A review of salient cases that have been considered by the Supreme Court suggests a judiciary largely unwilling to rule against the president.
Three years in his term, President Rodrigo Duterte has already sworn in three chief justices of the Philippines’ Supreme Court, the latest being Diosdado Peralta (pictured).
Chief Justice Peralta will not be President Duterte’s last pick for the post. The new chief justice is set to compulsorily retire in March 2022, giving the president another chance to pick a chief justice before his own term expires in June 2022.
President Duterte will be able to shape the composition of the country’s highest court not only by picking the chief justice but also by appointing associate justices. By the end of his term, the president will have appointed thirteen out of the fifteen members of the Supreme Court, including the chief justice.
A post in this blog previously opined that the Philippine judiciary has long been politicized because presidential patronage has been built into the process of appointing judges and justices. However, it would be a stretch to argue for the lack of an independent judiciary based solely on the selection process.
In this blog post, I measure judicial independence by scrutinizing the actions, rather than the composition, of the Philippines’ Supreme Court. Unfortunately, the evidence confirms that the high court has been reluctant to assert its independence and has preferred to refrain from openly contradicting the administration.
An Independent Judiciary as a Guardian of Democracy
The judiciary can be considered independent when the courts are sufficiently insulated from politics that they could function as neutral third-party arbiters of conflict between the organs of the state and between the government and the citizenry.
An independent judiciary is especially important for democracies because of the courts’ role in preventing regressions to authoritarian rule.
First, independent courts can invalidate legislation or executive actions that violate the constitution and infringe minority rights and personal liberties. In this sense, courts uphold the rule of law, which is crucial to the functioning of democracies.
Second, independent courts can have a deterrent effect. This occurs when, rather than risk embarrassment from losing in court, political actors themselves avoid making policy choices that would likely be struck down by judges.
The impact of independent courts is not only theoretical. Empirical research (paywall) by political scientists Douglas Gibler and Kirk Randazzo has confirmed that independent courts, especially long-established ones, do help in putting a stop to democratic erosion.
Measuring Judicial Independence
The Philippines’ 1987 Constitution provides guarantees for judicial independence through security of tenure and nondecreasing salaries for judges, and fiscal and administrative autonomy for the entire judicial branch.
The Constitution also limits patronage in the appointment of judges by having the president select only from a shortlist of candidates prepared by the Judicial and Bar Council, a body composed of the chief justice, a retired Supreme Court justice, the secretary of justice, a law professor, and representatives of Congress, the Integrated Bar of the Philippines, and the private sector.
These constitutional safeguards, however, are insufficient as indicators of judicial independence because they can be circumvented or simply ignored by the executive and legislative branches.
A more unambiguous marker of judicial independence is when courts issue rulings against the government. Indeed, according to Gibler and Randazzo, “measuring judicial independence . . . requires one to examine whether the court will act against the political branches in salient cases” (p. 698).
The Supreme Court in Salient Cases
Examining the salient cases that have been considered by the judiciary is therefore key. To identify salient cases, I reviewed news articles on the Philippines’ Supreme Court from June 2016 (the start of President Duterte’s term) to November 2019 (the time of writing) in a subject search in the Index to Philippine Newspapers Online. The following cases were the most widely covered.
In 2016, the Supreme Court voted to allow the government to proceed with the burial of former president and dictator Ferdinand Marcos at the Heroes’ Cemetery.
In 2017, the Supreme Court upheld President Duterte’s proclamation of martial law in Mindanao in southern Philippines following a terrorist attack in Marawi City. Under the 1987 Constitution, the Supreme Court has the power to review the factual bases of any declaration of martial law.
Succeeding applications by the administration to extend the effectivity of martial law beyond the sixty-day maximum imposed by the Constitution have similarly been affirmed by the high court. At the time of writing, Mindanao is still under martial law.
In 2018, the Supreme Court affirmed the constitutionality of the arrest of opposition senator Leila De Lima over illegal drug–related allegations while she was secretary of justice in the previous administration. The court also junked the petition of then-senator Antonio Trillanes IV for the high court to intervene in the government’s filling of a rebellion lawsuit against him.
The most dramatic event that year was the Supreme Court’s removal of its own chief justice, Maria Lourdes Sereno, following a petition by the government. The case was extraordinary because the ouster had sidestepped the constitutional remedy of impeachment, the traditional way of removing high officers of the state, including the chief justice. Sereno was an outspoken critic of President Duterte’s war on illegal drugs.
This year, the Supreme Court failed to act on the petitions questioning the legality of the government’s withdrawal from the International Criminal Court (ICC) following the announcement of a preliminary examination of the charges against President Duterte. The Supreme Court had one year to hear the cases before the Philippines’ withdrawal would have taken effect, but the court missed the window. In effect, the court’s inaction affirmed the country’s exit from the ICC.
In 2019, too, the Supreme Court heard cases related to the administration’s illegal-drug war and its handling of the territorial and maritime disputes in the West Philippine Sea, the portion of the South China Sea claimed by the Philippines.
On the former, the court ordered the government to release records related to killings under the war on illegal drugs. The justices have yet to rule on the constitutionality of the program.
On the latter, the court initially took in a petition alleging government inaction over China’s destruction of reefs in the West Philippine Sea. The court, however, eventually dropped the lawsuit upon the request of the counsel for the petitioners after a revelation by the solicitor general that some of the petitioners had backtracked and withdrawn from the case. Prior to the revelation, administration figures had met directly and privately with the petitioners.
Revisiting the Record
The Supreme Court’s actions and inactions in these salient cases suggest a judiciary largely unwilling to rule against the president. Unfortunately, in choosing self-restraint, the Supreme Court has left Philippine democracy to backslide.
In the Marcos burial case, the court resuscitated nostalgia for authoritarian rule. In the Mindanao martial law cases, the court made the nostalgia a reality, albeit partially, by continually consenting to the suspension of the writ of habeas corpus.
In the De Lima, Trillanes, and Sereno cases, the court effectively narrowed political competition. It allowed the administration to arrest or oust opposition figures from both the legislative and judicial branches.
In the ICC withdrawal case, the court practically eliminated an additional layer of vertical accountability for the president. In the West Philippine Sea case, the court forgone an opportunity to test the horizontal accountability of the president on foreign policy issues.
Attention is now to the case against the war on illegal drugs, but it remains to be seen whether the court would finally annul a key administration policy.
These salient cases show not only the court’s apparent unwillingness to exercise its veto power but also its lack of power to deter. The fact that the administration persisted in litigating and defending these cases demonstrates its confidence that the Supreme Court would uphold the legality of the president’s actions.
There is a caveat, however. Our approach disregards legalities. Maybe the justices were correct in their interpretation of the law, in which case, the rule of law had been upheld. But if we accept this reasoning, we must also accept that the law allows these apparent transgressions of democracy.
Fortunately, the Supreme Court is only one check to presidential power. While, horizontally, the current administration-controlled Congress cannot be expected to act as an effective counterbalance to the executive branch, vertically, civil society groups can demand accountability from the president in various other ways. The people, after all, are the final judges of their rulers in a democracy.
Judicial independence is hard to measure albeit interesting to look into, especially on how the Supreme Court votes on salient and controversial cases. Few of such cases were the burial of late dictator Ferdinand Marcos in the Heroes Cemetery, the implementation of martial law in Mindanao, and, of course, the removal of its own chief justice, Ma. Lourdes Sereno. These were landmark cases that drew public outrage as these unpopular decisions were all considered as jurisprudence, effectively became part of the law of the land. That is where the danger lies, as it has set precedent for further weaponization and abuse of law.
I personally liked the blog as it is very well informed—it cited case studies, particularly high-profile and controversial ones that hogged the headlines in the past three years. It supported his argument that the judiciary’s track record under Philippine leader Rodrigo Duterte suggest a judiciary largely unwilling to rule against the president.
However, his point that “in choosing self-restraint, the Supreme Court has left Philippine democracy to backslide,” is a bit sweeping. I believe that the backsliding of democracy is not in the hands of the judiciary alone—it is in the hands of the leaders, institutions, political parties, and the people. As noted in How Democracies Die by Levitsky and Ziblatt: “Democracies may die at the hands not of generals but of elected leaders—presidents or prime ministers who subvert the very process that brought them to power […] More often, though, democracies erode slowly, in barely visible steps.”
It is wrong to rely on the judiciary alone for the defense of democracy. It is just one piece of the puzzle. After all, democracy is in the hands of the people, their ability to freely choose their representatives and the ability to take part in decisions made by their government.