Ppsj_2011-ciencia-finalpdf.pdf

Philippine Political Science Journal 32 (55) 2011

The Philippine Supreme Court’s Ruling on the Mining Act: A Political Science Perspective* Alejandro N. Ciencia, Jr.**

Abstract: The study tests the plausibility of an attitudinal account of the Philippine Supreme Court’s December 2004 ruling reversing its original decision invalidating the financial and technical assistance agreement (FTAA) provisions of the Philippine Mining Act of 1995 or Republic Act No. 7942. As a political science-informed depiction of Supreme Court decision-making, the attitudinal account argues that justices decide cases on the basis of their ideological attitudes (i.e., personal policy preferences), and ruling reversals result from (1) composition or membership change; (2) policy position change – i.e., a change in the personal policy preferences of the justices; or (3) issue change – i.e., a change in the way the justices appreciate the issues raised by the “facts” of the case. The author tested the plausibility and/or significance of each of the three aforementioned attitude-centered accounts as explanations for the Mining Act ruling reversal. To test for composition change, the researcher analyzed the voting summaries for the January and December 2004 Mining Act rulings with focus placed on the votes of justices who either left or joined the Court in the period between the two Mining Act rulings. To test for issue change, the author conducted a qualitative content analysis of the “case facts” and “issues” that the justices were responding to in their January and December rulings and

* This article is based on the author's dissertation titled, "The Philippine Supreme Court and the Mining Act Ruling Reversal." Funding for the dissertation research was provided by the Commission on Higher Education (CHED) under its Sandwich Program and by the University of the Philippines Baguio. Said funding allowed the author to consult with noted judicial behavior scholar, the late Professor C. Neal Tate of Vanderbilt University, in 2008 on matters related to the study. ** The author expresses his deepest gratitude to his dissertation adviser, Professsor Athena Lydia Casambre, and to the other members of his dissertation panel, Professors Olivia Caoili, Cynthia Rose Bautista, and Maria Ela Atienza for their encouragement and invaluable support. He also acknowledges the help provided by two anonymous reviewers of the present article. Still, he assumes all responsibility for all shortcomings.

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opinions on the Mining Act case. To test for policy position change, a cumulative scale of judicial votes in economic cases involving the validity of executive actions was constructed and analyzed. Cumulative scaling revealed the existence of attitudinal differences among members of the Supreme Court in 2004. It also suggested that, for the most part, the personal policy preferences of the justices remained stable. Among the three attitude-centered explanations, issue change was shown to be most significant as an explanation for the Mining Act ruling reversal. The general finding of the study is that the attitudinal perspective offers a plausible account of the reversal. Key words: Philippine Supreme Court, Philippine Mining Act of 1995, judicial behavior, attitudinal model, composition change, issue change, policy position change

As a former member of the Supreme Court, I can say that it is easy to support any decision it chooses to make, good or bad, and for whatever motives. This can be done with jurisprudence. — Isagani A. Cruz, “The Backbone of a Banana”

Introduction In January 2004, the Philippine Supreme Court nullified provisions of the Philippine Mining Act of 1995 which allowed foreign mining firms to operate in the country. In December of the same year, the Court reversed its January ruling. What accounts for the reversal? How does one explain the Philippine Supreme Court’s overturning of its own ruling? This study seeks to explain the Mining Act ruling reversal from the perspective of political science. The political science literature on judicial behavior offers at least three models of Supreme Court decisionmaking, often labeled (1) the (classical or traditional) legal model model; (2)

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the attitudinal model model, and (3) the strategic model (Baum 2006), from which explanations for ruling reversals can be drawn. The legal model, the dominant paradigm in legal scholarship, essentially argues that ruling reversals can largely be attributed to legal considerations. The attitudinal and strategic models, the two prominent political scienceoriented models of judicial behavior, propose that ruling reversals can be attributed to non-legal factors. Filipino legal luminary Father Joaquin Bernas (2004) has offered an account of the Mining Act ruling reversal from the perspective of a legal scholar. Thus far, there have been no attempts to explain the reversal from a political science perspective — hence, this study. The present paper tests the plausibility of a non-legalist, political science-informed account of the Mining Act ruling reversal. Due to space constraints, only an attitudinal account of the reversal will be discussed by the paper. The study finds the attitudinal explanation for the Mining Act ruling reversal to be a plausible one. Significance of the Study The powers of the Philippine Supreme Court have expanded in the post-Marcos era. Quite intriguingly, however, Filipino political scientists have written very little on Philippine judicial decision-making. The Philippine Supreme Court has not received the sort of attention it deserves from Filipino political scientists. By inquiring into the Mining Act ruling reversal, the present study seeks to draw the attention of Filipino political scientists to judicial behavior in the Philippines and to make a little contribution in addressing this anomaly. The study will proceed as follows: a brief background on the Mining Act of 1995 is first offered below. This will be followed by an overview of the scholarly literature on the models of judicial behavior. Bernas’ legalist account of the Mining Act ruling reversal is then briefly discussed. This will be followed by an elaboration of the tests for an attitudinal account of the reversal and a discussion of the findings of the study.

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Background on the Mining Act of 1995 and the La Bugal Case Table 1 below summarizes the discussion in this section. Republic Act No. 7942, otherwise known as the Mining Act of 1995, was signed into law on March 3, 1995 by then President Fidel V. Ramos. Aimed at resuscitating the once-booming Philippine mining industry, the passage of the Mining Act was a component of President Ramos’ “Philippines 2000” vision or, in official parlance, the Ramos administration’s MediumTerm Philippine Development Plan (MTPDP). On March 30, 1995, less than a month after the passage of the Mining Act, President Ramos entered into a Financial and Technical Assistance Agreement (FTAA) with foreign-owned Western Mining Corporation Philippines (WMCP), Inc. The FTAA covered 99,387 hectares of land in South Cotabato, North Cotabato, Davao del Sur and Sultan Kudarat in Mindanao. On August 15, 1995, then Department of Environment and Natural Resources (DENR) Secretary Victor Ramos issued DENR Administrative Order (DAO) No. 95-23, s. 1995, otherwise known as the Implementing Rules and Regulations (IRR) of the Mining Act. On December 20, 1996, DAO No. 95-23 was repealed and a new set of IRR (DAO No. 96-40, s. 1996) was adopted (La Bugal v Ramos 1). The issuance of a new IRR, D.A.O. 96-40, amending D.A.O. 95-23, was a response to the Marcopper disaster in Marinduque province in March 1996. The new administrative order provided guidelines for managing damage caused by mine wastes and tailings. D.A.O. 96-40 reiterated the government’s commitment to environmental protection, on the one hand, and the promotion of mining investments, on the other (Fajardo 1997). In February 1997 (Manrique 2004), a petition questioning the validity of the Mining Act of 1995, its IRR, and the FTAA between the President of the Philippines and WMCP was brought to the Supreme Court. This came to be known as the case of La Bugal-B’laan Tribal Association, et al. versus Secretary Victor O. Ramos, et al., G.R. No. 127882 (La Bugal v Ramos 1).

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Table 1. Chronology of Events Date

Event

3 Mar 1995 30 Mar 1995

Mining Act signed into law Government forges FTAA with foreign-owned WMCP

15 Aug 1995 20 Dec 1996

DENR issues Mining Act’s IRR DENR issues new IRR

10 Feb 1997

Validity of Mining Act, IRR, and WMCP FTAA questioned

27 Jan 2004

Court nullifies the FTAA provisions of the Mining Act and its IRR, and the WMCP FTAA

1 Dec 2004

Court upholds the FTAA provisions of the Mining Act and its IRR, and most of the sections of the WMCP FTAA

1 Feb 2005

Court upholds constitutionality of the Mining Act, its IRR, and the WMCP FTAA with finality

The petitioners focused their challenge on the Financial and Technical Assistance Agreement provisions in the Mining Act. They contended that the Mining Act’s provisions on FTAAs, apart from its implementing rules, were unconstitutional as they allowed a fully foreign owned-corporation to explore, develop, utilize, and exploit natural resources in a manner contrary to Section 2, paragraph 4, Article XII of the Philippine Constitution. They argued that the FTAA between the President of the Philippines and WMCP was illegal and unconstitutionally adopted (La Bugal v. Ramos 1). Section 2, Article XII of the Philippine Constitution specifies the options that the Philippine government can take in relation to its natural resources. The State may either (1) directly undertake full supervision and control control; (2) enter into co-production, joint venture, or productionilipino citizens sharing agreements with FFilipino citizens, or entities at least 60% of whose capital is owned by such citizens citizens; (3) allow small-scale utilization of natural resources by Filipino citizens citizens: or (4) enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils, etc. Based on the petitioners’ reading of Section 2, the Philippine Constitution

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provides that foreigners can take part in mining activities in the Philippines only via FTAAs (La Bugal v. Ramos 1). The petitioners further argued that the proper interpretation of Section 2, Article XII of the Philippine Constitution should take into consideration a similar provision in the 1973 Philippine Constitution. The 1973 Charter speaks of “ s e r v i c e c o n t r a c t s f o r f i n a n c i a l , t e c h n i c a l , management, or other forms of assistance” (Section 9, Article XIV, 1973 Constitution). The 1987 Constitution, meanwhile, only speaks of “ a g r e e m e n t s … i n v o l v i n g e i t h e r f i n a n c i a l o r t e c h n i c a l assistance” (Section 2, Article XII, 1987 Constitution). Omitted were service contracts the phrases “service contracts”” and “management or other forms of assistance.” For the petitioners, this meant that the Philippine Constitution barred foreigners from managing mining operations in the country. It also meant that an FTAA that allowed foreign management was in fact a service contract — an option disallowed by its mere omission in the provision. Invoking casus omisus pro omisso habendus est — “i.e., a person, object or thing omitted from an enumeration must be held to have been omitted intentionally,” the petitioners held that the Mining Act of 1995 must be declared invalid (La Bugal v. Ramos 1). On January 27, 2004, the Philippine Supreme Court took the side of the petitioners. In a 95-page decision, the Court by a vote of 8-5 with one abstention declared as unconstitutional the FTAA provisions of the Mining Act and its IRR, and the entire FTAA forged between the WMCP and the Philippine government. The Court ruled that FTAAs are service contracts and, as such, are prohibited by the 1987 Constitution. Subsequently, public and private respondents filed separate motions for reconsideration, and the Chamber of Mines of the Philippines, Inc. (CMP) filed a Motion for Intervention which the Office of the Solicitor General (OSG) adopted. On December 1, 2004, the Philippine Supreme Court reversed its January decision. By a vote of 10-4 with one abstention, the Court upheld the constitutionality of the Mining Act of 1995 and its IRR as they relate to FTAAs, and most of the sections of the FTAA with the WMPC. Among those who voted with the majority in the original

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decision, five changed their votes: Chief Justice Hilario Davide, and Associate Justices Reynato Puno, Leonardo Quisumbing, Renato Corona, and Dante Tinga. Associate Justice Artemio Panganiban, the ponente of the decision, justified the reversal by declaring “the Constitution should be read in broad life-giving strokes; it should not be used to strangulate economic growth or to serve narrow, parochial interest” (La Bugal v. Ramos 2). Judicial Decision-making in Legal Scholarship The dominant models of judicial decision-making can trace their origins to debates which initially were internal to the discipline of law. The debate between legal formalists and legal realists during the early part of the 20th century provided the backdrop and inspiration for the initial efforts of pioneering American political scientists to study judicial behavior in the 1940s. At the core of the formalist-realist debate is the nature of judicial decision-making. For legal formalists, judges are apolitical actors whose primary tasks are to apply neutral principles of legal reasoning and rules of logic and to rely on objective, authoritative sources to arrive at the correct decision in a case (Cross 2003: 1462; Posner 1986-1987: 181). Stated differently, the function of judges is to uphold the law — i.e., to apply the law as enacted by its framers — without taking into account their own moral or political (or policy) views (Ratnapala 2009: 94). Law and politics are separate (Cross 2003: 1462). This is the classical or traditional depiction of the judicial function which roughly corresponds to what political scientists often refer to as the legal model model. The legal formalist position is premised on two key and intimatelyrelated claims: (1) that the law is determinate — i.e., the systematic reliance on legal reasoning and authoritative sources will justify one and only one case outcome; and (2) that the field of law is autonomous — i.e., judges “can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy” (Leiter 2010: 1). Legal formalists see the law as “a settled and self-contained

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set of nearly complete and consistent doctrines separate from political and moral values” (Decew 1985: 405) and judges have no need to look outside the law for guidance in finding the appropriate decision in a case. For legal realists, however, the formalist’s depiction of judicial decision-making is based on an idealized notion of law (Tebbit 2005: 23; Cross 2003: 1464). For them, the law is neither determinate nor autonomous. In practice, judges’ moral or policy views shape their decisions. Contrary to the claims of the legal formalists, judges take into account factors outside the law when they decide cases. Against the claim that the law is determinate, the realists argue that in reality, one can find “conflicting, but equally legitimate, canons of interpretation for precedents and statutes” (Leiter 2005: 51). Reliance on neutral legal principles does not always lead to one and only one correct decision in a case. It bears stating that the legal realist challenge to legal formalism was motivated by the desire to transform the legal profession from one obsessed with the technical application of legal doctrines to one committed to justice and social change (Ratnapala 2009: 96; Tebbit 2005: 22; Decew 1985: 405). The legal realists, especially those in the 1920s and 1930s, wanted judges to shed off their formalist pretences as a prelude to overtly embracing their role as political actors and agents of social change (Ratnapala 2009: 96). For most realists, law and politics, in practice, are inseparable. The first political scientists to venture into the study of judicial behavior were undoubtedly greatly influenced by the legal realists (Baum 2003: 60; Segal 2003: 78). The political science-informed models of judicial decision-making — especially the attitudinal model — clearly subscribe to the fundamental legal realist claim that judges are political. In some sense then, depictions of judicial decision-making need not pit legal scholars against their political science counterparts. It is clear that not all legal scholars adhere to the traditional legal model of judicial decisionmaking. Moreover, the political science models of judicial behavior

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actually owe their genesis to ideas first expressed by legal scholars (Segal 2003: 78). It appears that what separates political scientists from legal scholars is not really the content of their claims but the methods they employ to advance such claims. Despite the legal realist roots of the attitudinal model of judicial behavior, its adherents have developed and relied on distinct methodologies and techniques, often quantitative, which now set them apart from their counterparts in the legal profession. Dominant Models of Judicial Behavior The (traditional or classical) legal model model, as described in the political science literature, essentially argues that the Supreme Court decides cases in light of the facts of the case vis-à-vis “the law.” It depicts judicial decision-making as a highly-structured, norm-governed process that allows very little room for justices to exercise personal discretion (George and Epstein 1992; Spaeth 1979). For Spaeth (1979: 52), the norms that govern courts are (1) adherence to precedent, and (2) use of legal reasoning. Adherence to precedent is none other than the principle of stare decisis which requires justices “to abide by or adhere to what has previously been decided” (Spaeth 1979: 52) or to honor the “legal doctrine generated by past cases” (George and Epstein 1992: 324). The norm requiring legal reasoning meanwhile instructs justices to follow what Levi describes as a “three step process” in reaching decisions. The process involves: (1) observation of a similarity between cases, (2) announcement of the rule of law inherent in the first case, and (3) application of that rule to the second case (Levi 1949 cited by George and Epstein 1992: 324). Spaeth (1979: 66-71) enumerates the norms of legal reasoning that justices employ in constitutional interpretation and statutory construction. In constitutional interpretation, justices normally rely on a combination of the following legally-accepted approaches or modalities: (1) ascertaining the intention of the framers; (2) determining the original meaning of words; (3) using syllogism; and (4) utilizing the adaptive approach — i.e., interpreting the Constitution in light of “changing conditions and the lessons of experience.” In statutory construction,

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justices employ two legally-accepted devices: (1) the plain-meaning rule; and (2) the examination of legislative history “to determine what the legislators really meant as distinct from what the law, rule, or regulation says.” Explaining Reversals As Levi’s “three-step process” implies, the legal model posits that similar cases require justices to apply similar rules employed in past similar cases and to render similar decisions. To account for variations in judicial decisions in similar cases, legalists speak of variations in “the facts of the case” or “case facts” — i.e., the particular factual or material circumstances or details of a case that are considered legally relevant to its resolution (Vejerano 1991: 23). Reversals, meanwhile, are normally attributed to the discovery of previously-hidden relevant facts, “changed circumstances,” and the acquisition of “additional knowledge” (Spaeth 1979: 60). They may also be the result of the adoption of different modalities of interpretation as suggested by Spaeth (1979: 66-71). The attitudinal model proposes that “judges base their decisions on the facts of the case juxtaposed against their personal policy preferences” (Segal, Spaeth and Benesh 2005: 30). The earliest formulation of the attitudinalist position is generally attributed to C. Herman Pritchett (1948) who in the 1940s found it intriguing why justices of the United States’ (U.S.) Supreme Court would, in a number of instances, arrive at very dissimilar opinions in deciding the same cases when, as alleged by the dominant legal model, they should be reaching the same conclusions after consulting precedents, employing the same norms of legal reasoning, and examining the same case facts (Walker and Epstein 1993: 125). For Pritchett (1948: xii), the occurrence of non-unanimous Court rulings indicates that judicial behavior cannot be wholly explained by precedent and other legal considerations. Noting that “liberal justices dissent together and conservative justices dissent together” (Pritchett 1948 summarized by Wahlbeck 1997: 778), he postulated that justices are “motivated by their own preferences” and are “politically minded” (Pritchett 1948: xiii).

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Following his lead, subsequent attitudinalists have adopted the view that justices are guided by their “personal policy preferences” (Spaeth 1979: 109; George and Epstein 1992: 325). According to Epstein and Knight (1998), “personal policy preferences” may be understood to include (1) the justices’ particular preferences about questions, such as the drinking age for specific policy questions alcoholic beverages, and (2) general preferences about society society. For example, should the country have a laissez-faire economic system in which the judiciary defers to the elected political actors or a heavily regulated system in which the judiciary plays an active role? (Epstein and Knight 1998 footnote in p.23). It must be stressed at this point that, for most attitudinalist scholars, attitude-based judicial behavior is not to be confused with “unprincipled” decision-making. Schubert (1974) provided theoretical refinement to the attitudinal model. He essentially saw judicial decision-making as a process that conforms to the behaviorist stimulus-response model with the justices’ attitudes (equated with policy or ideological preferences) interacting with “particular issue aggregates” (i.e., case facts or case attributes) as stimuli to produce judicial decisions as response (see Figure A below). Figure A. Attitudinal Model (2)

Adapted from Gibson, James. 1983. “From Simplicity to Complexity: the Development of Theory in the Study of Judicial Behavior.” Political Behavior 5(1): 15.

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To illustrate how case characteristics (case stimuli) interact with judicial attitudes to produce judicial votes (responses), Schubert suggested the use of graphical representation (see Figure B below). He contended that case characteristics and judicial attitudes can be arranged on an imaginary ideological space or line. Search and seizure cases, for instance, may be plotted on the line. The location of a case on the line would be dependent on its characteristics. The left side of the line would represent less intrusive searches, the right more intrusive searches. Consider cases A and B. Case A is characterized by a valid warrant while B is characterized by the absence of one. Case B is plotted to the right of Case A on the line because it is undeniably more intrusive. Other case characteristics (e.g., the presence or absence of probable cause, home search vs. car search, frisk vs. full search, etc.) can similarly be plotted on the line. Figure B: Justices and Cases in Ideological Space

Source: Segal, Jeffrey. 2003. “Glendon Schubert: The Judicial Mind.” In Nancy Maveety (ed.) The Pioneers of Judicial Behavior. USA: University of Michigan Press, p. 86.

The attitudes of justices can likewise be plotted on the line. Consider justices 1, 2, and 3 who are respectively liberal, moderate, and conservative. Justice 1 is plotted on the left side of the line with Justice 2 in the middle and Justice 3 on the right. Since he assumed that judicial attitudes are relatively stable, Schubert argued that a justice would

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consistently uphold as constitutional any search to the left of his or her position. He adds that Justice 1 might be so “liberal that he or she would not even uphold the search in the first case, perhaps because he believes that police may not search and seize ‘mere evidence’”(Segal and Spaeth 2002: 90). Hence, Justice 1 could be plotted to the left of Case A. If Justice 2 upholds a search with a warrant but rejects a warrant-less search, he or she would be plotted to the right of Case A, but to the left of Case B. Meanwhile, Justice 3 might be so conservative that he finds “the warrant requirement fairly unimportant and would uphold any search he or she considered reasonable” (Segal and Spaeth 2002: 89-90). With the graphical representation, Schubert (1974: 18) argued that ideological differences account for differences in judicial responses to similar case stimuli or case facts. Without question, the attitudinalist position was advanced as a clear challenge to the dominant (classical) legal model. Attitudinalists do acknowledge that judicial decision-making is governed by judicial norms. They, however, reject the claim that these norms necessarily limit the exercise of discretion. Spaeth (1979: 52) argued that “if a judge is so minded, he or she can easily utilize precedent and legal reasoning to reach a creative, innovative decision”. Attitudinalists point out that in actual practice, to reach a preferred conclusion, justices can (1) opt to abandon precedent (Pritchett 1948: 54-56; Spaeth 1979: 54-63); or (2) choose from a variety of modes of interpretation (Spaeth 1979: 52, 63-75) in addition to (3) challenging the veracity or relevance of the purported facts of the case (Segal and Spaeth 2002: 313; Segal, Spaeth and Benesh 2005: 38; Wahlbeck 1997: 782). In view of the attitudinalist claim that Court decisions result from the interplay of judicial attitudes and case stimuli, ruling reversals may be attributed to three possible sources: (1) composition change; (2) individual position change; and (3) issue change (Baum 1988: 906; Baum 1992: 5; see Figure C below).

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Figure C: Explaining Change in Aggregate Court Vote

Composition/membership change (or replacement effect) occurs when “one or more members leave the body and are replaced by members with different policy positions (e.g., liberal, conservative, or moderate) in the issue area” (Baum 1992: 5). Individual policy position change (or conversion effect) takes place when “one or more members change their policy positions in the issue area” (Baum 1992: 5) — indicating a significant alteration in the relatively stable personal policy preferences of justices which is not prompted by a change in case facts. Issue change meanwhile results from an alteration in “the content of the specific issues that the body addresses” — i.e., a change in case stimuli while the policy preferences of justices remain the same (Baum 1992: 5-6). It bears stressing at this point that the attitudinal model is primarily a model of judicial decision-making at the level of the Supreme Court. Its most ardent advocates (e.g., Spaeth) would reject the application of the attitudinal model to lower and non-collegial courts. Spaeth (1979: 113-118) observed that peculiar features of the U.S. Supreme Court actually foster attitude-based decision-making. These are: (1) the electoral unaccountability of members of the Court; (2) the justices’ general lack of ambition for higher office; and (3) the Court being the court of last resort. The attitudinal model of judicial behavior will not apply in settings where the abovementioned conditions are not present. It must also be noted that, for the most part, the attitudinal model was advanced by attitudinalists to account for the occurrence of nonunanimous decisions in collegial courts. Brenner and Arrington (1987) acknowledge that non-unanimous judicial decisions normally arise from

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ambiguities in the law, resulting in conflicting legal interpretations, which in turn, pave the way for justices to vote their preferences. They write: “in certain cases, the law is unclear and, as a consequence, the justices vote their attitudes, while in other cases, the law is clear and, as a result, a unanimous vote is cast” (Brenner and Arrington 1987: 76). For attitudinalists, this implies that for the most part, the ideological preferences of justices can only be extracted from their votes in nonunanimous cases. To round up the discussion of the models of judicial behavior, some remarks will be made about the third model. The strategic model, the other prominent political science-oriented model of judicial behavior, portrays the Court and its justices as constrained, policy-oriented and goal-oriented actors who would arrive at decisions only after seriously taking into account the policy preferences, capabilities, and the likely actions of other institutions and actors that could hinder them from achieving their preferred policy goals (Epstein and Knight 2000: 628; Maltzmann, Spriggs and Wahlbeck 1999: 46). For adherents of the strategic model, Court rulings and reversals are a function of the interplay of institutional preferences — i.e., the alignment or non-alignment of policy preferences, and institutional capabilities and political strengths — i.e., political capital. In instances where the policy preferences of members of the Court are at odds with those of another branch, a shift in the distribution of political capital in favor of the other branch can result in ruling reversals, signifying a strategic withdrawal (Pritchett 1961: 12; Epstein, Knight and Martin 2004: 170) or retreat from an earlier position. A Law-Centered Account of the Reversal Offering a legal account of the Mining Act ruling reversal, Filipino legal luminary Joaquin Bernas (2004) commented that the reversal can be attributed to the Court’s adoption in December 2004 of a set of approaches or modalities to constitutional interpretation which differed from the set it employed in arriving at its January ruling. Arguing that the reversal was not at all surprising, he wrote:

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A change of mind in constitutional cases is always a possibility because of the varied modalities of constitutional interpretation… Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties and of our happiness, there is necessarily a certain fluidity in the choice of approaches to a constitutional problem… The original decision followed a textual approach supported by historical argument. [T]he new majority [however] subjected the textual and historical approach of the previous majority to what may be called a structural and prudential critique (Bernas 2004: 10 emphasis added). There is not enough space here for an elaboration of Bernas’ laworiented account of the Mining Act ruling reversal but some comments might be helpful. Textual interpretation posits that the meaning of constitutional provisions has to be equated with the literal meaning of the actual words used in the said provisions. Historical interpretation, on the other hand, asserts that the meaning of the constitution has to be seen in light of the “intentions of the framers” (Spaeth 1979: 6671). Structural interpretation, Bernas suggested, requires judges to regard “the search for meaning of the constitutional text… as not just the task of the judiciary but also of the co-equal executive and legislative branches” (Bernas 2004: 10). Prudential interpretation, meanwhile, requires the judge to weigh and measure the costs and benefits that result from a particular policy decision (Bernas 2004). When the Court in December 2004, as noted by Bernas, subjected its original ruling to a structural and prudential critique, it accorded greater respect to the Mining Act of 1995 as an expression of the policy preferences of the elected branches of government, being a piece of legislation enacted by the Philippine Congress and signed into law by the President (i.e., structural argument). At the same time, the Court paid greater attention to the possible economic consequences of its decision on the case (i.e., prudential argument), especially in light of the

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country’s fiscal crisis/budget deficit problem in 2004 and the assessment of then National Economic Development Authority (NEDA) Director Romulo Neri that that the value of the Philippines’ untapped mineral wealth was around P47 trillion (See La Bugal v Ramos 2). Bernas’ analysis of the Mining Act ruling reversal is instructive of the manner by which legal scholars study judicial decision-making. The focus was clearly on the modalities of interpretation which were employed by the Supreme Court in the first and second Mining Act rulings. For a political scientist, the interest would be on the possible non-legal factors that could account for the adoption of one modality of interpretation instead of another. Still, one should note that while legal scholars can identify different modalities of interpretation, there is no unanimity as to the comparative legal or authoritative significance of each modality. As an example, not all legal scholars agree that the prudential approach legal should be labeled as a “legal legal” approach to interpretation considering that it puts greater weight on the possible policy outcomes of a particular decision. Hence, the Court’s adoption of the prudential approach in deciding the Mining Act case could be seen by a strict legal formalist as indicating reliance on a non-legal, policy-oriented argument. Methods and FFindings indings The discussion on the attitudinal model above suggests that determining the plausibility of the model as an explanation for the Mining Act ruling reversal actually involves testing three possible attitudinal explanations — namely, (1) composition change; (b) issue change; and (c) policy position change. Test for Composition Change The test for composition change mainly addresses the question: can the reversal be attributed to composition or membership change? The test entailed a comparison of the voting summaries for the January and December rulings, with the author focusing on the votes of the justices who either left or joined the Court in between rulings. Below is a table (Table 2) showing the voting summaries in La Bugal 1 and 2. The Philippine Supreme Court’s Ruling on Mining Act/Ciencia

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Table 2. How the justices voted on the Mining Act Rulings January Vote December Vote Name of Justice (8-5-1) (10-4-1)

Appointing President

Chief Justice Davide

Unconstitutional

Constitutional

Aquino

Puno

Unconstitutional

Constitutional

Ramos

Quisumbing Corona

Unconstitutional Unconstitutional

Constitutional Constitutional

Ramos Arroyo

Tinga

Unconstitutional

Constitutional

Arroyo

Carpio-Morales

Unconstitutional

Unconstitutional

Arroyo

Carpio

Unconstitutional

Unconstitutional

Arroyo

Callejo Vitug

Unconstitutional Constitutional

Unconstitutional (retired on 15 July 2004)

Arroyo Ramos

Panganiban

Constitutional

Constitutional

Ramos

Ynares-Santiago

Constitutional

Unconstitutional

Estrada

Sandoval-Gutierrez Austria-Martinez

Constitutional Constitutional

Constitutional Constitutional

Estrada Arroyo

Azcuna 1

Abstain

Abstain

Arroyo

Chico-Nazario

(assumed positi on on 14 July 2004)

Constitutional

Arroyo

Garcia

(appointed on 6 October 2004)

Constitutional

Arroyo

Data obtained from http://sc.judiciary.gov.ph/

The results of the test show that composition change played a minor role in producing the votes necessary for the reversal. The change in the votes of continuing members of the Court (rather than by new appointees, as suggested by the composition change hypothesis) provided the crucial votes that paved the way for the reversal. A comparison of voting summaries would show that among those who voted in the first Mining Act ruling, only one, Justice Jose Vitug, who voted to uphold the Mining Act, left the Court before the December ruling. Two justices, Minita Chico-Nazario and Cancio Garcia, were appointed to the Court by President Arroyo after the January nullification. Like retiring Justice Vitug, they voted to uphold the constitutionality of the Mining Act. While the

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new justices favored President Arroyo’s position in the Mining Act case, it is clear that their appointments were not as crucial as the decision of five (5) continuing members (i.e., Chief Justice Davide, Justices Puno, Quisumbing, Corona, and Tinga) to change their previous position and tilt the voting in favor of the constitutionality of the Mining Act. The test leads to the conclusion that the reversal in the Mining Act case cannot be attributed to composition change. Test for Issue Change Testing for issue change as an explanation for the reversal entailed the construction of a matrix of the case facts and legal issues in the Mining Act case. The test required a qualitative content analysis of data sources that relate directly to the Mining Act case. These include: (1) the January and December 2004 majority and individual judicial opinions; and (2) the pleadings (e.g., memoranda, replies, motions, manifestations, etc.) of the petitioners, respondents, and intervenors in the Mining Act case. The December ruling and opinions were examined and compared with the facts and issues mentioned by the justices in their January 2004 opinions on the Mining Act case. To make the content analysis manageable, only the pleadings submitted after the January ruling were examined and compared to the facts and issues mentioned by the justices in their January 2004 opinions on the Mining Act case. The aim of the content analysis is (1) to ascertain whether there was a change in the case stimuli or case facts and/or issues that the justices were responding to in their January and December rulings and opinions. This entailed asking more specific questions such as the following: (1) Did new parties/entities/litigating lawyers join the legal dispute after the original ruling?; (2) Were new “legal issues” raised by the parties after the original ruling?; and (2) Were new “facts” or “information” introduced after the original ruling? In the event that the content analysis revealed the entry of new parties, the introduction of new case facts, and/or a reframing of issues, the author then attempted to determine whether the introduction of new case facts and/or issues favored the reversal of the Court’s original ruling.

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It should be noted that in lieu of the term “framing”, some judicial scholars like Palmer (1999) and McGuire and Palmer (1995) used the general term “issue fluidity” which embraced both “issue suppression” and “issue expansion.” Issue fluidity is the extent to which the Supreme Court, in making decisions on the merits, ignores legal issues that the parties have presented (issue suppression) or provides answers to questions that have not been raised by the parties (issue expansion) (Palmer 1995: 10). Issue suppression and expansion appear to be consistent with the concept of framing which, according to Hallahan (1999: 207), involves the “processes of inclusion and exclusion as well as emphasis.” The test for issue change, as designed for the study, produced the finding that the formal legal issues of the Mining Act case have largely remained unchanged between the first and the second rulings — e.g., (1) Are the Mining Act’s provisions on FTAAs constitutional? (2) Is the WMCP FTAA constitutional?; (3) What is the proper meaning of “financial and technical assistance”?; (4) Does the Constitution ban foreign management of mining operations?; (5) Is an FTAA a “service contract”?; (6) Does the Constitution ban “service contracts”?; (7) Does the Constitution allow foreign firms to extend more than mere financial or technical assistance? The constructed matrix of facts and issues revealed, however, that there were new entries (i.e., case stimuli) after the January 2004. These included: (1) the intervention of the Chamber of Mines of the Philippines (CMP) and the participation of former Supreme Court Justice Florentino Feliciano and former University of the Philippines College of Law Dean Pacifico Agabin as CMP ’s counsel; (2) the Court majority ’s acknowledgment of the country’s fiscal condition in late 2004; (3) the testimony of then National Economic Development Authority (NEDA) Director-General Romulo Neri; (4) petitioners’ arguments citing the detrimental effects of mining; and (5) Justice Antonio Carpio’s assessment of the financial benefits to be derived from mining. One should note here that for strict legal formalists, the new case stimuli, especially those which spoke of the possible beneficial or detrimental

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economic outcomes of the Court’s ruling on the Mining Act case, would not qualify as “legal” but as “policy” considerations. The December 2004 ruling still listed La Bugal B’laan Tribal Association, Inc. as leading the petitioners; the Executive Secretary, DENR Secretary, and MGB Director as public respondents; and the WMCP as private respondents but with the notable inclusion of the Chamber of Mines of the Philippines (CMP) as intervenor. It appears to the majority in December 2004 that the CMP’s intervention indicated that at stake in the Mining Act controversy was not the validity of one mere FTAA of a foreign firm with the Philippine government or the economic fortunes of that firm but the future of the Philippine mining industry as a whole, if not the state of the entire Philippine economy (La Bugal v Ramos 2). Feliciano’s stature as a former Justice and as a widely-recognized expert in international law and international finance provided greater credence to the respondents’ reading of the Constitution. Meanwhile, Agabin’s participation, also as CMP counsel, wrought damage to the anti-Mining Act position, especially in light of the fact that the text of the January majority ruling cited his writings to argue against the constitutionality of the Mining Act. The original Mining Act ruling cited Agabin as one of the authorities who argued that the 1987 Philippine Constitution had disallowed service contracts (See La Bugal v Ramos 1). In making the clarification that the Philippine Constitution has not banned all forms of service contracts, Agabin did not simply offer an alternative reading of the charter;,he also sought to employ the “authority” vested in him by the petitioners and by the original ponente, Justice Conchita Morales, to debunk their very own claims. Agabin shared Feliciano’s view that (1) the Constitutional Commission saw “agreements involving financial or technical assistance” as entailing some degree of foreign participation in actual management; and (2) state-managed and funded mining ventures and operations would be ill-advised considering the attendant costs and risks, and the lack of state funds as indicated by the country’s prevailing budget deficit problems at the time. His memorandum read:

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It is safe to say that when the framers of the 1987 Constitution authorized the President to enter into “financial or technical assistance”, this form of assistance implies sharing of management and administration of the mining enterprise. With reference to loans as a form of assistance, it would be foolhardy for the State to resort to borrowing venture capital considering the prohibitive interest on foreign loans, the high costs of a mining project, the unusually low prospects for success, which, according to the Mines and Geosciences Bureau is 1:1,000, the commercial and technical risks involved, and the long lead times and long recoupment periods. The huge and ballooning deficit that the government faces at present attests to the inability of the state to financially support the mining industry even on a small scale... The sad fact is that, in mining project finance, it is the reality that funding sources in the world’s capital markets insist on financing only those projects which have been planned, constructed and managed by enterprises, largely foreign, with high levels of technology and experience in the mining sector (Agabin 2004 emphasis added). A noteworthy item in the quote above is the reference to the country’s budget deficit/fiscal crisis.” For the pro-Mining Act camp, the fiscal “budget crisis validated the belief of the Constitution’s framers that the inadequacy of Filipino capital will prevent Filipinos and the Philippine State from performing a constitutionally-mandated task — i.e., the exploration development and utilization of the country’s mineral resources. The author believes it was the fiscal crisis of 2004 which prompted the Court to consider a prudential approach to deciding the Mining Act case. If Bernas was correct in his assessment that the Court’s adoption of a prudential modality of interpretation in December 2004 contributed to the reversal, there had to be some urgent development in the middle of 2004 which prompted the espousal of a new approach to decide the case. Then President Arroyo’s declaration of a fiscal crisis in August 2004 appears to be that event.

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The pro-Mining Act position was further strengthened by NEDA Director –General Neri’s presentation which highlighted the beneficial impact of the liberalization of the Philippine mining on the national economy. Included in Neri’s presentation were the following claims: (1) the country’s potential mining wealth is estimated to be P47 trillion; (2) mining can provide the solution to the budget deficit; (3) mining has the potential to generate P157 billion in revenues; (4) there is a very short window of opportunity for the Philippines to profit from China’s huge demand for minerals; (5) modern mining technologies are environmentfriendly and pro-indigenous peoples; and (6) invalidating the Mining Act would endanger the government’s Malampaya Natural Gas Project (Neri 2004). The (anti-Mining Act) petitioners’ counsel meanwhile informed the Court of researches by highly-reputable institutions and scholars,e.g., the December 2003 Final Report of the World Bank Group-commissioned Extractive Industries Review (WB-EIR) project, the 2002 OXFAM America study by Thomas Michael Power, and the “Natural Resource Curse” studies by Harvard economists Jeffrey Sachs and Andrew Warner, which found mining to be highly detrimental to the environment, to local communities, and to local and national economies (Leonen, Begonia, Manuel and Ballesteros 2004). In bringing up however the “natural resource curse” concept and the negative findings of such studies, the petitioners impressed on the Court that they were in favor of banning, not only foreign mining, but all forms of mining. CMP’s counsel, Florentino Feliciano was quick to argue that Article XII (2) first paragraph of the Constitution expressly allowed the exploration, development and utilization of mineral and other natural resources — that is, “the Constitution does not prohibit, nor does it require the deferment, to some unknown and distant future, of the development and utilization of our country’s mineral resources” (Feliciano 2004). Justice Carpio, in his dissenting opinion to the Court’s December 2004 ponencia, sought to rebuff a reversal by using Neri’s “facts” against the respondents’ position. As mentioned above, Neri claimed that the

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia

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value of the Philippines’ untapped mineral wealth was around P47 trillion but he also calculated that the Philippine government can derive from mining and related industries a total potential tax collection of P157 billion. Convinced that under the Mining Act the State’s share consists only of direct and indirect taxes, Carpio argued that the arrangement is obviously grossly disadvantageous to the Philippines. He wrote, “If all that the State will receive from its P47 trillion potential mineral wealth is the P157 billion in direct and indirect taxes, then the State will truly receive only a pittance. The P157 billion in taxes constitute a mere .33% or a third of 1% of the total mineral wealth of P47 trillion” (La Bugal v. Ramos 2, Carpio dissenting opinion). The majority in December 2004, however, dismissed Carpio’s contentions by saying that he misread the provisions of the Mining Act and that the State’s share under the Mining Act is not limited to direct and indirect taxes. Carpio’s counter-argument failed to thwart a reversal. In any event, the test for issue change revealed the introduction of new facts and issues which, for the most part, favored the pro-Mining Act position. One should note that the Court in December 2004 seriously took into account the policy implications of its decision on the Mining Act case. It was presented with conflicting information or “facts” about the economic benefits of mining. While it is clear that the Court adopted a prudential approach in deciding the Mining Act case, one can also see that invalidating the Mining Act would have been the more “prudent” decision if one gave greater credence to the findings of the WB-EIR 2003 project, Power’s 2002 study, the 2002 OXFAM America study, and Sachs and Warner’s studies. Attitudinalists insist that personal attitudes bear on each justice’s appreciation of the “facts of the case” and choice of modality of interpretation (Spaeth 1979: 52,63-75; Segal and Spaeth 2002: 313; Segal, Spaeth and Benesh 2005: 38; Wahlbeck 1997: 782), most especially when one is presented with conflicting claims whose veracities cannot be established outright.

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Test for PPolicy olicy PPosition osition Change The test for policy position change asks whether the change in vote of the pivotal justices in the Mining Act case, namely, Chief Justice Davide, Justices Puno, Quisumbing, Corona, and Tinga, was the product of a conversion to a new policy position instead of an issue change. The test for issue change has revealed that indeed, new case stimuli were presented to the Court after the original ruling. Still, it is not yet clear whether the voting change of pivotal justices in the Mining Act case was indicative of a conversion to a new policy position (i.e., policy position change) or simply a change in vote prompted by new case stimuli without a conversion to a new policy position (i.e., issue change). To test for policy position change, a cumulative scale was constructed (See Table 3 below). Introduced by Schubert (1960) to the study of judicial behavior, cumulative or Guttman scaling is most useful when applied to judicial voting behavior in highly similar or very specific types of cases (e.g., search and seizure cases). In applying Schubert’s procedure to the study, the author has opted to focus on economic decisions mostly handed down between July 9, 2003 and December 18, 2005 which involved the validity of actions (e.g., decisions made, orders issued, contracts and agreements entered into) of officials belonging to the executive branch vis-à-vis the provisions of Article XII of the Philippine Constitution. It should be noted that this meant that the selected cases will bear significant similarities with the Mining Act case. The specified date range covers Justice Tinga’s first vote as a member of the Supreme Court (July 9, 2003) and Chief Justice Davide’s last vote (December 18, 2005). Tinga and Davide were, respectively, the most junior and most senior members of the group of pivotal justices in the Mining Act case which also included Justices Puno, Quisumbing, and Corona. The criteria for the selection of cases led to the consideration of only six (6) decisions , namely (1) La Bugal v Ramos 1 (January 27, 2004); (2) Agan v PIATCO (January 21, 2004); (3) Chavez v PEA-Amari (November 11, 2003); (4) Southern Cross v Cement Manufacturers (Aug 3, 2005); (5) La Bugal v Ramos 2 (December 1, 2004); and (6) La

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Bugal v Ramos 2 (February 1, 2005). It should be noted however that Chavez v PEA-Amari (November 11, 2003) and Agan v PIATCO (January 21, 2004) are actually “reconsidered” cases. Prior to Chavez (November 11, 2003), there were Chavez (July 9, 2002) — a unanimous decision — and Chavez (May 6, 2003) decisions. Since it is reasonable to assume that the precursor Chavez and Agan rulings respectively bore significant similarities with the latter rulings, the author has also opted to include the two precursor cases in the construction of the cumulative scale. The aforementioned were the only decisions which met the criteria for the construction of a cumulative scale. They did not constitute a mere sample of economic decisions involving the validity of executive actions vis-à-vis Article XII of the Constitution. Admittedly, a larger number of cases would be preferable. The author thus recommends future studies on Philippine Supreme Court decision-making which would consider a larger number of cases. Table 3 shows the votes of the 13 continuing justices (i.e., those who were part of the Court when it issued both the first and the second Mining Act rulings) in nine (9) actual decisions involving the validity of executive actions vis-à-vis the provisions of Article XII of the Philippine Constitution. As can be observed, the second column of the table shows the voting outcomes of the cases. It is on the basis of these scores that the cases (in the first column) were arranged and ranked. The first number in the score represents the number of pro-economic underdog (i.e., liberal) votes; the second number stands for the number of pro-economic upper dog (i.e., conservative) votes. The coding of votes as either “prounderdog/liberal” or “pro-upper dog/conservative” relied on coding schemes formulated by Tate (1996) and Spaeth (2006). Essentially, a vote for the more disadvantaged litigant, for government intervention, protection, and regulation is a “pro-underdog/liberal” vote (depicted in the scale using the “+” sign) while a vote for the more affluent litigant, for business, for government non-intervention, deregulation, and privatization is “pro-upper dog/conservative” vote (represented by a “-” sign). It must be noted that the procedure being described in this section seeks to classify the members of Supreme Court in terms of their personal attitudes or preferences in matters of economic policy.

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nym + + + + +

+ + + 0 8

9-0 9-2 8-4 7-4 7-4 6-6

5-6 4-8 4-8 10 101

Carpio Morales 8-0

0 6

+

+

np

+

+

np

+

np

+

6-0

Carpio

1 8

+

+

(-)

+

+

+

+

+

nym

7-1

-

-

0 9

+

+

+

+

+

+

+

7-2

Callejo Davide

-

-

1 9

+

+

+

+

(-)

+

+

Panganiban 6-3

Coefficient of Reproducibility (C.R.) = 1 – (inconsistent votes/total votes) C.R. = 1- (10/101) C.R. = 1- .10 C.R. = 0.90

Chavez v PEAAmari July 9, 2002 Agan v PIATCO May 5, 2003 La Bugal v Ramos Jan 27, 2004 Agan v PIATCO January 21, 2004 Chavez v PEAAmari May 6, 2003 Chavez v PEAAmari November 11, 2003 Southern Cross v Cement Manufacturers Aug 3, 2005 La Bugal v Ramos December 1, 2004 La Bugal v Ramos February 1, 2005 Inconsistent votes Total votes

Cases

-

-

0 8

ol

-

-

+

+

+

+

4-4

Corona

0 9

-

-

-

-

-

+

+

+

+

4-5

Puno

Legend: + = pro-underdog vote - = pro-upper dog vote

1 9

-

-

-

+

+

+

(-)

+

+

AustriaMartinez 4-4

Table 3. Cumulative Scale of Article XII: Executive Action Cases

3 9

(+)

(+)

(+)

-

-

-

-

+

+

1 9

2 9

-

-

-

-

(+)

-

(+)

-

+

nym = not yet member np = did not participate ol = on leave

-

-

(+)

-

-

-

-

+

+

Ynares- Sandoval QuiSantiago -Gutierrez sumbing 5-4 3-6 3-6

1 5

-

-

-

-

nym

np

(+)

nym

nym

1-4

Tinga

0 3

np

np

-

np

np

-

np

-

nym

0-3

Azcuna

It should become apparent that the decisions in the first column are ranked from top to bottom with the more liberal/pro-underdog decisions on top and the most conservative/pro-upper dog below. Quite significantly, for attitudinalists, the arrangement of the cases indicates that the cases on top have case characteristics that elicit more prounderdog votes. The top row meanwhile contains the names of the continuing justices. In constructing the scale, the aim was to arrange the justices from left to right with the more liberal or pro-underdog justices on the left and the more conservative or pro-upper dog justices on the right. The voting scores of each justice, as shown in the second row, provide the basis for arranging the individual justices on a left-to-right continuum. Similarly, the arrangement of the justices on a left-to-right continuum indicates that, in general, the justices on the left are “attitudinally” inclined to be more resistant to pro-upper dog outcomes while those on the right are, as a matter of personal preference, less open to pro-underdog decisions. As mentioned above, judicial votes are represented by (+) and (-) signs. In a perfect cumulative scale, a (+), (+), (+), (-), (-) sequence (whether horizontally or vertically) would be followed by a (-), not a (+). In similar fashion, the (+) in the following arrangement (-), (-), (+), (-), () is an inconsistent vote. While perfect consistency is not to be expected when constructing cumulative scales, it is the goal of the analyst to construct a scale whose inconsistent votes are less than 10% of the total votes. The Coefficient of Reproducibility (CR), which is the percentage of consistent votes in a scale, is indicative of the extent to which the scale succeeded in zeroing-in on a particular attitude — hence, it is indicative of the scale’s usefulness. A scale with more than 90% consistent votes is a useful scale. In useful cumulative scales, one would notice the clustering of (+) and (-) signs. When one considers the location of the “+” and “” signs in the table above, it should become apparent that the “+” signs tend to cluster along upper left portion of the table. The clustering of votes indicates that judicial voting is not random and haphazard. 28

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Attitudinalists would interpret Table 3 as suggesting that the policy positions of the justices were quite consistent and stable, and judicial votes were highly sensitive to changes in case stimuli. The application of cumulative scaling to the study thus produced results which suggested that the voting behavior of the continuing members of the Court generally remained consistent and stable — lending support therefore to the hypothesis that “issue change” — not “policy position change” — was the likely explanation for the Mining Act ruling reversal. A cursory look at the constructed scale would show that, in all the eight (8) (non-unanimous) Court decisions that she was part of, Justice Conchita Carpio-Morales voted 8 times in favor of the underdog. Like her, Justice Carpio cast his vote in favor of the underdog in 100% of the non-unanimous decisions that he participated in including the original (unanimous) Chavez ruling. Except for what appears as one inconsistent vote, Justice Romeo Callejo also tends to favor the economic underdog. Justices Carpio-Morales, Carpio and Callejo, in a sense, may be viewed as constituting a “pro-underdog bloc” in the Supreme Court when it comes to economic cases. It bears noting that the three were the same justices who consistently voted against the constitutionality of the Mining Act. Chief Justice Davide would have been part of this bloc if he had not changed his vote in the Mining Act case. Occupying the middle of the table are the justices who may be described as “moderates.” These are the members of the Court whose voting records reveal a mix of prounderdog and pro-upper dog votes. To their right are the magistrates who rarely favor the underdogs in non-unanimous decisions. One can, of course, notice that the table presents Justice Panganiban’s original vote as an “inconsistent vote.” At this point, it might be useful to consult Schubert (1958) on the meaning of “inconsistent votes.” Schubert wrote:

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Scalograms of judicial decisions focus attention upon the justices whose voting has been least, or most, consistent; and cases displaying inconsistent votes are pinpointed. Such clues may suggest, in the attitudes of inconsistent justices, the possible presence of a secondary variable and, as regards inconsistent cases, the additional possibility that a case has been misclassified (Schubert 1958: 1017). From an attitudinalist perspective, Justice Panganiban’s “inconsistent vote” in January 2004 indicates a possible additional variable, consideration, or stimulus which had not figured in his voting behavior in the other cases or in the voting of the other justices. A look at the votes of Justices Puno and Corona would reveal that they could be classified as moderates. As for Justice Tinga who joined the Court in July 2003, he participated in only five (5) decisions — namely, La Bugal v. Ramos 1 (January 27, 2004), Chavez v PEA-Amari (November 11, 2003), Southern Cross v Cement Manufacturers of the Philippines (August 3, 2005), and La Bugal 2 December 1, 2004). Except for La Bugal 1, Tinga favored the upper dog party in the identified cases revealing a propensity for espousing a conservative position in economic cases. Like Tinga, Justice Quisumbing tended to favor upper dogs. The findings suggest that the votes of Justices Quisumbing and Tinga in the first Mining Act case were aberrations in light of their propensity to take pro-upper dog positions in non-unanimous economic cases. The test for policy position change reinforces the claim that, for the most part , i s s u e c h a n g e , a n d n o t p o l i c y p o s i t i o n c h a n g e , accounts for the change in vote of the pivotal justices in the Mining Act case. The overall findings suggest that the influence of personal policy or ideological preferences in judicial decisionmaking cannot be ruled out completely completely. The voting behavior of members of the Court in non-unanimous decisions suggests an attitudinal dimension. Again, there is not enough space here to elaborate on the findings, especially in relation to individual justices. The author believes, however, 30

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that a qualitative analysis of the constructed cumulative scale and consideration of other secondary materials including those on the constitutional philosophies of some of the pivotal justices, particularly, Davide (see Tupaz 2006; Bernas 2005; and Pangalangan 2005) and Puno (see Marquez 2005), would corroborate the findings above. Conclusion The present study was inspired by an interest in understanding the decision-making of the Philippine Supreme Court, and a desire to apply concepts and methods found in scholarly political science literature in studying Philippine Supreme Court behavior. The test found the attitudinal account to be a plausible account for the Mining Act ruling reversal. To account for the Mining Act ruling reversal, attitudinalists can point to issue change. The author believes it was the budget deficit/fiscal crisis of 2004, alongside the participation of lawyers Florentino Feliciano and Pacifico Agabin, which prompted the Court to reverse its original Mining Act ruling. Admittedly, to a certain extent, the attitudinalist issue change explanation for the reversal echoes Bernas’ prudential argument. There is however a notable difference between the two accounts. The former offers an explanation for the voting behavior of individual members of the Court while the latter is primarily concerned with the decision-making of the Court as a collective body. The attitudinal explanation is that the justices’ attitudes bear on their appreciation of the relevance of the “facts of the case” as presented by the disputing parties. In the Mining Act case, the justices who consistently rejected its FTAA provisions were those who consistently upheld the position of underdogs in non-unanimous economic cases involving the validity of executive actions vis-à-vis the Article XII provisions of the Philippine Constitution as revealed by the constructed cumulative scale. In her dissenting opinion in La Bugal 3 (February 1, 2005), Justice Conchita Carpio-Morales, the most consistent pro-underdog according to the scale, agreed with the observation of the petitioners that the Court in December 2004 “makes much of the government’s self-declared ‘fiscal crisis’” (La Bugal 3, CarpioMorales dissenting opinion). Unlike the majority in La Bugal 2, she found the fiscal crisis irrelevant to the case.

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The legalist account in general would not suffice for (attitudinalist) political scientists because it lacks an explanation for the voting behavior and decision-making of individual justices especially in non-unanimous decisions. Now, if the argument is that judicial decision-making is largely a function of each justice’s preferred modality of interpretation, one can still ask: why does one justice prefer a textualist reading of a particular provision of the Constitution while another chooses a more flexible interpretation? Attitudinalists would argue that one preferred modality of interpretation is actually a function of one’s preferred policy outcomes (i.e., personal policy preferences). References 1973 Constitution of the Republic of the Philippines. 1987 Constitution of the Republic of the Philippines. Agabin, Pacifico. 2004. Memorandum in La Bugal v Ramos, submitted to the Court on 19 July 2004. Agan v PIATCO 2004 G.R. 155001, 21 January. Retrieved: June 27, 2010 from http:// sc.judiciary.gov.ph/jurisprudence/2004/jan2004/155001.htm. Baum, Lawrence. 2006. Judges and their Audiences: A Perspective on Judicial Behavior. Princeton: Princeton University Press, Princeton. Baum, Lawrence. 2003. “C. Herman Pritchett: Innovator with an Ambiguous Legacy.” In Nancy Maveety (ed.). The Pioneers of Judicial Behavior. USA: University of Michigan Press, pp. 57-77. Baum, Lawrence. 1994. “What Judges Want: Judges’ Goals and Judicial Behavior.”Political Research Quarterly 47(3): 749-768. Baum, Lawrence. 1992. “Membership Change and Collective Voting Change in the United States Supreme Court.” Journal of Politics 54(1): 3-24. Baum, Lawrence. 1989. “Comparing the Policy Positions of Supreme Court Justices from Different Periods.” Western Political Quarterly 42(4): 501-521. Baum, Lawrence. 1988. “Measuring Policy Change in the U.S. Supreme Court.” American Political Science Review 82(3): 905-912. Bernas, Joaquin. 2005. “Justice Davide’s Contribution to the Formulation of the 1987 Constitution.” Ateneo Law Journal 50(1): 317-347.

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Bernas, Joaquin. 2004. “The Mining Act Redeemed.” Today December 4-5, p.10. Brenner, Saul and Theodore Arrington. 1987. “Unanimous Decision-making on the U.S.Supreme Court: Case Stimuli and Judicial Attitudes.” Political Behavior 9(1): 7586. Chavez v PEA-Amari 2002 G.R. 133250, 9 July. Retrieved: June 27, 2010 from http:// sc.judiciary.gov.ph/jurisprudence/2002/jul2002/133250.htm. Chavez v PEA-Amari 2003 G.R. 133250, 6 May. Retrieved: June 27, 2010 from http:// sc.judiciary.gov.ph/jurisprudence/2003/may2003/133250.htm. Chavez v PEA-Amari 2003 G.R. 133250, 11 November. Retrieved: June 27, 2010 from http://sc.judiciary.gov.ph/jurisprudence/2003/nov2003/133250.htm. Cross, Frank. 2003. “Decision-making in the U.S. Circuit Courts of Appeals.” California Law Review 91(6): 1457-1515. Cruz, Isagani. 2008. “The Backbone of a Banana.” Philippine Daily Inquirer November 23. Retrieved: June 27, 2010 from http://opinion.inquirer.net/inquireropinion/ columns/view/20081123-173826/The-backbone... Decew, Judith. 1985. “Realities about Legal Realism.” Law and Philosophy 4(3): 405422. Epstein, Lee and Jack Knight. 2000. “Towards a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead.” Political Research Quarterly 53(3): 625-661. Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press. Epstein, Lee, Knight, Jack and Andrew Martin. 2004. “Constitutional Interpretation from a Strategic Perspective.” In Mark Miller and Jeb Barnes (eds.) Making Policy, Making Law: An Interbranch Perspective. USA: Georgetown University Press, USA, pp. 170188. Fajardo, E.L. 1997. “A Vote for the Environment.” BusinessWorld April 1. Farber, Daniel and Suzanna Sherry. 2009. Judgment Calls: Principle and Politics in Constitutional Law. New York: Oxford University Press. Feliciano, Feliciano. 2004. Memorandum in La Bugal v Ramos, submitted to the Court on 19 July 2004. George, Tracey and Lee Epstein. 1992. “On the Nature of Supreme Court Decisionmaking.” American Political Science Review 86(2): 323-337. Gibson, James.1983. “From Simplicity to Complexity: the Development of Theory in the Study of Judicial Behavior.” Political Behavior 5(1): 7-49.

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