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.

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 1

 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 decision-
making, often labeled (1) the (classical or traditional) legal model
model; (2)

2 Philippine Political Science Journal 32 (55) 2011

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 science-
oriented 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.

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 3

 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 Medium-
Term 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).

4 Philippine Political Science Journal 32 (55) 2011

Table 1. Chronology of Events
Date Event
3 Mar 1995 Mining Act signed into law
30 Mar 1995 Government forges FTAA with foreign-owned WMCP
15 Aug 1995 DENR issues Mining Act’s IRR
20 Dec 1996 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 production-
sharing agreements with FFilipino ilipino citizens
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

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 5

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

6 Philippine Political Science Journal 32 (55) 2011

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 intimately-

related 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 non-
legal normative considerations of morality or political philosophy” (Leiter
2010: 1). Legal formalists see the law as “a settled and self-contained

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 7

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 decision-
making. Moreover, the political science models of judicial behavior

8 Philippine Political Science Journal 32 (55) 2011

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,

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 9

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).

10 Philippine Political Science Journal 32 (55) 2011

 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

specific policy questions
questions, such as the drinking age for
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.

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 11

 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

12 Philippine Political Science Journal 32 (55) 2011

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).

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 13

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 non-
unanimous decisions in collegial courts. Brenner and Arrington (1987)
acknowledge that non-unanimous judicial decisions normally arise from

14 Philippine Political Science Journal 32 (55) 2011

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 non-
unanimous 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:

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 15

 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’ law-

oriented 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: 66-
71). 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

16 Philippine Political Science Journal 32 (55) 2011

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
should be labeled as a “legallegal
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 17

Table 2. How the justices voted on the Mining Act Rulings
January Vote December Vote Appointing
Name of Justice
(8-5-1) (10-4-1) President
Chief Justice Unconstitutional Constitutional Aquino
Davide
Puno Unconstitutional Constitutional Ramos
Quisumbing Unconstitutional Constitutional Ramos
Corona Unconstitutional Constitutional Arroyo
Tinga Unconstitutional Constitutional Arroyo
Carpio-Morales Unconstitutional Unconstitutional Arroyo
Carpio Unconstitutional Unconstitutional Arroyo
Callejo Unconstitutional Unconstitutional Arroyo
Vitug Constitutional (retired on 15 July 2004) Ramos
Panganiban Constitutional Constitutional Ramos
Ynares-Santiago Constitutional Unconstitutional Estrada
Sandoval-Gutierrez Constitutional Constitutional Estrada
Austria-Martinez Constitutional Constitutional Arroyo
Azcuna 1 Abstain Abstain Arroyo
Chico-Nazario (assumed positi on on 14 Constitutional Arroyo
July 2004)
Garcia (appointed on 6 October Constitutional Arroyo
2004)
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

18 Philippine Political Science Journal 32 (55) 2011

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 re-
framing 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.

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 19

 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

20 Philippine Political Science Journal 32 (55) 2011

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:

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 21

 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.

22 Philippine Political Science Journal 32 (55) 2011

 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 environment-
friendly 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 23

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.

24 Philippine Political Science Journal 32 (55) 2011

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

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 25

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 “pro-
underdog/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.

26 Philippine Political Science Journal 32 (55) 2011

 Table 3. Cumulative Scale of Article XII: Executive Action Cases
Carpio Panga- Austria- Ynares- Sandoval Qui-
Cases Carpio Callejo Davide Corona Puno Tinga Azcuna
Morales niban Martinez Santiago -Gutierrez sumbing
8-0 6-0 7-1 7-2 6-3 4-4 4-4 4-5 5-4 3-6 3-6 1-4 0-3
Chavez v PEA-
9-0 nym + nym + + + + + + + + nym nym
Amari July 9, 2002
Agan v PIATCO
9-2 + np + + + + + + + + - nym -
May 5, 2003
La Bugal v Ramos
8-4 + + + + (-) (-) + + - - (+) (+) np
Jan 27, 2004
Agan v PIATCO 7-4 + np + + + + + + - - - np -
January 21, 2004
Chavez v PEA-
7-4 + + + + + + - - - - (+) nym np
Amari May 6, 2003
Chavez v PEA-
Amari November 6-6 + + + + + + - - - - - - np
11, 2003
Southern Cross v
Cement
5-6 + np (-) + + - ol - (+) (+) - - -
Manufacturers Aug
3, 2005
La Bugal v Ramos
4-8 + + + - - - - - (+) - - - np
December 1, 2004
La Bugal v Ramos
4-8 + + + - - - - - (+) - - - np
February 1, 2005
Inconsistent votes 10 0 0 1 0 1 1 0 0 3 1 2 1 0
Total votes 101 8 6 8 9 9 9 8 9 9 9 9 5 3
Coefficient of Reproducibility (C.R.) = 1 – (inconsistent votes/total votes) Legend:
C.R. = 1- (10/101) + = pro-underdog vote nym = not yet member

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

C.R. = 1- .10 - = pro-upper dog vote np = did not participate
C.R. = 0.90 ol = on leave

27
 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 pro-
underdog 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 Philippine Political Science Journal 32 (55) 2011

 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 pro-
underdog 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:

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 29

 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 decision-
making cannot be ruled out completelycompletely. 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 Philippine Political Science Journal 32 (55) 2011

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, Carpio-
Morales dissenting opinion). Unlike the majority in La Bugal 2, she found
the fiscal crisis irrelevant to the case.

The Philippine Supreme Court’s Ruling on Mining Act/Ciencia 31

 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).

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