In terms of constitutional theory, the nation, in its desperate quest for a fount of
legitimacy, turned to “the Constitution” and “the people,” as mediated by the
Supreme Court. This produced a strange combination. On one hand, reliance on
“the Constitution” perpetuated extreme legalism – that is to say, a fixation on
constitutional text regardless of historical context – riding on the back of counter-
majoritarian rhetoric for judicial review of executive decisions. On the other hand,
invoking “the people” resulted in populist politics, where courts are in thrall to
public opinion and constitutional exegesis is perennially hostage to partisan causes.
It was as if the courts, far from silencing the people’s voice, became its channel.
Significantly, these two competing tendencies – formalism and populism –
persisted even in the private sphere, despite the fact that here the challenge to
human rights came not from government but from a dominant church. The
Congressional and judicial debates about sexual orientation, reproductive rights,
and the right to health exposed threats tolaїcite ́posed by the Roman Catholic
majority.
A new president, Aquino, took over in mid- 2010 with an unquestioned political
mandate. He seized back the initiative with the impeachment of the chief justice of
the Supreme Court by December 2011. Relying more on democratic politics than on
judicial processes, the chief justice was removed from office in May 2012 , signaling
the unexpected resurgence of republican institutions but posing the very threat that
countermajoritarianism had aimed to check, that of unbridled populism.
i. deficit in political legitimacy, erosion of liberties
Arroyo’s presidency was hobbled by two nagging challenges to her legitimacy,
namely her tainted accession to power in 2001 and election fraud during the 2004
presidential election, that would recalibrate the separation of powers; aggrandize
power to the executive, aided by a supportive judiciary; and neutralize
constitutional checks and balances.
Uprising and oath-taking in January 2001
In June 1998 , a new president, Joseph Estrada, and vice president, Gloria
Macapagal-Arroyo, were sworn into office. In January 2001 , Arroyo took her oath
as president under a “cloud of constitutional ambiguity,”
1
as Estrada, under
impeachment trial for corruption and under pressure from massive public protests,
left the presidential palace.
The Supreme Court validated her oath-taking but,
2
unlike in the past, did nottreat it as an extraconstitutional transition. The 1986 uprising led by Corazon
(^1) Estradav.Desierto, General Register (hereinafter G.R.) No 146710 - 15 (March 2 , 2001 ).
(^2) Ibid.