The Philippine Supreme Court under Duterte: Reshaped, Unwilling to Annul, and Unable to Restrain

The Philippine Supreme Court’s judicial independence has been deteriorating. This deterioration predates President Rodrigo Duterte but has crystallized under him despite the safeguards in the 1987 Philippine Constitution. The result is a high court that has been packed with judges sympathetic toward—and in salient cases, unwilling to rule against—the president. This cooperative high court, in turn, has failed to restrain Duterte’s constant testing of Philippine democratic institutions.

“An independent judiciary…is important for democracies because of the courts’ ability to prevent regressions to authoritarian rule.”

The judiciary can be considered independent when the courts are sufficiently insulated from politics that they can function as neutral third-party arbiters between organs of the state and between the government and the citizenry.1Douglas M. Gibler and Kirk A. Randazzo, “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding,” American Journal of Political Science 55, no. 3 (2011): 696–709. An independent judiciary, in turn, is important for democracies because of the courts’ ability to prevent regressions to authoritarian rule. First, independent courts can, through judicial review, invalidate legislation or executive actions that violate constitutional restrictions to governmental power 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 restraining 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 confirms that independent courts, especially long-established ones, help put a stop to democratic erosion.2Gibler and Randazzo, “Testing the Effects of Independent Judiciaries.”

The Supreme Court under Duterte

Since the beginning of his administration in 2016, Duterte has been able to remove a sitting chief justice and appoint three chief justices. His latest pick for chief justice, Diosdado Peralta, appointed in 2019, will not be his last. Chief Justice Peralta is set to compulsorily retire in March 2022, giving Duterte another chance to appoint a replacement before his own term expires in June 2022. As of October 2020, Duterte has also been able to appoint 15 associate justices, 11 of whom remain in the bench.3He will be able to appoint two more associate justices (four, if he chooses to make lame-duck appointments after the general elections in May 2022). By the end of his term, Duterte will have appointed between 11 to 13 justices to the 15-member Supreme Court, including the chief justice.

Duterte is, of course, duty-bound to fill vacancies in the Supreme Court. But under his presidency, the Supreme Court has yet to veto a salient administration policy. Indeed, the high court has shown an unwillingness to rule against Duterte in front-page cases. Administration actions that have been challenged unsuccessfully before the court include the declaration of martial law in southern Philippines from 2017 to 2019, the arrests of two opposition senators, and the nondisclosure of the president’s health records.

The voting records in these salient cases align with the composition of the bench. All of President Duterte’s appointees have consistently and reliably voted in his favor. Some appointees of former president Gloria Macapagal-Arroyo, who herself has supported Duterte, have also consistently sided with the current administration. These include the three Arroyo appointees whom Duterte subsequently promoted to chief justice. However, some appointees of Duterte’s predecessor, Benigno Aquino III, have repeatedly voted against the current president.

“In effect, the Supreme Court, for the first time, sidestepped the constitutionally prescribed impeachment process.”

In recent years, the court has acted with little restraint. The court exercised its immense judicial power when it removed its own chief justice, Maria Lourdes Sereno, upon the government’s request. The court’s decision was an extraordinary example of judicial power and required an innovative reading of the constitution. In effect, the Supreme Court, for the first time, sidestepped the constitutionally prescribed impeachment process. This happened even when President Duterte’s allies in Congress had already begun impeachment proceedings. Chief Justice Sereno was the first ever high officer of the Philippine state to be sacked by judicial intervention.

Judicial independence in the 1987 Philippine Constitution

How did the Philippines get here? The 1987 Philippine Constitution introduced several guarantees for judicial independence. The framers sought to prevent regressions to authoritarian rule following the fall of former dictator Ferdinand Marcos. As such, the constitution is replete with safeguards to ensure the country’s continued democratic functioning. Guarantees for judicial independence, in particular, were included to prevent control of the courts by the government, as Marcos had done before by reorganizing the judiciary and packing the bench with loyalists.

The constitution explicitly gives the Supreme Court the power of judicial review. To ensure that the Supreme Court can freely exercise this power, the constitution bars Congress and the president from enacting laws that would shrink the Supreme Court’s jurisdiction, undermine judges’ security of tenure, and decrease or withhold the judiciary’s budget, including judges’ salaries.

“The constitution also diminishes the roles of Congress and the president in the selection and removal of Supreme Court justices.”

The constitution also diminishes the roles of Congress and the president in the selection and removal of Supreme Court justices. The Supreme Court’s chief justice and 14 associate justices are appointed by the president from a short list prepared by the Judicial and Bar Council (JBC), a constitutional body composed of the chief justice as chair, the secretary of justice, a member of Congress, retired Supreme Court justices, and members representing the Integrated Bar of the Philippines, academia, and the private sector. Once appointed, Supreme Court justices serve until they reach the age of 70. The constitution only explicitly mentions impeachment for high crimes as the means of removing a Supreme Court justice.

Judicial independence in practice

In practice, however, constitutional safeguards, while necessary, are insufficient to guarantee judicial independence. After all, they can be open to different interpretations, they can be susceptible to abuse, or they can be simply ignored. Thus, constitutional safeguards must be complemented by unwritten democratic norms that act as “soft” safeguards.4New York: Broadway Books, 2019More Info → One such norm is particularly relevant here: “institutional forbearance”—from actions that are technically legal but actually violate the spirit of the law, with the aim of eliminating political competition.

In recent Philippine political history, the branches of government have abandoned forbearance to shape the Supreme Court to their benefit. While the executive has not attempted to control the judiciary by limiting the high court’s powers, shrinking the judicial branch’s budget, or decreasing the judges’ salaries, presidents have used their power of appointment, and Congress their power of impeachment, to shape the composition of the high court.

The Varieties of Democracy (V-Dem) indices reveal that high-court independence and judicial checks in the Philippines reached their peaks in 2011 and 2012, and started following a general downward trend thereafter. This trend was interrupted by small improvements in 2015 and 2019. High-court independence and judicial checks, however, have not recovered and are now at their lowest points since 1987.

A brief period of consolidation
Between 2007 and 2010, the Philippine Supreme Court used its expansive powers to strengthen protections for individual rights and civil liberties.5Raul C. Pangalangan, “The Philippines’ Post-Marcos Judiciary: The Institutional Turn and the Populist Backlash,” in Asian Courts in Context, eds. Jiunn-rong Yeh and Wen-Chen Chang (Cambridge University Press, 2014). Through judicial administrative rules, the court introduced the writs of amparo (a legal remedy to protect constitutional rights) and habeas data (to protect informational privacy) amid widespread reports of extrajudicial killings under then-president Arroyo. The court also subsequently introduced the writ of kalikasan, a legal remedy to protect the right to a healthy environment.

Through independent judicial rulemaking, the Philippine Supreme Court proved itself to be a key actor in Philippine democratic consolidation. Indeed, this period of judicial activism by the court has coincided with improvements in the country’s scores in the V-Dem Liberal Democracy Index.

A long and ongoing period of erosion
The period of consolidation, however, was short-lived as the court began to gradually lose its independence and stature as an effective check on the executive branch.

In mid-2010, President Arroyo appointed Renato Corona as chief justice in a lame-duck period, a few weeks before the end of her term and just days after the general elections. Corona was Arroyo’s chief of staff in 2001 before being appointed associate justice in 2002. Newly elected president Aquino criticized Arroyo’s “midnight” appointment of Chief Justice Corona. Breaking tradition, Aquino chose not to take his oath of office before the chief justice.

“These antecedents have allowed President Duterte to reshape the Supreme Court’s membership toward his favor and, with a changed composition, ensure the high court would not frustrate his policies.”

The Corona-led Supreme Court proved to be an inconvenience for President Aquino because it had been vetoing his flagship policies. In 2011, Aquino’s allies in Congress initiated the impeachment of Chief Justice Corona for allegedly failing to fully disclose his financial records. The following year, the Senate convicted Corona and he was removed from office. These antecedents have allowed President Duterte to reshape the Supreme Court’s membership toward his favor and, with a changed composition, ensure the high court would not frustrate his policies.

Filling the vacancy, President Aquino appointed Sereno in 2012, becoming the country’s first woman chief justice. As a young judge, she was poised to head the judiciary for 18 years until her compulsory retirement in 2030.

Yet, despite now having appointed a chief justice, as well as a few associate justices, Aquino still found the Supreme Court to be an obstacle to his agenda at times. In 2013 and 2014, a unanimous Supreme Court decision struck down legislators’ use of discretionary funds and the president’s redistribution of government savings. Aquino, who had used these budgetary loopholes to “accelerate” infrastructure development, publicly criticized the court for these rulings. Through its decisions in these salient cases, the court had started to reassert its independence and impartiality, hence the small improvement in the court’s V-Dem scores by 2015.

The improvement would soon be undone, however. President Aquino stepped down in 2016 and was replaced by President Duterte. Like Aquino, Duterte signaled his uneasiness with the chief justice by refusing to take his oath before Sereno. Tensions between the executive and chief justice grew when Sereno began publicly criticizing Duterte’s seeming disregard for the rule of the law in his flagship “war on drugs.”

President Duterte’s allies in Congress eventually initiated impeachment proceedings against Chief Justice Sereno in 2017 for the same charge foisted against Corona: allegedly failing to fully disclose financial. Seemingly as an insurance in case impeachment would fail, the government also asked the Supreme Court in 2018 to invalidate Sereno’s appointment. Before the legislature could finalize the proceedings, the Supreme Court removed its own chief justice by granting the government’s petition.

Judicial independence reconsidered

“To be sure, judicial review is unquestionably an exercise of judicial independence; after all, a less independent court is less likely to rule against ruling political elites.”

The Supreme Court, of course, cannot be expected to exercise judicial review and annul government policies just to prove its independence. To be sure, judicial review is unquestionably an exercise of judicial independence; after all, a less independent court is less likely to rule against ruling political elites. But the converse is not always true; a court that is less likely to rule against the rulers is automatically less independent, or that a court that is more likely to rule against the rulers is automatically more independent. An independent court can choose not to apply judicial review,6Erik S. Herron and Kirk A. Randazzo, “The Relationship Between Independence and Judicial Review in Post-Communist Courts,” Journal of Politics 65, no. 2 (2003): 422–438. and a less independent court can use judicial review to protect the interests of its political benefactors.7Ozan O. Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (2015).

Moreover, the Supreme Court might have been correct in its interpretation of the law, in which case, the rule of law was upheld.

Nonetheless, for a democracy to function a truly independent court must dependably employ judicial review to invalidate government actions that subvert democratic institutions. A court that consistently chooses not to exercise judicial review in such instances will have abandoned its function to preserve democracy. In addition, a truly independent court must reliably interpret the law in favor of democracy. When exercising judicial review, invoking the rule of law is a double-edged sword: It can be used not only to challenge authoritarian practices but also to normalize them. Thus, the Philippine Supreme Court is not truly independent. In choosing restraint and seemingly favoring a pro-authoritarian reading of the law, it has allowed the government to effectively lower the quality of democracy in the country.

The court cannot be blamed wholly for the situation. Part of the blame must fall to successive Philippine administrations and legislatures since former president Arroyo for continually testing the country’s democratic institutions.

Still, a cooperative Supreme Court mixed with President Duterte’s populist leadership style does not bode well for democracy. A strong, independent high court ought to impede demagoguery and antidemocratic policies.

“Without judicial intervention, Duterte has been able to impose two and a half years of martial law in southern Philippines, and narrow political competition by arresting opposition senators and removing a chief justice.”

Unfortunately, the Supreme Court’s hitherto predictable decisions and skewed membership has failed to restrain President Duterte. Without judicial intervention, Duterte has been able to impose two and a half years of martial law in southern Philippines, and narrow political competition by arresting opposition senators and removing a chief justice. He has also successfully limited presidential accountability by withdrawing from the ICC, shutting down ABS-CBN, and restricting access to his health records.

The fact that the Duterte administration persisted in successively litigating and defending patently authoritarian practices attests not only to the government’s confidence that the Supreme Court would uphold, or at least refuse to strike down, the president’s actions, but also to the court’s lack of power to restrain the government in the first place.

Conclusion

The Philippine Supreme Court has become less independent in practice since the time of former president Arroyo. There is then little surprise that the court is failing to protect democracy by continually siding with, and thereby emboldening, the current administration’s authoritarian tendencies. The result is democratic erosion. Indeed, Philippine scores in the V-Dem Liberal Democracy Index reveal a declining quality of democratic life since Duterte’s election in 2016. The score is now at its lowest point since the Philippines’ democratic transition in 1987.

It appears, then, that the Philippine Supreme Court under President Duterte is not a dependable guardian of democracy. But there may be hope. Attention is now on the case against Duterte’s war on drugs before the high court. In 2019, the court ordered the government to release records related to police killings during drug enforcement operations. Then in August this year, in a separate case, the court cleared drug charges against an individual arrested in 2014 without a search warrant. This case involves only one arrest and predates the Duterte administration, but it may hint at a court leaning toward protecting individual rights and civil liberties. Still, it remains to be seen whether the Supreme Court would finally annul a key Duterte policy.

Fortunately, the Supreme Court is only one check to governmental excesses. While the current administration-controlled Congress cannot be expected to act as an effective counterbalance to the executive branch, civil society groups can demand accountability from the president and his congressional allies in various other ways. The people, after all, are the final judges of their rulers in a democracy.

Banner photo: Patrick Roque/Wikimedia Commons

Source: items.ssrc.org

The Philippine Supreme Court under Duterte: Reshaped, Unwilling to Annul, and Unable to Restrain