I. Introduction: Courtesy calls

II. Deference and loyalty to presidents

III. Duterte’s winning streak

IV. Reforming the JBC

V. The other battle: Backlog

VI. Conclusion: A diminished court


 

I. Introduction: 'Courtesy Calls'

 

Rodrigo Duterte had been installed president for a little over a month when he received justices of the anti-graft court Sandiganbayan on Aug. 4, 2016 in “Panacañang,” the presidential guest house in Davao City which has served as the Malacañang of the South. 

A silent video the government released on social media showed him talking in a jovial mood. The video then cut to Samuel Martires, the justice who wrote the decision dismissing a graft case against Duterte in 2011 and was seated across the dining table from him, flashing a big smile, seemingly in reaction to what Duterte just said.

The visit surprised many court observers. Why were members of the judiciary – a co-equal of the executive branch of government whose members are expected to insulate themselves from improper influence – socializing with the newly elected president?

 

“Why would you approach the president? What is the message that you want to make especially if we look at the possibility that you will be aspiring for a higher position?” said lawyer Marlon Manuel, former convenor of the now disbanded Supreme Court Appointments Watch.

Indeed, Martires applied for a seat at the Supreme Court (SC) four months later. His visit to Duterte would be raised during his public interview before the Judicial and Bar Council (JBC), the constitutional body that vets nominees to the judiciary. 

Martires admitted the optics were bad, but he dismissed any impropriety. He was only angry that the president’s media team made public what he said was a “private invitation from the president.” 

“It will give a very bad impression to the public that we are going there because the president is going to ask us for something…. [He asked us for] nothing. Actually, the president told us that: ‘I respect the judiciary and I will never interfere in the affairs of the judiciary,’” Martires told the JBC.

“I was telling the justices that I [would] confront whoever [was] handling the media affairs of the president [and] tell him that this [was] a private affair,” he said.

Martires would be Duterte’s first appointee to the high court, but he would avail himself of early retirement after 18 months on the bench. He accepted a new appointment to lead the Office of the Ombudsman, a constitutional office that investigates and prosecutes allegations of graft and corruption against public officials. Under his watch, the Ombudsman restricted public access to the Statements of Assets, Liabilities and Net Worth (SALN) of Philippine presidents and other government officials.

 

 

It wasn’t just the Sandiganbayan justices who gave the new president a courtesy call that month. Justices of the Court of Appeals (CA) also visited him in Malacañang on Aug. 23, 2016. 

Then Chief Justice Maria Lourdes Sereno was informed in advance of the CA justices’ visit to Duterte. She disapproved of it. Justice Andres Reyes Jr., who made the arrangements with Malacañang, would later recall in an impeachment hearing against Sereno at the House of Representatives how the chief justice called him to her office and gave him a “tongue lashing.” 

He claimed Sereno warned him it was a mistake that could end his career. 

The CA justices proceeded with the visit, but the original agenda, which was to discuss with the President the judiciary's problems, was changed to simply presenting Duterte with the appeals court’s 80th anniversary commemorative coin and stamp.

A short video clip uploaded to the government’s online pages showed Justice Rosmari Carandang standing beside Duterte and introducing her colleagues who lined up to shake his hand and eagerly take photos with him.

Sereno later asked the Supreme Court en banc, or the full court, to issue a show-cause order against the justices, but it was disapproved. 

Reyes would be appointed to the Supreme Court later along with at least three other justices present at the courtesy call — Carandang, Henri Inting, and Amy Lazaro Javier.

It was Sereno’s career that ended in May 2018 after threats from Duterte himself to remove her. Sereno was appointed by Duterte’s predecessor, Benigno Aquino III.

Sereno’s colleagues granted a controversial quo warranto petition filed by Solicitor General Jose Calida, while an impeachment complaint against her was being heard in the House of Representatives, introducing a new track to remove a sitting justice.  

Voting 8-6, they declared her appointment void ab initio – from the beginning – over her failure to file all of her yearly Statements of Assets, Liabilities, and Net Worth (SALN) when she was a professor at the University of the Philippines. 

All of Duterte’s appointees voted to oust her – Martires, Reyes, Alexander Gesmundo, and Noel Tijam, who penned the decision. 

Sereno, the first woman to occupy the post of chief justice, was supposed to serve until 2030 or beyond Duterte’s term.


 

II. Deference and loyalty to presidents

 

The 1987 Constitution was designed to prevent future dictatorships, making the judiciary, executive, and legislative co-equal branches that should check and balance each other. 

In reality, the independence of the Supreme Court from the executive branch has been the subject of robust scrutiny from court observers, the academe, and the media. 

A research paper that scrutinized the votes of chief justices over a span of three decades concluded that presidents have remained powerful over the Supreme Court because of their appointing powers. 

Legal scholar Desiree Desierto studied the votes of 10 chief justices from 1970 to 2003 to test a hypothesis that associate justices of the high tribunal tended to vote in favor of the national government in consideration of being promoted to chief justice.

Looking into politically salient cases two years before and after the chief justices were appointed to the top post, she found an “apparent” principal-agent relationship only in appointments after the 1987 Constitution took effect. It made sense, she said, because justices had no opportunity to act as agents during the dictatorship. 

Desierto concluded: “The new, post-Marcos, Constitution was primarily supposed to have been designed in order to limit Presidential powers, but in transferring more power to other branches of government (i.e. the Supreme Court), the unintended consequence is that the President remains powerful, but in a less transparent way.”

 

“A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.”

– 1987 CONSTITUTION

 

Deference and loyalty

 

Court observers have long criticized the tendency of Supreme Court members, not just chief justices, to vote in favor of the interests of the executive branch. 

The Supreme Court under Duterte is certainly no exception. In fact, the high court has favored Duterte in nearly all its decisions involving the national government as of this writing. 

It’s as if the justices have decided to act as government lawyers, said Dan Gatmaytan, a constitutional law professor at the University of the Philippines College of Law.

Gatmaytan said this reflected the transactional culture of politics.

“A Philippine president would approach a potential candidate and [say], “I can make you justice, but I have to know what I’m gonna get out of it,” he said.

Marites Vitug, journalist and author of three books on the Supreme Court, said this tendency was particularly strong among new appointees. She attributed it to loyalty arising from “utang na loob” or debt of gratitude for the justices’ appointments, more than a  deferential attitude toward the executive branch.

Debt of gratitude is a plausible explanation for why all of Duterte’s appointees have sided with his interests while appointees of his predecessors were often divided. 

It’s also a plausible explanation for the 2016 court decision dismissing a plunder case against former president Gloria Arroyo, where all of her appointees — except one whom she had a falling out with — voted in her favor.

 

 

Whether or not these perceptions are true — that justices don’t actually decide based on the merits of the cases — will be hard to prove concretely. But it is the appearance that is important, said Manuel. 

“When they decide in favor of an executive action, it’s very easy for the public – I’m not saying it is correct – to have that perception that it's because they are appointees of the president,” he said.

Justices resent this analysis. "Justices would of course say it's unfair to analyze their votes based on who appointed them, because they really have no choice but to be a president's appointee. But it's an important bit of context, especially if there's a relation to the vote and the appointing power," said Lian Buan, a reporter covering the judiciary for online news site Rappler.

Certainly, deference, loyalty, and even aspirations to become chief justice do not entirely explain all the voting patterns. 

In its vote on Sereno’s removal, deference and loyalty might explain the concurring votes of Duterte’s appointees but not the concurring vote of fellow Aquino appointee Francis Jardeleza. Arroyo’s appointees were also split, 3-3. 

Other factors, such as personal relationships, came into play, according to court observers. Jardeleza, for example, didn’t have a good relationship with Sereno after the chief magistrate tried to block his appointment to the high court.

 

 

 

Gesmundo’s voting record

 

These perceptions have loomed over the integrity of incumbent Chief Justice Alexander  Gesmundo. He was appointed Supreme Court associate justice by Duterte in 2017 and chief justice in April 2021. 

A former law professor and justice of the Sandiganbayan, he is widely respected among lawyers. He is a known workaholic said to be dedicated to instituting reforms in the judiciary. 

In his public interview for the chief justice position, he spoke at length about his plans to address the judiciary’s backlog of cases and how the newly established Judicial Integrity Board could investigate allegations of corruption.

His voting record shows he has consistently voted in favor of the government.

“Let’s say he is a reformist. But as chief justice, you have to be measured by your decisions,” said Vitug.

Chief Justice Alexander Gesmundo’s voting record on cases involving President Duterte

 

2020

  • junking a petition to declare a law expanding Duterte’s powers during coronavirus pandemic unconstitutional

  • dismissing a petition for the disclosure of Duterte’s health condition

 

2018

  • extending martial law in Mindanao even after the military had defeated the militants and retook control of the city

  • ousting Sereno by way of a quo warranto petition

  • declaring the controversial arrest of opposition senator Leila dDe Lima as valid

 

The issue of court independence was raised during Gesmundo’s public interview in March 2021 when he applied for chief justice. He was asked: “How will you address the public’s perception that members of the high court are just followers of the present administration as had been the impression under the previous administrations?”

Gesmundo dismissed it and offered no concrete plan of action. “That is a public perception, your honor, but you can [address] that perception by showing that the courts decide [based] on what is proper under the circumstances. People may have different perceptions but what mattered is that the court is doing its job properly. I think that is the more important thing to consider, he said.

Former chief justice Artemio Panganiban, in a newspaper column, suggested that Gesmundo’s voting record might be a reflection of his inclination as a former assistant solicitor general, a position that required him to defend the government in many cases.

“As an ‘OSG thoroughbred,’ he developed a tendency to uphold government positions in controversial decisions based on the prima facie dictum that official duty had been regularly performed,” he wrote. 


 

III. Duterte's winning streak

 

Five years into his presidency, and with only a year left in his term, Duterte has packed the Supreme Court with his appointees. Twelve out of 15.

There will only be two justices he didn’t appoint who will be left in the high court by the time his successor assumes office in 2022. There’s also a pending impeachment complaint against one of them, Associate Justice Marvic Leonen.

The Supreme Court, much like Congress, has long been criticized as a rubber stamp of the executive. But it has turned for the worse under Duterte, said Gatmaytan. 

“It is worse [under him] because I haven’t seen a Duterte appointee vote against him, whereas every president before him had a problem with the court,” said Gatmaytan.

Deference and loyalty are two different things, but they become indistinguishable when the high court becomes packed with the appointees of the incumbent, as is often the case toward the end of a president’s term. 

It is true that Philippine presidents often get what they want. Unlike Duterte, at least so far, his predecessors have had some of their big policies and plans derailed because of the Supreme Court. 

The high court blocked the charter change bid of former President Fidel Ramos, who wanted to amend economic limits under the 1987 Constitution. Ramos was also suspected of working to lift the one-term limit on sitting presidents.

It also stopped Arroyo’s move to push charter change via people’s initiative, as well as her peace agreement with the Moro Islamic Liberation Front.

Aquino suffered big losses in the high court although he also successfully removed a chief justice, the late Renato Corona, over his failure to accurately declare his wealth in his SALN. 

The Supreme Court ordered the distribution of his family-owned Hacienda Luisita and declared his Disbursement Acceleration Program, a budget stimulus scheme, and the Priority Development Assistance Fund or “pork barrel” unconstitutional. 

For his part, Duterte won in the following cases:

• allowing a hero’s burial for the late dictator Ferdinand Marcos;

• extending martial law in Mindanao even after the military had defeated the militants and retook control of the city;

• ousting Sereno by way of a quo warranto petition; and

• declaring the controversial arrest of opposition senator Leila de Lima as valid.

 

Blow to democracy

 

Gatmaytan pointed to the 2016 ruling on the burial of the late Philippine dictator Ferdinand Marcos as “the signal of things to come.”

Duterte and Marcoses were allies during the 2016 presidential elections, and he promised to allow the late dictator's burial at the Libingan ng mga Bayani during the campaign. 

It was a very divisive and emotional issue, but the court favored the government 9-5-1. Yet, Duterte had not appointed anyone to the Supreme Court at the time. 

“I really don’t understand,” said Gatmaytan. 

 

All of Arroyo’s appointees favored the Marcos burial while most of Aquino’s appointees junked it. Bernabe voted with the majority while Bienvenido Reyes inhibited. He was Duterte's fraternity brother at San Beda College of Law and a former lawyer of the Aquino family. 

Gatmaytan found the high tribunal’s rulings on martial law in Mindanao as the worst decisions under Duterte. 

Duterte declared martial law over the entire Mindanao as local and foreign militants laid siege on Marawi City in May 2017. The court allowed three extensions of military rule in Mindanao even long after the military had defeated the militants and retook the city. 

“The martial law case is so weird because they dismantled all the checks that we put under the 1987 Constitution. It’s actually easier now to declare martial law anytime. In its ruling on the extension, wala ka nang check (there are no more checking mechanisms). [There’s] very limited judicial review,” Gatmaytan said.

 

Vitug also lamented the Supreme Court decision upholding the arrest of opposition senator Leila de Lima over her drug charges.

The high court dismissed de Lima’s petition to invalidate the arrest warrant issued by the Muntinlupa Regional Trial Court on the ground of her position as senator, which she said gave the Sandiganbayan jurisdiction over her.

Kung sinabi nang court hindi valid, na-challenge ‘yung impunity ni Duterte (If the court said it wasn’t valid, Duterte’s impunity would have been challenged),” said Vitug. 

 

Groups also ran to the high tribunal as Duterte’s violent campaign against illegal drugs unfolded, killing thousands of Filipinos, mostly the poor. A petition to declare the drug war unconstitutional is still pending with the court. 

“The SC has a role to play. It has always played an important role, but this time we would like to see the SC to be a beacon for justice,” Vitug said. 

Instead, the court’s actions strengthened Duterte’s iron grip. Decision after decision favoring Duterte has been “a blow to democracy,” said Vitug, as the high court failed to protect the people against Duterte’s attacks on freedoms, institutions, and the rule of law.

“The context has changed under Duterte. Democracy is under threat. Our freedoms are under threat, and extrajudicial killings have taken place,” said Vitug.

 

Pushing SC's rulemaking powers

 

The Supreme Court can push back.

Despite its record of obeisance, the high court during the extended term of Arroyo stepped out of its traditional decision-making role to take up the cudgels against extrajudicial killings (EJKs) and impunity.

Then Chief Justice Reynato Puno convened stakeholders to discuss EJKs in high-profile conference, calling attention to the problem and the need to stop it. It wasn’t just talk. It led to the writ of amparo, writ of habeas data, and the writ of kalikasan – legal remedies that allowed the public to run to the Supreme Court for protection order. 

“I remember at that time, the court was explaining that they are maximizing the rulemaking power of the SC under the constitution… Those were innovations that the court tried to address specific situations,” Manuel said.

The violence of those times harks back to the country’s current situation.

The high court can revive its efforts against impunity, said Manuel. It would help if the Supreme Court were “more visible insofar as taking position on this issue.” 

It can also send instructions to lower courts to act promptly on illegal drug cases.

“I’m sure they know all these things are happening. Some of these issues are brought to their attention formally through manifestations, through cases,” said Manuel. 

Gesmundo should exercise leadership, said Vitug. “The chief justice, just like any other justice, casts only one vote. But he’s the face of the court and regarded as the intellectual leader. He has persuasive powers.”


 

IV. Reforming the JBC

 

Court observers said many of the judiciary's problems are rooted in the JBC, the body that vets nominees to the judiciary. 

“When we talk about independence, we’re not only talking about the independence of the SC but the independence of the JBC itself,” said Manuel.

The 1987 Constitution created the JBC to limit the president’s discretion to the list the body submits

It changed the process under Martial Law, when Marcos made all court appointments, and under the 1935 Constitution, when the president nominated the justices and the legislature confirmed them. 

However, it’s still the president who appoints the regular members of the JBC. Like the high court, the JBC suffers from the perception that it has been co-opted by the executive.

This has discouraged applicants to the judiciary. “If potential applicants do not see the independence of the system, they will not apply. The problems in the appointments system deters potential applicants,” said Manuel. 

Instances when the JBC did not include the president’s preferences in the shortlist had sparked tension between the two branches. In 2009, for example, Arroyo returned to the JBC its shortlist for the Supreme Court. Puno did not relent. 

Vitug also called for a more diverse JBC. “They’re all judiciary insiders. Walang ibang perspectives (There are no alternative perspectives),” she said. 

All but one, Justice Secretary Menardo Guevarra, among the seven-member JBC served in the judiciary. Before he joined the government, he was a founding partner of the Medialdea Ata Bello Guevarra & Suarez law firm.

Even the members who are supposed to represent the legislative, private sector, and the academe are former career members of the judiciary.

The other members of the JBC are Chief Justice Gesmundo, Leyte representative and retired Court of Appeals justice Vicente Veloso III representing the legislature, retired Supreme Court associate justice Jose Mendoza representing the high court, retired judge Toribio Ilao Jr representing the private sector, former Supreme Court associate justice Noel Tijam representing the academe, and retired judge Franklin Demonteverde representing the Integrated Bar of the Philippines.

Ilao was Duterte's classmate at the San Beda College of Law.

 

Proposed reforms

 

Beyond putting the right people in the JBC, there are recommendations for reforms in the appointment process.

The list should be short to limit presidential discretion, for one. 

“The objective of the screening is to limit the discretion of the president. If you give the president a list of six or seven names for one position, in some cases even eight, then in all probability the president’s choice will be there,” said Manuel. 

Manuel also proposed a requirement of at least 10 years of service for justices of the Supreme Court. 

Younger justices will remove any suspicion of loyalties to the appointing power because they will be serving under more than one president, he said.

“When you are appointed justice to the SC, you should not be retiring before the president who appointed you…. That will stabilize the court and will improve the integrity of the court,” he said. 

The minimum age for high court appointees under the constitution is 40 years old, but many of the justices enter the court in the 60s, leaving them less than 10 years on the bench. 

 

Short terms, big rewards
 

The proposal was made amid Duterte's notoriety for his short-term appointments. 

He has appointed four chief justices since Sereno was removed in 2018. It’s more than the number of chief justices Arroyo appointed during her nine-year term. 

It has been compared to the revolving-door policy in the military. “Parang chief of staff ng armed forces. Short term. Pagbigyan mo lahat. Patronage (It’s similar to the chiefs of staff of the armed forces. They have short terms. It’s a reward. It’s patronage),” said Vitug. 

Duterte’s first appointee, Teresita Leonardo-de Castro, served for less than two months. Bersamin was chief justice for 11 months, while Peralta, who availed himself of early retirement, served for one year and five months.

It is not good to have short terms because there is less time to implement reforms, said Gatmaytan. “The cycle of [short-term] chief justices doesn’t help stability. These are very short terms. Everyone is being given a shot,” he said. 

It’s the same revolving-door policy for the associate justices. In five years, Duterte has appointed 16 to the high court and among them, six have retired. Four of them served the court for less than two years while the other two served for less than three years. 

In April, Duterte finally appointed Gesmundo, who will serve for five years. He replaced former Chief Justice Diosdado Peralta, who availed himself of early retirement one year before he turned 70. 

 

 

 

Vitug said the revolving-door policy reflected Duterte’s lack of respect for institutions, citing as another example the term-sharing deal he brokered for the speakership of the House of Representatives. 

Panganiban, in a separate newspaper column, also scored the JBC’s vetting process over what he said was the unprecedented number of associate justices availing themselves of early retirement. 

Other than Martires and Peralta, two other associate justices retired early. Priscilla Baltazar Padilla retired after four months on the bench due to “physical disability.”

Edgardo delos Santos availed himself of early retirement after a little over a year in the high court, also due to health reasons. Panganiban revealed in his column that delos Santos was facing a second quo warranto petition, details of which were not available, after a first one was dismissed due to procedural errors. 

“The question is whether the JBC has satisfactorily or merely perfunctorily performed its constitutional duty of screening and ‘recommending… [to the president] at least three nominees… for every vacancy…’ in the judiciary,” Panganiban wrote. 

This revolving-door policy in the Supreme Court is costly. 

De Castro, who served only 46 days as chief justice, receives the full benefits of a retired chief justice. An earlier PCIJ report showed that retired chief justice took home anywhere from P8 million to P30 million in lump-sum cash gratuity on top of “survivorship benefits” equivalent to the current salary rate for the position and other perks. 

It’s the same for associate justices who served for less than two years. Even Padilla, who did not write any decision in her four months in the high court, will get the retirement benefits of a Supreme Court justice. 

The rewards don’t end there for some of them. Like generals in the police and the military, several justices have been rewarded with government posts after their retirement. 

Aside from Martires getting appointed to the Office of the Ombudsman, Bersamin was appointed to the government insurance company GSIS while Tijam was appointed to the JBC. 

This, too, doesn’t bode well for the independence of the court. “It makes the impression that they need to favor him [during their term in the Supreme Court to get these posts],” said Vitug. 

 


 

V. The other battle: Backlog

 

There is another uphill battle the Supreme Court is fighting: its backlog of cases. If the high court has a caseload of nearly 15,000 cases and the en banc and its divisions are only able to dispose of 105 and 923 cases a year, respectively, based on the court’s own disclosures in 2016, how are they expected to attend to them all?

It’s the high court’s biggest administrative headache, and the pressure is growing on the justices to get a handle of it.

In a joint statement on March 29, 2021, the country’s business groups called on the high court to comply with a constitutional requirement to resolve cases within 24 months from the date of submission. 

“The timely resolution of disputes inspires confidence among potential investors who can rely on the efficiency of judicial processes to uphold the laws, regulations, and contracts upon which businesses are built,” the statement said.  

The Philippines has the second longest period to resolve cases among the 10 member-countries of the Association of Southeast Asian Nations, according to the 2020 Ease of Doing Business Report by the World Bank and the International Finance Corp.

Imagine the injustice suffered by Filipinos detained without bail for crimes they did not commit: they rot in jail with trials lasting up to 15 years as cases move slowly from the lower courts to the Court Appeals and the Supreme Court. 

What the high court needs to do is clear, according to court observers. It should filter the cases that reach the justices and digitize court records to fast-track proceedings. 

 

Revising court rules 

 

By the end of December 2019, the Supreme Court had a caseload of 14,790, based on the Judiciary Annual Report 2019. It translates to an average backlog of about 1,000 cases for each justice of the 15-member court. 

Lawyer Antonio La Viña said the court should find a way to filter so they are not inundated with cases. This can be done, he said, by dismissing cases from the very beginning. 

The US Supreme Court does this, he said. “Their deliberation is all about dismissing 90% of the cases. It’s really about choosing the right case to decide,” he said. 

The high court should take only a hundred cases a year, or at most 200 cases a year, he added. “Ganoon ka-radical ang kailangang gawin (Something radical needs to be done),” he said.

The problem is the Supreme Court accepts all cases appealed from the lower courts, including disputes over land, court observers said. It accepts everything from tax law, to civil law, to commercial law, to criminal law, to constitutional law, and anti-terrorism law. 

The 1987 Constitution allows cases to go all the way to the Supreme Court, but La Viña said there should be a way to dismiss cases when they don’t raise constitutional or novel issues.

Sa atin kasi madaling pumunta sa court. Sabayan ka lang ng lawyer, P2,000-P5,000 [lang kailangan mo], makakapag-file ka na ng kaso (It’s too easy for us to go to court. You just need a lawyer and P2,000 to P5,000 to file a case),” La Viña said. 

He said there should be a system to discourage people from going directly to the  court. Alternative dispute resolution and mediation should be their first options.

Peralta had focused on discussions to amend court rules, an initiative that newly installed Chief Justice Alexander Gesmundo promised to continue. 

 

Digitization

 

Amending court procedures will not be enough. Fast-tracking court proceedings will ultimately require better management of the calendar of cases, said lawyer Abdel Disangcopan, a lecturer the De La Salle University College of Law, who studied court digitization.

“If you go to a court now for a hearing, your next will be in three months or four months. The court is very busy for a number of reasons. There are many litigants or there are not enough judges,” he said in a mix of Filipino and English.

It takes time to set the date for the next hearing, to make sure that all parties are able to attend. 

All this will be easier with digitization, Disangcopan said.

“Through digitization, all court personnel would be involved, including the lawyers,” he said. Pleadings may be e-mailed, too. 

Other than speed, digitization ultimately also improves access to the justice system. “If maging online siya, lahat tayo mayroon nang access (We’d all have access if it becomes online), and even rural areas would have access,” he said.

The judiciary has been slow to embrace technology, however.

Maraming older lawyers na ayaw nila ‘yun kasi ‘yung old skill nila hindi na relevant (Many old lawyers do not want it because their old skills become irrelevant," said La Viña.

“Sometimes I don’t understand. They are still requiring a hard copy, even if you submitted a soft copy. Maybe there are phases to becoming digital,” said Disangcopan. 

Lockdowns during the coronavirus pandemic have forced the courts to embrace technology

The new chief justice, Alexander Gesmundo, has set his eyes on developing and establishing information and communication technology (ICT) infrastructure for the judiciary.

Gesmundo is tech-savvy. He is considering the use of artificial intelligence (AI) to assist the courts in various functions such as evaluating performances and computing penalties. 

He told the JBC he envied the legal system of South Korea, which he had a chance to observe. Using CCTVs, members of the Korean judiciary can see video footage of court proceedings at any given time. 

“They can hear the witnesses, the proceedings, and everything, they can even see, what kind of evidence they are being presented,” he said during his JBC interview. 

In April, amid renewed lockdowns as the country’s coronavirus infections rose again, Gesmundo presided over the Supreme Court’s first virtual oral arguments.

 

Backlog as impeachable offense?
 

The House of Representatives is closely watching how the justices will be able to dispose of its backlog. 

An impeachment complaint was filed against Associate Justice Marvic Leonen accused him of negligence and incompetence for supposedly failing to dispose of dozens of cases within two years and act on election protests and quo warranto cases as chairman of the House of Representatives Electoral Tribunal. He wasl also accused of failing to file his SALNs when he was professor at UP. 

Leonen said the complaint raised false issues for personal or vindictive reasons. The complaint was endorsed by Ilocos Norte Rep. Angelo Marcos Barba, cousin of defeated presidential candidate Ferdinand Marcos Jr. 

The complaint was filed while Marcos’s bid to overturn the 2016 vice-presidential election result was pending. The Supreme Court has since unanimously dismissed his protest. 

If it’s any sign of how the lawmakers are taking the backlog seriously, JBC member Veloso raised the issue during the public interview of chief justice applicants in March.

“Fix your house and put it in order to shield very brilliant justices of the Supreme Court from this problem,” Veloso said.

 


 

VI. Diminished Court

 

In August 2020, the high tribunal stepped up amid growing frustrations with the Supreme Court among critics of the government. It dealt a blow to the president’s drug war. 

Voting 11-3, the high court invalidated warrantless police searches and seizures of illegal drugs in vehicles based solely on an unverified anonymous tip. 

“A battle waged against illegal drugs that tramples on the rights of the people is not a war on drugs; it is a war against the people,” the court said.

It's a bright light amid the worsening human rights situation in the country, said Buan, but it doesn't necessarily signal a stronger stance on human rights. "Why don't they resolve the petitions against  Duterte's drug war?" 

Before this decision, the court ordered the release of drug war documents in 2019. It spurred cautious  hopes that the high court would finally exercise its powers to help stop the spate of killings that have gripped the country. However, the documents were later described as "rubbish" by the law group Center for International Law.

 

 

As the court began showing its resolve to look into potential constitutional violations committed in the drug war, the killings have spread to target other groups. Among them were members of the legal profession, over which the high court has supervisory powers. 

In March 2021, the Supreme Court issued a statement condemning the killings and threats against judges and lawyers. It was “no less than an assault on the judiciary,” the court said. 

The statement came after the Free Legal Assistance Group (FLAG) revealed that an unprecedented number of over 60 lawyers had been killed under Duterte’s administration. It’s more than the combined number of 49 lawyers reported killed from the Marcos regime to Aquino’s.

It’s very significant, said La Viña, because it's the first time the Supreme Court has issued such a statement. “Usually the SC speaks through its decisions, speaks through rules and regulations. This time, the Supreme Court spoke and offered a process to protect lawyers, to protect also those that come to the jurisdiction of the Court,” he said. 

When a controversy shone a spotlight on the unintended role of the judiciary in killings, the JBC and the justices also weighed in.

Judges who issued search warrants for the operations now dubbed “Bloody Sunday” came under fire following the deaths of nine activists in separate raids conducted by police and military personnel on March 7. An examination revealed that a total of 24 search warrants were issued against activists on the same day, raising an uproar against courts becoming “search warrant factories.”

Gesmundo was asked about it during his public interview for the chief justice position. He reminded judges that they could not totally rely on the affidavits submitted by complainants and their witnesses in deciding whether or not to issue arrest and search warrants. Judges must first conduct a personal searching inquiry to determine probable cause. 

It is not clear if the high court will do more, but Manuel said it’s within the tribunal’s authority to craft rules for judges to follow when issuing warrants. 

"We'll wait how fast they would come out with the resolution to require body cameras," said Buan.

The Supreme Court can even go further. Manuel said it can require judges to investigate the incidents and find out why there were so many warrants issued that day. He suspected that the affidavits submitted for the searches were similarly worded. 

There’s one year left in Duterte’s presidency, but the pressure on the high court is piling up.

It is hearing the Anti-Terrorism Act of 2020, a law that expands the powers of the executive to address terrorism, but is the subject of 37 petitions over violations of fundamental freedoms and separation of powers. Petitioners said it also encroached on the judiciary by giving the executive the power to designate terrorists without the need for a court order.

It’s an important case that will define the high court, not only by how it will rule but whether it will act swiftly or delay its decision. 

As these events transpired, the impeachment complaint against Leonen moved forward in March. Then Associate Justice Edgardo delos Santos, appointed to the court only in 2019, announced he was retiring early due to health reasons. It was revealed later that he was also facing a quo warranto case although the details were unknown to the public.

How did it become so easy to threaten a sitting justice with removal?

It’s the erosion of public perception that the Supreme Court is beyond reproach, said Manuel. “If you look at it, the powers did not change. There are no changes in the configuration of the three departments,” said Manuel.

“If I were a legislator and I looked highly on the members of the Supreme Court, I will not endorse a complaint. I will not vote, like what happened to the impeachment complaint versus Chief Justice Hilario Davide in 2003. It fizzled out,” he said. 

Panganiban also urged the court to take the opportunity “to reverse or modify” its quo warranto ruling that removed Sereno, lest every justice would assume office without the certainty that they could complete their terms.

When Duterte leaves office, he bequeaths to his successor a diminished court. 

He finally appointed Gesmundo after three short-term chief justices. He is expected to serve until 2026 or over five years, offering hopes that his long term will stabilize the court and allow him to institute reforms. 

Gesmundo’s ultimate test of independence will soon come. “When Duterte steps down, we expect cases to be filed against him. Like what happened to Arroyo, to what happened to Aquino. It is crucial for the chief justice to show independence,” said Vitug.


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