From judicialization to politicization of the judiciary
The Philippine case
Alejandro N. Ciencia, Jr.
The drafters of the 1987 Constitution saw creation of an independent and empowered judiciary as Philippine society’s main defense against authoritarianism and corruption. For the delegates to the post-Marcos 1986 Constitutional Commission, if the goals of democracy, rule of law, peace, equality, and justice were to be achieved, the Philippine judiciary had to be insulated from political or partisan influences. The constitution’s explicit grant of expanded review powers and its varied policy prescriptions have resulted in what some observers see as growing judicial intrusion into the prerogatives of political bodies—judicialization of politics, a phenomenon currently most apparent in the Philippine Supreme Court.
The judicialization of Philippine politics post-Marcos was a gradual process. In the early years of Corazon Aquino’s presidency, the Supreme Court functioned as a passive arbiter of conflicts and appeared to be generally supportive of the president. In time, it began to exercise its new review powers, invalidate decisions by political bodies, and insert itself into policy-making. It would justify this alleged intrusion into policy-making as simply fulfillment of its duty as the guardian of the constitution and the main insurer of law and justice.
Now that the Supreme Court is considered the final arbiter of conflicts, the expansion of judicial power and the judicialization of politics in the Philippines have transformed it from an arena for contestation into the object of political contestation itself. Almost 25 years after being reconstituted with new powers, the Philippine Supreme Court is now politicized, seen by the public as a coopted institution and uninsulated from partisan influences—an outcome the drafters of the constitution clearly did not envision.
This paper seeks to analyze causes and consequences of the judicialization of politics in the Philippines since 1987. The author’s preferred definitions of judicialization and politicization are specified at the outset. These are followed by a brief discussion of the history of the post-Marcos Supreme Court. The paper then uses a number of landmark decisions to support the claim that judicialization is indeed taking place in the Philippines. Drivers of the process are then analyzed, the main argument being that the text of the Philippine Constitution is the real force driving judicialization. The paper then examines the broad consequences of judicialization, considers its connection with recent developments that suggest an evolving politicization of the judiciary, and looks at what is driving this process. The paper concludes by exploring lessons scholars of judicial politics can draw from 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.
At the outset, it served a legitimating function when it unanimously confirmed Aquino as president both de facto and de jure in Lawyers’ League for a Better Philippines v. Corazon C. Aquino (1986).1 To a greater extent, however, the court served an arbitral function in disputes between the executive and the legislative branches. Particularly contentious was whether presidential appointments needed congressional confirmation. Called upon to resolve deadlocks resulting from such disputes, the court tended to favor the position of the president, to the dismay of legislators. In Sarmiento v. Mison (1987), for instance, the court upheld President Aquino’s power to appoint the customs commissioner without congressional confirmation.
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
Bautista v. Salonga (1989), the court affirmed the president’s appointment of the petitioner, thus sustaining the Sarmiento v. Mison ruling that some types of presidential appointment do not require congressional confirmation. In Association of Small Landowners v. Secretary of Agrarian Reform (1989), the court unanimously sustained the constitutionality of the Comprehensive Agrarian Reform Program (CARP). In Marcos v. Manglapus (1989), a divided court upheld President Aquino’s refusal to allow the Marcos family to return to the Philippines. The Manglapus majority argued that in matters of national security the president enjoyed ‘residual powers’. It was at this point late in Aquino’s presidency that the court began to test the limits of its expanded judicial review powers and to demonstrate its independence, to the extent that on a number of occasions it incurred the ire of policy-makers, the business community, and the public. The deferential Teehankee court had been replaced by a less supportive Fernan court.
Fidel V. Ramos assumed the presidency in 1992 as a plurality president, having won less than 25 percent of the votes. Clearly, he was not as popular as his predecessor and benefactor, Corazon Aquino. Nonetheless, he had the support of legislators, particularly those in the Lower House of Congress, who at the time were led by his trusted ally and Lakas2 -National Union of Christian Democrats (NUCD) party-mate, Jose de Venecia, the speaker from 1992 to 1998. Under Ramos the government embarked on a mission to transform the Philippines into a newly industrialized country (NIC) by 2000. To do so Ramos advocated economic reforms which, among other things, required adoption of liberalization, deregulation, and privatization policies.
Andres Narvasa was chief justice when Ramos was president. On his watch the Supreme Court often found itself reviewing government policies. For the reform-oriented Ramos, the court was largely an obstructionist veto-player, but it did not always invalidate his government’s policy choices. For instance, it upheld the constitutionality of the Ramos-endorsed value-added tax in Tolentino v. Secretary of Finance (1995) and sustained the Senate’s ratification of membership in the World Trade Organization (WTO) in Tañada v. Angara (1997). But in Manila Prince Hotel v. Government Service Insurance System (1997), the court allowed a Filipino corporation, rather belatedly, to match the winning bid of a Malaysian company for 51 percent of the shares in Manila Hotel. The Ramos administration saw the ruling as inconsistent with its privatization and economic liberalization policies. The court justified its decision as upholding the Filipino First policy espoused by the 1987 Constitution.
In Tatad v. Secretary of Energy (1997), the court also invalidated the first oil deregulation law (Republic Act 8180) on the ground that it violated the economic rights of the Filipino people. The Ramos administration saw the invalidation as impeding its deregulation efforts. Then Santiago v. Comelec (1997) gave the Ramos administration its most resounding rejection with the ruling that the Initiative Referendum Act (Republic Act 6735) was insufficient as a means of amending the constitution. Thus it thwarted efforts to remove from the constitution economic protectionist or nationalist provisions and sections limiting the terms of elected officials, demonstrating yet again its independence, particularly from the president.
Joseph Ejercito Estrada succeeded Ramos as president in 1998. Early in 2001 his presidency was cut short when allegations of corruption resulted in impeachment proceedings, and he was eventually ousted via ‘people power’. Ultimately the impeachment trial provided the backdrop for activist intervention by the Supreme Court, facilitating his ouster. Earlier in November 2000, anti-Estrada congressmen had garnered the necessary number of signatures to send articles of impeachment to the Senate. While Estrada appeared to have the support of enough senators to stave off removal from office, when the Senate acting as an impeachment court refused to open a sealed envelope allegedly containing revealing evidence, the prosecution walked out of the trial and people took to the streets to demand Estrada’s resignation. Fearing violence and political instability, the Supreme Court, led by Chief Justice Hilario Davide, stepped in; on 20 January 2001 it administered the oath of office to Gloria Macapagal-Arroyo as the new president. More than a month later, in Estrada v. Arroyo (2001) the Supreme Court declared that ousted President Estrada had in fact resigned the presidency at the height of what is now generally known as EDSA II,3 paving the way for Vice-President Arroyo to succeed him as the constitutionally mandated successor. Arguably, the Supreme Court decision to endorse Arroyo was judicialization at its peak.
When Macapagal-Arroyo assumed the presidency in 2001, she intended to continue the economic reforms pursued by her Lakas-NUCD party-mate, former president Fidel Ramos. Interestingly, most of the major cases that preoccupied the Davide-led Supreme Court during the first half of the Macapagal–Arroyo presidency were economically significant. In a number of decisions over a very short period of time, the court invalidated multibillion-dollar contracts the government had signed with private entities and foreign business interests. Among these decisions were Chavez v. Public Estates Authority – Amari (2002); La BugalB’laan Tribal Association, Inc. v. Ramos (2004 January); Information Technology Foundation of the Philippines v. Comelec (2004); and Agan Jr. v. Philippine International Air Terminals Co., Inc. (2004). In addition to Estrada v. Arroyo , which challenged the legitimacy of the Arroyo presidency, in her early years as president, the court also had to settle other political cases, such as Francisco Jr. v. House of Representatives (2003) that challenged the constitutionality of the efforts of members of the House of Representatives to impeach Chief Justice Davide.
Though Arroyo was declared winner of the 2004 presidential elections, allegations of electoral impropriety (e.g., the Hello Garci scandal of 2005) and charges of corruption against her and her family members would soon plague her presidency. To secure her political survival, Arroyo moved to repress protests and demonstrations and prevented cabinet members from testifying in legislative inquiries. For most of the latter half of her presidency, the court used its review powers in political and civil liberties cases most of which sprang from Arroyo’s efforts to protect her presidency. The most notable of these decisions were BAYAN v. Ermita (2006), which voided the Arroyo government’s calibrated preemptive response (CPR) policy that prohibited street protests without permits; Senate v. Ermita (2006), which invalidated the president’s Executive Order 464 requiring executive officials to secure presidential consent before appearing at legislative hearings; and David v. Arroyo (2006), which sustained the president’s power to declare a state of emergency, although it ruled illegal arrests and raids made pursuant to Proclamation 1017.
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.
The constitution broadened the concept of judicial review. It not only authorized the judiciary to look into the actions of any branch or instrumentality of government to determine whether the actions were constitutional, it explicitly mandated that judges ‘settle actual controversies involving rights which are legally demandable and enforceable’. In the category of ‘legally demandable and enforceable’ the drafters envisioned human rights and civil liberties; the clause was inserted because the drafters wished to avoid a recurrence of Marcos-era rights violations where courts easily dismissed human rights cases as involving a ‘political question’ that a judicial body should not decide (Agabin 1996). Protection of human rights would no longer be considered a political question.
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.
Apart from stipulating that the courts have the duty to exercise judicial review, the 1987 Constitution also makes fairly specific statements about economic policy and the delivery of social justice.4 When these provisions are juxtaposed against the stipulation that the Supreme Court has a duty to exercise judicial review, it is easy to conclude, as Agabin (1997) did, that the constitution invites judicial intrusion especially in matters of economic policy. He elaborates:
Our constitution is replete with provisions for the regulation of the economy and of the state’s positive obligation to promote social justice. As its framers like to put it, our present constitution is ‘pro-people, pro-poor, and proFilipino.’ This means that the Philippine Supreme Court, unlike the United States Supreme Court, cannot promote the development of capitalist institutions at the expense of the people. It cannot assume the function of protecting the market from various regulatory incursions if these conflict with the economic policies incorporated in the constitution. While the constitutional tools which may be used to protect free enterprise have been copied in the present constitution, like the due process clause, the equal protection clause, the contracts clause, and the takings clause, these have been neutralized not only by reversals by the Supreme Court but also by countervailing policies in the constitution itself. Unless we reduce the constitution to a mere imitation of its American counterpart, the Supreme Court cannot behave like the US Supreme Court during the Gilded Age when it tilted the balance in favor of free markets over the sovereignty of the people.
(Agabin 1997: 183–4)
It bears noting although Agabin considers the Philippine constitution to be ‘propeople, pro-poor, and pro-Filipino’, Associate Justice Dante Tinga thinks otherwise. In La Bugal v. Ramos (December 2004), he describes the 1987 Constitution as containing a mix of ‘protectionist’ and ‘liberal economic’ policies.5 But despite their disagreement about the constitution’s policy direction, Agabin and Tinga agree that it contains policy prescriptions. Thus when the court is acknowledged as the chief interpreter of a constitution that happens to be replete with policy prescriptions, in performing its assigned task of interpretation the court unavoidably makes policy pronouncements. Meanwhile, if the constitution is thought of as a confusing mix of policies, when the court moves to fix constitutional confusions, for all intents and purposes it is defining policy. The constitution’s explicit support for certain policies invites judicial intrusion into what is generally regarded as part of the political realm. The constitution’s recognition of new rights—for example, the rights of indigenous peoples—can also engender litigation, especially when the new rights threaten rights protected by older jurisprudence. Increased reliance on litigation, along with a more expansive notion of rights, fosters judicialization.
The constitution also provides for a more independent Supreme Court. De Leon (2002: 240–1) enumerates provisions that safeguard the Court’s independence:
- 1 Sections 2 and 5 of Art VIII: ‘Congress may not deprive the Supreme Court of the constitutional powers granted to it’;
- 2 Section 4: ‘Congress cannot prescribe the manner in which the Supreme Court should sit, and determine the number of Justices composing the court’;
- 3 Section 5: ‘the Supreme Court is given the authority to appoint all officials and employees of the judiciary’;
- 4 Section 11: ‘the members of the Supreme Court and judges of lower courts enjoy security of tenure’;
- 5 Section 10: ‘the salaries of members of the judiciary cannot be decreased during their continuance in office’;
- 6 Section 2, Art XI: ‘the members of the Supreme Court can only be removed through the difficult process of impeachment’; and
- 7 Section 3, Art VIII: ‘the judiciary enjoys fiscal autonomy’
De Leon (2002: 240–1) adds:
The constitutional policy of an independent judiciary is further strengthened by the provisions transferring [from the Department of Justice] to the Supreme Court administrative supervision over all courts and personnel thereof (Sec. 6, Art VIII) and the authority to assign temporarily judges of lower courts to other stations as the public interest may require (Sec. 5 , Art VIII), and the provision giving specific authorization to the Supreme Court to order a change of venue or place of trial to avoid a miscarriage of justice (Sec. 5 , Art VIII). The prohibition against members of Congress personally appearing as counsel before any court (Sec. 14, Art VI), while designed to shield them from corruption, works equally to promote the independence of the courts.
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.
As mentioned earlier, the separation of powers that characterizes the presidential system of government is highly vulnerable to gridlock. The seemingly intrinsic propensity of the presidential or the separation-of-powers system to find itself in gridlock fosters judicialization because sooner or later the court will be called upon to resolve deadlocks, as it did in 2001 when it intervened to facilitate Estrada’s ousting.
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.)
The 1935, 1973, and 1987 Philippine Constitutions have all granted the Court the power of judicial review. The present chapter does not deny that. It argues that the 1987 Constitution has expanded the Court’s judicial review powers but it is not saying that the constitutional provision on judicial review alone accounts for the process of judicialization. The expansion of the court’s judicial review and other powers coincided with the relative weakening of the other branches and this provided the impetus for judicialization. This chapter does not also discount the role of individual agency. The author believes that justices’ attitudes towards incumbent authorities and institutions and their predilections towards activism or restraint also bear on the court’s behavior.6 In the hands of attitudinally restraintist justices who look favorably on incumbent authorities, particularly the president, expanded judicial review powers are unlikely to result in judicialization. Still, studies in judicial behavior find that justices have a general tendency to advance their policy goals (Segal and Spaeth 2002, Maltzman et al. 2000, Epstein and Knight 1998). This chapter thus argues that when constitutional and institutional arrangements allow the exercise of expanded judicial powers, policy-oriented justices who possess such powers are likely to involve themselves in matters traditionally brought to executives and legislators for action or resolution.
The consequences of judicialization
This section will speak briefly about how judicialization affects democratic governance, the rule of law, economic development, and the like, but would prefer to draw greater attention to the general effect of judicialization on the behavior of societal actors. It appears counterintuitive to assume that judicialization and democratic governance go hand in hand. At the outset, there are questions about how the opinions of a small group of appointed justices can substitute for those of elected representatives, how unelected justices can be held accountable for bad decisions, and the extent to which the court would be willing to make its procedures and deliberations more transparent and participatory for the general public. Undoubtedly, there have been times when the sentiments of the Filipino people were more in tune with those of the justices than with their ‘representatives’. But there clearly is danger in vesting too much power in one department of government, whether it be the executive, the legislative, or the judiciary.
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.
At this point, let us consider two rather intriguing developments: (1) the alarming increase in extrajudicial executions while the Philippines was becoming judicialized; and (2) the apparent cooptation of the court by former President Arroyo. These two processes point up the actual role of courts in Philippine society. Courts are venues where societal actors bring legal cases in the hope of advancing their interests. People who believe that the courts cannot assure protection of their interests are likely to seek other venues or resort to extrajudicial, even violent, means to advance those interests. Where the rule of law is wanting, judicialization catalyzes evolution of the courts from being simply a venue for dispute resolution to being the object of dispute themselves. Judicial capture becomes a goal. Even more, for political actors desperately seeking to ensure their political survival, judicial capture becomes an imperative. Hence, efforts to coopt the courts.
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.
Judicial independence is most apparent when the court rules against the preferences of political bodies, particularly the president and Congress, and the public—as represented by Philippine society’s opinion-makers—finds the court’s justifications for such invalidations to be faithful to the Constitution. Meanwhile, lack of judicial independence is often alleged when the court fails to offer convincing justifications for its decisions especially when it upholds actions of the political branches which the public finds questionable, oftentimes for being incompatible with its understanding of the constitution or law. Similarly, judicial impartiality is assumed when the court invalidates actions of the political bodies and succeeds in providing persuasive justification for its decisions. Lack of judicial impartiality is often alleged when the court fails to offer persuasive and legally sound rulings, especially when such rulings are seen as favoring or benefiting particular political personalities at the expense of the public and/or fidelity to the constitution.
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.
A second sub-type refers to courts that seem to have been coopted by political bodies or personalities, oftentimes the president. Such courts tend to favor the positions of governmental bodies but the public sees such actions as inconsistent with its understanding of the constitution and the law. Such courts lack independence and credibility. The Supreme Court during Martial Law was such a court.7 Fairly recent events suggest the reappearance in the Philippines of a court coopted by a president. A third possible sub-type would refer to courts that have been coopted by particular interests in society like crime syndicates. They may be unsympathetic to the executive and legislative bodies and the public often finds their rulings to be legally unsound.
As early as 2009 observers began talking about an ‘Arroyo Court’ (see Rufo and Romero 2009: 18). The pronouncement was prompted by the realization that the Court would soon have a disproportionate number of Arroyo appointees, and thus by inference Arroyo partisans. Although Benigno Aquino III is now the president, of the 15 current members of the Court, Arroyo appointed 14. In her nine years as president Arroyo had the opportunity to appoint 23 justices to the Supreme Court (Vitug 2010: 94).
A quick survey of Supreme Court decisions which can be regarded as politically significant for former President Arroyo from November 2009 (while she was still president) to February 2011 (with Aquino as president) yielded eight en banc cases. In six of them the Court upheld the position that favored her. In Biraogo v. Truth Commission (December 2010), which questioned Aquino’s Executive Order No. 1 creating a commission to look into allegedly anomalous deal-making by her administration, the court found the order to be unconstitutional. In de Castro v. JBC (March 2010 and April 2010), which challenged the power of an outgoing president (Arroyo) to appoint the next chief justice despite a ban on appointments during elections, the court upheld that power—thus allowing her to appoint Corona as chief justice while preventing the new president from choosing someone more sympathetic. In Aquino & Robredo v. Comelec (April 2010), then-Senator Aquino questioned the validity of an Arroyoapproved legislative measure reapportioning the Province of Camarines Sur for electoral purposes. The court found the measure to be valid. Arroyo’s son, Dato, now represents that district in Congress. In Bello v. Comelec (December 2010), which questioned whether Arroyo’s other son, Mikey, was eligible to represent a party-list group of security guards in Congress, the court dismissed the petition as premature. In Rubrico v. Arroyo (February 2010), the court excluded Arroyo from the list of respondents in a writ of amparo petition.
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.
At this point it may be useful to examine other relevant data on rule of law in the Philippines and the performance of the Philippine Supreme Court. Global Integrity Report (2004, 2006, 2007, 2008, 2010) noted a significant drop in the Philippines’ score for ‘rule of law’ from 80 in 2004 and 2006, to 52 and 51 in 2007 and 2008 respectively, and a slight increase to 62 in 2010. Meanwhile, the Philippine survey body, Social Weather Stations (SWS) (2011), reports a considerable change in the public satisfaction scores of the Philippine Supreme Court. For most of the period from November 1990 to May 2005, the Court obtained the highest public satisfaction ratings among governmental bodies which also include the Senate, House of Representatives, and the Cabinet. But from August 2005 to June 2011, the Court’s ratings would be surpassed by the Senate’s. The Global Integrity Report data may be seen as reflecting in part the court’s reputation as guardian of the rule of law while the SWS data suggests an erosion of the court’s prestige and credibility.
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:
- 1 Supreme Court participation in the ousting of President Joseph Estrada in 2001 and its decision in Estrada v. Arroyo led to the Court’s alignment with the administration of his successor and rival, Gloria Macapagal-Arroyo. On 1 May 1 2001, pro-Estrada supporters, mostly poor, launched their own version of People Power which ended in violence, destruction of property, and declaration of a state of rebellion. Some people began to question whether People Power was a legitimate means of removing an unpopular president.
- 2 In response to the attempts, endorsed by Estrada loyalists, to impeach members of the court in the middle of 2003, culminating in impeachment of Chief Justice Hilario Davide that November, the Supreme Court used its constitutional powers to preempt the impeachment process. It then clarified the law on impeachment in Francisco v. House of Representatives (2003). Allies of President Arroyo would exploit loopholes in this ruling to thwart attempts to impeach her.
- 3 In the aftermath of the ‘Hello Garci’ scandal of 2005, which led to the resignation of a number of members of her cabinet and the government’s adoption of a repressive stance against her opponents, the court made efforts to distance itself from Arroyo, repudiating her in several landmark political and civil liberties cases in 2006.
- 4 Another scandal, the ZTE-NBN deal, erupted in 2007. Romulo Neri, former director of the National Economic Development Authority (NEDA), testified in a Senate hearing about being bribed to approve a multimillion-dollar deal with a Chinese telecommunications firm and informing President Arroyo about it. When senators began to grill him about Arroyo’s participation, he invoked ‘executive privilege’. When Neri refused to attend subsequent Senate hearings, the Senate filed a case against him with the Supreme Court. In what would probably have been Arroyo’s last stand, the court (with the help of at least three new appointees) saved her in Neri v. Senate (2008). With Arroyo still in survival mode and Philippine society unwilling to oust her via another People Power uprising, Filipinos waited out her presidency. At least two considerations discouraged massive participation in another People Power uprising: (a) the realization that it was People Power that had brought Macapagal-Arroyo to the presidency, and (b) the perceived lack of a competent, constitutionally acceptable replacement (the vice-president was not considered acceptable).8
- 5 The retirement of a number of justices in the last years of her presidency allowed President Arroyo to use her appointment powers to constitute a sympathetic Supreme Court with a sympathetic chief justice, Renato Corona.
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.
Still, there are accounts which emphasize the crucial role of institutional arrangements. Spaeth (1979: 113) has argued that certain features of the American political system foster the independence of U.S. Supreme Court justices, such as (a) lack of ambition for higher office; (b) lack of electoral accountability; and (c) the Supreme Court being the court of last resort. One can of course add life tenure and perhaps even ample compensation and benefits. Taking that viewpoint into consideration, it would appear that some features of the Philippine Supreme Court do not bode well for judicial independence—the insulation of justices from external and partisan pressures. The absence of life tenure and the comparatively low salaries of Filipino justices may not have a perceptible bearing on judicialization but certainly contribute to the lack of independence and the possible cooptation of the court. When justices do not feel adequately compensated, are insecure about their lives after serving on the Supreme Court, or are contemplating post-court political careers, it is not inconceivable that they might be susceptible to partisan or populist pressures or the desire to gain the favor of the appointing authority—the president.
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.
Appointing allies against a common enemy or threat makes political sense; an alliance forged in such a manner promises mutual protection. Judicial appointments serve as political security for presidents who perceive enemies. This section argues that while there are institutional norms and practices which foster judicial activism and judicialization, there are also arrangements and practices which nurture the cooptation of justices.
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.
There is danger in overlooking the context-specific features of a given case of judicialization. To treat the Philippine Supreme Court as a mere copy of its counterpart in the United States would be a mistake. Even apart from cultural factors, the institutional constraints and incentives bearing on the behavior of Filipino justices are not the same as those on their American counterparts.
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.
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.
2 ‘Lakas’ is the Filipino term for ‘strength’.
3 EDSA is the acronym for Epifanio de los Santos Avenue which served as the venue for ‘people power’ uprisings in the Philippines. EDSA I refers to the 1986 people power uprising that led to Ferdinand Marcos’ ousting.
4 The 1935, 1973, and 1987 Constitutions contain specific policy statements pertaining to the economy and social justice. It is not the presence of specific policy statements alone which produces judicialization. Their presence alongside the stipulation that judicial review is a ‘duty’ favors judicialization. Examples of policy statements can be found in the following constitutional provisions: (1) Paragraph 2, Section 10, Art XII: ‘In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.’ Citing this provision, the Court in Manila Prince Hotel v. GSIS (February 1997) prevented a Malaysian firm from buying the Manila Hotel; and (2) Section 19, Art XII: ‘The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.’ On the basis of this provision the Court in Tatad v. Secretary of the Department of Energy (November 1997) ruled that the First Oil Deregulation Law was unconstitutional because it promoted unfair competition in the oil industry.
5 Tinga, on the one hand, cited constitutional provisions which advance economic protectionism like paragraph 1, Section 2, Art XII: ‘The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens’, and, on the other hand, those that encourage foreign participation like paragraph 4, Section 2, Art XII: ‘The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country.’
6 Similarly, individual agency has a bearing on the way justices respond to attempts by other interests to coopt them. Some justices would succumb to cooptation while others would resist.
7 The cooptation of the Supreme Court is not a new phenomenon. The author does not also suggest that attempts to erode the court’s image as impartial arbiter were observed only during the latter part of Arroyo’s presidency.
8 Noli de Castro, the vice-president at the time was perceived by the Philippine middle class and business community to be incompetent and inexperienced (‘Philippine VP de Castro Seen as Risky Replacement for Arroyo’ (2005).