Yesterday I attended a forum on the President’s plan to appoint the next Chief Justice. The legal issues have been reported in ABS-CBNNews.com, the Manila Bulletin, Businessworld, Inquirer.net, etc. In the forum it became clear that there’s a consensus on two points:
1. Both by tradition and law, the President shouldn’t appoint the next Chief Justice, much as her boosters insist to the contrary.
2. There is no reason to think there is a pressing need, from the perspective of the operations and functions of the Supreme Court, for a Chief Justice to be appointed in the twilight months of the present dispensation, despite the opinion of the current Chief Justice to the contrary.
My colleague John Nery in The iconoclastic Gloria A., puts the President’s latest scheme this way:
The true legacy of the Arroyo years may lie in the fabricated uncertainties that litter the road to Malacanang.
The entire debate over the appointment of the next chief justice, for instance, is only the latest manufactured crisis: What will happen to the Supreme Court if Puno’s successor is not immediately named? As the Court’s own history proves, the real answer is clear: nothing that can rise to the level of a crisis.
All this brings us back to Rawls, who wrote: “We start from the conviction that a constitutional democratic regime is reasonably just and workable, and worth defending. But given the fact of reasonable pluralism, we try to design our defense of it so as to gain the allegiance of reasonable people and to win wide support.”
President Arroyo’s machinations to ensure her political survival have had the effect, and perhaps were so designed, to create political or even constitutional uncertainty where there was none. This conduct is the exact opposite of Rawls’ ideal, “to gain the allegiance of reasonable people and to win wide support.”
Quite recently, a close adviser to the President described her as having turned “iconoclastic.” This initially puzzled me, but now I think I am beginning to understand. She has turned to breaking idols, to attacking cherished beliefs – including those that make democracy possible in the first place.
Now what piqued my curiosity was the seeming confluence of interests in a chief executive on one hand, ignoring past precedents to assert the prerogative to appoint the next Chief Justice, and the incumbent Chief Justice weighing in on this proposal from a different but politically-congruent perspective.
The answer, to my mind, doesn’t lie in anything legal but in something political. Take a look at this chart, which was provided by Atty. Marlon Manuel:
(You can see a larger version here) It shows the period in office of the current justices of the Supreme Court, from the time of their appointment to their expected date of retirement. The last of the justices appointed by the President’s predecessors, the present Chief Justice, retires at the tail end of the President’s term. The President has appointed the rest of the high court, and five of her appointments, will retire within the term of the President’s immediate sucessor (making for possibly four to six judicial appointments to the high court by the Preident’s successor, since Brion and Perez might fall within the prohibited period for midnight appointments for that President). Seven more will retire during the term of that successor’s successor.
Anyway what’s relevant here are the two Justices affected either way, by the President’s intention to appoint the next Chief Justice. The overarching practice is to limit consideration of who will become Chief Justice, to the most senior Justices in the Court (although theoretically the President is free to appoint any lawyer who qualifies to the vacancy, whether currently in the high court or not). The last two Chief Justices were appointed on this basis, and what happened suggests a possible ongoing dilemma.
President Arroyo broke with precedent in bypassing Justice Reynato Puno in order to make Justice Artemio Panganiban the next Chief Justice, even though at the time, Puno was No. 1 in terms of seniority and Panganiban No. 2. But if Puno had been made Chief Justice immediately, Panganiban would never have had a chance to be Chief Justice. There was speculation that the Catholic Church lobbied for the faithful Panganiban and opposed Puno, who besides being a Protestant was, more significantly, a Mason. Also, Panganiban was instrumental in then Chief Justice Hilario Davide Jr.‘s decision to provide the legal basis for then Vice-President Arroyo’s assumption of power during Edsa Dos.
The President appointed Panganiban who got to be Chief Justice, then followed the seniority standard again when he retired, so that Puno also got to serve as Chief Justice.
Today, No. 1 and No. 2 in terms of seniority are Justices Antonio Carpio (appointed October 26, 2001 and who will serve until 2019) and Renato Corona (appointed April 2, 2002 and who will serve until 2018), respectively. If the President does not appoint the next Chief Justice when Puno retires on May 17, 2010, then Justice Carpio will automatically serve as Acting Chief Justice until the next President appoints the new Chief Justice by the Constitutionally-imposed deadline on August 17, 2010. Following the seniority rule, Carpio would be first in line to be appointed Chief Justice.
On the other hand, if the President appoints the next Chief Justice, she can invoke her own past precedent in bypassing the No. 1 in the seniority list, to select the No. 2, allowing No. 2 to serve as Chief Justice while keeping No. 1 still top of the list in terms of seniority, allowing him to eventually serve as Chief Justice, too.
What the incumbent President and Chief Justice have in common is that Justice Carpio has been a thorn in both their sides. Carpio has voted fairly consistently against the President’s arguments in high-profile cases and also taken a position usually at odds with the Chief Justice’s opinions. Corona, on the other hand, has been in harmony with the President’s legal positions and the opinions of the Chief Justice.