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Is the Supreme Court still our right-hand arbiter of justiciable issues brought before it?
It is a question in the minds of many following the provocative decision it handed down last week on the Sara Duterte impeachment case. To date, no single legal luminary of the country has come out in praise of the decision. The criticism is monstrously skewed against it.
As we write, Senior Associate Justice Marvic Leonen has become the favorite bogeyman of Philippine democracy. In terms of seniority, Leonen is next in line to qualify for the position of chief justice. He turns 70 in 2032 yet.
Let’s see the profile of the voting. All 13 justices who were present voted to declare it unconstitutional. Two associate justices did not participate: Alfredo Caguioa inhibited, Maria Filomena Singh was on leave.
Of the 13 justices, 11 were Rodrigo Duterte appointees, one was a Benigno Aquino III appointee (Leonen, the ponente) and one was Ferdinand Marcos Jr.’s first and so far only appointee (Raul Villanueva). Caguioa was also an Aquino appointee and Singh a Duterte appointee. Given the inclination of voting, Singh would have most likely voted with the majority had she been present.
The 11 justices who were Duterte-appointed were Chief Justice Alexander Gesmundo, Associate Justices Ramon Paul Hernando (with a separate concurring opinion), Amy Lazaro Javier (on official business but left a concurring vote), Henri Jean Paul Inting, Rodil Zalameda, Samuel Gaerlan, Ricardo Rosario, Jhosep Lopez, Japar Dimaampao (on leave but left a vote), Jose Midas Marquez, and Antonio Kho Jr.
It would seem that the Leonen ponencia was simply passed around for everyone’s signature. Is it because of the prevailing politics of identity among them?
It is a valid question to ask. This is not the first time that Duterte-appointed jurists of the High Court have decided a case according to their political affiliations. No, let us say that more inhospitably — they have had a record of deciding cases according to the political interests of Rodrigo Duterte, their appointing power. These are valid issues to ask by an investigative public because it touches on judicial independence.
In 2019, Lian Buan of Rappler tracked the voting record of the Duterte appointees on major issues that were voted upon by the High Court during the Duterte regime. The result was perfectly consistent.
So who voted for Duterte in the Supreme Court?
The winning streak began with the “hero’s burial” for Ferdinand E. Marcos in the Libingan ng mga Bayani. The ponencia of the 9-5 verdict was written by Diosdado Peralta. Of the Duterte appointees who concurred, only one voted with the majority: Jose C. Mendoza (San Beda Law). Bienvenido Reyes, an Aquino appointee, inhibited without citing specific reasons for his recusal. It was he, however, who administered the oath of Duterte as president.
Of the concurring votes, Duterte later elevated three as chief magistrates (gratitude?). These were Teresita Leonardo de Castro (2018, for a consuelo de bobo term of just a little over one month, succeeding Maria Lourdes Sereno who the Duterte regime had removed by quo warranto), Lucas Bersamin (2018), and the ponente Diosdado Peralta (2019).
Then there was a subsequent case on the Marcos burial that needed affirmation by way of a motion for reconsideration. By then, three justices appointed by previous administrations had retired. Hence there were five Duterte appointees. Four voted to grant the dictator Marcos a hero’s burial. These were Jose C. Mendoza, Samuel Martires (San Beda Law), Noel Tijam (San Beda Law) and Andres Reyes Jr. (Ateneo de Manila Law).
The acquittal from plunder of Gloria Macapagal Arroyo was later believed to have been Duterte-influenced. Arroyo had thanked Duterte for “providing the atmosphere in which the Court had the freedom” to acquit her.
The Duterte justices who voted to acquit were Jose C. Mendoza, Samuel Martires, and Noel Tijam. Bienvenido Reyes also voted to acquit, but was an Aquino appointee.
Perhaps the most atrocious decision the Supreme Court had reached was on the arrest and detention of Senator Leila de Lima. History has borne out the truth that Duterte’s puppet strings orchestrated fake testimonies of so-called witnesses. Yet the High Court upheld Duterte.
Voting 9-6 that De Lima’s arrest was valid, the four Duterte justices concurred: Samuel Martires, Noel Tijam, Jose C. Reyes Jr., and Alexander Gesmundo. The dissenters were Maria Lourdes Sereno, Antonio Carpio, Estela Perlas Bernabe, Marvic Leonen, Francis Jardeleza, and Alfredo Caguioa. Except for Bernabe, these justices were consistent dissenters that gave the High Court an activist voice.
The four Duterte justices later voted the same when the court affirmed the De Lima arrest as valid. Right from the start, Duterte justices were never known for an activist voice, if at all.
There were three cases of Duterte’s proclamation of Martial Law in Mindanao brought before the court. The last one, on the third extension, had a 9-4 vote to uphold it. Concurring were Duterte justices Andres Reyes Jr., Alexander Gesmundo, Jose C. Reyes Jr., Ramon Paul Hernando, and Rosmari Carandang who was the ponente.
On the Chief Justice Sereno ouster by quo warranto, four Duterte justices voted against her: Martires, Tijam, Gesmundo, and A. Reyes Jr.
I had asked a good number of lawyer friends, some of them well known in Manila’s legal circles — what is causing the trend of Supreme Court justices deciding along the political interests of their appointing power?
The answer was unanimous — utang na loob, the Filipino’s sometimes warped sense of debt of gratitude. One retired lawyer gave it a Chat GPT jargon — appointive culture and career gratitude.
Appointments, he said, bring out a sense of personal or institutional gratitude, conscious or unconscious, toward the appointing power. It is a psychological factor that may influence how a justice approaches politically sensitive cases. If the justice wishes to maintain proximity to the appointing power to secure future appointments, such factor serves the justice well.
The lawyer continued: “Even absent direct interference, justices may feel implicit political pressure, especially in high stakes cases such as those involving impeachment, electoral protests, or executive privilege. The tendency to err on the side of ‘institutional stability’ is often, unfortunately, a euphemism for deference to the political branches of government.”
One lawyer opined: “It is called a calculated move in the name of ambition.” This has been proven to be true in the case of justices aspiring to become chief justice. Is it now applicable as well to Marvic Leonen?
In the end, a well-known Manila lawyer said, it goes back to identity politics. Justices cannot help but see it from a partisan lens.
Now that we have a Supreme Court with 12 justices appointed by Duterte, is it the proper arbiter for the Sara impeachment issue? The answer is obvious. It is also obvious that we see a judicial malpractice that we have passively tolerated.
For the citizenry who believe in the supreme principle that public office is a public trust, there are still cards left on the table.
To file another impeachment in February 2026 is one.
To wait for the International Criminal Court to issue Sara’s arrest warrant is another.
Certainly a plunder case can be filed. For this, the next ombudsman may be key.
People power. Can it still tilt towards mass indignation?
The Leonen ponencia is not the end.
We do not lose sight, however, of what we must fight for as a people: Sara Duterte must not be allowed to run for public office again. And it has nothing to do with the Marcos-Duterte high intensity conflicts. Far from it. It is because it will put the country in danger again with another grand thievery of public funds as her father did.
Another Duterte will play right into the interests of Red China: it will again facilitate the flow of drugs and drug money. Besides, another Red China pivot is unacceptable to a large segment of the population.
That is not to discount the return of wanton human rights violations, the transformation of the police into a killing machine at the behest of the Dutertes, the use of confidential funds to kill the Filipino people
Sara has no record to speak of. She never had outstanding achievements as city mayor. As education secretary, she was miserable in addressing the acute classroom shortage. She turned the DepEd into a pseudo Department of National Defense by profiling public school teachers.
She is another narcissist slob like her father who had better get serious psychiatric treatment, not a public office for her to enjoy the life of the high and the mighty. This weak nation of ours cannot survive another Duterte tyrant.
All these must be enumerated to drive home the point that these are dangers to democracy that our Supreme Court has no concern for what a friend articulated: pure, cold, calculating legal interpretation should really be checked by a more humane and just view of the law.
Can the Supreme Court be capable of that? Rhetorical question. – Rappler.com
Antonio J. Montalván II is a social anthropologist who advocates that keeping quiet when things go wrong is the mentality of a slave, not a good citizen.
