Ateneo Journal - Judicial Activism

II
Some would believe that justice, or in particular, judicial decisions, should

be independent of politics; that judges and justices should stand oustide the
sphere of political intrigue, and make decisions without regard to power or
wealth, but with the cold neutrality of an impartial judge. Unfortunately, in
the Philippines, this is not always the case.
In the years between 2000 and 2010, the Supreme Court was inundated
by constituional issues inseparable from political context. From the
beginning of President Gloria Macapagal-Arroyo’s term and her ascent to
power in Estrada v. Desierto, to her final acts as President in De Castro v.
Judicial and Bar Council, the Supreme Court’s independence from the politics
of the Executive and the Legislature was constantly tested. Did the Court
always stand up to that challenge?
In this Article, Sedfrey M. Candelaria and Maria Eloisa Imelda S.
Singzon analyze this “judicialization of politics” by delving into the legal,
sociological, and moral legitimacy of several key decisions during the Arroyo
administration.
Singzon obtained her Juris Doctor degree from the Ateneo de Manila
University School of Law in 2012. She served as a Member of the Board of
Editors of the Ateneo Law Journal. She previously wrote The Prudence of
Complying with Due Process Requirements and its Financial Consequences in
Employee Termination, 55 ATENEO L.J. 539 (2010) with Ernesto T. Caluya, Jr.
Political and Social Legitimacy of Judicial
Decisions
Sedfrey M. Candelaria
Maria Eloisa Imelda S. Singzon
I. INTRODUCTION............................................................................ 31
A. Judicial Activism in the Supreme Court: The Politics of Decision-
Making
B. Estrada v. Desierto
C. “Judicialization of Politics” and Judicial Independence
II. DEVELOPING NORMS/STANDARDS IN ANALYZING SUPREME
COURT DECISIONS ....................................................................... 40
A. Legal Legitimacy
B. Sociological Legitimacy
C. Moral Legitimacy
D. The Philippine Standard
III. ISSUES ............................................................................................ 50
A. The NBN-ZTE Controversy
B. The Aborted Memorandum of Agreement on the Ancestral Domain
C. The Subic Rape Case
D. The Appointment of the Chief Justice
IV. ANALYSIS ....................................................................................... 66
V. CONCLUSION ................................................................................ 75
I. INTRODUCTION
Philippine constitutional tradition holds sacrosanct the three distinct powers
of the Executive, Legislature, and Judiciary. The wisdom behind segregating
the government into three institutions is to preclude the concentration of
governmental powers in one department, thereby assuring the independence
of each department.1 Thus, by virtue of this division, politics is kept within
1. See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF

THE PHILIPPINES: A COMMENTARY 678 (2009 ed.). According to Joaquin G.
Bernas, S.J., “the purpose of the separation of powers and ‘checks and balances’
is to prevent concentration of powers in one department and thereby to avoid
tyranny[,] ... [which] was realized during the dark days of martial law.” Id.
(emphasis supplied).
32 ATENEO LAW JOURNAL
the realm of the Executive and Legislature. Nevertheless, despite such

separation of powers, the Supreme Court of the Philippines surprisingly
becomes a political body when deciding constitutional cases and those under
its “expanded judicial power.”2
It is essential to note that a “political court” is different from an
“independent court.” As a political body, the Court does not engage in
partisan activity. 3 Instead, the political court exercises the “discretionary
powers of a legislature.”4 An independent court, on the contrary, ably settles
controversies regardless of the personalities involved. 5 A political court
necessarily results from the “judicialization of politics” 6 or the Court’s
judicial power to deal with constitutional law, while an independent court is
a consequence of the justices’ own volition. Lastly, a political court does not
necessarily define the Judiciary as an institution, while an independent court
defines the legitimacy of the Judiciary as an institution.7
This Article attempts to answer whether the Supreme Court of the
Philippines, when it functions as a political body, is able to maintain
institutional legitimacy as an independent branch of government. It is argued
that the “judicialization of politics” “should only be accelerated when
judicial institutions are accorded more respect or legitimacy than other
2. Pacifico A. Agabin, Former Dean of the University of the Philippines, College

of Law, The Judicial Philosophy of the Puno Court, Address at the Fourth Chief
Justice Reynato S. Puno Distinguished Lecture Series (May 7, 2010).
3. Richard A. Posner, The Supreme Court 2004 Foreword: A Political Court, 119
HARV. L. REV. 31, 39 (2005).
4. Agabin, supra note 2, at 5 (citing Posner, supra note 3, at 40.).
5. Supreme Court, Adopting the New Code of Judicial Conduct for the
Philippine Judiciary, Administrative Matter No. 03-05-01-SC [A.M. No. 03-
05-01-SC], canon 1, § 1 (Apr. 27, 2004).
6. Agabin, supra note 2, at 7 (citing C. Neal Tate & Torbjörn Vallinder, The Global
Expansion of Judicial Power: The Judicialization of Politics, in THE GLOBAL
EXPANSION OF JUDICIAL POWER 2 (C. Neal Tate & Torbjörn Vallinder, eds.,
1995)).
7. See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV.
1787, 1975 (2004). An independent court possesses legitimacy in sociological
terms insofar as the relevant public regards its decisions as “justified, appropriate,
or otherwise deserving of support for reasons beyond fear of sanctions of mere
hope for personal reward.” Id.
2010 POLITICAL AND SOCIAL LEGITIMACY 33
government institutions.” 8 But while the Judiciary is empowered by the

1987 Constitution to exercise judicial power in cases of grave abuse of
discretion by the Legislature or the Executive,9 regardless of the Court’s
comparable respect or legitimacy,10 the independence and legitimacy of the
Judiciary as an institution is an essential element in maintaining democracy in
the country.11
By way of introduction, this Article starts with a discussion of why there
is no separation of law from politics and in what context can judicial
activism12 cross the fine line of judicial independence. To illustrate judicial
activism, this Article discusses the historic case of Estrada v. Desierto.13
A. Judicial Activism in the Supreme Court: The Politics of Decision-Making

It is said that when the Supreme Court decides constitutional cases, it
exercises the powers of a legislature, 14 “because the Constitution is about
politics ... [constitutional cases] can be decided only on the basis of a political
judgment, and a political judgment cannot be called right or wrong by
reference to legal norms.”15
The Supreme Court of the Philippines, like its American counterpart,
functions both as an appellate court and as a constitutional court.16 Unlike
8. Agabin, supra note 2, at 9 (citing C. Neal Tate, Why the Expansion of Judicial
Power?, in THE GLOBAL EXPANSION OF JUDICIAL POWER, supra note 6, at 31-
32).
9. PHIL. CONST. art VII, § 1.
10. See Fallon, Jr., supra note 7, at 1828. According to Richard H. Fallon, Jr., the
Judiciary’s institutional legitimacy is “relative, not absolute.” Therefore, “[a]t
any particular time, some citizens will believe that the Supreme Court is a
trustworthy institutional, whereas others will not.” Id.
11. This results from the fact that the Court’s institutional legitimacy is ultimately a
function of public perception. See also Fallon, Jr., supra note 7, at 1828 (citing
Mistretta v. United States, 488 U.S. 361 (1989)).
12. Judicial activism is “the doctrine that the judicial branch, especially the federal
courts, may interpret the Constitution by deviating from legal precedent as a
means of effecting legal and social change.” Judicial activism definition —
Definition — MSN Encarta, available at http://encarta.msn.com/dictionary_
161677231/judicial_activism.html (last accessed May. 22, 2010).
13. Estrada v. Desierto, 353 SCRA 452 (2001).
14. Agabin, supra note 2, at 5 (citing Posner, supra note 3, at 40).
15. Posner, supra note 3, at 40 (emphasis supplied).
16. Agabin, supra note 2, at 5.
many countries, the Philippines does not have a separate constitutional

court.17 A constitutional court is one “that deals primarily with constitutional
law. Its main authority is to rule on whether or not laws that are challenged
are in fact unconstitutional, i.e.[,] whether or not they conflict with
constitutionally established rules, rights[,] and freedoms.” 18 In the
Philippines, the Supreme Court itself is empowered to be the final
interpreter of the Constitution. 19 In fact, the Constitution expressly
recognizes the Court as the ultimate authority in settling “cases in which the
constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.”20
United States (US) Court of Appeals Judge Richard A. Posner provides
four factors behind the political nature of a constitutional court —
First, because the federal Constitution is so difficult to amend, the Court
exercises more power on average, when it is deciding constitutional cases
than when deciding statutory ones. Second, a constitution tends to deal
with fundamental issues, and more emotion is invested in those issues than
in most statutory issues, and emotion influences behavior, including the
behavior of judges. Third, fundamental issues in the constitutional context are
political issues: they are issues about political governance, political values, political
rights, and political power. And fourth, constitutional provisions tend to be
both old and vague ... The older and vaguer the provision at issue, the
harder it is for judges to decide the case by a process reasonably described as
interpretation rather than legislation.21
17. There are approximately 56 nations with a separate constitutional court.

JURIST — World Law, available at http://jurist.law.pitt.edu/world (last
accessed May 22, 2010).
18. Id.
19. Then New York Governor and later Chief Justice of the United States (US)
Supreme Court Charles Evans Hughes once said, “We are under a
Constitution, but the Constitution is what judges say it is.” MERLO J. PUSEY,
CHARLES EVANS HUGHES 204 (1951). See also Supreme Court, Re: Further
Clarifying and Strengthening the Organizational Structure and Administrative
Set-Up of the Philippine Judicial Academy, Administrative Matter No. 01-1-
04-SC-PHILJA [A.M. No. 01-1-04-SC-PHILJA] (Jan. 31, 2006).
20. PHIL. CONST. art. VIII, § 5, ¶ 2 (a). Furthermore, as the ultimate authority or
last interpreter of the Constitution, the Supreme Court is empowered to
“[r]eview, revise, reverse, modify, or affirm on appeal or certiorari ... final
judgments and orders of lower courts[.]” PHIL. CONST. art. VIII, § 5, ¶ 2.
21. Posner, supra note 3, at 39-40 (emphasis supplied).
While these observations are more relevant to the US, suffice to say, the
Philippine Supreme Court becomes a political organ when it functions as a
constitutional court.
Doubts as to the political nature of the Court when it sits as a
constitutional court are dispelled when taking into account the expanded
definition of “judicial power” in the Constitution. Section 1, Article VIII of
the Constitution has expressly “made the court a political organ by giving
the judiciary the power to declare an act of the Congress or an act of the
Executive ‘a case of grave abuse of discretion,’ even if such is perfectly
within the province of the political branches.”22 Thus, while the Supreme
Court is mandated to ensure that the exercise of State power by the three
departments of government does not infringe upon the domain of the other,
it is empowered to intrude into the domains of the Executive and the
Legislature. “This expansion of judicial power into the domain of politics, [as
earlier enunciated], is called ‘judicialization of politics.’”23
B. Estrada v. Desierto
A clear example of “judicialization of politics” is Estrada, involving the
legitimacy of Gloria Macapagal-Arroyo’s assumption into the Office of the
President.24 The validity of her ascension to power was brought about by
succession due to the alleged resignation or permanent disability of President
Joseph E. Estrada, in accordance with the Constitution. 25 Quite
interestingly, then Chief Justice Reynato S. Puno, known to have dissented
in a number of cases decided in favor of Arroyo’s government, was the
ponente of this decision.26
In settling whether the principal issue was justiciable, the Court rejected
Arroyo’s invocation of the political question doctrine.27 It held that “the
resignation of the sitting President that [EDSA II] caused and the succession

23. Id. at 7.
24. Estrada, 353 SCRA at 477.
25. Id. at 496 & 516.
26. Id. at 477. See, e.g., Neri v. Senate Committee on Accountability of Public
Officers and Investigations, 549 SCRA 77, 139-256 (2008) (C.J. Puno,
dissenting opinion) & Nicolas v. Romulo, 578 SCRA 438, 469-86 (2009) (C.J.
Puno, dissenting opinion).
of the Vice President as President are subject to judicial review.”28 That is,
the “principal issues for resolution require the proper interpretation of
certain provisions of the 1987 Constitution, notably Section 1 of Article II,
and Section 8 of Article VII, and the allocation of governmental powers
under Section 11 of Article VII.”29
Perhaps taking a page from the US case of Bush v. Gore,30 which was
decided a year earlier, the Court saw a parallelism and took the opportunity
to inquire into the legitimacy of Arroyo’s Presidency and rule on the
resignation of Estrada. Corollary, the US Supreme Court in Bush ultimately
resolved the presidential election in favor of George W. Bush when it ruled
that the Florida Supreme Court’s method for recounting ballots was a
violation of the Equal Protection Clause.31 The Philippine Supreme Court,
by exercising jurisdiction over the controversy, intruded into the Executive
branch when it ruled upon the acts of the Chief Executive, then President
Estrada.32 Quite ironically, when Estrada “raised the improper application of
Section 11, Article VII of the Constitution, the Court rebuffed him,
invoking the separation of powers and political question doctrines, saying
that the Congress’ application of the said section was not a legal but rather a
political question.”33
28. Id. at 493.

29. Id. at 495.
30. Bush v. Gore, 531 U.S. 98 (2000).
31. Id. at 105.
32. Sabrina M. Querubin, et al., Legitimizing the Illegitimate, Disregarding the
Rule of Law in Estrada v. Desierto and Estrada v. Macapagal-Arroyo (Paper
submitted to the Irene Cortés Award for best paper in constitutional law at the
University of the Philippines), available at https://www.law.upenn.edu/
journals/jil/jilp/articles/2-1_Queribin_Sabrina. pdf (last accessed May 22, 2010).
See Estrada, 353 SCRA at 495.
33. Querubin, et al., supra note 32. Notably, the Court refused to rule on the acts of
the Congress when the House of Representatives passed House Resolution No.
176, which is entitled “Resolution Expressing the Support of the House of
Representatives to the Assumption into Office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines, Extending its
Congratulations and Expressing its Support for her Administration as a Partner
in the Attainment of the Nation’s Goals Under the Constitution.” Evidently,
the Court’s misplaced invocation of the political question doctrine shows its
lopsided treatment of the Court against President Joseph E. Estrada and in favor
of Arroyo. Id. See Resolution Expressing the Support of the House of
Representatives to the Assumption into Office by Vice President Gloria
In addressing the main issue on whether Estrada resigned, the Court

used the totality test to determine the existence or non-existence of a public
official resignation. Thus, the Court sought to establish Estrada’s intent to
resign by considering his “acts and omissions, before, during[,] and after [20
January 2001] or by the totality of prior, contemporaneous[,] and posterior facts and
circumstantial evidence bearing a material relevance to the issue.”34 In doing so, the
Court went beyond the actuations and omissions of Estrada to establish
intent, which, by its very nature, should have only been culled from him.
That is, the Court essentially established Estrada’s resignation by focusing on
political events that demonstrated withdrawal of support for Estrada’s
government.35 This was the indirect implication when the Court loosely
relied upon the contents of then Executive Secretary Edgardo J. Angara’s
diary to establish Estrada’s intent to resign.36 The Court’s seemingly over-
stretched reasoning was further shown when it attributed to Estrada an
agreement between Angara and President Fidel V. Ramos regarding the
peaceful and orderly transfer of power. 37 Resignation being personal to
Estrada, it behooved the Court to apply the doctrine res inter alios acta alteri
nocere non debet.38
In conclusion, although a more exhaustive set of substantive legal
principles could have been applied, the Court held that the resignation of
Estrada could not be doubted against a background of public pressure calling
for change in leadership.
Macapagal-Arroyo as President of the Republic of the Philippines, Extending its

Congratulations and Expressing its Support for her Administration as a Partner
in the Attainment of the Nation’s Goals Under the Constitution, H. Res. No.
176., 11th Cong., 3d Sess. (2001) & Estrada, 353 SCRA at 508-16.
35. See Estrada, 353 SCRA at 497-99.
36. In determining the state of mind of Estrada, the Court relied on the contents of
the published diary of then Executive Secretary Edgardo J. Angara (Angara
Diary) in the Philippine Daily Inquirer. Describing the Angara Diary as an
authoritative window on the state of mind of Estrada, the Court held that
Angara’s account of events on 19 January 19 2001 was “proof that [Estrada] had
reconciled himself to the reality that he had to resign.” Estrada, 353 SCRA at
497-98.
37. Querubin, et al., supra note 32.
38. Id. The legal maxim res inter alios acta alteri nocere non debet means that “[t]hings
done between strangers ought not to affect a third person, who is a stranger to
the transaction.” Legal Latin phrases and maxims, available at
http://www.inrebus.com/legalmaxims_r.php (last accessed May 22, 2010).
C. “Judicialization of Politics” and Judicial Independence

Following the ousting of Estrada from Presidency, Arroyo became the
acknowledged President of the Philippines.39 In fact, “[s]urveys conducted
also purportedly showed Arroyo’s wide acceptance as President.” 40 It
therefore does not come as a surprise that despite critiques of Estrada, where
one declared that the decision shows “the dispensability and insignificance of
the Constitution and the concept of due process when political expediency
39. The Court enumerated the following facts to support its conclusion that both
houses of Congress have recognized Arroyo’s ascension to the Presidency:
(1) [Estrada], on [20 January 2001], sent [a] letter claiming inability to
the Senate President and Speaker of the House;
(2) Unaware of the letter, [ ] Arroyo took her oath of office as
President on [20 January 2001] at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representatives passed on
[24 January 2001] House Resolution No. 175;
...
(4) Also, despite receipt of [Estrada’s] letter claiming inability, some twelve
(12) members of the Senate signed [a Resolution recognizing and
expressing support to the new government of President Arroyo;
Resolution No. 82, which confirmed President Arroyo’s
nomination of Senator Teofisto T. Guingona, Jr. as Vice President
of the Republic of the Philippines; and Resolution No. 83, which
recognized that the impeachment court is functus officio];
...
(5) Both houses of Congress started sending bills to be signed into law by [ ]
Arroyo as President.
Estrada, 353 SCRA at 509-15. In his separate opinion, Justice Santiago M.
Kapunan said,
[President Arroyo’s] assumption into power and subsequent exercise of
the powers and performance of the duties attaching to the said position
have been acquiesced in by the Legislative Branch of government.
...
Her administration has, likewise, been recognized by numerous
members of the international community of nations, including Japan,
Australia, Canada, Spain, the United States, the ASEAN countries, as
well as 90 major political parties in Europe, North America, Asia[,] and
Africa.
Estrada, 353 SCRA at 565-66 (J. Kapunan, separate opinion).
and political stability are at stake,” the decision has been respected by
Filipino society and recognized as legitimate.41
Two observations can be drawn from this conclusion. First, when the
Court functions as a constitutional court, it can be justified by ruling along
the lines of political expediency and stability. Second, the political events
calling for expediency and governmental stability — public clamor calling
for the stepping down of then incumbent President Estrada,42 the need for
moral authority amidst public unrest, and the urgency to appease foreign
relations43 — inevitably influenced the Court’s decision in Estrada.44 This
emphasizes the fine line between “judicialization of politics” and political
independence; while the Court may have validly acted as a political organ by
exercising judicial power over an issue belonging to the political domain, the
totality test was a manifestation of a Court engaged in results-oriented
decision-making, which may undermine its mandate of independent judicial
decision-making.
Notably, despite the Court’s vulnerable legal reasoning,45 the public’s
rejection of Estrada’s moral authority to lead and their recognition and
acceptance of Arroyo as the new President legitimized the decision. Thus,
while the decision was wielded with political influence and its legality
challenged, the social acknowledgement of its outcome was sufficient to
recognize the decision as valid.
41. Id.
42. At the height of the Senate Blue Ribbon Committee investigation where
detailed revelations of Estrada’s alleged misgovernance surfaced and his powerful
political allies began deserting him, “the people’s call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of
the impeachment tribunal refused to open the second envelope ... [sending]
people to paroxysms of outrage.” Estrada, 353 SCRA at 497.
43. This is apparent in Justice Consuelo Ynares-Santiago’s observation stating that
when “Arroyo rightfully assumed the presidency as the constitutionally anointed successor
... [t]here was at that time an urgent need for the immediate exercise of presidential
functions, powers, and prerogatives.” Estrada, 353 SCRA at 573 (J. Ynares-Santiago,
separate opinion). Expectedly, Arroyo’s administration was “[soon] recognized by
numerous members of the international community of nations, including Japan,
Australia, Canada, Spain, the United States, the ASEAN countries, as well as 90
major political parties in Europe, North America, Asia, and Africa.” Estrada, 353
SCRA at 566 (J. Kapunan, separate opinion).
44. The Court declared the resignation of Estrada against the background of public
pressure and moral framework. See Estrada, 353 SCRA at 495-508.
Under the doctrine of separation of powers, the Court, in its appellate

and political capacity, is expected to render decisions independent of any
external influence and regardless of the personalities involved. Nevertheless,
because there is a fine line between the duty of the Court to rule upon
constitutional issues that are necessarily political in nature and independent
judicial decision-making, the institutional legitimacy of the Judiciary is
always subject to scrutiny. Professor Pacifico A. Agabin provides a brief
explanation for this.
Under the Constitution, the President is always under the greatest
temptation to seduce the Supreme Court. The present set-up between the
Executive and the Judiciary is like marriage [—] it is an arrangement which
combines the best of temptation with the best of opportunity ... if the
[J]udiciary intrudes into politics, politics will also encroach on the
[J]udiciary.46
This portion of the Article attempted to establish the innate political
nature of the Court when it resolves constitutional issues and the difference
between judicialization of politics and judicial independence. What is left is a
determination of whether the Court’s institutional legitimacy is otherwise
affected by the interrelationship of the Executive and the Judiciary. Part II of
this Article advances standards that will provide a better understanding of the
Judiciary as an institution under the present Constitution. That is, when it
functions as a political organ, the Court necessarily intrudes into the domain
of politics and yet the Judiciary remains a legitimate and independent
institution of government. Parts III and IV provide an application and
analysis of the proposed standards on the recent cases rendered under the so-
called “Puno Court,”47 while Part V proposes a perspective in evaluating
Supreme Court decisions.
II. DEVELOPING NORMS/STANDARDS IN ANALYZING SUPREME COURT

DECISIONS
To better understand the concept of legitimacy of the Judiciary, this part of
the Article begins with a standard proposed by renowned American law
professor Richard H. Fallon, Jr. He argues “that the legal legitimacy of a
constitutional law decision depends more on its sociological acceptance than
on the questionable legality of its formal ratification.” 48 To prove this,
46. Agabin, supra note 2, at 7-8.

47. Id. at 5. According to Professor Pacifico A. Agabin, “there is a Puno Court
beyond any shadow of doubt.” Id. (emphasis supplied).
48. Id. at 8.
Fallon, Jr. proposes that “legitimacy invites appeal to three distinct kinds of
criteria that in turn support three concepts of legitimacy: legal, sociological,
and moral.”49 Fallon, Jr.’s arguments flow from the premise that judgments
of legal, sociological, and moral legitimacy reflect concerns pertaining to the
necessary, sufficient, or morally justifiable conditions for the exercise of
governmental authority.50
A. Legal Legitimacy
Fallon, Jr. posits that “[l]egal legitimacy and illegitimacy depend on legal
norms.”51 He explains that when something is lawful, it is legitimate and,
conversely, something unlawful is necessarily illegitimate. 52 Notably, a
judicial decision may be considered erroneous without becoming
illegitimate.53 To illustrate, as argued by some critics, the Court in Estrada
erroneously invoked the separation of powers and political question
doctrines when it refused to rule upon Congress’ improper application of
Section 11 of Article VII of the Constitution; but it justified its exercise of
judicial power over the controversy when it stated that “principal issues for
resolution require the proper interpretation of certain provisions of the 1987
Constitution, notably Section 1 of Article II, and Section 8 of Article VII
and the allocation of governmental powers under Section 11 of Article
VII.”54 Despite this contentious constitutional pronouncement, the Estrada
ruling remains legitimate.
Legal legitimacy of judicial rulings may be distinguished as substantive and
authoritative — substantive legal legitimacy reflects the correctness or
reasonableness of this judicial ruling as a matter of law, while authoritative
legal legitimacy is the ruling’s legally binding character.55 Authoritative legal
legitimacy depends on standards that allow a larger margin for judicial
error.56 From this distinction, it is evident that the legitimacy of Estrada
emanates from its authoritative legal legitimacy.
49. Fallon, Jr., supra note 7, at 1790.

50. Id. at 1791.
51. Id. at 1794.
52. Id.
53. Id.
56. Id.
When applied to judicial decision-making, legal legitimacy functions

analogously with the concepts of discretion and jurisdiction.57 Particularly, a
claim of judicial legitimacy characteristically suggests that a court:
(1) had lawful power to decide the case or issue before it;
(2) in doing so, rested its decisions only on considerations that it
had lawful power to take into account or that it could
reasonably believe that it had lawful power to weigh; and
(3) reached an outcome that fell within the bounds of reasonable
legal judgment.58
For constitutional decisions, “the foundations of contemporary
constitutional legitimacy necessarily lie in current states of affairs.”59 In this
context, “if a precedent is accepted as a legally valid source of authority for
future decisions, then it enjoys legal legitimacy, regardless of its relation to
the original understanding of constitutional language.”60
Having discussed legal legitimacy conceptually, the next question to be
asked is how the legal legitimacy of assertions of judicial power is measured.
Fallon, Jr. offers three claims. First, the legally authoritative status of judicial
precedence recognizes the legitimacy of courts to uphold rights that were
not historically recognized under relevant constitutional language.61 While
precedent-based decision-making is accepted as a matter of practical and
jurisprudential significance,62 its lawful status, particularly when precedents
were initially erroneous, must arise from acceptance.63 Thus, “the practice of
judges in embracing precedent as deserving of enforcement and sometimes
extension, when conjoined with the public’s acceptance of precedent-based
decisions as legally authoritative, suffices to confer legal legitimacy on
adherence to and reasonable extension of non-originalist precedent.” 64
Again, by way of example, the Court in Estrada extended the precedent in
57. Id. at 1819.

58. Id.
59. Id. at 1852.
60. Id.
62. This is the doctrine of stare decisis (the law of the case) that contributes to the
institutional stability of the Judiciary. See BLACK’S LAW DICTIONARY 1414
(Bryan A. Garner ed., 1999).
63. Fallon, Jr., supra note 7, at 1822-23.
64. Id. at 1824.
Gonzales v. Hernandez 65 by proffering the totality test as a mode of

establishing Estrada’s resignation.66 Using this standard, the totality test must
be upheld as legally legitimate.
Second, “reliance on precedent to justify the extension of constitutional
rights beyond their historically understood contours suggests how shallow
the notion of acceptance can be.”67 While the legal legitimacy of the courts’
role rests largely on public acceptance, and despite the fact that the majority
of the public may not have accepted the courts’ assertion of authority (i.e.,
most people have not risen up in protest of a particular decision), acceptance
even in the very weak sense is sufficient.68
Third, “many claims of legal illegitimacy are best understood as
maintaining that particular decisions — even if supported by precedent —
are so morally objectionable that they should be deemed abuses of power
and classified as constitutionally illegitimate for that substantially moral
reason.”69 This standard exemplifies the interconnection between legal and
moral legitimacy.70
B. Sociological Legitimacy
A judicial decision’s legitimacy in sociological terms is measured insofar as
the “relevant public regards it as justified, appropriate, or otherwise
deserving of support for reasons beyond fear of sanctions or mere hope for
personal reward.”71 It is essentially the active belief by citizens, whether
warranted or not, that the courts’ claimed authority deserves respect or
obedience for reasons beyond self-interest.72
65. Gonzales v. Hernandez, 2 SCRA 228 (1961). The Court held that “[t]o
constitute a complete and operative act of resignation, the [public] officer or
employee must show a clear intention to relinquish or surrender his [or her]
position.” Id. at 232.
68. There is acceptance in the very weak sense when most people have not risen in
protest. See Fallon, Jr., supra note 7, at 1825 (citing CHARLES E. BLACK, JR.,
THE PEOPLE AND THE COURT: JUDICIAL REVIEW IN DEMOCRACY 210 (1960
ed.)).
70. Id.
71. Id. at 1795.
72. Id.
There are at least three types of sociological legitimacy.73 The first is

institutional legitimacy, whereby the “legitimacy resides in public beliefs that
it is a generally trustworthy decision maker whose rulings therefore deserve
respect or obedience.”74 The second is substantive legitimacy or “content
legitimacy,” referring to the “public’s belief that a particular judicial decision
is substantially correct.”75 The last is authoritative legitimacy, which pertains
to the legitimacy possessed by decisions “insofar as the public either believes
that they ought to be obeyed or acquiesces [to] them.”76
For purposes of advancing the understanding of judicial legitimacy, social
scientists have studied the interrelationships between the three types of
sociological legitimacy.77 In a recent study, scientists found that “although
[the] Court’s institutional legitimacy varies with public responses to particular rulings,
it does so less sharply than earlier, less sophisticated studies had indicated.”78
Conclusively, Fallon, Jr. suggests that the US Supreme Court seems to
“possess a reservoir of trust that is not easily dissipated.”79 With regard to the
authoritative legitimacy of judicial decisions, American experience has
shown that this type of legitimacy is relative, rather than absolute,80 meaning
“[t]he authoritative sociological legitimacy of judicial rulings is ultimately a
matter of fact, capable of either evolutionary or revolutionary change
regardless of the [US Supreme] Court’s pronouncements.”81
Admittedly, there is no reliable gauge of the effective limits of judicial
power when measured through the US Supreme Court’s sociological
legitimacy.82 Thus, when a significant part of the American public disagrees
with it on salient issues, they tend to support political candidates who pledge
to change its ideological balance.83 In fact, US presidential candidates have
campaigned against unpopular claims of judicial authority and have promised
73. Id. at 1828.

74. Id.
76. Id.
77. Id. at 1828-29.
78. Id. at 1829.
79. Id.
80. Id. at 1831.
82. Id.
83. Id. at 1833.
to appoint Justices who are more “right-thinking.”84 It is, therefore, possible

that as a result of the US Supreme Court’s concern for its own sociological
legitimacy, “it has seldom remained dramatically at odds with arouse[d]
public opinion for extended periods ... [showing that] the Justices
undoubtedly are influenced by popular political movements and by the
evolving attitudes of their society.”85
C. Moral Legitimacy
Legitimacy used in the moral sense pertains to moral justifiability or respect-
worthiness. This means that even if a judicial decision is legally correct, it
may be illegitimate under a moral concept if morally unjustified. 86
Conversely, “a judicial decision might be erroneous under a strict matter of
law, yet morally justified.”87
Like legal legitimacy, “the moral legitimacy of judicial action is
sometimes detached appraisals of permissibility, not endorsements of
correctness.”88 This implies that a decision need not be optimal or morally
correct to be morally legitimate provided that it falls within a morally
acceptable range.89 Charges of moral illegitimacy therefore imply that a court
has breached clear and important moral norms.90
To further develop the moral legitimacy of judicial power, Fallon, Jr.
provides three controversial opinions on moral legitimacy:
(1) “The moral importance of situation would have justified the
Court in appealing less to the letter of positive law[.]”91 This
arises from the premise that the judge’s promise of fidelity to law
possesses moral relevance, as well the Court’s interest in
“preserving legal continuity and a ‘government of laws, and not
of men.’”92
84. Id.
85. Id.
86. Id. at 1796.
88. Id. at 1834.
89. Id.
90. Id.
91. Id. at 1835.
92. Id.
(2) “[Q]uestions about the moral legitimacy of Justices ‘disobey[ing]

the law of their country’ ... hold little prominence in
contemporary constitutional debates.”93 This is a result of the
American experience where two centuries worth of practice and
precedent have created a situation in which Supreme Court
Justices can reasonably accommodate almost any perceived
exigency without overstepping the bounds of legal legitimacy.94
(3) “Considerations of moral legitimacy recurrently shape
judgments concerning the legal legitimacy of controversial
assertions of judicial power.” 95 This flows from the ongoing
debate of whether it is morally legitimate for the court to engage
in “judicialization of politics” wherein the court substitutes its
judgments reached by another, often more democratically
accountable, institution.96
D. The Philippine Standard
1. Legal Legitimacy
The Constitution is the fundamental law of the land. 97 Because of this
character, “its interpretation must be constrained by the values of the rule of
law, which means that the Court must construe it through a process of
reasoning that is replicable, that remains fairly stable, and that is consistently
applied.” 98 This standard implies that substantive legitimacy of judicial
rulings must reflect, at the very least, the Constitution’s spirit and intent.
Because the Supreme Court is mandated by the Constitution to exercise
judicial power as a means of checking “against all powers of the government
without exception,”99 it necessarily thrives on judicial activism.100 Judicial
activism is defined as the “philosophy of judicial decision[-]making whereby

94. Id. at 1837-38.
95. Id. at 1839.
96. Id.
97. Lambino v. Commission on Elections, 505 SCRA 160, 408 (2006).
98. Agabin, supra note 2, at 13 (citing ROBERT C. POST, CONSTITUTIONAL
DOMAINS: DEMOCRACY, COMMUNITY AND MANAGEMENT 30 (1995)).
99. Id. at 9 (citing 3 RECORD OF THE CONSTITUTIONAL COMMISSION, at 645-46
(1986)).
100. Id. at 5.
judges allow their personal views about public policy, among other factors,
to guide their decisions.”101 In terms of constitutional interpretations, the
Court is empowered to treat the Constitution as a “living document” by
adapting the Constitution’s broad provisions and interpreting them in light
of economic, social, and cultural developments.102 Nevertheless, even with
an “activist” Judiciary, the Supreme Court in the Philippines recognizes the
role of precedent decision-making in “[assuring] stability in legal relations
and [avoiding] confusion ... [To do so, the Court] has to speak with one
voice. It does so with finality, logically, and rightly, through the highest
judicial organ [—] this Court.”103 For the Court to speak with one voice
implies consistency, symmetry, and logic in its decisions.104
In a decision on the Motion for Reconsideration of De Castro v. Judicial
and Bar Council (JBC),105 the Court clarified the place of precedents in an
activist Court, to wit —
The Court, as the highest court of the land, may be guided but is not controlled by
precedent. Thus, the Court, especially with a new membership, is not
obliged to follow blindly a particular decision that it determines, after re-
examination, to call for a rectification. The adherence to precedents is strict
and rigid in a common-law setting like the United Kingdom, where judges
make law as binding as an Act of Parliament. But ours is not a common-law
system; hence, judicial precedents are not always strictly and rigidly
followed. A judicial pronouncement in an earlier decision [may be]
followed as a precedent in a subsequent case only when its reasoning and
justification are relevant, and the court in the latter case accepts such
reasoning and justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.106
Following this reasoning, the Court’s recent “one-step forward, one-step
backward” decisions 107 are legitimate, as a matter of law, even if the
decisions “ha[ve] adversely affected [the Court’s] ability to convince the
101. BLACK’S LAW DICTIONARY 850.

103. Id. at 13 (citing Barrera v. Barrera, 34 SCRA 98 (1970)).
104. Id.
105. De Castro v. Judicial and Bar Council (JBC), 618 SCRA 639 (2010).
106. Id at 658-659 (emphases supplied).
107. De Castro, 618 SCRA; Nicolas, 578 SCRA; Province of North Cotabato v.
Government of the Republic of the Philippines Peace Panel on Ancestral
Domain (GRP), 568 SCRA 402 (2008); & Neri, 549 SCRA.
relevant public that its rulings are based on legal principle rather than partisan
preferences or even personal interests.”108
Rationally, an appropriate standard for determining the legal legitimacy
of assertions of judicial power is the Court’s consistency in applying
precedents. Nevertheless, as pointed out by Fallon, Jr., precedent-based
decisions must first and foremost be publicly accepted as legally authoritative
before precedent-based decision-making is accepted as lawful. This was
indirectly demonstrated when the Court in Estrada modified and
contentiously applied the precedent set by Gonzales. Nevertheless, it did not
render Estrada illegitimate. This implies that while there is a general public
acceptance of the authoritative legitimacy of precedent-based decisions, this
standard is a weak measurement for establishing the legal legitimacy of a
constitutional law decision.
2. Sociological Legitimacy
As correctly observed by Agabin, the legitimacy of the Supreme Court’s
constitutional decisions is primarily measured by its sociological and moral
legitimacy.109 Thus,
even when justification is furnished by apposite legal principle, something
more is required. Because not every conscientious claim of principled
justification will be accepted as such ... the [C]ourt’s legitimacy depends on
making legally principled decisions under circumstances in which their
principled character is sufficiently plausible to be accepted by the
Nation.110
Agabin’s observation rests on the premise that Filipino society’s verdict
in constitutional cases depend more on “whether public opinion ultimately
support[s] the outcome than on the quality of legal reasoning or the
craftsmanship of the Court’s opinion.”111 More than public support for the
outcome of the Court’s opinion, the Philippine experience suggests that the
practical implications of the judicial decision must be acceptable or katanggap-
tanggap, at the very least, regardless of the quality of legal reasoning. This was
evident in Estrada where, despite the majority’s reasoning,112 the acceptance

109. Id. at 4.
110. Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of
Pennsylvania, 505 U.S. 833, 865 (1992).
by the public of Arroyo as the successor of Estrada113 essentially legitimized

the Court’s decision. The standard of acceptability or kung katanggap-tanggap
as a measure of a decision’s sociological legitimacy does not mean
acquiescence by the public to the decision itself — authoritative legitimacy
as proposed by Fallon, Jr. — but the acquiescence by the public to the
propriety of the decision’s implications. This proposed practical notion of
acceptability reflects the public’s lack of legal sophistication.
3. Moral Legitimacy
In his Article on Filipino Legal Philosophy, Professor Eugenio H. Villareal
suggests that Filipinos view law as “inseparable from morality.” 114 For
Filipinos, the law is “essentially an expression of what is good and[,]
simultaneously, a means to achieve what is good.”115 Thus, any attempt by the
Court to lock out morality or what is good in its decisions is repugnant to
Filipino society. Anything short of the legal norms is viewed as anti-human
and anti-Filipino.116 To illustrate, Oposa v. Factoran, Jr.117 has been accepted
and celebrated as a landmark case,118 notwithstanding its arguably shaky legal
premises, because people agree with its moral justification.119 Observably,
there is no reliable gauge of judicial power when measured through the
Court’s moral legitimacy in the Philippines.
113. Id.
114. Eugenio H. Villareal, Filipino Legal Philosophy and its Essential Natural Law
Content (A Concurrence in the Absolute with Aquinas, Finnis, and Fuller), 50
ATENEO L.J. 294, 298 (2005).
115. Id. at 299 (emphasis supplied).
116. Id. at 312.
117. Oposa v. Factoran, Jr., 224 SCRA 792 (1993). The Court justified petitioners-
minors’ personality to sue on behalf of their generation “as well as generations
yet unborn ... based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned.” Said right
considered the “rhythm and harmony of nature.” Id. at 802-03.
118. The doctrine of intergenerational responsibility has since been incorporated into
“citizen suits” under the recently promulgated Rules of Procedure for
Environmental Cases. See RULES OF PROCEDURE FOR ENVIRONMENTAL
CASES, A.M. No. 09-6-8-SC, rule II, § 5 (Apr. 29, 2010).
4. A Filipino-Based Standard
From the foregoing discussion, the Authors proffer that determining legal
legitimacy of a constitutional case decided by the Philippine Supreme Court
depends more on socio-political implications of acceptability or kung
katanggap-tanggap rather than the quality of legal reasoning. As explained, this
is an expanded version of Fallon, Jr.’s theory of authoritative concept under
sociological legitimacy. This framework shall be used to analyze recent
controversial constitutional cases rendered by the Puno Court.120
III. ISSUES
A. The NBN-ZTE Controversy

In her 2006 State of the Nation Address, Arroyo spoke of a Cyber Corridor
Initiative to enhance the competitive advantage of the natural super regions
of the Philippines.121 Thus, a National Broadband Project (NBN Project)
was initiated to boost telecommunications, technology, and education.122
The NBN Project was to be financed by the People’s Republic of China,
while the equipment and services, approximately totaling P16 million, were
to be supplied by Zhing Xing Telecommunication Equipment (ZTE).123
In light of the NBN Project, the Senate commenced investigations in
aid of legislation, stating that they were relevant to three pending bills in the
Senate.124 Initiating the investigation, Senate Committees on Accountability
of Public Officers and Investigations, Trade and Commerce, and National
Defense and Security invited certain personalities and cabinet officials
involved in the NBN Project, including former National Economic and
Development Authority Secretary Romulo L. Neri.125 However, when the
120. Id. at 3. In his speech, Agabin recognized that while the Puno Court covered
only the period from December 2006 up to May 2010, its philosophy will bear
the stamp of the Chief Justice long after his term. Id.
121. Gloria Macapagal-Arroyo, 14th President of the Philippines, State of the Nation
Address 2006, Address at the Opening of the 3d Regular Session of the 13th
Congress at the Batasan Pambansa Complex, Quezon City (July 24, 2006)
(transcript available at http://www.congress.gov.ph/download/13th/
sona06_gma.pdf (last accessed May 22, 2010)).
122. Id.
123. Neri, 549 SCRA at 103.
124. Id. at 104.
125. Id. at 105.
Senate Committees probed Neri further on his conversation with President

Arroyo regarding the bribery attempt of Commission on Elections Chair
Benjamin Abalos, Neri refused to answer, invoking “executive privilege”126
— “[i]n particular, he refused to answer the questions on (a) whether or not [ ]
Arroyo followed up [on] the NBN Project; (b) whether or not she directed him to
prioritize it; and (c) whether or not she directed him to approve [it].”127 Neri failed
to appear and testify in the Committees’ hearing on 18 September 2007, 20
September 2007, 25 October 2007, and 20 November 2007.128 In a Letter
dated 15 November 2007, “Executive Secretary Eduardo R. Ermita requested [the
Senate] Committees to dispense with [Neri’s] testimony on the ground of executive
privilege ... [considering that] the information sought to be disclosed might impair
[Philippine] diplomatic as well as economic relations with [China].”129 Unsatisfied
with Neri’s explanation on why he should not be cited in contempt, the
Senate Committees issued an Order on 8 February 2008 citing him in
contempt and ordering his arrest and detention.130 By way of a petition for
certiorari with the Supreme Court, Neri challenged the Show Cause Letter
and Contempt Order issued by the Senate Committees by alleging that they
committed grave abuse of discretion amounting to lack or excess of
jurisdiction.
Amidst the tension of the Senate investigations, various sectors, from
Catholic bishops to businessmen, went into frenzy. “In the wake of new
testimony at the Senate linking top government officials and allies to the
lingering corruption scandal [(the NBN-ZTE Project)],”131 Catholic bishops
were divided over whether to push for a protest rally.132 While the Catholic
Bishops’ Conference of the Philippines urged Arroyo to abolish Executive
Order (E.O.) No. 464133 to allow officials, including Neri, to reveal further
126. Id.
127. Id. at 105-06 (emphasis supplied).
128. Id. at 109.
129. Neri 549 SCRA at 106-07 (emphasis supplied).
130. Id. at 109.
131. Church militants push protest rally, MANILA STAND. TODAY, Feb. 13, 2008, at A1
[hereinafter Church militants].
132. Id.
133. Office of the President, Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege and Respect for the
Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and for Other Purposes, Executive Order
No. 464 [E.O. No. 464] (Sep. 28, 2005).
details on the NBN-ZTE deal, they were steadfast in saying that a call for
“communal action” did not include an active role in protest rallies organized
by the opposition and leftist groups.134 Despite differing opinions on the
propriety of a rally, the 15 February 2008 rally brought together at least
10,000 people of clashing ideologies.135 The rally was touted as “one of the
loudest display[s] ... of public outrage over the controversial $329-million
broadband deal.”136 To put things in perspective, an analysis showed that the
demonstrators believed “that the removal of the embargo of E.O. No. 464
would unlock a flood of withheld information on the network deal[,]
[expecting] Neri’s uninhibited testimony to fling wide open the floodgates of
derogatory information that could fuel public unrest ... and intensify the
momentum for another people power.”137
Even educational institutions joined in the public outcry for truth when
rival schools Ateneo de Manila University and De La Salle University came
together to offer mass and support for Senate star witness Rodolfo Noel
“Jun” I. Lozada, Jr. 138 As for the business sector, business groups were
unanimous in saying that the issue needed to be settled to prevent possible
economic impact.139 On 6 March 2008, President Arroyo revoked E.O. No.
464, advising executive officials and employees to follow and abide by the
Constitution, existing laws, and jurisprudence when they are invited to
legislative inquiries in aid of legislation.140
On 25 March 2008, the Supreme Court promulgated its decision
upholding executive privilege despite the revocation of E.O. No. 464.141
The Court held that the communications sought to be elicited by the three
questions earlier mentioned are protected by the “presidential
communications privilege and executive privilege on matters relating to
134. Amando Doronila, Battle arena over NBN shifts to SC, PHIL. DAILY INQ., Mar. 3,
2008, at A1 & Church militants, supra note 131.
135. DJ Yap & Julie M. Aurelio, 10,000 display outrage, PHIL. DAILY INQ., Feb. 16,
2008, at A1.
136. Id.
137. Doronila, supra note 134.
138. Kristina L. Alave & Michael Lim Ubac, Old rivals team up for truth’s sake, PHIL.
DAILY INQ., Feb. 17, 2008, at A1.
139. Business sector wants NBN row settled, BUS. WORLD, Feb. 18, 2008, at 1.
140. Neri, 549 SCRA at 114.
141. Id. at 117.
diplomacy or foreign relations.” 142 As elucidated by the Court, this is

because of the concurrence of the following elements: (1) the
communications relate to a “quintessential and non-delegable power” of the
President;143 (2) under the operational proximity test, the communications
are received by a close adviser of the President; 144 and (3) “there is no
adequate showing of a compelling need that would justify the limitation of
the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority.”145 Compared with the authoritative case
of United States v. Nixon,146 the information elicited is not in a criminal
proceeding, but in a legislative inquiry.147
Notably, the main decision was not unanimous.148 In fact, Puno, by
declaring that “[a] government’s democratic legitimacy rests on the people’s
information on government plans and progress on its initiatives, revenues,
and spending,”149 voted against the claim of presidential communications
privilege in light of the pertinence of questions propounded and the lack of
an effective substitute for the information sought. 150 A day after the
decision’s promulgation, the Court faced criticism, albeit indirect. For
example, a report on the promulgation of the decision opted for the catchy
title “SC votes 9-6 for Neri on executive privilege,” emphasizing that “[a]
closer look at the favoring [J]ustices, however, shows that [ ] Arroyo
appointed all, except [Justice Leonardo A.] Quisumbing.”151
Senators Manuel B. Villar, Francis N. Pangilinan, Aquilino Q. Pimentel,
Jr., Manuel A. Roxas II, and Maria Ana Consuelo “Jamby” A. Madrigal-
Valade took turns in criticizing the decision, stressing that the truth about an
anomalous public transaction should not be subverted by the principle of
142. Id. at 122.

143. Id.
144. Id. The Court declared that Neri could be considered a “close adviser” of the
President considering that he was a member of President Arroyo’s Cabinet. Id.
145. Neri, 549 SCRA at 122.
146. United States v. Nixon, 418 U.S. 683 (1974).
147. Neri, 549 SCRA at 124.
148. Id. at 139.
149. Id. at 165.
150. Id. at 221.
151. Mike Frialde, SC votes 9-6 for Neri on executive privilege, PHIL. STAR, Mar. 26,
2008, at 1.
executive privilege. 152 Another news article pointed out that Neri was
“President [Arroyo’s] first major victory in the Supreme Court whose 15
members included 12 she had appointed. The Court had earlier ruled against
her in her effort to gag Cabinet members,153 her declaration of a state of
national emergency two years ago[,]154 and tough measures against street
protesters.”155 Of interest is an online article written by Marites D. Vitug,
the author of the controversial book Shadow of Doubt,156 which accused the
Supreme Court Justices of having pre-determined votes and voting along
partisan lines.157 Notwithstanding this, the decision did not garner as much
noise from the public.
In the Motion for Reconsideration of Neri,158 the Court reaffirmed its
earlier ruling and emphasized that the operational proximity test is not
conclusive in every case, as the main consideration is to limit the availability
of executive privilege only to officials who stand proximate to the President,
by reason of their function and position in the Executive’s organizational
structure.159 Remarkably, only Justice Ruben T. Reyes lambasted Vitug’s
accusation in his separate opinion.160 Reports on the Court’s decision were
less catchy, with senators slamming the ruling by describing it as a “‘dark’
and ‘sad’ day for government transparency and accountability.” 161 There
were no other reports on the matter. Today, despite disappointments in the
ruling of the Court, Neri remains as the leading case on executive privilege.
152. Id.
153. See Senate of the Philippines v. Ermita, 488 SCRA 1 (2006).
154. See David v. Macapagal-Arroyo, 489 SCRA 160 (2006).
155. Leila B. Salaverria, High court upholds Neri, PHIL. DAILY INQ., Mar. 26, 2008, at
A1.
156. See MARITES DAÑGUILAN VITUG, SHADOW OF DOUBT: PROBING THE
SUPREME COURT (2010).
157. Marites Dañguilan Vitug, Inside story: SC justices had pre-determined votes on
Neri case, available at http://archives.newsbreak-knowledge.ph/2008/04/02/
inside-story-sc-justices-had-pre-determined-votes-on-neri-case (last accessed
May 22, 2010).
158. Neri v. Senate Committee on Accountability of Public Officers and
Investigations, 564 SCRA 152 (2008).
159. Id. at 199.
160. Id. at 282 (J. Reyes, separate opinion).
161. Mike Frialde, SC reaffirms gag on Neri, PHIL. STAR, Sep. 5, 2008, available at
http://www.philstar.com/headlines/398464/sc-reaffirms-gag-neri (last accessed
May 22, 2010).
The decision, while it remains law, has not hampered the Senate Blue
Ribbon Committee from conducting its investigations. 162 In November
2009, the Blue Ribbon Committee came out with its report, concluding its
investigation of the NBN-ZTE controversy.163
B. The Aborted Memorandum of Agreement on the Ancestral Domain

While peace negotiations between the Government of the Republic of the
Philippines (GRP) and the Moro Islamic Liberation Front (MILF) have been
stalled on the contentious issue of ancestral domain since December 2007,164
a pact was finally drafted to pave the way for a final political settlement to
end the 30-year fight by the MILF for an independent Islamic State. 165
However, after a closed-door meeting between the GRP and the MILF on
25 July 2008, news of collapsed peace talks following renewed disagreements
over the issue of ancestral domain circulated after the MILF, in its website,
said its negotiators walked out when the GRP panel attempted to make
changes in the agreement.166 Mohagher Iqbal, the head of the MILF peace
panel, accused the GRP peace panel, led by Rodolfo Garcia, of “undoing”
settled issues.167
Immediately hurdling this stumbling block on the peace process, the
GRP and MILF panels led by Garcia and Iqbal, respectively, initialed the
final draft of the agreement on ancestral domain.168 According to Executive
Ermita, the initialing would lead to the signing of the Memorandum of
Agreement on the Ancestral Domain (MOA-AD) on 5 August 2008. 169
However, two days before the scheduled signing of the MOA-AD with the
162. Aurea Calica, Senate committee report on NBN deal out soon, PHIL. STAR, Apr. 19,
2009, available at http://www.philstar.com/headlines/458656/senate-
committee-report-nbn-deal-out-soon (last accessed May 22, 2010).
163. Committee on Accountability of Public Officers and Investigations of the
Senate of the Philippines (Blue Ribbon Committee), S. Rep. No. 743, 14th
Cong., 3d Reg. Sess. (2009).
164. Fe Zamora, Bagsamoro state eyed, PHIL. DAILY INQ., Aug. 3, 2008, at A1.
165. John Unson, MILF on pact: It’s a done deal, PHIL. STAR, Aug. 6, 2008, at 1.
166. Inquirer Mindanao, Talks with MILF collapse, PHIL. DAILY INQ., July 27, 2008,
at A1 & Edith Regalado & Jaime Laude, Gov’t-MILF talks collapse, PHIL. STAR,
July 27, 2008, at 1.
167. Inquirer Mindanao, supra note 166, at 1 & Regalado & Laude, supra note 166, at
1.
168. Zamora, supra note 164.
169. Id.
MILF, Iligan City and Zamboanga City joined the Province of North
Cotabato in filing a petition for a temporary restraining order (TRO) to stop
both parties from forging the accord.170
A day before the intended signing, local officials and residents of Iligan,
Zamboanga, and Kidapawan staged simultaneous rallies, denouncing the
inclusion of their territories in the MILF-proposed Bangsamoro Juridical
Entity (BJE) without prior consultations.171 On the same day, the Supreme
Court ignored a new plea for executive privilege to keep diplomatic
negotiations secret. It stopped the government from signing the MOA-AD
in Malaysia,172 notwithstanding the political embarrassment the Executive
Department had to face in explaining the issuance of a TRO to the Filipino
Moro rebels and Malaysian facilitator. 173 Notably, according to leading
constitutionalist Fr. Joaquin G. Bernas, S.J., the MOA-AD is just a piece of
paper that does not mean anything and, at best, the document is an
important preliminary agreement that could lead to a peace deal with the
MILF.174
The issuance of a TRO on the signing of the MOA-AD was welcomed
by senators, as well as other political leaders such as former President Estrada
and United Opposition leader Jejomar C. Binay, as a “timely intervention by
the Supreme Court.” 175 Even Press Secretary Jesus G. Dureza described the
TRO as a “relief.”176 In a statement from Iqbal, the MILF leader said that
the MOA-AD was a done deal as the act of initialing the MOA-AD’s agreed
text between the parties constitutes the signature of the GRP and the
MILF.177 The MILF leader added that the TRO was not binding to the
170. Province of North Cotabato, 568 SCRA at 436-37 & Roel Pareno, Zambo, Iligan
ask SC to stop GRP-MILF deal, PHIL. STAR, Aug. 3, 2008 at 1.
171. Rey Panaligan, SC issues TRO on signing of MoA on ancestral domain, MANILA
BULL., Aug. 5, 2008, at 6.
172. See Leila Salaverria, et al., SC halts Moroland deal, PHIL. DAILY INQ., Aug. 5,
2008, at A1 & Mike Frialde, SC stops gov’t-MILF land deal, PHIL. STAR, Aug. 5,
2008, at 1 [hereinafter Frialde, SC stops gov’t-MILF land deal].
173. Christine O. Avendaño, Red-faced RP execs to explain SC ruling, PHIL. DAILY
INQ., Aug. 5, 2008, at A1.
174. Christian Esguerra, It’s just a piece of paper — Bernas, PHIL. DAILY INQ., Aug. 5,
2008, at A1.
175. Frialde, SC stops gov’t-MILF land deal, supra note 172.
176. Salaverria, et al., supra note 172.
177. Unson, supra note 165.
MILF, emphasizing that the “[MILF] does not even recognize the [Supreme
Court].”178
With the task of resolving legal issues surrounding the proposed MOA-
AD in the hands of the Supreme Court,179 several groups trooped to the
Supreme Court to express support for or disapproval of the MOA-AD
during the public hearing.180 Lawyer Elly V. Pamatong and 20 members of
Bangon Pilipinas argued that the MOA-AD had turned over the sovereignty
of a part of Mindanao to “[S]tate enemy” Malaysia, while about 200
members of the Bangsamoro People Solidarity for Peace led by Anak
Mindanao Representative Mujiv Hataman demanded “[p]eace, not war[,] in
Mindanao.”181 Meanwhile, in Tacurong City, some 10,000 residents rallied
to dramatize their opposition to the MOA-AD and urged the government to
make public the contents of the agreement.182
Three days after the first public hearing on the MOA-AD, MILF fighters
killed at least 41 people in coordinated attacks in Lanao del Norte and
Maasim, Sarangani. 183 Moro guerillas sprayed gunfire around the towns,
hacked civilians with machetes, and torched houses before withdrawing
while using residents as human shields against the government counter-
offensive.184 Based on individual accounts of MILF hostages, “[the] attack
was aimed to voice out the rebels’ disgust over the Arroyo administration’s
reneging on its commitment of securing for the Bangsamoro people their
homeland as defined in the [MOA-AD].”185 One hostage added that the
rebels gave two reasons for the attack: to highlight the government’s
perceived insincerity in its peace commitments and to rebuke government
leaders and politicians opposing the MOA-AD.186 Unfortunately, despite the
178. Id.
179. Rey Panaligan, SC hears today controversial MoA on Ancestral Domain, MANILA
BULL., Aug. 15, 2008, at 1 & Marvin Sy, et al., Palace: Its all up to the SC, PHIL.
STAR, Aug. 6, 2008, at 1.
180. Leila Salaverria & Edson C. Tandoc, MOA ‘patently illegal’, PHIL. DAILY INQ.,
Aug. 16, 2008, at A1.
181. Id.
182. Paolo Romero, Gov’t eyes new deal with MILF, PHIL. STAR, Aug. 16, 2008, at 1.
183. Nikko Dizon, 41 dead in MILF attacks, PHIL. DAILY INQ., Aug. 19, 2008, at A1.
184. Id.
185. Ryan Rosauro, Rebs mad over aborted MOA signing, PHIL. DAILY INQ., Aug. 20,
2008, at A1.
186. Id.
flushing out of MILF forces, an air of uncertainty pervaded their towns,

pushing families to entertain the idea of relocating with relatives outside their
localities.187
Back in Manila, the Malacañang announced on the evening of 21
August 2008 that it would not sign a controversial deal on an expanded
Bangsamoro homeland in its present form, as the Arroyo administration was
reviewing the MOA-AD in light of statements made by several Justices.188
Notwithstanding the Malacañang’s categorical statement, lawyers of various
parties contesting the proposed MOA-AD remained steadfast in asking the
Supreme Court to rule on the constitutionality of the MOA-AD once and
for all, saying that a decision now would guide future negotiations so that
“[the 18 August 2008] bloodshed in Mindanao will not be repeated.”189
Back on the ground, however, separatist MILF factions refused to
renegotiate the controversial MOA-AD with its leaders, stating that, “[i]f
anything, the MILF is readying for war.”190
With the government junking the MOA-AD with the MILF,191 the
government ended 11 years of peace talks with the MILF after the latter
refused to surrender commanders blamed for sacking towns in Mindanao and
slaughtering scores of civilians. 192 While the case remained pending,
Mindanao Muslims and Christians continued assailing the accord,193 Moro
187. Id.
188. Michael Ubag & Leila Salaverria, Palace: No More MOA, PHIL. DAILY INQ.,
Aug. 22, 2008, at A1. For example, according to Justices Antonio T. Carpio and
Adolfo S. Azcuna, the Memorandum of Agreement on Ancestral Domain
(MOA-AD) was patently illegal. Justice Arturo D. Brion said that the provisions
are unconstitutional. See Leila Salaverria & Jerome Aning, SC asked to rule on
MOA once and for all, PHIL. DAILY INQ., Aug. 23, 2008, at A1.
189. Salaverria & Aning, supra note 188.
190. Nikko Dizon, MILF: No renegotiation; ready for war, PHIL. DAILY INQ., Aug. 23,
2008, at A1.
191. Paolo Romero, Gov’t junks MOA with MILF, PHIL. STAR, Aug. 30, 2008, at 1.
192. Christine Avendaño, et al., GMA scraps peace panel, PHIL. DAILY INQ., Sep. 4,
2008, at A1.
193. Muslims, Christians slam land agreement, PHIL. DAILY INQ., Aug. 4, 2008, at A1.
Assailants of the accord included Mindanao governors. See Grace Cantal-
Albasin, et al., Palace fails to sway governors, PHIL. DAILY INQ., Aug. 15, 2008, at
A2. The Association of Generals and Flag Officers also opposed the said
agreement. See Aris Ilagan, Group of generals opposes agreement on ancestral domain,
MANILA BULL., Aug. 20, 2008, at 1.
National Liberation Front (MNLF) Chair Nur Misuari declared that the
MNLF will not recognize the agreement between the government and the
MILF,194 and the indigenous peoples of Mindanao (Lumad) called for the
creation of an Autonomous Region for the Lumad of Mindanao in light of
the proposed BJE.195 Appallingly, the resumption of fighting between the
military and the MILF in Mindanao served as the controversy’s socio-
political background 196 when the Supreme Court declared the ancestral
domain deal unconstitutional.197
With a vote of 8-7 on the petition of officials of the Province of North
Cotabato, Iligan City, and Zamboanga City, the Court declared the MOA-
AD illegal and unconstitutional, and the process that led to its crafting
“whimsical, capricious, oppressive, arbitrary, and despotic.” 198 The
Malacañang did not appeal the decision.199 Today, another peace accord is
still in the horizon as the GRP and MILF continue with their negotiations in
the hopes of putting an end to a long-running peace dispute in Mindanao.200
C. The Subic Rape Case

A highly publicized controversy between a Filipina and an American broke
out in November 2005, eliciting strong reactions from women activists and
194. Paolo Romero, Palace to MILF: Bow to High Court, PHIL. STAR, Aug. 7, 2008, at
1.
195. Ma. Cecilia Rodriguez, ‘Lumad’ want self-rule, too, PHIL. DAILY INQ., Aug. 26,
2008, at A1.
196. There were other related events that happened during this period. 136
congressmen voted for a renegotiation of the MOA-AD with the MILF. See
Delon Porcalla, 136 congressmen want MOA with MILF renegotiated, PHIL. STAR,
Aug. 15, 2008, at 1. The Malaysian Prime Minister expressed disappointment
over President Arroyo’s decision to junk the controversial territorial agreement
with the MILF. See Paolo Romero, Malaysian PM disappointed over failed MOA
between RP gov’t and MILF, PHIL. STAR, Sep. 15, 2008, at 2.
197. Mike Frialde, SC declares ancestral domain deal ‘unconstitutional’, PHIL. STAR, Oct.
15, 2008, at 12.
198. Norman Bordadora, SC: Moro land deal illegal, PHIL. DAILY INQ., Oct. 15, 2008,
at A1.
199. David Cagahastian, Gov’t won’t appeal SC ruling on MoA-AD, MANILA BULL.,
Oct. 16, 2008, at 1.
200. Delon Porcalla, Peace talks with MILF to resume after Ramadan, available at
http://www.philstar.com/Article.aspx?articleId=597097&publicationSubCatego
ryId=63 (last accessed May 22, 2010).
the resurrection of the controversy over the Visiting Forces Agreement

(VFA).201 Suzette S. Nicolas, known as “Nicole,” accused US Marine Lance
Corporal Daniel Smith of raping her while inside the Subic Bay Freeport
Zone.202 On December 2005, Judge Benjamin T. Pozon of the Regional
Trial Court of Makati convicted Smith for the crime of rape and sentenced
him to reclusion perpetua, to be served in facilities that would be agreed upon
by the appropriate Philippine-US authorities.203
In light of his conviction, Smith was immediately detained in the Makati
City Jail. US President George Washington, protesting the decision of Judge
Pozon, cancelled the Balikatan military exercises on 22 December 2005.204
Arroyo “bewailed” the cancellation of the joint military exercises as she saw
it as a “setback” to the security alliance between the Philippines and the
US.205 Four days later, Smith was transferred back to the US embassy late at
night and without any court order to “repair the ‘rapidly eroding
relationship’ with the US.” 206 The transfer drew public outrage, with
militant groups marching before the US embassy,207 burning the US flag,208
and accusing the Philippine government as being a colonial slave to its US
master. 209 Some women activists 210 staged demonstrations near the US
embassy, wished Smith better health so he could serve his sentence in a
Philippine jail, and demanded regular reports and “evidence” from the
201. Julie M. Aurelio, Nicole recants, clears Smith, PHIL. DAILY INQ., Mar. 18, 2009, at
A1.
202. Id.
203. Ferdinand Fabella & Joyce Pangco Panares, Embassy announces return of war
games, MANILA STAND. TODAY, Jan. 3, 2006, at A1.
204. Id.
205. Genalyn D. Kabiling, GMA laments US cancellation of Balikatan 2007, MANILA
BULL., Dec. 24, 2005, at 1.
206. Fabella & Panares, supra note 203.
207. Id.
208. Id.
209. Id. According to Virgie Pinlac, one of the leaders of the militant women’s group
Kaisaka, “[bowing] to US pressure on the issue of custody of convicted rapist
Smith is proof that the Philippines remains a colonial slave to its [US] master.” Id.
(emphasis supplied).
210. One of them was Partido ng Manggagawa (Worker’s Party).
Philippine and US governments to prove that he was still being held in the
US embassy compound.211
By the second day of the new year (January 2006), the US announced
the resumption of the Balikatan military exercises with Philippine troops.212
Unrelenting, the Senate recommended to Arroyo to abrogate the VFA
following the US’s refusal to hand over Smith and his three companions to
local authorities.213 Nevertheless, the move to scrap the VFA was deferred
when the US expressed willingness to negotiate the issue of custody with
Department of Foreign Affairs Secretary Alberto G. Romulo.214
On 19 December 2006, Romulo and US Ambassador to the Philippines
Kristie A. Kenney executed the Romulo-Kenney Agreement, paving the
way for the return of Smith to US military custody at the US embassy in
Manila. 215 On 3 January 2007, the Court of Appeals dismissed Smith’s
petition questioning Judge Pozon’s decision to confine him at the Makati
City Jail, because the petition had become moot.216 The appellate court’s
decision also upheld Judge Pozon’s decision to jail Smith in Makati pending
an agreement between Philippine and US authorities on where he should be
detained, noting the Romulo-Kenney Agreement on Smith’s detention at
the US embassy.217 The Malacañang, for its part, announced that it was bent
on reviewing the VFA.218 The US embassy, however, said that a review of
the VFA would be premature considering that Smith’s case was still
ongoing.219
211. Tina Santos, Women activists wish Smith good health in protest rally, available
at http://www.inquirer.net/specialfeatures/subicrapecase/view.php?db=1&art
icle=20070425=62494 (last accessed May 22, 2010).
212. Fabella & Panares, supra note 203.
213. Christina Mendez, Senate votes to terminate VFA, PHIL. STAR, Jan. 20, 2006, at 1.
214. Roy Pelovello, VFA termination on hold as US softens on custody, MANILA STAND.
TODAY, Feb 10, 2006, at 1; Marvin Sy, Oversight committee defers call for VFA
abrogation, PHIL. STAR, Feb. 10, 2006, at 5; & Philip Tubeza, Lawmakers defer
scrapping of VFA, PHIL. DAILY INQ., Feb. 10, 2006, at A1.
215. Charissa M. Luci, 2 officials cite RP’s treaty obligations under Visiting Forces
Agreement, MANILA BULL., Dec. 21, 2006, at 1.
216. Paolo Romero, RP seeks review of VFA, PHIL. STAR, Jan. 5, 2007, at 1
[hereinafter Romero, RP seeks review of VFA].
217. Id.
218. Id.
219. Id.
To clarify the Court of Appeals’ decision, Nicolas filed a petition for

certiorari and review, amending her original petition to the Supreme Court
seeking to declare Article 6, Paragraph 5 of the VFA unconstitutional.220 In
its February 2009 decision,221 the Court reiterated its previous ruling on the
constitutionality of the VFA, 222 but declared the Romulo-Kenney
Agreement as unconstitutional, relying on the VFA provision that the
detention shall be carried out in facilities agreed on by both parties and
carried out by Philippine authorities.223 Thus, according to the Court, Smith
should be held in a Philippine-run facility while awaiting the result of his
appeal.224
In applying the provisions of the VFA, the Court held that there is a
different treatment when it comes to detention as against custody, i.e.,
detention shall be carried out in facilities agreed on by authorities of both
parties and shall be “by Philippine authorities.” 225 Therefore, since the
Romulo-Kenney Agreement provided for the detention of the accused in
the US embassy, the Agreement was not in accord with the VFA itself.
Consequently, the Court ordered a renegotiation of an agreement on
detention facilities under Philippine authorities.226
The Court’s ruling was hailed as a “triumph of justice” by lawmakers,
urging American authorities to respect the ruling. 227 Akbayan Party-List
Representative Ana Theresia “Risa” Hontiveros-Baraquel opined that “[b]y
turning over [Smith] to Philippine authorities, the Supreme Court is sending
a strong message that all those who abuse our women, whoever they may be
and whatever rank they may hold, will find no cover anywhere.” 228
Pertaining to the ruling regarding the constitutionality of the VFA, women
activist and Gabriela Party List Representative Liza L. Maza opined that it
220. Id.
221. Nicolas, 578 SCRA.
222. Id. at 461-62.
223. Id. at 464-65.
224. Aurelio, supra note 201.
225. Nicolas, 578 SCRA at 464.
226. Id. at 465.
227. Lira Dalangin-Fernandez, Solons hail SC ruling on Smith custody, available at
http://www.inquirer.net/specialfeatures/subicrapecase/view.php?db=1&article
=20090212-188792 (last accessed May 22, 2010).
228. Id.
was a “step backward.”229 In her statement, Maza said that the decision
virtually gave the US a free hand in dealing with criminal offenders from the
US Military, dimming the hopes for attaining justice for women and
children-victims of abuse and violence and other human rights victims. As
for Harry L. Roque, a professor in International Law, the decision translated
to the weakening of the Court’s power to annul “all acts done by the
government that violated the will of the people as expressed in our
Constitution.”230 Interestingly, the US embassy simply noted the decision.231
As for the Philippine government, Ermita pointed out that the decision
upholding the constitutionality of the VFA was welcome to both the
Philippine and US governments.232 As the US government cannot just be
compelled to abide by the Court’s decision, Arroyo assured the public that
the Philippine government will bring the custody issue across to US
authorities.233
Despite the ruling, the Philippine government failed to secure Smith
from the US embassy and to transfer him to a local facility.234 Indicative of
the government’s inability to assert its sovereignty, Deputy Presidential
Spokesperson Ma. Lorelei C. Fajardo clarified that “‘[a]s much as we would
like to uphold the Supreme Court decision, [what is] important is we still
have to take into consideration the existing agreement which is the
VFA[,]” 235 emphasizing that while the government would continue to
support Nicolas, the Subic rape case is a different matter from the VFA.236
Surreptitiously, a few days before Malacañang was scheduled to talk about a
compromise on the issue on Smith, 237 Nicolas recanted her allegations
against Smith.238 Thus, the Court’s decision regarding Smith’s transfer to a
229. Id.
230. Norman Bordadora, Mr. Smith goes to prison, PHIL. DAILY INQ., Feb. 12, 2009,
at A1.
231. Edu Punay, SC orders transfer of US Marine rapist to RP Jail, PHIL. STAR, Feb. 12,
2009, at 1.
232. Id.
233. Id.
234. Marvin Sy, Compromise on Smith seen, PHIL. STAR, Mar. 17, 2009, at 1.
235. Id.
236. Id.
237. Id.
238. Aurelio, supra note 201.
Philippine-run facility became moot before it was enforced as the Court of

Appeals acquitted Smith.
D. The Appointment of the Chief Justice

Under the Constitution, a President or Acting President shall not make
appointments from two months immediately before the next presidential
elections up to the end of his or her term, except temporary appointments to
executive positions when continued vacancies therein will prejudice public
service or endanger public safety. 239 In the Judiciary, members of the
Supreme Court and judges of lower courts can only hold office until they
reach the age of 70 years or become incapacitated.240 Since Puno’s 70th
birthday falls on 17 May 2010, his impending retirement fell within the
constitutional ban on presidential appointments during a presidential election
year. 241 Mid-January, the Judicial and Bar Council (JBC) unanimously
agreed to start the process of filling up the shortlist of nominees for the next
Chief Justice. According to the Malacañang, this was an implied recognition
by the JBC of the authority of the President to appoint the replacement for
Puno.242 Accordingly, the JBC announced the opening of the position for
applications or recommendations.243
The issue brought forth criticisms, mostly from political aspirants. For
one, then presidential aspirant and future President Senator Benigno
“Noynoy” C. Aquino III warned members of the Supreme Court that he
would not recognize any of them who would accept an appointment as
Chief Justice from the outgoing President.244 Former JBC consultant and
retired Justice Josue N. Bellosillo, however, reassured the public that despite
the fact that the Supreme Court is composed of Arroyo appointees, the
Court as a collegial body has acted very independently as they have taken
positions contrary to the position of the President in so many constitutional
issues.245 Bellosillo added that the Supreme Court decision on the ancestral
domain issue in late 2008 is one of the best examples showing the Court’s
239. PHIL. CONST. art. VII, § 15.

240. PHIL. CONST. art. VII, § 11.
241. De Castro, 618 SCRA.
242. Aytch dela Cruz & Benjamin B. Pulta, Palace says JBC concedes to Gloria power to
name CJ, THE DAILY TRIBUNE, Jan. 19, 2010, at 1.
243. Id.
244. Id.
245. Id.
independence.246 As for constitutionalist Bernas, he opined that the next

President after the May elections should be the one to appoint the next
Chief Justice.247
To finally settle the dispute, the controversy was brought to the
Supreme Court. In its decision, the Court held that the ban on presidential
appointments does not apply to the Judiciary. A day after its decision, at least
four major newspapers 248 splashed on their front pages that Arroyo had
authority to appoint the next Chief Justice. While Malacañang lauded the
decision as a “victory of the Constitution and the Filipino people” and
expressed its hope that the public would respect the decision of the high
tribunal, Pimentel, Jr., among others, expressed his dismay over the ruling.249
Notably, the ruling whipped up a storm of protests and expressions of
indignation from politicians, legal personalities (including former Chief
Justice Artemio V. Panganiban),250 and the private sector, such as the Makati
Business Club, denouncing the ruling as unconstitutional.251
Presidential candidates, like former President Estrada, said that
“[Arroyo’s] father [President Diosdado P. Macapagal] did much better” and
Aquino III claimed that the Arroyo government is worse than Marcos.252
Effigies of the Justices were burned by a group known as Sagip Korte
Suprema.253 Others such as a militant group of fisherfolk joined the frenzy by
proposing that Arroyo extend Puno’s term until June 30 while Pambansang
Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) suggested that
the President appoint Justice Antonio T. Carpio until June 30.254 Of interest,
Tagbilaran Bishop Leonardo Y. Medroso called on the faithful to pray that
246. Id.
247. Norman Bordadora, Bernas: GMA appointing CJ may destroy SC credibility, PHIL.
DAILY INQ., Jan. 23, 2010, at A1.
248. They are the The Philippine Star, Manila Bulletin, Philippine Daily Inquirer,
and Manila Standard Today.
249. Edmer F. Panesa, SC: GMA can appoint CJ, MANILA BULL., Mar. 18, 2010, at 1.
250. Artemio V. Panganiban, Midnight chief justice, PHIL. DAILY INQ., Mar. 28, 2010,
at A13.
251. Edu Punay, SC: Just file your appeal, PHIL. STAR, Mar. 19, 2010, at 1.
252. Id.
253. Corona cries, blames the Firm for attacks on Supreme Court, MANILA STAND.
TODAY, Apr. 21, 2010, at A1.
254. SC: President can appoint CJ without JBC list in extreme case, PHIL. STAR, Mar. 21,
2010, at 1.
President Arroyo will responsibly choose the next Chief Justice, 255 a
seemingly indirect recognition of the Court’s decision.
On 20 April 2010, the Supreme Court denied with finality an appeal to
reverse the 17 March decision.256 The ruling did not invite further criticism
from the public. In a subsequent interview, however, Justice Renato C.
Corona revealed with dismay that former Ombudsman Simeon V. Marcelo,
a partner of “The Firm,”257 was behind Sagip Korte Suprema, a “very noisy”
group behind an advertisement that questioned his “moral ascendancy” to
lead the Court.258 As of this writing, Arroyo had appointed Corona as the
next Chief Justice. 259 While the announcement of his appointment was
relatively peaceful, President-elect Aquino III was vocal about his
disapproval of the appointment.260 Nevertheless, Aquino III and the public
reached a general consensus on the legality and acceptability of Corona’s
appointment.261
IV. ANALYSIS
Having laid the groundwork for the analysis, i.e., the political and social
scenario surrounding the constitutional controversies, this Article will apply
the proposed Filipino standard in evaluating the legitimacy of these
constitutional decisions.
Supreme Court decisions become part of the law of the land by
operation of law.262 A ruling, regardless of the quality of its reasoning or the
ingeniousness of its craftsmanship, will always be legally sound unless the
255. Panesa, supra note 249.

256. De Castro, 618 SCRA.
257. Villaraza Cruz Marcelo & Angangco (CVC) was the law firm of Justice Antonio
T. Carpio.
258. Corona cries, blames the Firm for attacks on Supreme Court, supra note 253.
259. TJ Burgonio, Arroyo: Corona is next Chief Justice, available at http://newsinfo
.inquirer.net/inquirerheadlines/nation/view/20100513-269655/Arroyo-Coron
a-is-next-Chief-Justice (last accessed May 22, 2010).
260. Delon Porcalla, Noynoy may not take oath before Corona, PHIL. STAR, May 14,
2010, available at http://beta.philstar.com/headlines/2010/05/14/574733/
noynoy-may-not-take-oath-corona (last accessed May 22, 2010).
261. Genalyn Kabiling, Palace recognizes Corona, available at http://www.mb.com.
ph/node/270636/palace-recognize (last accessed May 22, 2010).
262. An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE],
Republic Act No. 386, art. 8 (1950).
Court overturns itself in a subsequent decision. Thus, it has often been

opined that hard cases make bad law.263 Suffice it to say, this Article will not
delve into the quality of the Court’s reasoning.
On the one hand, in deciding the cases of Province of North Cotabato v.
Government of the Republic Peace Panel on Ancestral Domain,264 Neri v. Senate
Committee on Accountability of Public Officers and Investigations,265 and Nicolas v.
Romulo,266 the Court exercised its duty to check unconstitutional exercises of
political power.267 De Castro v. Judicial Bar Council,268 on the other hand, was
an exercise of the Court’s authority to interpret the Constitution.269
In Province of North Cotabato, the Court struck down the negotiated
agreement between the Executive and the MILF as unconstitutional despite
a categorical declaration by the GRP that it would no longer sign the
territorial deal. 270 The majority of the Court, highlighting values of
transparency and access to information to insure broad participation in the
political process, 271 reiterated its ruling in Chavez v. Public Estates
Authority. 272 During the pendency of the case, Puno told reporters after
speaking at a forum at the University of the Philippines’ College of Law that
the “Supreme Court Justices are aware how their decision on a deal
263. Northern Securities Company v. United States, 24 S. Ct. 436, 469 (1903).
“Great cases, like hard cases, make bad law. For great cases are called great, not
by reason of their real importance in shaping the law of the future, but because
of some accident of immediate overwhelming interest which appeals to the
feelings and distorts the judgment.” Id. (J. Holmes, dissenting).
264. Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain (GRP), 568 SCRA 402 (2008).
265. Neri v. Senate Committee on Accountability of Public Officers and
Investigations, 549 SCRA 77 (2008).
266. Nicolas v. Romulo, 578 SCRA 438 (2009).
267. See Agabin, supra note 2, at 10-11.
268. De Castro v. Judicial and Bar Council (JBC), 618 SCRA 639 (2010).
269. Id.
270. Genalyn Kabiling, Gov’t scraps pact on ancestral domain with MILF, MANILA
BULL., Aug. 30, 2008, at 1.
272. See Province of North Cotabato, 568 SCRA at 468 (citing Chavez v. Public Estates
Authority, 384 SCRA 152, 187 (2002)).
expanding the Bangsamoro territory would impact the volatile situation.”273

Reassuring the public, Puno said that the Justices would keep in mind the
implications of their decision on the intense situation on the ground.274
Puno’s pronouncement suggests that it is legally legitimate for the Court to
let considerations of sociological legitimacy, i.e., the public’s willingness to
accept the implications of judicial mandates — whether or not the decision
is katanggap-tanggap — to influence its judgment rather than solely base its
decision on substantive legal principles.
Conversely, the Court in Neri blocked the Senate investigation of the
NBN-ZTE bribery scandal on the basis of executive privilege, reaffirming its
earlier pronouncement in Senate of the Philippines v. Ermita.275 A reading of
the majority opinion vis-à-vis the dissenting opinions of Puno 276 and
Carpio, 277 as well as the separate opinion of Justice Dante O. Tiñga, 278
shows that in deciding whether the information sought by the Senate was
protected by executive privilege, the majority of the Court put paramount
importance in China-Philippine diplomatic relations. As enunciated by the
dissenters, the paucity of the explanation offered by Ermita failed to justify
how the information sought by the Senate would be at the expense of our
national interest.279 To Puno, the majority’s ruling on this important issue
was, at best, guesswork.280
It should be emphasized that the Court in Neri recognized the claim of
executive privilege notwithstanding the revocation of E.O. No. 464, to wit
—
In Chavez v. [Presidential Commission on Good Government], this Court held
that there is a “governmental privilege against public disclosure with respect
to [S]tate secrets regarding military, diplomatic[,] and other security
matters.” In Chavez v. [Public Estates Authority], there is also a recognition
of the confidentiality of [p]residential conversations, correspondences, and
273. TJ Burgonio, Puno says SC knows impact of MOA ruling, PHIL. DAILY INQ., Aug.
29, 2008, at A1.
274. Id.
275. Senate of the Philippines v. Ermita, 488 SCRA 1 (2006).
276. Neri, 549 SCRA at 139-256 (C.J. Puno, dissenting opinion).
277. Id. at 264-300 (J. Carpio, dissenting and concurring opinion).
278. Id. at 347-57 (J. Tinga, separate concurring opinion).
279. Id. at 206.
280. Id.
discussion in closed-door Cabinet meetings. In Senate [of the Philippines] v.

Ermita[,] the concept of presidential communications privilege is fully discussed.
As may be gleaned from the above discussion, the claim of executive
privilege is highly recognized in cases where the subject of inquiry relates
to a power textually committed by the Constitution to the President, such
as the area of military and foreign relations. Under our Constitution, the
President is the repository of the commander-in-chief, appointing,
pardoning, and diplomatic powers. Consistent with the doctrine of
separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.
...
In the case at bar, [ ] Ermita premised his claim of executive privilege on
the ground that the communications elicited by the three (3) questions ...
are presidential communications privilege and executive privilege on matters
relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) questions are covered by the
presidential communications privilege.281
The Court’s reliance on precedents to justify the existence of presidential
communications privilege reflects judicial acknowledgement of the lawful
status of precedent-based decision-making because the lawful status of
precedent-based decision-making is already established in the Civil Code of
the Philippines.282
Expectedly, critics of Neri focused on the Court’s composition and the
manner of voting rather than the legal soundness of the decision. While it is
true that 12 out of the 15 sitting Justices were Arroyo appointees, the fact
that only eight of them voted in favor of the government shows the Court’s
judicial independence regardless of the personalities involved. Moreover, the
revocation of E.O. No. 464 may have bolstered the katanggap-tanggap
implications of Neri, thereby increasing public acceptance of the decision,
regardless of its legal basis.
In Nicolas, despite US protest on the judicial ripeness of the issue,283 the
Court took judicial notice and reaffirmed284 its earlier decision in Bayan
281. Chavez v. Presidential Commission on Good Government, 299 SCRA 744

(1998); Neri, 549 SCRA at 121; & Id. at 122 (emphasis supplied).
282. CIVIL CODE, art. 8.
283. Romero, RP seeks review of VFA, supra note 216.
(Bagong Alyansang Makabayan) v. Zamora285 where the Court had resolved the
issue in favor of the constitutionality of the VFA.286 For Puno and Carpio,
however, the precedent-based decision by the majority perpetuating Bayan
was erroneous in view of the 2008 US Supreme Court decision of Medellin
v. Texas,287 declaring that the binding effect of a treaty as an international
obligation does not automatically mean that the treaty is enforceable as
domestic federal law in the US.288 In effect, the VFA failed to meet the
constitutional requirements of recognition by the US as a treaty.289
Nevertheless, considering that the Balikatan exercises are generally held
in the Philippines, the problem of domestic enforceability of the VFA in the
US remains to be an academic discussion. While the Philippine “[Philippine]
Constitution [theoretically] bars the efficacy of a treaty that is enforceable as
a domestic law only in the Philippines but unenforceable as domestic law in
the other contracting State,”290 the majority of the Court has effectively
given way to the more practical considerations of the VFA. One of these
considerations is the fact that the Balikatan exercises and military aid and
assistance, as the US had previously demonstrated, can be easily cancelled.
The Court in De Castro authorized Arroyo to appoint the next Chief
Justice, but it clarified that the decision is not a reversal of the earlier decision
of In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta,291 since only
five among the nine Justices who concurred in the majority opinion voted to
exempt the entire the Judiciary from the ban. 292 Admittedly, had the
decision overturned the 12-year old precedent in In Re: Valenzuela, the
decision would remain legally legitimate because the Court is merely guided
— and not controlled — by precedents.293 The limits on precedent-based
285. Bayan (Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449 (2000).
287. Medellin v. Texas, 552 U.S. 491 (2008).
288. Nicolas, 578 SCRA at 480-86 (C.J. Puno, dissenting opinion).
289. Id. at 480-86 (C.J. Puno, dissenting opinion) & 492-94 (J. Carpio, dissenting
opinion).
290. Id. at 487 (J. Carpio, dissenting opinion).
291. In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, 298 SCRA
408 (1998).
292. Dona Z. Pazzibugan, Can the President appoint the Chief Justice?, PHIL. DAILY
INQ., March 18, 2010, at A1.
293. See De Castro, 618 SCRA.
decision-making were expounded upon by Justice Arturo D. Brion in his

separate concurring opinion.
I find it interesting that [Justice Diosdado M.] Peralta largely justifies his
position ... based on [In Re:] Valenzuela as the prevailing rule that should be
followed under the principle of stare decisis. Peralta apparently
misappreciates the reach and real holding of [In Re:] Valenzuela, as
explained and clarified above. A ruling involving the appointment of lower
court judges under Section 9, Article VIII cannot simply be bodily lifted
and applied in toto to the appointment of Members of the Supreme Court
under Section 4 (1) of the same Article.
Because of his misappreciation, Peralta is likewise mistaken in his appeal to
the principle of stare decisis. The stability of judgments is indeed a glue that
[the] Judiciary and the litigating public cannot do without if we are to have
a working and stable justice system. Because of this role, the principle is
one that binds all courts, including this Court, and the litigating public.
The principle, however, is not open-ended and contains its own self
limitations; it applies only to actions in all future [similar] cases and to none
other. Where ample room for distinction exists, as in this case, then stare
decisis does not apply.
Another aspect of stare decisis that must be appreciated is that Supreme
Court rulings are not written in stone so that they will remain unerased and
applicable for all times. The Supreme Court’s review of rulings and their
binding effects is a continuing one so that a ruling in one era may be
declared by the Court at some future time to be no longer true and should
thus be abandoned and changed ... I mention this, if only as a reminder to
one and all, that the terms of the [In Re:] Valenzuela ruling, if truly applicable
even to appointments to this Court, is not written in stone and remains open for
review by this Court.294
Thus, while precedent-based decisions are lawful, the accepted capacity
of precedent to authorize judicial decisions is largely a matter of practicality,
i.e., a stable justice system and jurisprudential significance.295 Of interest is
Justice Conchita Carpio-Morales’ dissenting opinion, where she stressed that
“[t]he proper interpretation [of the Constitution] depends more on how it
was understood by the people adopting it than in the framers’ understanding
thereof.”296 This implies that the acceptability of a Court’s decision and its
294. De Castro v. Judicial and Bar Council (JBC), 615 SCRA 666, 812-13 (J. Brion,
separate opinion) (emphasis supplied).
295. See De Castro, 618 SCRA.
296. De Castro, 615 SCRA at 766 (J. Carpio-Morales, dissenting opinion).
socio-political implications rests upon an interpretation of the law that is in

harmony with the public’s view and understanding.
Notably, the decision generated debates on the independence of the
Court (institutional legitimacy), not because of the counter majoritarian
position the majority had taken, but because of the unacceptability (as a
matter of delicadeza) of the implications of the decision wherein the Court is
composed mostly of Arroyo appointees, including the Chief Justice himself.
In answering this partisan proposition, Justice Roberto A. Abad emphasized
in his concurring opinion that
[t]he proposition that a Chief Justice will always be beholden to the
President who appoints him [or her] is a myth. Former President Estrada
appointed Chief Justice Hilario G. Davide, Jr. who presided over his
impeachment and administered the oath to the incumbent President at the
heels of EDSA II while [ ] Estrada still sat in Malacañang. Chief Justices [ ]
Panganiban and [ ] Puno voted against positions taken by the
administration of the incumbent President who appointed them both to
their position. These Chief Justices[,] like those before them[,] were first
choices of the JBC before they were those of the Presidents concerned.297
The responses of certain Justices 298 to the argument on partisanship
suggest that the authoritative legitimacy through an independent Court rests
on the social acceptability (katanggap-tanggap character) of the socio-political
impact of the decision, rather than the decision’s impact on the
interpretation of the law.
It should also be noted that the JBC itself — a group composed of
representatives of the different departments of government and society299 —
opposed the petition on the ground of justiciability. As Justice Eduardo B.
Nachura argues, the petitions involve “uncertain contingent future events
that may not occur as anticipated, or indeed may not occur at all[,]”300
rendering the decision “nothing short of an advisory opinion.”301
Reaffirming the proposed Filipino standard, the above discussions
suggest that the sociological legitimacy of judicial decisions resides in the
public’s acceptability or katanggap-tanggap character of the decision’s practical
297. Id. at 830-31 (J. Abad, concurring opinion).

298. De Castro, 615 SCRA (J. Abad, concurring opinion & J. Brion, dissenting
opinion).
299. See PHIL. CONST. art. VIII, § 8.
300. De Castro, 615 SCRA at 784 (J. Nachura, separate opinion).
implications. Since the public is not composed of legal experts, the

repercussion of the decision in their everyday lives becomes their gauge in
determining whether the decision, regardless of the substance of its legal
reasoning, is acceptable.
It bears stressing that under the Constitution, a judicial decision’s
sociological legitimacy depends on its adherence to legal norms. This implies
that the Court must render decisions based on legal principles; otherwise, the
decision rendered is patently illegal for being violative of the Constitution.
Therefore, as long as a decision is based on some legal norm, the Court’s
exercise of judicial power is legally legitimate. Of the four cases, De Castro
was the only case that almost overturned a precedent. While the Court has
declared that it is not bound by precedents, it faced numerous criticisms
when the main decision discussed a reversal of In Re: Valenzuela. This shows
that the Filipino public has generally accepted precedent-based decision-
making, while an attempt to overturn a legitimately recognized precedent
casts a doubt of illegitimacy upon the new ruling.
To reiterate, some judicial decisions rendered under the Puno Court
suggest that it is legally legitimate for the Court to let considerations of
sociological legitimacy influence its judgment, rather than decide cases
exclusively on substantive legal principles. At this point, the question begged
to be answered is whether the sociologically-influenced Puno Court violated
its constitutional mandate to remain an independent collegial body. The
Authors answer in the negative.
First, the Supreme Court is a collegial body composed of Justices who
espouse their own legal ideologies. Inside the Court, the Justices vote on
issues independently of each other, the Court, the Executive, and the
Legislature. 302 While the matter of judicial deliberations is privileged
information, 303 the review of the selected constitutional cases shows that
while Justices may concur on common grounds, their oral arguments and
separate opinions establish their independent appreciation of the law and
their individual positions on the issue(s). To illustrate, even if the Court —
302. See, e.g., Alejandro N. Cienca, Jr., The Philippine Supreme Court and the
Mining Act Ruling Reversal (International Graduate Student Conference Series
No. 29, East-West Center Working Papers, 2006), available at
https://www.eastwestcenter.org/system/tdf/private/IGSCwp029.pdf?file=1&ty
pe=node&id=32190 (last accessed May 22, 2010). This paper was presented at
the 5th East-West Center International Student Graduate Conference on 2006
February 16-18 in Honolulu, Hawaii, US.
303. Id.
with the exception of Puno — is composed of Arroyo appointees, it bears

stressing that the Executive Department took the brunt in two of the four
decisions and the voting was rarely lopsided. In asserting the individuality of
Supreme Court Justices, Brion reassured the public in his separate opinion in
De Castro —
[P]artisanship is hardly a reason that would apply to the Supreme Court[,]
except when the Members of the Court individually act in violation of
their oaths or directly transgress our graft and corruption laws.
...
Of course, partisanship is an objection that can apply to individual
Members of the Court and even to the applicants for the position of Chief
Justice. But this is a different question that should not result in placing the
system of appointments to the Court within the coverage of the election
ban; objections personal to individual Members and to individual applicants are
matters addressed to the JBC and to the final appointing authority — the
President. It is for reasons of these possible individual objections that the
JBC and even the Office of the President are open to comments and
objections.304
Second, amidst all the protest and criticisms hurled at the Judiciary, the
Court still enjoys institutional legitimacy, in the weak sense. This is derived
from the observation that the protests do not question the Court’s authority
to render decisions, but rather call upon the Court to recognize or heed
their partisan interests. This was observed by Reyes in his separate opinion in
the Motion for Reconsideration of Neri,305 to wit —
A sad commentary of the times is when a Justice takes a stand which flatters
the political opposition, it is hailed as courageous; when the stand benefits
the administration, it is hounded as cowardly. But judicial independence is
neither here nor there. For me, it is judicial action that is right and
reasonable, taken without fear or favor, unmindful of incidental
consequences.306
Third, the sociological influence surrounding the Court’s decision-
making, as enunciated by Puno, pertains to the Court’s awareness of the
impact of their decision on the ground. This is in consonance with the
conclusion that for Filipinos, the sociological legitimacy of a judicial decision
depends largely on the katanggap-tanggap character of the ruling, and not
304. De Castro, 615 SCRA at 814 (J. Brion, separate opinion) (emphasis supplied).
305. Neri, 564 SCRA.
306. Id. at 282-83.
merely on the public’s willingness to accept judicial mandates as proposed

under Fallon, Jr.’s theory.
Finally, the Court remains as a results-oriented decision-maker because
the acceptance of a judicial decision is determined by its impact on the daily
lives of the people. The Court has to ensure that the decision must effect an
acceptable or katanggap-tanggap result. This proposition does not imply a
compromise of judicial independence, but rather, an affirmation of the fine
line between politics and law. In its exercise of judicial activism, the Court
has shown that judicialization of politics necessitates the protection of
important national interests over and above the impeccable character of legal
reasoning. Thus, in deciding Neri and Nicolas, the Court had to protect
Philippine foreign relations with China and the US, respectively. In Province
of North Cotabato, the Court’s interest was to protect Philippine sovereignty
while in De Castro, the Court was protecting the Judiciary’s integrity
considering the impending presidential elections. To the discerning eye
therefore, the Court’s considerations of socio-political factors rather than of
pure substantive legal principles is not a compromise of the Judiciary’s
institutional independence.
V. CONCLUSION
The integrity of the Judiciary must be protected to ensure government
stability. Judicial independence of the Court and of the individual Justices
must be safeguarded against political speculations. It must be reiterated that
the Supreme Court is a collegial body. Justices do not merely conspire when
deciding cases but in fact take different positions, thereby reflecting the
individuality of each Justice. While the majority might decide on a common
ground, the concurring, separate, and dissenting opinions of the Justices
demonstrate judicial independence. To illustrate, a reading of concurring
opinions evinces that while the Justices concur with the outcome of the
main opinion, the Justices either qualify their concurrence or offer a different
legal basis for concurring with the main opinion. Reyes’ reaction shows an
unfavorable reception towards speculative journalism that challenges the
individuality and independence of the Justices.307
While the Court has not made any declaration on rendering decisions
based on non-legal considerations, the implications of its decisions reflect the
Court’s recognition of the need to protect the welfare of society. For
example, in Neri and Nicolas, the decisions essentially protected the foreign
relations of the State. In Province of North Cotabato and De Castro, the Court
307. See Neri, 564 SCRA at 282 (J. Reyes, separate opinion).
ultimately sought to protect the State’s sovereignty and political stability,

respectively. Absent any pronouncement on the matter, proposing a clear-
cut standard to determine the legitimacy of the Judiciary based on its
decisions remains difficult. Perhaps this difficulty rests on the greater caution
that the Court needs to take when it acts as a political Court.

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II

Some would believe that justice, or in particular, judicial decisions, should

1. See JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF

the realm of the Executive and Legislature. Nevertheless, despite such

2. Pacifico A. Agabin, Former Dean of the University of the Philippines, College

government institutions.” 8 But while the Judiciary is empowered by the

A. Judicial Activism in the Supreme Court: The Politics of Decision-Making

many countries, the Philippines does not have a separate constitutional

17. There are approximately 56 nations with a separate constitutional court.

22. Agabin, supra note 2, at 6.

28. Id. at 493.

In addressing the main issue on whether Estrada resigned, the Court

Macapagal-Arroyo as President of the Republic of the Philippines, Extending its

C. “Judicialization of Politics” and Judicial Independence

Under the doctrine of separation of powers, the Court, in its appellate

II. DEVELOPING NORMS/STANDARDS IN ANALYZING SUPREME COURT

46. Agabin, supra note 2, at 7-8.

49. Fallon, Jr., supra note 7, at 1790.

When applied to judicial decision-making, legal legitimacy functions

57. Id. at 1819.

Gonzales v. Hernandez 65 by proffering the totality test as a mode of

There are at least three types of sociological legitimacy.73 The first is

73. Id. at 1828.

to appoint Justices who are more “right-thinking.”84 It is, therefore, possible

(2) “[Q]uestions about the moral legitimacy of Justices ‘disobey[ing]

D. The Philippine Standard

93. Fallon, Jr., supra note 7, at 1837.

101. BLACK’S LAW DICTIONARY 850.

108. Agabin, supra note 2, at 12-13.

by the public of Arroyo as the successor of Estrada113 essentially legitimized

A. The NBN-ZTE Controversy

Senate Committees probed Neri further on his conversation with President

diplomacy or foreign relations.” 142 As elucidated by the Court, this is

142. Id. at 122.

B. The Aborted Memorandum of Agreement on the Ancestral Domain

flushing out of MILF forces, an air of uncertainty pervaded their towns,

C. The Subic Rape Case

the resurrection of the controversy over the Visiting Forces Agreement

To clarify the Court of Appeals’ decision, Nicolas filed a petition for

Philippine-run facility became moot before it was enforced as the Court of

D. The Appointment of the Chief Justice

239. PHIL. CONST. art. VII, § 15.

independence.246 As for constitutionalist Bernas, he opined that the next

255. Panesa, supra note 249.

Court overturns itself in a subsequent decision. Thus, it has often been

expanding the Bangsamoro territory would impact the volatile situation.”273

discussion in closed-door Cabinet meetings. In Senate [of the Philippines] v.

281. Chavez v. Presidential Commission on Good Government, 299 SCRA 744

decision-making were expounded upon by Justice Arturo D. Brion in his

socio-political implications rests upon an interpretation of the law that is in

297. Id. at 830-31 (J. Abad, concurring opinion).

implications. Since the public is not composed of legal experts, the

with the exception of Puno — is composed of Arroyo appointees, it bears

merely on the public’s willingness to accept judicial mandates as proposed

ultimately sought to protect the State’s sovereignty and political stability,

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