influential individuals—all these have impressed on the Filipino public the fact that the rules governing Philippine society are in fact not stable and their application is rarely impartial. Rule of law is lacking. In this context judicialization makes the legal environment even more unpredictable.

With regard to the economy, the widespread sentiment is that judicialization is detrimental to coherent policy-making and the attainment of economic policy goals. Bakker (1997: 98) reports that it was judicial intrusion which prevented President Ramos from implementing a coherent economic policy in the 1990s, making it impossible for him to achieve his developmentalist vision of Philippines 2000.

At any rate, the most immediate consequence is that judicialization can pave the way for judicial pre-eminence. Indeed, the expansion of review power in the Philippines has led scholars to announce the arrival of ‘judicial supremacy’ (Agabin 1996) or ‘kritarchy’ (Orosa 2004). As we have seen, by performing its legitimating function the court can actually play the role of king-maker, as in 2001 when it declared Gloria Macapagal-Arroyo president of the Philippines. It can also assume a direct role in policy-making, primarily as a veto-player, as can be seen in the rulings on the validity of huge contracts the government had entered into with other entities. The mere fact that the policies, decisions, and actions of the president or Congress can be subjected to judicial review allows the court to assume a pre-eminent political role if it wants to.

In the final years of her presidency, Macapagal-Arroyo was such an actor. Fearing criminal prosecution once her presidential immunity expired, among other things she used her appointment powers to put allies in key places—justices on the Supreme Court; a former subordinate, Renato Corona, as chief justice; and a family friend as ombudsman—hoping that the deeply-held Filipino values of gratitude and personal loyalty would pay off in both the short and the long run. As will be argued below, in confluence with other developments Arroyo’s actions stimulated the shift from the judicialization of politics to the politicization of the court.

The politicization of the Philippine Supreme Court

Political scientists have long acknowledged that courts are political bodies. If one defines politics as ‘the authoritative allocation of values for a society’ (Easton 1953: 129) or ‘the process by which resources are distributed within a society’ (Haynie 1998: 459), courts clearly are political. Political scientists also question the portrayal of judicial decision-making as a mechanical activity—the mechanical application of the letter of the law, because they find that oftentimes judges also take into account the policy consequences of their decisions. Judges are policy-oriented actors. Hence, they are political.

Still, scholars acknowledge the importance to the court of maintaining its reputation as an apolitical institution (Haynie 1998: 462). The court’s legitimacy and influence often depends on its ability to maintain the image of being apolitical—making decisions exclusively on the basis of the law independent of political pressures and without regard for policy consequences and other political consideration. Politicization of the court connotes the undermining of the court’s apolitical image as arbiter of conflicts. This understanding of politicization of the court should suggest that for the author the court has always been a political institution although it was not always seen by the public as such; and politicization of the court can be said to be occurring during periods when the court’s public image of independence and impartiality is questioned.

Politicization is a matter of perception and degree. In as much as courts are unavoidably political, it appears that courts ought to be differentiated in terms of the extent to which they are seen by the public as such. The degree of politicization can also vary across time. One can speak of varieties or gradations of politicization of courts. There are courts that are deferential to the executive and legislative branches of government but are seen by the public as independent and uncoopted, and their agreement with governmental bodies is generally regarded as constitutionally warranted. The Teehankee Court appears to represent this type.

There are courts that occasionally invalidate actions of governmental bodies but the public generally sees such invalidations as constitutionally warranted. Such courts may be characterized as generally credible, independent, and nondeferential. Then there are courts that are regarded by the public as lacking credibility. A sub-type of these includes courts whose members are not beholden to any political body or entity but the public often finds their rulings to be legally unsound. Such courts may be described as independent and unfettered but lacking credibility.

Arroyo was, however, rebuffed in Funa v. Ermita (February 2010), a petition questioning her power to appoint Elena Bautista, another close ally, to two concurrent government positions. In Gutierrez v. House of Representatives (February 2011), the court lifted its status quo ante order which had stalled the Lower House’s efforts to impeach Ombudsman Merceditas Gutierrez, a close Arroyo family friend.

Although the court did not always support Arroyo, it favored her in what seem to be the most politically sensitive cases: Biraogo v. Truth Commission and De Castro v. JBC. Losing Biraogo would have put her at the mercy of a commission created by a rival apparently bent on prosecuting her. De Castro v. JBC was a major victory mainly because Filipino legal luminaries consider her position in the case to have been constitutionally untenable (see Bernas 2010, Dedace 2010). Funa v. Ermita , a case she lost, may be inconsequential. At the time Gutierrez v. House seemed to be a big defeat for her, but recent events have made it irrelevant: Ombudsman Gutierrez resigned on 29 April 2011, paving the way for President Benigno Aquino to make the appointment. In any event, though, there are clearly grounds for seeing the current court as still an Arroyo Court.

The judicialization of politics Tate observed in 1994 has evolved into the politicization of the Philippine judiciary. To understand how this came about, here is a quick recapitulation of pertinent decisions and events:

President Arroyo was exceptionally fortunate that after the Supreme Court rapidly invalidated her actions in a number of high-profile political/civil liberties cases in 2006, it upheld Neri’s invocation of executive privilege in Neri v. Senate in 2008. Voting 9–6 the court overruled its previous executive privilege case, Senate v. Ermita , which had put a premium on governmental transparency. Neri v. Senate underscored the opposite by again setting limits on the public’s right to information.

The major reason for change in stance was the change in the bench. Three justices (Panganiban, Sandoval-Gutierrez, and Garcia) who had upheld governmental transparency in 2006 had retired before Neri v. Senate was decided; four Arroyo appointees (Nachura, Reyes, Leonardo-de Castro, and Brion) had joined the court. Some of the continuing justices also changed their votes. Apart from the exertion of external political pressure, which is often alleged when justices change course, it is also possible that the justices who switched were concerned that an anti-Arroyo decision could trigger greater political instability. Unlike the political pressure hypothesis, this view assumes that the justices were motivated by a commitment to keep the polity stable. In any case, the court’s ruling in Neri v. Senate , which became final in September 2008, marked the return of a court sympathetic to President Arroyo.

A number of factors may account for the pro-Arroyo voting tendencies of the current members of the Supreme Court. One explanation is that Arroyo appointed to the court people who shared her policy views. This account posits that justices are principled and independent decision-makers who decide a case as they see it. The alternative view is that a host of external factors—cultural values, institutional arrangements, institutional incentives and constraints, etc.— affect the independence of justices and their decision-making. The Filipino value of ‘utang na loob’ or debt of gratitude can prevent an appointee from voting against his or her benefactor, the president, while the value of ‘pakikisama’ or camaraderie tends to discourage disagreement with other appointees and with the appointing authority.

At worst justices may be tempted to engage in inappropriate behavior. For instance, in February 2009 the court announced that it had found one of its justices guilty of leaking a yet unpromulgated court decision for pecuniary considerations (Pazzibugan 2009). The incident raises disturbing questions about how well insulated justices are from external inducements and about their sense of security.

A major concern for advocates of judicial reform is the process of judicial appointments. The president appoints members of the judiciary. To help the president choose appointees, the constitution created the Judicial and Bar Council (JBC), which prepares a list of possible candidates for the president to choose from. The constitution does not require the consent of the Commission of Appointments for appointees to the Supreme Court.

The JBC consists of (1) the chief justice as ex officio chairman; (2) the Secretary of Justice; (3) a representative of the Congress as an ex officio member; (4) a representative of the integrated bar; (5) a professor of law; (6) a retired member of the Supreme Court; and (7) a representative of the private sector. The president appoints JBC members with the consent of the Commission of Appointments, though appointees to the bench do not require confirmation.

To insulate judicial appointments from politics, the delegates to the 1986 Constitutional Commission discarded confirmation by politicians in the Commission of Appointments. There are recurring observations, however, that the process has not really been insulated from partisan influences. It has been suggested (see Bakker 1997; Vitug 2010) that the process has fostered the cooptation of justices by making them feel indebted to the appointing president or making them vulnerable to quid pro quo deals . In the absence of a thorough and merit-based process for screening potential justices, personal connections seem to be the primary consideration in recommending and choosing appointees, making the process highly susceptible to presidential cooptation.

There is a ‘realist’ view that judicial appointments are intended by the appointing officer to be partisan. The court that Corazon Aquino constituted in 1986 was designed to be anti-Marcos, or at least tilted against him. In the Philippines, in choosing appointees to the court, the president apparently selects those who can be regarded as allies against a perceived rival or threat. Hence, Aquino chose critics of Marcos. It is revealing that at least three of Macapagal-Arroyo’s Supreme Court appointees— Minita Chico-Nazario, Teresita Leonardo-De Castro, and Disodado Peralta—had been judges on the lower Philippine court which tried Joseph Estrada for plunder. It also bears noting that Leonardo-De Castro and Peralta, as members of the Sandiganbayan , had found Estrada guilty. Meanwhile, one Arroyo appointee, Antonio Eduardo Nachura, had been a member of the lower house prosecution panel that prosecuted Estrada for impeachment.

The apparent cooptation of the court may be attributed to a confluence of events, including cultural and institutional factors. Still, the role of presidential appointment seems to stand out. President Arroyo had the strange luck of appointing a number of neophytes to the court during the latter years of her presidency. Studies have noted the impact of ‘freshman effects’ on justices’ voting behavior (See Epstein et al. 2008). Most neophyte justices are alleged to undergo a period of adjustment or ‘acclimation’ during their early years on the court and justices’ judicial philosophies gain stability only after some time. This suggests that the votes of judicial neophytes are mostly malleable and susceptible to go with the majority. If the acclimation hypothesis is correct, the apparent cooptation of the court may be nothing but the result of freshman effects en masse. Acclimation may be part of this confluence of factors which resulted in the apparent cooptation of the court.

As to whether the cooptation of the Philippine Supreme Court is a fleeting or lasting phenomenon, in the Philippines presidents see court appointees as allies and possible sources of protection. The potential for presidential cooptation of the court is inherent in the appointment process. When political disputes become contentious, presidents can be expected to take full advantage of their appointment powers to exert influence on the court. But when political contests cease to be zero-sum games, the court can be expected to operate with more independence.

Will the present court continue to be the Arroyo Court in the immediate future? The sudden resignation of Merceditas Gutierrez as ombudsman suggests that members of the Arroyo ‘alliance’ may not be determined to protect her at all costs. Justices have been known to vote against their appointing benefactors, and rivalries and alliances in the Philippines tend to be fleeting. There are reasons to suspect that Arroyo’s hold on the current members of the court will at some point slacken. But given political pressures and partisan influences and its preeminence in legal and constitutional disputes, the temptation to coopt the court will always be there.

With regard to lessons from the Philippine experience for scholars of judicial politics, while the judicialization of politics may be a global phenomenon, that does not necessarily mean that the force driving it is the same everywhere. The spirit behind it may be a confluence of many different factors. At any rate, whether singular or a host of factors, the explanation for judicialization in a particular geopolitical setting has to be investigated in that particular setting. Though the phenomenon may be global, the explanation must be local, even if not necessarily exclusive to that setting. As Hirschl (2004) suggests, the explanation must also take into account the element of timing.

It would also be a mistake to treat ‘constitutionalism’ as a concept that raises no problems, or to assume that all constitutions have similar contents. Hirschl (2004) argues that promotion of neoliberalism is the driving force behind the new constitutionalism and the judicialization of politics, particularly in Israel, New Zealand, and South Africa. If that is the case, judicialization in the Philippines is clearly not a manifestation of the ‘new constitutionalism’: With its protectionist policy prescriptions the Philippine constitution is hardly a neoliberal document. In fact, neoliberals in the Philippines (along with politicians who detest term limits) are the ones who clamor most persistently for amending or replacing the present constitution.

Conclusion

The Philippine constitution itself provides the legal basis for judicial intrusion into what would be regarded in most other jurisdictions as the realm of politics. Philippine politics values constitutionality—or at least its appearance. Even the authoritarian Ferdinand Marcos hid his activities behind a facade of constitutionality and legality. In addition to ‘constitutional’ factors, the confluence of other institutional and structural features of judicial decision-making has nurtured the process of Philippine judicialization. The separation of powers system of government, with its penchant for finding itself in gridlock, has created a political environment favorable to judicial intrusion.

Judicialization, along with reliance on the concept of ‘constitutional supremacy’, has made courts the object of political capture and control. The confluence of personal considerations, cultural factors, and institutional arrangements has transformed the judicialization of politics into the politicization of Philippine courts. On its face, judicialization, while premised on the rule of law, seems to produce the opposite: It seems rather to breed legal uncertainty and instability. As a process, judicialization has to be studied in relation to the environment which nurtured it. This will require analysis of the context-specific and timespecific features of judicialization.

Notes