No court for old men (only)

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.