March 1, 2016

Supreme Court Math: Balance of Power in a Roxas Presidency

The Justices of the Philippine Supreme Court

A 2016 Roxas win allows a single party to control all three government branches. Something that has not happened since Martial Law.

Even before Binay became vice-president, I’ve already heard a lot about his allegedly corrupt ways. For one, college classmates who hail from Makati Science HS tell me that he gives away free “pang-P.E.” shoes bearing the notorious and may I say, aesthetically repulsive, “B” family seal.


There is no "B" in Makati, right?
I said, “Ganoon naman talaga ang mga pulitiko, puro makakapal ang mukha. (That’s how all politicians are: all of them are shameless.)” That’s classic TraPo, you know.

Then Abigail Binay became Makati Representative. Then Nancy Binay became a senator.

Then VP Binay announced his plans to run for president.
I shat my pants.

A Binay Empire?

The first thing that dawned on me was, “If he becomes the president (executive), he can maneuver the senate to appoint Nancy as Senate President, then congress to appoint to Abegail as Speaker of the House, then with the Senate-Congress combo, they can pressure the Supreme Court through threats of budget cuts, plus the fact that 11 justices will retire from 2016 to 2019.”

That is, the Binay political dynasty may yield near-absolute power from 2016 to 2022, or even beyond.


“Power tends to corrupt, and absolute power corrupts absolutely”, said the 1st Baron Acton. In Binay’s case, the first clause already seems to be the case, and the second clause is just about to happen.

While that is a possibility, it’s highly improbable. After all, the fact remains that the Liberal Party (LP) will have reigned in the term preceding Binay’s, and some power will still remain even if Binay assumes office. So I laid that crazy theory to rest.

Until today.

Roxas and his “Friends”: Same Scene, Different Actors

I can never forget Roxas’ line, “Eric Gutierrez is my friend… what’s wrong with that?”

This is the line that launched a thousand ships.

Then I realized: this “absolute power” scenario, while relatively difficult to attain for the Binays, is an inevitability for a Roxas. That is, absolute control of the government is a certainty in a 2016 Roxas presidency.

Let tell you how.

First, it started with LP presidential candidate Manuel “Mar” Roxas’ campaign plane scandal. In that story, Thinking Pinoy showed how a seemingly innocuous transaction uncovered a long-time “working relationship” with Roxas and the Liberal Party on one side, and the big-time illegal miner Eric Gutierrez of SR Metals Inc on the other.

Second, the story developed into something about the cozy relationship between LP/Roxas and Gutierrez, his mining crony. Thinking Pinoy showed that despite adverse SC decisions, despite numerous complaints from lumads, local officials, civic groups, and environmental non-profits, LP-dominated Malacanang still gave SR Metals the “Presidential Mineral Industry and Environmental Award” just last month.

Third, the story further developed into how the LP, along with its horde of campaign financiers, can get away with plunder by monopolizing government power. Thinking Pinoy showed how the LP-crony team systematically quells dissent, gains power, and intends to keep it for a long, long time.

However, there is still one thing that is in Liberal Party’s way: the Supreme Court.

LP vs. SC

Thanks to the death of much-beloved Corazon Aquino, the 2010 elections became an overwhelming victory for LP, where it managed to snag the presidency and both houses of congress.

Today, LP’s internal leaders hold the highest positions in the executive and the legislative branches:
  • Party Chairman: President Benigno S. Aquino III (2011–Present)
  • Vice Chair: Senator Franklin Drilon (2011–present)
  • Vice Chair: House Speaker Feliciano Belmonte, Jr. (2011–Present)
  • President (On-Leave): Former DILG Sec. Manuel Roxas II (2012–Present)
  • President: DOTC Sec. Joseph Emilio A. Abaya (2012–present)
  • VP for Policy: Rep. Henedina R. Abad (2011–present)
However, these are just two of the three co-equal brances of government and unfortunately for LP, the Supreme is not within their control and is actually at odds with them on more than just a few occasions.

252 out of 289 congressmen are affiliated with the Administration. 111 belong to the Liberal Party.
 Let’s list down several SC decisions that are contrary to LP’s interests:
  1. SC declares Executive Order 1 unconstitutional in 2010 [GMA News]
  2. Status quo ante order on Executive Order No. 2 in 2010 [GMANews]
  3. Disqualification and unseating of Marinduque Rep. Regina Reyes (LP) in 2013 [SC GR 207264]
  4. Granting Arroyo holiday furloughs in 2014, 2015 [Rappler, Inquirer]
  5. Granting bail to Enrile in 2015 [Philstar]
  6. Granting Revilla furlough in 2016 [SunStar]
  7. Declaring the controversial Disbursement Acceleration Program (DAP) illegal in 2014 [SC GR 209287]

The SC Justices
Malacanang has been very vocal about its conflict with the SC.

“We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene,” said President Benigno “Noynoy” Aquino III (LP) in a 2014 address, aired on national TV.

Needless to say, Aquino even threatened the SC justices with impeachment, as the third branch is the LP-dominated congress, which has the power to unseat the justices.
The short of it: the SC is the only thing that prevents the Liberal Party from doing whatever they want.

PNoy to SC: Don't force me to have you guys impeached.
It’s worthy to note that this is NOT a battle of good versus evil, as both sides have glaring flaws. Instead, it’s a battle of LP’s interests versus those of the SC. Neither are totally good nor totally evil. Both are flawed institutions, that’s why the 1987 Constitution created three co-equal branches so they can keep each other in check. That is, to prevent abuse.

Why? Because power tends to corrupt, and absolute power corrupts absolutely.

The separation of powers, the primordial check-and-balance mechanism enshrined in the constitution, will cease to exist if LP’s Roxas wins in 2016, because a 2016 LP president will be far more powerful that his LP predecessor. That is, a 2016 LP president can finally, absolutely monopolize power.

How? Because of the unique circumstances that will enable him to control the Supreme Court.

The June 2016 Scenario

So far, we have established two things:

First, Roxas’ Liberal Party controls – and will continue to control – congress at least up to 2022.

Thanks to patronage politics, we can expect an LP-dominated legislature post-2016. Besides, opposition congressmen and senators tend to realign the President’s party post-elections in fear of losing their pork barrel allocations. After all, even if the SC has declared lump sum funds unconstitutional, DAP demonstrates that creativity helps a lot in circumventing such rulings. 

Even if all non-LP solons defect to the opposition, 111 solid LP members form a solid bloc that constitutes more than 1/3 of the majority, giving them de facto veto power over any major congressional move.

Second, the SC is the thorn in the Liberal Party’s rose.

Aquino has appointed only 6 out of the 15 SC justices, far from the 8 that forms a majority. Aside from that, Sereno and Leonen, both Aquino appointees, often vote on different sides. Hence, we can still expect that the 2016 SC will continue its trend of going against LP decisions until the Arroyo appointees retire one by one.

The trick to controlling the Supreme Court is the exploitation of each justice’s potential loyalty to the one who appointed him or her. Besides, any president will prefer the SC nominee that is best-aligned to his interests.

Only 6 out of today’s 15 justices are Aquino (LP) appointees, and the rest are Arroyo-appointed. This is one of the reasons why LP often clashes with the Supreme Court.

However, an SC’s justice’s term doesn’t last forever due to the mandatory retirement age of 70. These SC justices will eventually retire or simply die off.

And this is where it gets really, really interesting…

Let’s assume the third: Roxas becomes President from June 30 2016 to June 29 2022.

Roxas-era SC

Aquino has six appointees so far, three of which will survive the next president’s term:
  1. Marvic Mario Victor F. Leonen / retires December 29, 2032
  2. Maria Lourdes P.A. Sereno / July 2, 2030
  3. Alfredo Benjamin Caguioa / September 30, 2029
Still in office in 2022:
  1. Diosdado M. Peralta: March 27, 2022 (Arroyo) – seat may be considered vacant during 2022 elections due to ban on midnight appointees.
  2. Estela Perlas-Bernabe: May 14, 2022 (Aquino)
Now, here comes the fun part...
Ten (10) justices will retire from 2016 to 2019:
  1. Jose P. Perez: December 14, 2016 (Arroyo)
  2. Arturo D. Brion: December 29, 2016 (Arroyo)
  3. Bienvenido L. Reyes: July 6, 2017 (Aquino)
  4. Jose C. Mendoza: August 13, 2017 (Arroyo)
  5. Presbitero J. Velasco, Jr.: August 8, 2018 (Arroyo)
  6. Teresita De Castro: October 8, 2018 (Arroyo)
  7. Mariano C. del Castillo: July 29, 2019 (Arroyo)
  8. Francis H. Jardeleza: September 26, 2019 (Aquino)
  9. Lucas P. Bersamin: October 18, 2019 (Arroyo)
  10. Antonio T. Carpio: October 26, 2019 (Arroyo)
The next president will appoint at least 10 chief justices during the first three years of his term. Moreover, if Peralta and Perlas-Bernabe opt for early retirement, similar to what Villarama did in November 2015, the next president can actually appoint up to 12.

If Roxas wins in 2016:
  • By December 2016, 8 of 15 SC justices will be LP appointees. Majority of SC will be LP-appointed.
  • By December 2017, it's 9 of 15 .
  • By December 2018, it's 11 of 15.
  • By December 2019, it's 14 of 15, and that’s a comfortable 2.5 years before the next presidential elections.
  • By December 2022, 15/15 are LP appointees, if Peralta (Arroyo appointee) opts for early retirement.
That is, in the four-and-a-half years from December 2017 to June 2022, we will have an LP-dominated congress, an LP president, and an LP supreme court.

This is absolute power. Forget about checks and balances because all three branches will be in cahoots with each other.

But it gets even more interesting.

The Supreme Court after 2022

Thirteen LP appointees out of 15 SC justices will be sitting by 2022. Should Roxas or his LP friends abuse their absolute power, we can expect the SC to decide in favor of LP.

Some may argue that the SC right after Ramos and right after Arroyo were mostly their respective appointees. However, there is one very important thing that sets LP appointees apart: LP’s age preference.

First, let’s take a look at some facts about the Aquino Appointees:
  • Leonen and Sereno are the two youngest post-Martial Law SC justices to be appointed: both will serve for 20 years.
  • Perlas-Bernabe and Caguioa are serving 11- and 14- year terms, respectively.
  • Jardeleza and Reyes, meanwhile, will serve for only 5 and 6 years, respectively.
It appears that LP prefers very young chief justices who will subsequently serve extremely long terms. Is this the norm, or is this an LP-initiated trend?

Below is a table of SC justices starting from the ones appointed by Corazon Aquino.

Analyzing the table, we can deduce the following:
  • 66 yrs. – average age of SC justice on appointment date, before PNoy took office (1986 – 2010)
  • 4 yrs. – average maximum term length of SC justice, before PNoy took office
  • 57 yrs. – average age of SC justice on date, PNoy appointees
  • 13 yrs. – average maximum term length of SC justice, PNoy appointees
We can clearly see that contrary to SC tradition, PNoy has a penchant for appointing very young SC justices, whose terms are 200% longer than their predecessors.
That is, 4 out of 6 appointees will “outserve” both 2016 and 2022 presidents.
The choice of SC appointments among shortlisted candidates is not solely based on the President’s whim. Instead, this is a decision made in consultation with the president’s political party. Hence, it’s reasonable to expect that Roxas will also appoint extremely young justices who will serve unusually lengthy terms.

Young LP Justices

Do you remember this?

Napoles, Sunas, point at Butch Abad [GMA, 2014]
Noong inaresto sila Revilla, Enrile, at Estrada dahil sa Pork Barrel Scam, tuwang-tuwa ako. Kaya lang, napansin kong tila puro oposisyon lang yata ang pinatatamaan. Hinuli ang tatlo on the basis of Napoles' testimony, pero nung nag-testify si Napoles laban kay Budget Sec. Abad, walang nangyari.Si Abad ang asawa ni Liberal Party VP for Policy Rep. Henedina R. Abad.Learn more:
Posted by The Thinking Pinoy on Monday, February 29, 2016
Budget Sec. Butch Abad is the husband of Liberal Party VP for Policy Rep. Henedina R. Abad.
With a LP-Roxas presidency, we can expect the vast LP-appointed SC majority to last up to 2028 or even up to 2036, or even beyond. This means the SC in a Roxas presidency will be more “sympathetic” to LP members and its cronies such as the illegal miner SR Metals Inc.  This means that future incarnations of DAP will remain unchecked.

From 2017 to 2022, we can expect an LP-dominated executive, legislature, and judiciary.

We can forget about nullifying dubious EO’s.

We can forget about suing the government for killing lumads.

We can forget about suing LP cronies who plunder the country.

We can forget about stopping LP from doing whatever it wants.

We can forget about democracy. If Mar wins in 2016, then the Philippines will formally become a full-fledged oligarchy.

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