is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
Amid heightened public awareness of the search
for the next Chief Justice of the Supreme Court, now would be an
opportune time to examine the merit of one of its more cherished
traditions: that of the "seniority rule." By such, the succeeding chief
justice is always the one that previously served longer as member of the
high tribunal regardless of the comparative merit of the contenders.
Many lawyer commentators have come out supporting such a return
to "tradition." The usual argument cited is that by resorting to
seniority, the politicization of the appointment of chief justice would
be minimized. However, whether such reasoning holds water is another matter.
The fact is, to become a member of the Supreme Court, whether as Chief
Justice or as Associate Justice, one follows the same route --
nomination by the Judicial and Bar Council (JBC) and then appointment by
the President. It has been assumed that the JBC process is a far less
political affair than the previous one which passed through the
Commission on Appointments (as was the case prior to the 1987
Constitution). So, technically, each of the 15 members of the Supreme
Court is qualified to become Chief Justice. The only question remaining
is: who does the President believes is actually the most qualified?
As Chief Justice, he would have to function quite differently than the
Associate Justices. Aside from deciding cases, he is also in charge of a
large bureaucracy, as well as managing the egos of 14 other lawyers
that make up the collegial body that is the Supreme Court. Skill sets
other than legal scholarship now come as requirements. Energy,
creativity, organizational skills, and the ability to clearly
communicate goals -- all the characteristics necessary for one leading
an organization -- very clearly matter.
His qualifications, therefore, are somewhat akin to that of the
President: representing the need to function as leader. It must be
remembered that the Chief Justice of the Supreme Court is essentially
the judiciary’s equivalent of the Executive Branch’s President of the
Philippines. If it was deemed wise to elect a 50-something year old to
the presidency rather than the most senior official of the Executive
Branch, then the reason to demand seniority in the Supreme Court finds
no basis.
There is also one important factor that we must consider. As we
previously pointed out, the power of the Supreme Court is extremely
fragile. Freshman law school teaches that the Court is the most passive
of the three co-equal branches of government. Perhaps that is why alone
among the top of the three branches of government, it’s only the members
of the Supreme Court that are required to possess "proven competence,
integrity, probity, and independence." Maturity, self-restraint and
being psychologically able to work collegially are what’s needed in a
Supreme Court justice. Being the weakest among the three branches of
government, the Supreme Court’s authority rests delicately on its
unified voice, dignity, and prestige.
Arguments have therefore also been made that by appointing based on
seniority, harmony within the Supreme Court would be encouraged. But
that is to belittle its members, who are not children. Assuming that a
less senior member of the Supreme Court, or even somebody outside it, is
appointed Chief Justice, one would think that the remaining venerable
Justices possess the selflessness and sense of duty to support the
President’s decision. If they’re the type who will just whine about
"loss of face," then they’d better just resign because the country would
be better off without such crybabies.
Contrary to popular belief, the seniority rule has not done well for the
Philippines. It has actually been disregarded quite rarely, with fairly
even results. On the other hand, the scandals that surfaced about the
Supreme Court (as can be seen, for instance, in the books Shadow of
Doubt or Res Gestae) took place under the reigns of chief justices
appointed through seniority.
An added reason for disregarding the seniority rule is that the
Philippines scores poorly in the Power Distance Index (a standard
mentioned in Malcolm Gladwell’s The Outliers). The Index "measures the
extent to which the less powerful members of organizations and
institutions (like the family) accept and expect that power is
distributed unequally. It suggests that a society’s level of inequality
is endorsed by the followers as much as by the leaders." Socially and
economically developed countries score well, while the Philippines
posted the fourth worse score (amongst the company of the likes of
Panama and Guatemala). This says a lot about what our penchant for undue
deference and sentiment has gotten us.
So we must get the habit of appointing the best for the job. Perhaps
those who stand purely on their seniority will resent the fact of them
playing second fiddle but they’ll just have to suck it up. Between
massaging their feelings and upholding the interests of the country,
surely there’s no need to think upon where our priority must lie.
