The Shifting Acts of Politics Beneath the Philippine Supreme Court’s Public Advocacy

Ruby Rosselle Tugade

Senior Lecturer at the University of the Philippines College of Law

There is a palpable shift in how the Philippine Supreme Court is engaging societal issues. An institution empowered by a post-dictatorship constitution to look into grave abuses of discretion, the Court has now ventured into the waters of wider public advocacy. On 11 February 2025, the court published a press release announcing support for the One Billion Rising campaign and its theme Rise for Freedom: Rise Against Fascism. The Court’s participation in “global solidarity against gender-based violence” appears to align with other institutional thrusts on gender justice. The press release quotes the three male justices who delivered speeches invoking broad, uncontroversial values such as unity, equality, and the sense of a noble fight. What is striking in this instance of public-facing advocacy is the appropriation of the distinct language of political resistance. Such a political script is arguably reserved for when the Court’s own independence and survival is under attack—a crisis it is not currently facing.

Engagement with social advocacy is not what is concerning, nor is the Court’s act of going beyond the textual limits of its mandate. Legal scholarship has already identified examples of extradecisional judicial activism from the Court. Here, however, I observe here a modified kind of politicization finding its way to the Court, diverging from a judicial activist past. Preliminarily, I characterize it as political engagement hypervigilant of current societal virtues, yet largely non-confrontational with existential threats to democratic rule.

Recent experience with a transgressive executive

Re-democratization paved the way for the ‘transformative’ 1987 Constitution. One constitutional innovation is the expanded power of judicial review, allowing courts to examine governmental acts without the constraints of the political question doctrine. The Court has since cited the Constitution’s drafting history to explain this corrective and preventive measure. It is corrective, given the antecedent dictatorship of Ferdinand Marcos Sr. (1972-1986) diminished the Supreme Court to a mere rubber stamp. It is also preventive, as it ensures an independent judiciary insulated from the encroachments of a repressive executive.

The Court experienced a marked period of judicial activism covering a variety of social issues. Its constitutional authority to intervene in the ‘political thicket’ positioned it as an institution of national significance. Additionally, the Court has been granted rule-making power to protect constitutionally guaranteed rights. Through this power, it was able to intervene at crucial junctures in history. It promulgated rules on the protective writs of amparo and habeas data for human rights violations and procedural rules for environmental cases, building upon earlier rulings on environmental rights. In more recent years, however, the Court has shifted toward judicial restraint, even going  as far as setting out guidelines limiting direct resort of petitioners to the Court.

While the Constitution has safeguards against executive abuse, it did not anticipate a strongman like Rodrigo Duterte, whose presidency (2016-2022) was marked by gross human rights violations. Despite the grotesque politics of Duterte’s constitutionally and morally transgressive rule, his government sustained a winning streak before the Court,  including in the emotionally-charged case of granting Marcos Sr. a hero’s burial.

Duterte’s rule was an evident threat to democracy and would have been the proper object of judicial resistance. Prior to Duterte, the Court was on a trajectory to become the most trusted government branch. Anticipating a renewed era of judicial activism was a fair expectation, more so in view of the fact that Duterte promised to be ruthless. Turning against this expectation, the Court ‘reconcentrate[d] power in the executive branch’ and thus revitalized ‘the strongman tradition’ already rejected by the Constitution. Perhaps due to pressure from human rights groups in Duterte’s later years, the Court released a measured statement in 2021 denouncing killings of lawyers and judges. However, this condemnation was vague and lacked a specific target. Duterte has come and gone, and at present, the Court is not contending with a hostile executive.

Tempered advocacy in place of judicial activism

Duterte’s presidency embodied the kind of undemocratic, oppressive government that the 1987 Constitution was designed to prevent,  however his administration’s disregard for the Constitution’s human rights ethos did not prompt a strong judicial response. It is easy to cite the fact that Duterte packed the bench; however, the Court demonstrated before that it can display defiance to a harsh executive. After all, it was during the rampant cases of enforced disappearance under Gloria Macapagal-Arroyo that the Court promulgated the above-mentioned rules on amparo and habeas data.

Despite the lack of a strong judicial response to some of the Duterte administration’s undemocratic and oppressive actions, a separate distinct development did take place in the way Cour signaled a change in its preferred forms of engagement with social issues. This shift is most visible in the Court’s apparent public embrace of a commitment to gender sensitivity and gender jurisprudence. The Court issued guidelines on the use of Gender-Fair Language and Courtroom Etiquette in 2022. Official records also shows that it has been publicly supporting One Billion Rising since the same year, joined Pride Month celebrations in 2023, and launched a commissioned study on Legal Feminism in Philippines Gender Jurisprudence. Thus, the Court appears to be developing a progressive narrative about itself, signaled by this public gender advocacy.

On the other hand, however, the Court’s decision-making does not fully tilt to progressive ideals. For example, while it could have easily dismissed a highly publicized marriage equality petition on procedural grounds—thus avoiding a divisive spectacle around same-sex marriage—it took the case to oral arguments and issued a cultural treatise of a decision dismissing the petition. In another case, the Court allowed a husband to criminally charge his wife under the Anti-Violence Against Women and their Children Act based on a tenuous textual reading of that Act.

Traditionally, judicial politicization refers to the public perception of courts as partisan political players. For an institution already scrutinized for having unelected justices at its helm, the degree to which a court appears political is consequential. And while the Supreme Court is ‘unavoidably political,’ justices can control the kinds of extradecisional advocacy they may take.

It is true that in the struggle against fascism, individuals and institutions must embody a spirit of resistance against injustice in all forms. However, when the Court’s primary mandate of decision making does not align with its public advocacy, it is worth interrogating the motivations behind the use of the language of resistance.

Making sense of public performance

Engaging in public displays of virtue may offer institutional advantages. Yet, to what extent does this engagement genuinely challenge structural violence? It is especially relevant in today’s political moment where the promotion of diversity, equality, and inclusion is under challenge, and therefore likely to invoke constitutional questions.

The public’s opinion functions as political pressure on the Court. In turn, the Court may recalibrate its decision making. Another well-grounded reading of the Court’s relationship with the public is its character as a secular church, preaching the rule of law to a people distrustful of power. Filipino society’s idiosyncrasies may partly explain why a ‘de-personalized, de-politicized, and de-ideologized’ Court is not entirely possible. The Court may have adopted public performances of advocacy—though seemingly innocuous—as a way to offset perceived shortcomings in its decisions. While the public may positively respond to extradecisional advocacy, these acts may also be deflection. The Court survived the attack on democratic institutions during Duterte’s time. However, the Court has not disposed of critical petitions challenging the deadly ‘drug war’—the very vessel of this attack.

It could be that the Court is not deliberately trying to reap the social currency of a moral high ground, such that it tries to avoid ‘cancellable’ political positions. At best, the Court may be building institutional resilience from within with the aid of cosmopolitan virtues. However, fascist values may no longer be merely creeping; they could soon be the norm. The Court may benefit more from going beyond theatrics of virtue and resume concentrating on building durable jurisprudence. The judiciary risks weakening its role if, once again, genuine judicial resistance becomes an urgent constitutional necessity.

Ruby Rosselle Tugade is a Senior Lecturer at the University of the Philippines College of Law and a member of the Editorial Board of Feminist Legal Studies. Her purely academic views in this piece do not reflect the views of the College or the University.

Suggested citation: Ruby Rosselle Tugade, ‘The Shifting Acts of Politics Beneath the Philippine Supreme Court’s Public Advocacy’ IACL-AIDC Blog (11 March 2025) https://blog-iacl-aidc.org/2025-posts/2025/3/11/the-shifting-acts-of-politics-beneath-the-philippine-supreme-courts-public-advocacy