INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION

2020, VOL. 27, NO. 2, 145–159

https://doi.org/10.1080/09695958.2019.1646655

A five-year gender equality score card for the Philippine

Supreme Court under its first woman Chief Justice:
opportunities seized and missed
Emily Sanchez Salcedo
Commercial Law Department, De La Salle University, Manila, Philippines

ABSTRACT
On 24 August 2012, the Honourable Maria Lourdes Sereno was appointed Chief Justice
of the Philippine Supreme Court, the first woman to hold such position since its
establishment in 1901. Several cases involving important women’s issues decided
during her term were reviewed in this work, inspired by the possibility that a young,
brilliant and hardworking woman of humble beginnings sitting at the helm could
make a difference. Indeed, the Chief Justice manifested commendable grit in
registering meaningful dissent in Imbong v. Ochoa, where she championed women’s
bodily autonomy, and when she wrote a provocative concurrence in Vinuya
v. Romulo, where she gave hope to women who suffered wartime atrocities.
However, she missed an opportunity to put the rape shield law into good use in
deciding People v. Batuhan and Lacturan. Her concurrence was also disappointing in
Garcia v. Drilon, where she favoured rational basis review over intermediate level of
scrutiny for gender-based classification, in People v. Jumawan where a conviction for
marital rape was based on romantic paternalism, in People v. Palotes where
additional compensatory damages were not considered for a rape victim who bore a
child, in People v. Tionloc where acquittal was based on rape myths, and in People
v. Caoili where the Court refused to call rape by its ugly name.

Introduction
The highest court in the Philippine judicial system is the Supreme Court com-
posed of a Chief Justice and 14 Associate Justices appointed by the President
upon nomination by the Judicial and Bar Council.1 On 24 August 2012, Presi-
dent Benigno Aquino III appointed Maria Lourdes Aranal Sereno (Sereno) as
the 24th Chief Justice of the Philippine Supreme Court, the first woman to
hold such position.
Sereno’s appointment came at a time when two other women were also on the
Supreme Court – Associate Justices Teresita Leonardo De Castro (De Castro)
and Estela Perlas Bernabe (Bernabe). Out of 171 Justices appointed to the
Supreme Court since its establishment on 11 June 1901, only 14 were women.
While three women constituted a minority in the 15-member Supreme
Court, such number bears significance because most cases are decided in div-
isions of five members where the convergence of women’s voices may be

CONTACT Emily Sanchez Salcedo [email protected]

© 2019 Informa UK Limited, trading as Taylor & Francis Group
146 E. S. SALCEDO

enough to make a difference. Moreover, for an institution overwhelmingly

dominated by men for over a century, having a woman at the helm for the
first time inspired visions of substantive change. As the Philippine Commis-
sion on Women had put it, Sereno’s “expertise in gender analysis2 and com-
mitment to transparency will make way for reforms that make justice attuned
to women’s needs, particularly those who are from the poor and marginalized
communities”.3
Rosemary Hunter summarised current literature that support judicial diver-
sity into six basic arguments as to why and how women can make a difference in
judicial decision making. She characterised the first three arguments as symbolic,
the fourth and fifth as practical, and the sixth as substantive.4
First, more women on the bench makes it more representative of the wider
society and increases the democratic legitimacy of the judiciary. Second, the
presence of women judges signals equality of opportunity for women in the
legal profession. Third, the presence of women judges provide encouragement
for more women to aspire for, seek and obtain judicial office which, in turn,
enables gender balance in the judiciary to be further improved. When these
women judges actually engage in active mentoring of younger colleagues, the
symbolic paves the way for the practical.
Fourth, women judges are likely to have more empathy with women litigants
and witnesses, including victims of crime, and may thus provide a better court-
room experience for these participants in the justice system. Fifth, women judges
can educate and civilise their male colleagues by not allowing sexist comments,
stereotyping and gender bias to go unquestioned.
Sixth, women judges bring a gendered sensibility to the process of decision-
making and can thus alter the outcomes of cases. This, in turn, is based on
two main theories. The first is that all judges bring their life experiences to
the process of judging, thus, the inclusion of women’s experiences will make
law more representative of the variety of human experience. The second is
that women judge “in a different voice”, that is, they apply a feminine “ethic
of care” as opposed to the masculine “ethic of justice”.
Work on this paper commenced in early 2017 with the intention of analysing
decisions of the Supreme Court on cases involving women’s issues during the
first five years that it was led by a female chief with an ambitious goal to
follow through every five years thereafter. There is no denying that research
efforts were inspired by the hope of eventually concluding that not only can
women on top make a difference, but that this particular woman indeed made
a difference for Philippine society. At about the same time, however, Sereno
was already the subject of President Rodrigo Duterte’s repeated tirades which
commenced when she formally expressed disagreement over the latter’s public
shaming of government officials, including seven judges, whom he claimed to
be involved in the illegal drug trade.5 Not too long after, Sereno was ousted
from office on 11 May 20186 thereby making the scope of this present work
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 147

the entirety of her 5 years, 8 months and 18 days in office and how she may have
influenced the Supreme Court in such a short period of time.
The controversial ouster of Sereno deserves a thorough dissection in a separ-
ate paper. In the meantime, the present work will proceed to discuss leading jur-
isprudence on three important women’s issues – domestic violence, reproductive
health, and rape – during her term. The first two issues on domestic violence and
reproductive health reached the Supreme Court through cases that challenged
the constitutionality of statutes that provided special privileges for women.
The last issue on rape is presented through a series of cases ranging from rape
within the intimacy of marriage to rape as a wartime offence against humanity.
Convictions for rape, owing to the severity of penalties imposed, are elevated to
the Supreme Court on automatic review. Thus, a huge number of rape cases have
been decided by the Court within the given period but the specific cases pointed
out in this work are those where the decisions were authored by the women jus-
tices themselves, or have been concurred in by them in a division of five
members, and yet continued to employ unfortunate rape myths, trivialised
non-traditional form of sexual assault, failed to invoke the rape shield protec-
tion, or failed to recognise the victim’s right to adequate compensatory damages.

2013 – Domestic violence and the equal protection clause

Right before the conclusion of Sereno’s maiden year as a lead magistrate, the
Supreme Court upheld the constitutionality of the Anti-Violence Against
Women and Their Children Act of 2004 in the case of Garcia v. Drilon.7
The law punishes acts of physical, sexual, and psychological violence, includ-
ing economic abuse, of women and their children committed by their husbands
or intimate partners. The law also provides for the issuance of protection orders,
among other remedies. The case was brought before the Supreme Court by a dis-
gruntled husband who questioned the validity of several protection orders issued
against him on the ground that these violated the equal protection clause.
The majority opinion penned by Bernabe concluded that the classification
was valid because it was “germane to the purpose of the law”. She mentioned
three reasons that justified the classification: (a) the long history of unequal
power relationship between men and women; (b) official statistics that show
women as the usual and most likely victims of violence in contrast with the
absence of reliable estimates on domestic violence committed against men,
and (c) the prevalence of gender bias and prejudice in the justice system.
In a separate concurring opinion, De Castro agreed with Bernabe’s conclusion
but suggested a higher level of scrutiny than what Bernabe employed which was
akin to rational basis review, the lowest in the three-tiered approach to equal
protection analysis in American jurisprudence.8 De Castro wanted to apply an
intermediate level of scrutiny because ensuring gender equality and empowering
women are important and essential governmental objectives and the
148 E. S. SALCEDO

classification prescribed by the challenged law is substantially related to their

achievement. She argued for substantive equality for women whose disadvan-
taged position required ameliorative measures.
While either approach will yield the same desirable outcome here, it is the
majority opinion’s preference for the more deferential rational basis review
that sets a jurisprudential precedent. Future legislation that favour men based
on gender stereotypes could easily survive this lowest level of scrutiny. Sadly,
Sereno concurred with Bernabe and not with De Castro.

2014 – Reproductive health and religious freedom

On the second year of Sereno’s term, the Supreme Court decided three impor-
tant cases involving women’s issues.
The Responsible Parenthood and Reproductive Health Act of 2012 provided
universal access to contraceptives and reproductive health services for Filipinos.
The law stopped short of decriminalising abortion but was nonetheless met with
widespread protest by various pro-life and pro-family movements. On 8 April
2014, the Supreme Court upheld the constitutionality of the law in the case of
Imbong v. Ochoa,9 but broke much of its teeth.
More specifically, the Supreme Court struck down a provision that allowed a
woman to undergo reproductive health procedures without the consent of her
husband, or her parents, if she is still a minor. According to the majority
opinion written by Associate Justice Jose Mendoza, the questioned provision
tends to “wreck the family as a solid social institution”. Giving one spouse
unbridled discretion instead of requiring mutual consent “will drive a wedge
between the husband and the wife, possibly result in bitter animosity, and
endanger the marriage and the family”. On the other hand, he stressed that a
“minor still needs the comfort, care, advice and guidance of her own parents”.
The majority opinion significantly watered down the ability of women to seek
reproductive health services freely and as they deem fit. Sereno, as well as four
other justices, wrote concurring and dissenting opinions.
Sereno stressed that the law does not prohibit joint-decision making but
reinforces genuine consultation between spouses when they have equal rights
to decide what is best for their future. In case of disagreement, she pointed
out that there is no reasonable solution except to respect the right of the
spouse who will undergo the procedure to decide what’s best for himself or
herself. The human right to bodily autonomy is not surrendered upon marriage.
Similarly, the law does not preclude a daughter from seeking her parents’ advice
before undergoing reproductive health procedures nor are her parents prevented
from giving this to her. There is nothing in the law that provides for the extin-
guishment of parental authority nor its take-over by the State.
In writing her opinion in Filipino instead of the customary English, Sereno appears
to have intended to reach as many of her countrymen as possible on issues of extreme
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 149

importance to the Filipino people. Though momentarily drowned by conservative

voices in the majority, it is hoped that her articulate dissent will, at some future
time, offer a platform for a more liberating view of women’s right to bodily autonomy.

2014 – Rape within marriage

The next significant decision came out a few days after on 21 April 2014. In the
case of People v. Edgar Jumawan,10 the Supreme Court upheld the conviction of
the accused for raping his wife. Not too long ago, the prevailing view was that
marriage was equivalent to perpetual consent to sexual relations. This was effec-
tively erased when the Court proclaimed in this case that “the human rights of
women include their right to have control over and decide freely and responsibly
matters related to their sexuality, including sexual and reproductive health, free
of coercion, discrimination and violence.” Women do not surrender these
inalienable human rights by contracting marriage.
Nonetheless, the Supreme Court was not contented with women’s right to
control their own sexuality as rationale for its decision. Instead, it condemned
marital rape because it is a violation of the husband’s vow to act as his “wife’s
refuge from cruelty”. In utter display of romantic paternalism, the decision enum-
erated the duties of a husband “to love, cherish and protect his wife, to give her a
home, to provide her with the comforts and the necessities of life within his means,
to treat her kindly and not cruelly or inhumanely”. It also stressed that “he is
bound to honor her” and that “it is his duty not only to maintain and support
her, but also to protect her from oppression and wrong”. This line of reasoning
only perpetuates the notion that women are by nature weak and inferior and
thus need protection from men. It is very sad that the reasoning of the Court
resembled a chivalrous knight in shining armour out to save a damsel in distress.
Moreover, the decision strongly emphasised that sexual intimacy is an integral
part of marriage because it is the “spiritual and biological communion that
achieves the marital purpose of procreation,” as if marriage has no other
equally valid motivation. The decision went further by advising men that while
they cannot resort to violence or coercion when their wives refuse to engage in
sexual intimacy, they may seek nullification of marriage on the basis that such
refusal constitutes psychological incapacity to fulfil an essential marital obligation.
Associate Justice Bienvenido Reyes wrote this decision for a division of five
members but, with two women – Sereno and De Castro – also in the same div-
ision, the phraseology of the decision leaves much to be desired.

2014 – Rape as a crime against humanity

The third decision, Vinuya v. Romulo, was promulgated on 12 August 2014.11
The petition was initiated by a group of elderly women who suffered sexual vio-
lence in the hands of the Japanese Imperial Army during the Second World War.
150 E. S. SALCEDO

The women claimed that they have repeatedly approached various executive
departments to assist them in filing claims against Japanese officials who approved
the establishment of comfort women stations in the country but were declined
assistance because the Philippines already received the full amount of war
damages stipulated in its bilateral reparations agreement with Japan.
The Supreme Court dismissed the case on technical grounds. It ruled that it
cannot encroach upon the power to determine foreign relations policies which
belongs to the executive branch. It added that the executive branch did not
commit grave abuse of discretion in declining to take up the petitioners’ cause
because the country’s receipt of compensation entailed a waiver of future claims.
Sereno concurred but wrote in no uncertain terms that the suffering of the
Filipinos, especially the petitioners, during the Second World War should not
be forgotten. She spoke lengthily on the unfortunate story of the Philippines’
attempts to secure appropriate war reparations and how, as a young republic,
it was compelled by global forces to accept much less than it deserved. She
said we must learn from this experience and “forge the elements that will
make the Philippine state strong” enough to protect its people and safeguard
their well-being.
She took the opportunity to remind public officials of “the trust the Filipino
people have reposed in them to ensure their well-being, address their sufferings,
and promote the rule of law within the national and international sphere.” She
stressed that it is a core duty of every public official to ensure that “every Filipino
will attain justice and will be guaranteed full respect for human rights.”
Finally, she somehow suggested that under the 1949 Geneva Conventions, the
claim of the petitioners may have some leg to stand on should “they bring the
same to an appropriate forum or through a proper recourse,” hence, the dismis-
sal of the current petition based on technicalities should not be “taken as a
definitive ruling on the merits of the claims of the petitioners”.
The Chief Justice was sending a very strong message albeit primed with dip-
lomatic prudence.

2015 – Civil indemnity and award of damages for rape survivors

On 6 July 2015, the Supreme Court upheld the conviction of the accused in the
case of People v. Jerry Palotes.12 The victim, who was a 14-year old minor with
mental abilities equivalent to that of an 8-year old, gave birth to a child as a result
of the rape. The accused attempted to discredit the victim by claiming that she
had been seen by neighbours in the company of other men. Confident that
somebody else fathered the victim’s child, the accused even asked the trial
court to order paternity testing. Unfortunately for him, the DNA examination
confirmed filiation.
The Supreme Court ordered the accused to pay civil indemnity, moral
damages and exemplary damages in the amount of PHP 100,000.00 each.13
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 151

Under the current state of jurisprudence, this uniform amount is awarded to all
rape survivors, whether or not the crime resulted in pregnancy.
People v. Palotes offered the perfect opportunity to review this policy that
appears to ignore the additional burdens – financial, physical and psychological –
heaped upon a rape survivor who gets pregnant and delivers a child. The various
expenses needed for safe delivery as well as for pre- and post-natal care certainly
calls for a greater award of civil indemnity. The additional burden upon the
victim in this case who now faces the sole responsibility of raising a child
despite her own physical immaturity and mental difficulties calls for an even
greater amount of moral and exemplary damages.
The decision in People v. Palotes was likewise silent on the issue of child
support despite the fact that paternity over the child was established with cer-
tainty through DNA examination. In cases where an accused attempts to deny
paternity as part of defence theory, it is not uncommon to see courts sweeping
the issue under the rug – convicting the accused while casually setting aside the
fact of pregnancy for not being an element of the crime. But, such attitude is not
necessary in the present case where paternity has been ascertained scientifically.
There should be no room for worry over the possibility of rewarding rapists with
parental rights contrary to the interests of their victims. While Art. 345 of the
Revised Penal Code provides that a person convicted of rape should also be sen-
tenced to pay child support, this does not result in parental authority which is
vested in the mother by Art. 176 of the Family Code.
This grievously insensitive decision was written by De Castro for a division of
five members which included both Sereno and Bernabe concurring. People
v. Palotes attracts interest because three women magistrates who also happened
to be mothers appear to have closed their eyes to the unimaginable distress and
hardship that unexpected motherhood has brought to a minor with mental
disabilities.

2016 – The rape shield law

The case of People v. Roberto Batuhan and Ashley Lacturan14 was decided by the
Supreme Court on 13 August 2016 in an opinion authored by Sereno herself and
concurred in by both De Castro and Bernabe.
Convicted for robbery with rape, the accused attempted to cast doubt upon
the reliability of the medical report submitted by the prosecution because the
victim admitted to having sexual intercourse with her boyfriend before her phys-
ical examination by the attending physician.
Sereno dismissed the argument for being “insufficient to negate the clear and
convincing testimony of the victim”. More importantly, she pointed out that a
“medical report is not indispensable to a prosecution for rape” because the
“absence of genital injury does not at all mean that a victim was not sexually
assaulted”.
152 E. S. SALCEDO

The Chief Justice was close to a home run but hesitated somewhere along the
way. It would have been the perfect opportunity to highlight the decade-old, but
never used, rape shield law.
The Rape Victim Assistance and Protection Act of 1998 was enacted for the
establishment and operation of rape crisis centres throughout the country to
provide assistance to rape victims in litigating their cases and in their recovery.
The law also incorporated a rape shield provision which requires that, “evidence
of complainant’s past sexual conduct, opinion thereof or of his/her reputation
shall not be admitted” in a prosecution for rape “unless, and only to the extent
that the court finds, that such evidence is material and relevant to the case.”
Such widely-phrased exemption renders the protection quite lame. Thus,
despite the passage of the law in 1998, the Supreme Court still declared in sub-
sequent cases that on a charge of rape, the victim’s character for chastity remains
significant. For instance, in Naval v. Panday,15 the Supreme Court said that
“where the willingness of a woman is material, the woman’s character as to
her chastity is admissible to show whether or not she consented to the man’s
act”. In Civil Service Commission v. Belagan,16 the Court reiterated an earlier
ruling where it expressed doubt and reversed a conviction because “the
alleged victim was morally loose and apparently uncaring about her chastity”.
The decision in People v. Batuhan and Lacturan could have sounded a wake-
up call. The accused was obviously trying to cast doubt upon the credibility of
the victim by imputing unchaste behaviour; that she had a boyfriend with
whom she admitted to engage in sexual activities and in whose company it
appeared typical to be on the streets at 1:30 in the morning, as it were on that
woeful day when they fell prey to dreadful criminals. Sadly, Sereno opted not
to seize the opportunity to curb the propensity of defence lawyers to use this
strategy and sanction the slothfulness of trial judges who remain indifferent to
the need to promote gender sensitivity in the courtroom.

2017 – Rape myths

On 15 February 2017, in the case of People v. Juan Richard Tionloc,17 the
Supreme Court shamefully proclaimed that an age gap of six years, where the
alleged rape victim was 24 and the accused was 18, negated the presence of
force, threat, or intimidation.
The victim here was raped by two young men whom she thought to be her
friends. She was casually having a drink with them but on this ill-fated night she
had more than enough and fell asleep. She was roused from her slumber when
the first rape was being perpetrated but was unable to resist nor shout for help as
she cried helplessly out of fear. She knew that a knife was lying at a nearby table
which could be used to further harm her. The second rape transpired immediately
after the first. Still dizzy, afraid and now shivering due to the first rape, she again
failed to manifest resistance other than attempting to move her body.
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 153

The trial court was convinced that the testimony of the victim was consistent
with human nature and the normal course of things. The Court of Appeals
agreed to this finding of credibility. However, the Supreme Court believed other-
wise, digressing from the well-settled doctrine that “findings of fact of the trial
court and its conclusions based on the said findings are accorded high
respect, if not conclusive effect, especially when affirmed by the Court of
Appeals”.18
The Supreme Court decided that the victim’s fear for her life “was a mere
product of her own imagination” as the knife was not actually brandished
upon her. It added that the victim “could have resisted right from the start
but she did not and chose not to utter a word or make any sign of rejection”
of the sexual advances. The Court interpreted her “unexplainable silence” as
“tacit consent”. It further said that “resistance must be manifested and tenacious.
A mere attempt to resist is not the resistance required and expected of a woman
defending her virtue, honor and chastity.”
It is ironic to see the Supreme Court taking a journey far back in time after
acknowledging in fairly recent decisions that “there is no typical form of behav-
ior for a woman when facing a traumatic experience such as a sexual assault”19
and that “the failure of a rape victim to shout, fight back, or escape from the
scoundrel is not tantamount to consent or approval because the law imposes
no obligation to exhibit defiance or present proof of struggle”.20 In People
v. Tionloc, however, the Supreme Court imputed fault upon the victim for
voluntarily engaging in a drinking session in the house of one of the
offenders. The Court even chided the victim for being “used to drinking
liquor” and concluded that the “degree of dizziness or shivering was not as
grave as she portrayed it to be” because she managed to stand up and walk
home after the incident.
Associate Justice Mariano del Castillo wrote this outrageous decision that
blamed and shamed the rape victim. None among Sereno, De Castro and
Bernabe dared to dissent despite forming a majority in a division of five.

2017 – Forcible insertion of a finger in a woman’s vagina is not rape

Under the Revised Penal Code, the crime of rape is committed by a man who
shall have “carnal knowledge” of a woman against her will, or under circum-
stances that deprived her of reason. The criminal element of forced sexual inter-
course was expanded by the legislature in 1997 to include the act of inserting a
penis into another person’s mouth or anal orifice, or any instrument or object,
into the genital or anal orifice of another person. This was defined as rape by
sexual assault that carried a significantly lower penalty (imprisonment for 6
years and 1 day up to 12 years) than that prescribed for the traditional act
that constituted rape (imprisonment for 20 years and 1 day up to 40 years).
154 E. S. SALCEDO

After two decades, the Supreme Court was confronted with the case of People
v. Noel Caoili where the accused was found to have satisfied his lust by forcibly
inserting his finger into the vagina of the victim. The Supreme Court, speaking
through Associate Justice Noel Tijam, ruled that this was neither rape in its tra-
ditional sense, nor rape by sexual assault. Instead, it downplayed the offence as a
mere act of lasciviousness punishable by imprisonment for 6 months and 1 day
up to 6 years.
The three women justices concurred with this insensitive opinion that
ignored the pain and horror inflicted by the accused upon his victim, his daugh-
ter of tender years. It is shameful that these women justices chose to trivialise
such beastly act while two male justices took the cudgels for the minor victim.
In his dissenting opinion, Associate Justice Samuel Martires pointed out that
limiting the concept of carnal knowledge solely to penile penetration is contrary
to human experience. For his part, Associate Justice Marvic Leonen strongly
lamented how the Court has turned “blind to the many ways that women’s
bodies are defiled by the patriarchy”.

Discussion
This project was prepared with high hopes over the great potential that rested on
the pen of the first woman Chief Justice of the Philippine Supreme Court.
Research was pursued with inspiration from the numerical advantage of having
three women in the highest court of the land whose combined voices have the
potential to make significant rulings on women’s issues especially when they con-
stitute majority in a division of five members. Indeed, the Chief Justice manifested
commendable grit in registering a meaningful dissent in Imbong v. Ochoa, where
she championed women’s autonomy over their bodies, and when she wrote a pro-
vocative concurrence in Vinuya v. Romulo, where she gave hope to women who
suffered wartime atrocities despite the dismissal of their petition based on techni-
calities. However, she missed an opportunity to put the rape shield law into good
use in People v. Batuhan and Lacturan, a majority opinion that she authored. Her
silent concurrence was also disappointing in Garcia v. Drilon, where the majority
opinion favoured rational basis review over a higher level of scrutiny for gender-
based classification; in People v. Jumawan, where a conviction for marital rape was
anchored on romantic paternalism; in People v. Palotes, where additional com-
pensatory damages were not considered for a rape victim who delivered a child;
in People v. Tionloc where acquittal was based on rape myths; and in People
v. Caoli where the Court refused to call rape by its ugly name.
Sereno’s appointment as Chief Justice witnessed the symbolic arguments for-
warded by Rosemary Hunter coming into fruition. By shattering the glass
ceiling, she served as a powerful source of inspiration and encouragement for
more women to enter and excel in the legal profession. Raised by humble,
working class parents, her assumption of the highest judicial post was a rare
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 155

triumph of meritocracy over kinship politics that commonly played a huge role
both in the election and appointment of women to high government positions in
the Philippines.21
The symbolic gains, however, were short-lived. Her controversial ouster
widely believed to be orchestrated by the current administration of President
Duterte significantly eroded the people’s faith in the Supreme Court for its
blatant failure to protect its independence from the powerful arm of the Chief
Executive. Equality of opportunity crumbled to pieces as a young, brilliant,
and hardworking Chief Justice was ousted simply because she earned the ire
of her seniors. Women must again temper their aspirations lest they become
too successful, too soon.
On the other hand, the practical arguments did not yield as much promise, as
seen in the rape cases where Sereno seemingly tolerated the inappropriate
language and ludicrous reasoning of her male colleagues. Sereno also seemed
oblivious to the fact that her colleagues were withholding legal reliefs otherwise
available to rape victims. Sereno’s acquiescence on occasions when she could
have otherwise raised objections invite further research into the power dynamics
that animated the Supreme Court during the relevant time.
As for the sixth substantive argument, Sereno inconsistently manifested
strong gendered sensibility in Imbong v. Ochoa, retained some good measure
in Vinuya v. Romulo, but revealed discouraging paucity in Garcia v. Drilon.
In any event, while her feminist reasoning in Imbong v. Ochoa and Vinuya
v. Romulo may not have made immense impact presently, the same could
very well be the “voice of the future”.22

Conclusion
The members of the Philippine Supreme Court “hold office during good behav-
ior until they reach the age of 70 or become incapacitated to discharge the duties
of their office”.23 Appointed at the age of 52, Sereno was supposed to be Chief
Justice for 18 years, effectively erasing any chance at succession for her col-
leagues who were all destined to retire ahead of her. Seniority is customarily hon-
oured when appointing a Chief Justice but President Aquino defied tradition
when he chose Sereno, the second most junior member of the Court. President
Aquino was candid about his intention of giving the young Chief Justice all the
time that she needed to institute reforms in the judiciary, indirectly ascribing
inefficiencies upon other members he strongly perceived as beholden to the pre-
vious administration that appointed them.24 True enough, Sereno spearheaded
several projects aimed at improving productivity at various levels of the judiciary
but her zeal did not sit well with colleagues who could not get over the irony of
having to call a young, female academic with barely two years of experience in
the judiciary as chief magistrate, while their own illustrious careers spanned
decades in various courts.
156 E. S. SALCEDO

While court deliberations are strictly hidden from public view, it was not
difficult for avid observers to catch some tell-tale signs of disharmony within
the Court such as the repeated absence of the bypassed senior justices during
symbolic occasions including the oath-taking ceremony of the Chief Justice
before the President25 and her public address on the occasion of the 112th
year of the Supreme Court, the first celebration of the Court’s anniversary
under her leadership.26 Their absences were also documented during more
casual occasions that called for their show of support such as the regular flag-
raising ceremony at the Supreme Court grounds on Monday mornings.27 For
her part, Sereno may have unintentionally allowed a peek into how she was
being treated by her colleagues when she gave a truly revealing answer after
being asked, five years into her term, on how she dealt with being a female
Chief Justice: “Rule number 1, don’t ever allow yourself to be bullied”.28
Renowned Filipino philosopher, Emerita Quito, has this very interesting
insight that may serve as a possible explanation for the alienation that Sereno
experienced from her peers:
There is something strange in the very way we [Filipinos] look upon success. A person
is not supposed to exert effort at the expense of sanity. We ridicule a person who
teaches himself how to think and label him Tasio, the philosopher. We warn
persons not to learn too much lest they be like Jose Rizal who was executed at the
Luneta in 1896.29 Assertiveness is frowned upon because it smacks of pride and ruth-
lessness. Success to the Filipino, must come naturally; it should not be induced or
artificially contrived. One should not be successful at an early age because that
would mean exertion and hard work. Success must come very late in life, if it is to
come at all.30

Aside from achieving so much at a young age, Sereno was also perceived as an
outsider in an old boys’ club. A well-respected educator and political analyst
believes that issues raised against her management style could have been
easily ignored, or forgiven, had she been one of the boys. After all, former
chiefs had their own shortcomings but were granted much leeway, because
they were men. Sadly, Sereno was not only an outsider insofar as her male col-
leagues were concerned, she was also openly despised by one of her female col-
leagues, De Castro, who consistently offered opposition at every turn.31
Did this unhappy backdrop affect the votes cast by the Chief Justice in the
cases discussed? It may be interesting to recall the case of Garcia v. Drilon
where the Court upheld the validity of gender-based classification using a
rational basis standard of review through a majority opinion authored by
Bernabe and concurred in by Sereno. De Castro argued in a separate concurring
opinion for a heightened standard of review.
A feminist judge would prefer De Castro’s opinion over that of Bernabe’s.
However, De Castro made things difficult for Sereno, as both of them later
admitted.32 Meanwhile, Bernabe never participated in the seemingly coordinated
boycotts against Sereno. In the 2017 Christmas gathering of Supreme Court
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 157

employees, the last for the embattled Chief, Bernabe gamely joined Sereno on the
dance floor while eleven of their colleagues snubbed the party.33 Perhaps, Sereno
opted to take the side of a friendlier female colleague by concurring with Bernabe.
At the same time, she neither supported nor contradicted De Castro. After all, the
latter was Chair of the Committee on Gender Responsiveness in the Judiciary and
President of the Philippine Women Judges Association. Sereno may have felt it
better to leave the advocacy to De Castro to buy some peace.
In the meantime, a similar pattern may be read from Sereno’s concurrence
with Associate Justices Reyes and del Castillo who authored the decisions in
People v. Jumawan and People v. Tionloc, respectively. Like Bernabe, they did
not participate in the childish boycotts. They were, after all, not among the
top contenders leapfrogged by Sereno’s appointment. The same can be said
for Associate Justice Tijam who authored the decision in People v. Caoili five
months after his appointment. Faced with formidable challenges in leading
senior colleagues who rejected her outright, Sereno may have chosen to mitigate
the stressful situation by preserving a more amicable relationship with those
seated by the less senior side of the bench. At the end of the day, this theory
over what may have happened does not live up to the high expectations of the
Philippine Commission on Women.
In sum, Sereno’s term appears to have been preoccupied with instituting
ambitious administrative reforms while managing hurt egos. One cannot help
but think of greater possibilities had Sereno not been constrained to walk on egg-
shells. Had there been enough respect for her leadership, she could have devoted
greater effort towards her more substantive duty of decision-making rather than
trying to achieve smooth interpersonal relations within the Court. At best, her
dissent in Imbong v. Ochoa managed to push for women’s reproductive
health in an unconventional way for while she was unable to convince her
own colleagues, she spoke directly to the sovereign people by writing her
opinion in the language that they can fully understand so that future generations
may decide for themselves when the appropriate time comes.

Notes
1. 1987 Philippine Constitution, Art.VIII, Secs. 1, 4, 9.
2. Sereno co-authored a book entitled Gender Analysis of Philippine Laws published in
1989 by the National Commission on the Role of Filipino Women, which was even-
tually renamed as the Philippine Commission on Women.
3. Philippine Commission on Women (2012) Sereno will make hopeful years for
women’s access to justice, 28 August. Available at: http://pcw.gov.ph/article/sereno-
will-make-hopeful-years-women%E2%80%99s-access-justice
4. Rosemary, H. (2015) More than just a different face? Judicial diversity and decision-
making, Current Legal Problems, p. 119.
5. Lorena, N. (2018) The many times Duterte and Sereno clashed, Rappler, 20 May.
Available at: https://www.rappler.com/newsbreak/iq/202763-timeline-maria-lourdes-
sereno-rodrigo-duterte-clashes
158 E. S. SALCEDO

6. Villamor, F. (2018) Philippines’ top judge took on Duterte. Now, she’s out, The
New York Times, 11 May. Available at: https://www.nytimes.com/2018/05/11/world/
asia/philippines-chief-justice-rodrigo-duterte.html
7. 699 SCRA 352 (2013).
8. The rational basis test is the most deferential level of judicial review where classifi-
cation is readily sustained by the courts for as long as such is rationally related to a
legitimate state interest. Laws that facially discriminate against a “suspect class” (e.g.
race), however, are subject to strict scrutiny. The government must prove that the
classification is necessary to achieve a compelling state purpose. Finally, laws that
affect a “quasi-suspect class” (e.g. gender) receive an intermediate level of scrutiny.
The classification must be substantially related to an important government purpose
for it to be sustained.
9. 721 SCRA 146 (2014).
10. 722 SCRA 108 (2014).
11. 732 SCRA 595 (2014).
12. 761 SCRA 633 (2015).
13. At the current exchange rate of USD 1 = PHP 53, the amount of P100,000.00 would
translate to more or less USD 1,886.79 only.
14. G.R. No. 219830, August 3, 2016.
15. 321 SCRA 290 (1999).
16. 483 Phil. 601 (2004).
17. G.R. No. 212193, February 15, 2017.
18. See, e.g. People v. Iroy, 614 SCRA 245 (2010).
19. People v. Manicat, 711 SCRA 284 (2013).
20. People v. Linsie, 711 SCRA 125 (2013).
21. The late Senator Miriam Defensor Santiago described Sereno’s appointment as “a
triumph of superior intellect over shabby politics”. Miriam praises P. Noy’s first
appointment to SC, ABS-CBN News, August 14, 2010. Available at: http://news.abs-
cbn.com/nation/08/14/10/miriam-praises-pnoys-first-appointment-sc
22. L’Heureux-Dube, C. (2000) The dissenting opinion: voice of the future?, Osgoode Hall
Law Journal, 495.
23. Supra n.1, at Art. VIII, Sec. 11. They may also be removed from office on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust (Art. XI, Sec. 2).
24. Dizon, D. (2012) Sereno is new Chief Justice, ABS-CBN News, 24 August. Available at:
https://news.abs-cbn.com/nation/08/24/12/sereno-new-chief-justice
25. Burgonio, T. J. (2012) Aquino swears in PH’s first woman Chief Justice, The Philippine
Daily Inquirer, 25 August. Available at: https://newsinfo.inquirer.net/257566/sereno-
takes-oath-as-new-chief-justice
26. Supreme Court Justices Boycott Sereno ‘unity’ speech, The Manila Times, 11 July 2013.
Available at: https://www.manilatimes.net/supreme-court-justices-boycott-sereno-
unity-speech/9039/
27. Torres, T. (2012) Justices skip flag ceremony with sereno for third time, The Philippine
Daily Inquirer, 17 September. Available at https://newsinfo.inquirer.net/272146/
justices-skip-flag-ceremony-with-sereno-for-third-time
28. Buan, L. (2017) “Do not be afraid to be minority”: Sereno, 5 Years on, Rappler, 27
August. Available at: https://www.rappler.com/nation/180185-chief-justice-sereno-5-
years-sc-impeachment-challenges
29. Jose Rizal is the national hero of the Philippines. Filosofo Tacio is one of the characters
in his novel, Noli Me Tangere.
 INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION 159

30. Quito, E. (1988) The ambivalence of Filipino traits and values, Karunungan: Sophia, 5
(1), pp. 42, 43.
31. Buan, L. (2017) Sereno impeachment: cracks in the Supreme Court, Rappler, 12
December. Available at: https://www.rappler.com/newsbreak/in-depth/191150-sereno-
impeachment-cracks-supreme-court
32. The grudge: Sereno says De Castro won’t forgive her for accepting Chief Justice post,
ABS-CBN News, April 9, 2018. Available at: https://news.abs-cbn.com/news/04/09/18/
the-grudge-sereno-says-de-castro-wont-forgive-her-for-accepting-chief-justice-post
33. Macairan, E. (2017) Sereno dances away impeach woes, The Philippine Star, 15
December. Available at: https://www.philstar.com/headlines/2017/12/15/1768872/chief-
justice-sereno-dances-away-impeach-woes

Disclosure statement
No potential conflict of interest was reported by the author.