On April 18, 2023, the Cambridge University Press published in Law & Social Inquiry a study about the decisions handed down by the Supreme Court (SC) of the Philippines. The Cambridge study analyzed data from decisions rendered by the SC justices who served from 1987 to 2020 related to strategic judicial behavior. The study examined the political loyalties of 86 SC justices, specifically focusing on whether their decisions are influenced by the president who appointed them.
The Cambridge study came to the fore while there is raging national debate over the unanimous decision of the present 15-man High Court headed by Chief Justice Alexander Gesmundo. With 13-0-2 votes, the fourth impeachment complaint against Vice President Sara Duterte in the 19th Congress was declared unconstitutional by the SC last July 25.
Further, the SC declared the Senate and the House of Representatives of the 20th Congress no longer have jurisdiction to proceed with the impeachment trial of VP Sara. Although “executory,” the SC hastened to add this ruling did not in any way exonerate VP Sara. In fact, the High Court advised a new impeachment can be filed again on Feb. 6, 2026, or thereafter.
Nonetheless, the Gesmundo-led SC has been under severe criticism from pro-impeachment and bitter critics of VP Sara, who include former SC justices themselves, lawmakers, constitutionalists, lawyers and even self-proclaimed political analysts and legal experts. According to commissioned surveys, quite a number of Filipinos believe VP Sara should face the impeachment trial to answer all allegations against her.
It was former Commission on Elections chairman Christian Monsod who told us about the Cambridge study during our Kapihan sa Manila Bay news forum last week. Monsod joined retired SC senior associate justice Antonio Carpio and both passionately objected to the SC ruling. Monsod and Carpio called upon the SC “to revisit” and review their impugned decision. The two legal luminaries maintained that the constitutional violations cited in that SC ruling were apparently based on wrong information.
Carpio though shot down insinuations against the majority of SC justices who voted in favor of the petition of VP Sara. Critics assailed the SC ruling since the High Court supposedly remains as the stranglehold of justices appointed during the administration of VP Sara’s father, former president Rodrigo Duterte.
But even an appointee of President Ferdinand Marcos Jr., associate justice Raul Villanueva – who joined the SC last June 10 – voted with the majority ruling. Associate justices Marvic Leonen and Alfredo Benjamin Caguiao were appointees of the late president Benigno Simeon “PNoy” Aquino III. However, Caguiao inhibited from this case.
Carpio also pooh-poohed conspiracy theorists who questioned why Leonen was the ponente or writer of the SC ruling. By practice, Carpio explained, the ponente is designated by drawing lots among justices who voted with the majority ruling. Citing his being an appointee of ex-president and currently Pampanga Rep. Gloria Macapagal-Arroyo, Carpio noted having voted many times in several petitions against her administration.
Carpio argued being all presidential appointees does not come into play in a collegial body like the SC when justices decide on cases.
It was in this light that Monsod disclosed the Cambridge study on the “voting patterns” of SC justices from 1986 to 2020 that showed otherwise. Based on the results of this study, Monsod noted, almost 69 percent voted “for” and only 31 percent against the sitting government on the 70 cases that the SC decided in that period.
As one of the members of the 50-man Constitutional Commission (Con-com), Monsod was the designated framer on the impeachment provisions under our country’s 1987 Constitution. Monsod explained it was the intent and spirit of our Constitution to implement what he called as “liberalized impeachment” provisions. This was precisely, he stressed, to prevent the SC from overstepping its judicial powers to intrude into co-equal branches of government – the Executive department and the Legislative or Congress.
I did my own research about this Cambridge study, a copy of which was published online by Cambridge “in behalf of the American Bar Foundation.” It was not clear though who funded or sought the study. Notably, the study supposedly reviewed SC decisions and weighed them against the “appointer” of the justices involved in the ruling. The sample period coincided with the administrations of Presidents Corazon Aquino (1986-92); Fidel V. Ramos (1992-1998); Joseph Estrada (1998-2001); Mrs. Arroyo (2001-2010); PNoy (2010-2016) and Duterte (2016-2022).
The study cited 43 cases (61 percent) had at least one dissenter, the other 27 were unanimous decisions (39 percent). The same study noted the SC during this period voted most often against the government in cases involving corruption (50 percent), elections (43 percent) and economic matters (38 percent). The majority of cases dealing with executive prerogatives (81 percent), bill of rights (69 percent) and separation of powers (68 percent) were decided for the government. Nevertheless, dissenting votes have remained high throughout the sample period, with peaks in 1995/1996 and 2011.
Further, the study found justices appointed by the politically aligned administrations of Mrs. Arroyo and Duterte tend to vote together, and those appointed by the opposing political camp (e.g., PNoy) often join the dissenters. The pattern was particularly evident as the Duterte administration began, when appointees from all three administrations were present. It became less pronounced as retiring justices were replaced.
By 2020, 11 justices had been appointed by Duterte, three by PNoy and only one by Arroyo.
Methinks whoever the president appoints, he or she becomes a justice of the SC because of credentials vetted by the independent Judicial and Bar Council (JBC). After interview/hearing that is open to the public of each and every nominee to the SC, the JBC comes up with a shortlist of candidates that they will recommend to the incumbent president to choose from.
In fact, the Cambridge study acknowledged this. “The JBC, established by the 1987 Constitution, was meant to establish a merit-based appointment system that insulates judicial appointments from traditional politics.” So where’s the beef?