Wednesday, September 19, 2018
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Business Matters

How will this Supreme Court vote?

The Supreme Court declined to rule on the petition of Sen. Antonio Trillanes to strike down Proclamation No. 572, which voided his 2011 grant of amnesty.  It returned to the Makati Regional Trial Court the decision on allowing the senator’s arrest. The Supreme Court reprieve is temporary. Trillanes will appeal any adverse decision from the Makati RTC, as the administration may also do, given its success in previous Supreme Court cases. How will the Supreme Court vote?

Early in their legal education, students learn about two kinds of lawyers: those who know the law and those who know the judges. The first group prepares their arguments by studying the applicable laws, analyzing the case facts, and retrieving possible precedents. The second group would research the track record and the professional and academic network of the judge making the decision.

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We want to believe that a set of values and principles about right and wrong, together with norms and procedures regarding the collection and appreciation of facts, anchors our legal system and guides the decisions of the justices. When the laws are clear and the facts indisputable, we expect decisions consistent with precedents—predictable and unanimous.

The quo warranto decision has shaken this faith. I do not recall the Integrated Bar of the Philippines and the deans of the country’s most respected law schools ever uniting to assail a Supreme Court decision. This has reinforced the suspicion that factors beyond the law influence the justices’ vote and contribute to the concern that Proclamation No. 572, also assailed by law deans and the IBP, may get Supreme Court approval.

Often offered as a joke, the distinction between knowing the law and knowing the judges has already emerged as a hot topic for hard-core academic research. Fortuitously, Dr. Bjorn Dressel (Australian National University), Dr. Tomoo Inoue (Seikei University) and lawyer Cristina Regina Bonoan have produced “Informal Networks and Judicial Decisions: Insights from the Supreme Court of the Philippines, 1986-2015” to illuminate the issue.

The research has gathered instructive information. We have over 100 law schools in the country; over the last 30 years, only nine schools have sent graduates to the Supreme Court, with the University of the Philippines accounting for around 75 percent of them. More provocative than the profile of the justices is the pattern of their decisions on high-profile cases, where the incumbent president has a stake. Analyzing 618 individual votes cast on 47 “megapolitical” cases, the paper identifies social and political variables that help explain how justices come to favor the president’s preferred outcome.

Research findings show that votes favorable to the president tend to come from justices who are: 1) male (only 20 percent of justices are female); 2) appointed by the  incumbent president; 3) in the social network (academic or professional) of other justices appointed by the president; 4) in the social network of a chief justice appointed by the president; and 5) serving in the early period of a presidential term.

All of Mr. Duterte’s six appointees have come from within the judiciary and may strengthen this element as well.

Both direct presidential and hierarchical pressures via the chief justice, exerted through networks built over years of educational and professional relationships with colleagues who think similarly, can influence voting behavior. Thus, “the unevenness sometimes exhibited in high-profile cases” and doubts about Supreme Court independence.

But the authors warn that their paper is descriptive, not predictive. Readers will be tempted, nonetheless, to speculate on how it relates to a possible Trillanes case. The research cannot predict with absolute certainty that Trillanes will go to jail; gamblers will take it as a tip on how to bet.

An administration triumph over Trillanes is not preordained. Justices must still individually wrestle with public expectations of their obligation to protect the independence of the Supreme Court and promote the rule of law—knowing that history will render its own judgment.

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Edilberto C. de Jesus (edcdejesus@ gmail.com) is professor emeritus at the Asian Institute of Management.

Business Matters is a project of the Makati Business Club.

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TAGS: amnesty revocation, Antonio Trillanes IV, Business Matters, Edilberto C. de Jesus, Makati Regional Trial Court, Makati RTC, revocation of amnesty, Rodrigo Duterte, Supreme Court
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