We are republishing this from marengwinniemonsod.ph with permission from the author. 

In my last blog, it it was quite clear that, using the World Justice Report’s Rule of Law Index, the Philippines’ adherence to the rule of law had deteriorated markedly from an index of 0.53  in 2015 (Benigno ‘Noynoy’ Aquino III administration) to 0.47 in 2022 (Rodrigo Duterte administration). 

In so far as corruption is concerned, Transparency International’s Corruption Perception Index (CPI) – the higher the index the better – shows that the perception of corruption in the Philippines also deteriorated from 38 (Aquino) to 33 (Duterte, 2022).  To be fair, it must be pointed out that during the term of Aquino’s predecessor (Gloria Macapagal-Arroyo), the CPI was at a low of 24.

One would have thought that these data, part of Inconvenient Truths 8 and 9, were damning enough of Duterte’s governance record, but a very recent study published in Law and Social Inquiry, a quarterly, peer-reviewed scholarly journal of international standing that is published by Cambridge University Press (CUP), adds even more fuel to the fire. Co-authored by Bjorn Dressel (Associate Professor at Australian National University), Tomoo Inoue (Professor of Economics at Seikei University), and Cristina Bonoan (Senior Lecturer at U.P. College of Law), the study is entitled “Justices and Political Loyalties: An Empirical Investigation of the Supreme Court of the Philippines, 1987–2020”.

Allow me, Reader, to state one of their main conclusions (the one that adds more fuel to the above fire) and then go back and start from the beginning: Essentially, from their analysis of the data, they conclude that “a new pattern of (Supreme Court) behavior has emerged under the populist-authoritarian rule of President Duterte.”

Whoa! What pattern is that? Patience, Reader.  

Let’s start from the beginning.

The period 1987 to 2020 covers six Presidential administrations, and involves 86 Supreme Court (SC) justices. What the authors do is study 70 “megapolitical” cases resolved during that time, and try to determine patterns of behavior that characterize these justices in regard to their pro- or anti-government decisions in these cases.

What is a “megapolitical” case? They define it (following other studies) as one that goes “beyond issues of procedural justice and political salience to include ‘core political controversies that define (and often divide) whole polities’”.  In other words, Reader, high-profile, make-or-break political cases. 

How were these cases chosen? They used a three-stage triangulation process: 1) coverage in the front and second pages of two major newspapers; 2) citations about the SC in law publications; and 3) vetting by leading local constitutional experts.  

Having thus chosen, they analyzed voting patterns by case type, i.e., separation of powers (31 percent), executive prerogatives (23 percent) and the bill of rights (19 percent). The remaining 27 percent dealt with economic matters (11 percent), elections (10 percent), and corruption (6 percent). Voting patterns were also analyzed by presidential term, showing that justices appointed by the same president tend to vote with each other (with the exception of the President ‘Noynoy’ Aquino-appointed justices and Arroyo-appointed Justice Antonio Carpio). Finally, they used regression analysis to empirically validate their hypotheses.

The numbers

Of the 70 cases, the SC decided almost 69% for and only 31% against the sitting government. Cases involving executive prerogatives got the highest percentage of favorable decisions (81%), followed by bill of rights (69%) and separation of powers (68%). The cases where the SC was least likely to decide in favor of the government were those involving corruption, where they sided with the government only 50% of the time.

What did the regression analysis reveal?  

(1) if the justice was appointed by the current president, the probability of a pro-government vote is increased by 15% – the “loyalty effect”. 

(2) if the justice is a first-year appointee the probability of a pro-government vote is increased by 20% – the “freshman effect”.  

(3) Duterte-appointed justices appear to have a probability of voting in favor of his administration that is higher by 25% than the justices voting for the administration of his predecessors who appointed them.  These results are statistically significant at the 1% level.

What it means

That third result has major political implications, Reader, because 13 of the 15 current SC justices are Duterte appointees. Which gives President Ferdinand Marcos Jr. a handicap, because his first SC appointment will only be made in 2025, and he will be appointing a total of 4, the least number compared to his predecessors. That means he will have to play nice with Duterte, if he wants favorable SC decisions during his term, don’t you think?

All these findings naturally lead one to ask, how were these justices chosen in the first place?  The 1987 Constitution makes the Judicial and Bar Council responsible for this, they give the President  a short list of three nominees to choose from. This was supposed to remove most political considerations from the choice (prior to 1987 Constitution, the President appointed, and then the Congressional Commission on Appointments had the last say).  

But obviously, politics has reared its ugly head in the JBC, because, as an example, in the Duterte presidency, the short list of candidates presented to him seemed to very often have a San Bedan (his alma mater). The study shows that 40% of his appointees were Bedans, whereas the average for all the other presidents was only 10%. 

Finally, if the numbers raise a question about the independence of our Supreme Court justices, who are supposed to be our best and brightest, what does this imply about the behavior of those in the lower courts?  Nanaykopoooooo! (Oh, my goodness!) – Rappler.com

Solita “Winnie” Monsod was the first National Economic and Development Authority secretary appointed after the fall of the Marcos dictatorship in 1986. She is a professor emerita at the UP School of Economics where she taught starting 1983. She finished her degree in economics in UP and obtained her masters in economics at the University of Pennsylvania. She is a board director of Rappler Inc.