Blog of the International Journal of Constitutional Law

Guest blogger Nardi: Courting Constitutional Chaos in the Philippines

Just six weeks before Filipinos go to the polls, a recent Supreme Court decision and a poorly timed birthday have caused yet another constitutional crisis. Under the 1987 Constitution, all Supreme Court justices must retire when they reach the age of 70. Current Chief Justice Reynato Puno will turn 70 on May 17. However, Chapter VIII, § 15 seems to prohibit the president from making any appointments two months before the next election (May 10) up until the end of her term in office. This means the Supreme Court would have to wait at least eight weeks for the next president to fill the vacancy. When incumbent President Gloria Macapagal Arroyo decided to proceed with the nomination process anyway, critics cried foul.

As is so often the case in the Philippines, the Supreme Court was asked to settle the dispute. In De Castro v. Judicial and Bar Council, G.R. No. 191002 (S.C. Mar. 17, 2010), the justices concluded that the § 15 prohibition against “midnight appointments” did not include judicial appointments. The ban is located under Chapter VII, which deals with the Executive branch, whereas the Judiciary falls under Chapter VIII. Moreover, sections 14 and 16 both deal exclusively with Executive appointments; if § 15 had had a broader scope, the constitutional drafters would have made the distinction explicit.

Second, the Supreme Court noted that Section 4(1) of Chapter VIII requires the president to fill any vacancy on the Supreme Court within 90 days. However, in some cases it would be impossible for a president to comply with both this mandate and the Chapter VII, § 15 prohibition. If an incumbent justice retired early in the election season, for example, 90 days might pass before a new president could replace him.

Finally, the constitutional drafters included the § 15 prohibition in order to avoid “midnight appointments” intended to buy votes or influence the outcome of the election. However, under the constitution, the Judicial and Bar Council screens and nominates judicial candidates in order “de-politicize the Judiciary.” Furthermore, the justices felt there would be less risk of a new justice feeling indebted to a retiring president than to a newly elected one.

Nine of the fifteen justices joined the majority opinion, while two justices who voted to dismiss on other grounds appeared to sympathize with the outcome. Three justices, Chief Justice Puno and his two most likely successors, abstained. Only one dissented.

As soon as the Supreme Court announced the verdict, it came under attack. Several members of the 1986 Constitutional Commission publicly stated that they had never intended to exclude the Judiciary from § 15. Some Filipinos have even accused Arroyo of seeking to appoint a chief justice in order to have an ally on the court who could thwart any attempts to prosecute her for corruption or human rights violations.

Meanwhile, the Arroyo administration defended the decision as necessary in case the Supreme Court has to decide disputes over the election results. Estelito Mendoza, a former solicitor general, dismissed fears that the new justice would be personally loyal to Arroyo by pointing out that the current justices, all of whom were appointed by Arroyo, have frequently ruled against her.

Indeed, over the years, the Supreme Court has announced sweeping decisions in favor of environmentalists and human rights activists. Progressive lawyers and activists have become the court’s strongest stakeholders. However, the De Castro v. JBC opinion threatens to undermine this alliance. The same lawyers who supported the court’s progressive policy goals are also Arroyo’s most vocal critics. They seem to view De Castro solely as a political vote of support for Arroyo. Furthermore, many of them considered Chief Justice Puno a champion of their causes, but view his likely successor with suspicion.

The Supreme Court also lacks allies among the main presidential contenders, who have attacked the De Castro decision so forcefully as to make President Obama’s State of the Union Address appear a model of decorum. Benigno Noynoy Aquino III, a senator and current frontrunner, even threatened to impeach the justices in the majority. Whoever wins on May 10 will not be pleased that the Supreme Court “robbed” him of the opportunity to appoint the next chief justice.

This whole imbroglio raises several fascinating questions about constitutions and judicial politics. How do constitutional courts interpret judicial appointment procedures and maintain an appearance of impartiality? Do “midnight judicial appointments” risk reducing the legitimacy of the court? What motivates courts to abandon certain stakeholders or support retiring politicians? The Philippines’ frequent constitutional crises have unfortunately stunted its political and economic development, but make it a fascinating place to study constitutionalism.

–Dominic Nardi

Editors note: Dominic J. Nardi, Jr. is a visiting research fellow at the Governance Institute. He holds a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He has worked in the Philippines on several occasions with public interest organizations.


9 responses to “Guest blogger Nardi: Courting Constitutional Chaos in the Philippines”

  1. Ran Hirschl Avatar

    Fascinating. Thanks, Dominic. Two background queries: I recall a major impeachment trial of president Estrada where the Supreme Court’s CJ (currently the Philippines’ ambassador to the US) played a key role. So there seems to be a long list of notable constitutional politics events in the post-Marcos era. Are there good sources that provide chronology or analysis of constitutional manoeuvring in the Philippines? Also, could you shed some light on the Court’s progressive jurisprudence? Does that include women’s health and reproductive freedoms?

  2. Dominic J. Nardi, Jr. Avatar

    Dear Prof. Hirschl,

    Yes, Chief Justice Hilario Davide played a critical role in the impeachment of former President Estrada, as well as swearing current President Arroyo in (despite much controversy). Davide was appointed by Estrada and is often “exhibit 1” in current attempts to demonstrate that justices aren’t always loyal to the president who appointed them (the real story is more complex). More generally, the Supreme Court has played an important role in a lot of high-profile cases, including confirming Aquino as president after the ouster of Marcos.

    Sources: I don’t know of any good “single” source or chronology for constitutional developments. There is some good scholarship on certain aspects of constitutionalism in the country. Neal Tate and Stacia Haynie published several articles on judicial politics during the late 1980s and 1990s (but from what I can tell not as during the 2000s). Helpfully, they also summarize important or interesting cases. Raul Pangalangan has written quite a bit about constitutionalism and the Supreme Court, including for the Routledge “Law in Asia” series. I have seen constitutional law textbooks in the Philippines, but that’s probably less useful unless you actually are in Manila. A Filipina journalist just published a book about the Supreme Court called “Shadow of Doubt.” My copy hasn’t arrived yet, but it supposedly covers the court since 1986 (although with a focus on corruption and political cronyism).

    Progressive jurisprudence: I’ve come across quite a few “progressive”/activist cases, such as the court’s decision to strike down economic privatization and liberalization reforms under the national patrimony clause of the constitution. Two years ago, it struck down a treaty between Muslim separatists in Mindanao and the Arroyo administration.

    I’m most familiar with environmental and human rights cases. The court nominally requires a “case or controversy” but often relaxes standing requirements for public interest litigation. Arguably the most famous Philippine constitutional law case is “Oposa v. Factoran,” which found (in its dicta) an intergenerational equity right to environmental preservation. Another case speculated favorably upon a fish’s right to sue (but alas the case was dismissed on other grounds). The Supreme Court even agreed to establish separate environmental courts.

    More recently, Chief Justice Puno has been a vocal critic of the extrajudicial killings and appearances under the Arroyo administration. The court introduced two new writs, amparo and habeas data, to shift the burden from plaintiffs to government defendants. Last time I was in Manila (2008), the court hosted a consultative forum/conference on access to justice for marginalized groups (Puno gave a keynote).

    Of course, not all the court’s cases are progressive. Probably the biggest failing post-Marcos was permitting Estrada to declare martial law in Manila. Still, before the recent crisis, progressives seemed to have viewed the court as an ally.

    Reproductive rights: Abortion is banned in the Philippines under the constitution and penal code. There is some uncertainty as to whether exceptions (for health, rape, etc) are permissible, but this hasn’t yet been adjudicated by the Supreme Court. The Catholic Church, along with the Army, is one of the key political power brokers. It’s hard to imagine at this point the Court being willing to confront the church.

    I hope this is helpful. I have a blog where I follow Southeast Asian constitutional developments ( (sorry for the shameless self-promotion), and post links to articles, websites, etc that might have more sources.

  3. Ran Hirschl Avatar

    Most helpful. Many thanks. More than anything else, this appears to be a context comparable to some of Latin America’s post-authoritarian settings. High constitutional stakes, islands of progressive jurisprudence, the military, and a long shadow of Catholic morality. And an interesting combination of Spanish/American legacies (Puerto Rico?)

  4. Dominic J. Nardi, Jr. Avatar

    Definitely. Filipinos say that they spent 300 years in a “convent” under Spanish rule, and 50 years in “Hollywood” with the U.S. I’d also add strong presidential system and a large class divide due to a failure of land reform. Some Filipino lawyers have actively sought to emulate or learn from Latin American history. The writ of amparo was a explicit borrowed from Chile. It seems (in my anecdotal experience) that a lot of consultants brought in to discuss human rights, law, etc come from Latin America.

  5. Editor Avatar

    Very interesting post, Dominic. Thanks! If possible, could you please tell us a bit more about De Castro’s political ties with Ms Arroyo’s political coalition (if any)? Also, what are the formal (and informal) prerogatives of the Chief Justice in the Philippine system? (i.e. Do they assign opinions, negotiate the budget with other political forces, etc.?)

    I also wanted to let you know about Rodelio Manacsa’s work (recent Vanderbilt Ph.D. and former student of late Prof. Neal Tate, currently at the University of the South). I believe his dissertation was a longitudinal study of judicial power in The Philippines. There is also a Supreme Court database available for the 1961-1987 years at Neal Tate’s web-site, and the data from the High Courts Judicial Database (Haynie, Sheehan, Songer and Tate), for the 1970-2003 years (also available at South Carolina).

  6. Raul Sanchez Urribarri Avatar

    ^ By the way, I don’t know why my name came up as ‘Editor’, when it should have been Raul Sanchez Urribarri. I just corrected it!

  7. Dominic J. Nardi, Jr. Avatar

    Dear Prof. Urribarri,

    Thanks for your comments. First of all, here is a link to the “De Castro v. JBC” case:

    Second, I apologize for giving the politics behind the lawsuit itself short shrift in my post. It’s actually quite interesting. The court opinion itself gave all the parties standing on a general “taxpayer suit” basis. The judicial opinion itself describes De Castro simply as a lawyer. I did a quick search to learn more. As you seem to realize, though, De Castro does have ties to Arroyo. His son is a high-ranking Justice official, while his wife used to work for the government. Moreover, he seems to have his office in part of a building owned by the president’s husband, Mike Arroyo. As is so often the case, Very often in the Philippines, even nominally “public interest” litigation has an ulterior motive or political ties.

    Chief Justice: Under the constitution, the Chief Justice serves on the JBC. In other words, he has some say in future judicial nominations. He also certifies opinions. While largely a formality, there have been instances when (at least according to some critics) the Chief Justice stalled in certifying a decision with which he disagreed. The Chief Justice can also decide whether to convene en banc or in divisions. In this context, it’s important to remember the Supreme Court hears election disputes.

    On budgets, there is a Judicial Executive Legislative Advisory and Consultative Council, which includes the Chief Justice. The Jelac is the body that asks Congress for funding. I’ll admit I’m not up to date on the behind-the-scenes politicking in the budget negotiations or how much influence the Chief Justice has in the process. There’s a new book coming out, “Shadow of Doubt,” which promises to “expose” a lot of the Supreme Court’s politicking, and it might cover this issue.

    The Chief Justice also manages the Judicial Planing, Development, and Implementation Office, which monitors judicial performance, as well as the Judicial Development Fund and Special Allowance for the Judiciary.

    Informally, the Chief Justice does assign opinions, unless he is a dissenter. They also have a high profile (much more so than U.S. Chief Justices). For example, Puno was widely urged to run for president.

    Other sources: I read a copy of Prof. Manasca’s paper at the MPSA last year. I came across Neal Tate’s database, although I admit I haven’t really explored it much yet. Thanks for bringing them up.

  8. Dominic J. Nardi, Jr. Avatar

    One other note: the ASEAN Law Association has published an online “book” about the Philippine legal system: That might be a useful source if anybody wants to get a sense of the main constitutional developments since 1986 (although it is a few years old by now).

  9. Dominic J. Nardi, Jr. Avatar

    Hi, just a brief update and correction. I, along with the Arroyo administration and the rest of the country, believed the “De Castro” decision created an exception to the ban on “midnight appointments” for the entire judiciary. However, the Supreme Court stated yesterday that the decision was restricted only to Supreme Court appointments – not the Regional Trial Courts and lower courts. This certainly isn’t obvious from reading the case itself (which generally refers to the “Judiciary”). In fact, much of the court’s reasoning seemed based upon distinguishing the Judiciary from the Executive.

    I wonder if the Supreme Court is backtracking due to the public backlash. It would make sense strategically to widen the scope of the Supreme Court’s ability to get a Chief Justice, while limiting the presidency’s powers – especially when Aquino’s lead in the latest SWS polls has widened.

    Here is a news article on the Court’s announcement:

Leave a Reply

Your email address will not be published. Required fields are marked *