Choosing the next Chief Justice: Breaking away from Tradition

It’s beginning to smell a lot like Christmas, and this December, Chief Justice Artemio Panganiban is going to retire. Speculations are already floating around on who will be appointed by Pres. Arroyo as the next Chief Justice of the Philippine Supreme Court.

The Chiefs

A total of 21 Chief Justices had been appointed since the creation of the Philippine Supreme Court in 1901 (pursuant to Act No. 136, also known as the “Judiciary Law”). They are:

Cayetano L. Arellano (1901-1920)
Victorino M. Mapa (1920-1921)
Manuel G. Araullo (1921-1924)
Ramon Q. Avaceña (1925-1941)
Jose Abad Santos (1941-1942)
Jose Yulo (1942-1944)
Manuel V. Moran (1945-1951)
Ricardo M. Paras (1951-1961)
Cesar Bengzon (1961-1966)
Roberto R. Concepcion (1966-1973)
Querube C. Makalintal (1973-1975)
Fred Ruiz Castro (1976-1979)
Enrique M. Fernando (1979-1985)
Felix V. Makasiar (1985-1985)
Ramon C. Aquino (1985-1986)
Claudio Teehankee (1986-1988)
Pedro L. Yap (1988-1988)
Marcelo B. Fernan (1988-1991)
Andres R. Narvasa (1991-1998)
Hilario G. Davide, Jr. (1998-2005)
Artemio Panganiban (2005-present)

The Seniority Rule and Breaking with Tradition

In choosing a Chief Justice, past presidents respected the seniority principle: the most senior justice, in terms of tenure, is selected as the next Chief Justice. The Seniority Rule, however, is a tradition and not a legal requirement. The President is not legally constrained by this tradition. Under the Constitution, the President has the power to appoint the Chief Justice from a list of nominees submitted by the Judicial and Bar Council (JBC).

Still, while the Seniority Rule is a tradition, it was respected by past Presidents and only in exceptional circumstances was it disregarded. Here are the exceptions:

Chief Justice Victorino Mapa. He was the Secretary of Justice before his appointment as Chief Justice, bypassing Justice Torres. The appointment was made in 1920 by Governor General Harrison, while the Philippines was still under American control. The tradition for choosing a Chief Justice in the United States Supreme Court is somewhat different. Aside from the fact that the Chief Justice is nominated by the President and confirmed by the Senate, the difference lies in the fact that outsiders are among the usual choices (e.g., John Marshall, William Howard Taft, Warren Burger, and incumbent Chief Justice John Roberts).

Chief Justice Jose Yulo. He was appointed in 1942 during the war by General Masami Maeda of the Japanese Imperial Forces.

Chief Justice Felix Makasiar and Chief Justice Ramon Aquino. Both were appointed by former President Ferdinand Marcos in lieu of Justice Claudio Teehankee in 1985 (Justice Teehankee later became the Chief Justice after Marcos was deposed). No elaboration is needed to explain why Chief Justice Teehankee was bypassed at that time, but perhaps a passage from Justice Cruz’ “Res Gestae” would be enlightening:

….but Marcos did not follow the seniority rule and promoted Felix V. Makasiar instead. Teehankee had been a thorn on the side of the administration since the imposition of Martial Law and the dictator was not about to reward him for his ‘obstructionism’ (p. 199)

This is not to take anything away from the appointments of Chief Justices Makasiar and Aquino, but one can plainly see that factors other than merit or qualifications were considered in their appointments as Chief Justices.

Chief Justice Artemio Panganiban. Pres. Arroyo appointed then Justice Panganiban as Chief Justice, bypassing the most senior member of the Supreme Court – Senior Associate Justice Reynato Puno (Justice Puno later issued a moving statement).

Choosing the next Chief Justice

As reported by the Inquirer, the nominees are Associate Justices Reynato Puno, Leonardo Quisumbing, Antonio Carpio, Angelina Sandoval-Gutierrez and Consuelo Ynares-Santiago, as well as former Senator Miriam Defensor-Santiago.

The way I see it, however, there are three main choices:

1. Senior Associate Justice Reynato Puno. To borrow the words of fomer SC Justice Isagani Cruz:

Many lawyers hope Justice Puno will be appointed Chief Justice next month after his disappointment last year which he took in dignified silence. He is the most experienced and certainly the most deserving among the incumbent members of the Court that I am sure he can head and lead with wisdom and courage.

2. Justice Antonio Carpio. The best argument comes from Dean Jorge Bocobo:

Who in the political opposition would oppose that when Puno was for what they were against in chacha? Who in the Media or Civil Society or Academe that opposed the Lambino people’s initiative will now reject the ponente of an historic “victory for democracy and freedom” as the next Chief Justice?

Who better to safeguard one’s deepest secrets than a trusted friend as Chief Justice of the Supreme Court, the Scribe that saw you seize Supreme Power with a fax he composed for you, and proved he could still live with himself after it!

3. Former Senator Miriam Defensor-Santiago. Still from former SC Justice Isagani Cruz:

I respect Senator Santiago’s high credentials and must warn President Arroyo that if she does appoint her to the Supreme Court, she should not expect the new Chief Justice to be a presidential flunky. What I remember best about her is when she was asked why she did not jump off a plane as she had promised if something she had predicted did not happen. Instead of giving excuses, she simply said: “I lied.” That was real honesty.

So, there you go. Will Pres. Arroyo pause and bring back the long-established tradition of seniority? Will she continue to veer away from tradition and appoint a complete “outsider”? We’ll find out soon.

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