Public support and judicial empowerment of the Philippine Supreme Court.

• Author: Deinla, Imelda

Since the peaceful People Power Revolution in 1986 that overthrew the authoritarian regime of President Ferdinand Marcos, the Philippine Supreme Court has played a leading role in arbitrating highly contentious political disputes as well as sustaining a fragile democracy. More than twenty years since the transition to constitutional democracy through the 1987 Constitution, the Philippine judiciary, with the Supreme Court as the highest judicial organ, has re-established its status as a coequal state institution alongside the executive and legislature. However, the Philippine Supreme Court has not been immune from the vicissitudes of Philippine politics; in fact, it has been enmeshed in it, and at times its key personnel have been interrogated by other government branches, members of the political elite and the public at large. The successful impeachment of the Court's Chief Justice in December 2012 is only one among several significant events that underscore the highly politicized environment in which judicial power operates in the Philippines. Yet the Philippine Supreme Court has not shied away from making landmark decisions that have dealt major blows to government policy preferences as well as those of the ruling elite.

Using the Philippine Supreme Court as a case study, this article seeks to provide a framework to explain the behaviour of judges in making decisions concerning government actions in the context of a democratizing state like the Philippines. In many countries which are transitioning from authoritarianism to democracy, courts are in a state of rebirth through constitutional guarantees in a democratic constitution, but operate in a fluid environment of fierce elite contestation. Why and how does a judiciary mired in political struggle among the elites decide particularly for or against the ruling coalition? What is the motivation of the Court in policing constitutional democracy against the weight of rewards, pressure or threats from a powerful ruling party? This article proposes that judicial legitimacy and public support--features that have received scant attention in the study of judicial politics--are key factors in determining the capability of the Court to render just and fair decisions.

Judicial Politics: Beyond Rational Choice and Actor Based Perspective

Courts have become integral to the functioning of any social order, regardless of the type of political system in place. In many democratizing countries in Southeast Asia the institution of formal court systems has been one of the lasting legacies of Western colonialism. Yet many of these courts suffer from the perception of independence deficit, if not a complete lack of independence. It is through reference to "independence" that a particular court's performance, or non-performance, has been measured. While constitution drafting and the establishment of constitutional courts have become synonymous with democratization, judiciaries in democratizing states have been perceived, at varying periods and to various degrees, to be caught in an "instability trap". The deficit in independence can be seen when the court's survival comes under threat, or when it is subjected to various influence, pressure, administrative or budgetary oversight from other state institutions. Thus even if formally constituted as independent or constitutionally empowered to perform judicial review, the court can be made reliant upon, timid or beholden to political organs.

Even in the absence of controls or pressure, the court may still be unwilling to exercise its review powers over the political branches of the state. This may not be an indication of lack of judicial independence. Courts in general have tended to sustain the government's policy preferences, (1) but are not deemed biased per se. Likewise, a court which occasionally renders a decision against a one-party government can be seen as fully independent, even when such rulings can be easily overturned by legislative veto. (2) It could also be that to exercise judicial review could create instability and generate more political uncertainty. Courts have exhibited varying behaviours on different issues and over different periods of time, regardless of the types of regimes or governments. (3)

The concept of judicial independence is often the core principle and also the benchmark by which a court's performance tends to be assessed in relation to its role in upholding the rule of law. This has a philosophical foundation from Western liberal democracies' conception of separation of powers and the need for government power to be subject to checks and balances. Many studies on courts in Southeast Asia have adopted this perspective. Judicial independence, however, is a contested concept and in many ways hard to define, much less measure. (4) There are two basic characteristics that are often associated with judicial independence: judicial autonomy or freedom from interference from other individuals and institutions; and the requirement for judges to render impartial decisions. (5) Measures of judicial independence have focused on formal or technical aspects: constitutional guarantees, selection of judges, tenure, salary and administrative control that are often inadequate or wanting in explaining the presence or absence of independence. Judicial independence by itself is not sufficient to explain the behaviour of courts or the fluctuations in the way they decide cases for or against the government, or probe the ideological and bureaucratic predisposition of court personnel.

Why courts decide either to sustain or override the government's position has been mostly explained in the judicial politics literature by reference to the dynamics of structural and institutional arrangements, or from the perspective of political elite behaviour. (6) Judicial politics has generally interrogated the political foundation of judicial independence or its absence focusing more on state actors and institutions or the key power-wielders as directly influencing the behaviour of judges or of the judiciary as an institution. Two main trends can be discerned from the literature. One is actor-based, which looks at the extent to which political actors seek and respect the court's role in adjudicating their disputes or what is termed the "political commitment" guaranteeing the court's independence. It has been posited that this commitment, or lack of it, is in turn dependent on "political fragmentation and electoral vulnerability". (7) Put simply, a more consolidated regime, or its extreme--the existence of power monopoly--means that political actors have less incentive to support judicial power or its independence. While many authoritarian regimes may have reduced courts to mere appendages, there have been those that were permissive in certain areas. (8) Stronger coalitions have also shown tolerance for a more or less independent judiciary.

The other position is from the rational-choice perspective which argues that political actors who anticipate alternating in power have an interest in maintaining judicial independence in order to reduce the cost of being out of power or being punished when out of power. (9) In this case all parties are constrained, since an independent court though reducing the benefits of a party in power also reduces the costs of politicians being out of power. While this seems to be a plausible explanation for judicial independence, there could be other explanations such as the possibility that opposing parties can collude to destroy the court's independence.

The models under discussion suffer from a serious flaw in that they seem to underestimate the court's residual power emanating from its own capacity and legitimacy, and also, significantly, the role that the public bestows or withdraws from the judiciary. In Ran Hirschl's account, the court as a "political institution" has not been considered seriously enough, (10) and hence the inability to examine non-legal factors or conditions that impact on judicial decision-making and empowerment, particularly those that enable them to overcome pressures from above. As a non-legalist account, this article situates the court in a broader socio-political context, one in which it is not insulated from the public, and thus from public opinion and wider public perceptions of the court.

In her studies of the Philippine judiciary, Stacia Haynie points out that courts gain more power and influence as they play a greater role in resolving political conflicts. (11) This capacity for resolution has been traced to the re-vesting of the power of judicial review under the new democratic constitution. But how the court is able to utilize this power in the face of persistent political pressure and influence -- not to mention the prevalence of judicial corruption (12)--has not been thoroughly taken into account. The weight of public support in enhancing court legitimacy or in determining judicial outcomes has not been thoroughly explored, particularly in the context of new or transitional democracies. In the United States public opinion has been found to significantly affect the decisions of the US Supreme Court on major policies or legislation. (13) The US Supreme Court has been emboldened in issuing "counter-majoritarian" decisions where it perceives the existence of preference or an emerging preference by a popular majority. In this way an activist court has been empowered to perform its function in safeguarding procedural norms of democratic decision-making and the rights of the minorities. (14)

The above discussion clearly points to the elements of judicial capacity and public opinion in bolstering judicial power and its legitimacy in issuing authoritative decisions on political issues. Legitimacy and public opinion are distinct but continuously interacting phenomena. Legitimacy refers to a normative value that sees the judiciary as a "social good" and is, to some...