How will this Supreme

Court vote?
By: Edilberto C. de Jesus - @inquirerdotnet
Philippine Daily Inquirer / 05:06 AM September 15, 2018

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.

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.

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.

Read more: https://opinion.inquirer.net/116081/will-supreme-court-

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