Tuesday, October 10, 2006

Chief Justice

The Judicial and Bar Council has declared the position of Chief Justice of the Supreme Court open for nomination with the impending retirementof Chief Justice Artemio V. Panganiban on December 7, 2006. The practice of selecting the Chief Justice should be the subject of serious study (I am not aware of any) especially in light of our recent experience. The selection of the Chief Justice should be a critical task but the selection process in the Philippines, according to critics, is far from perfect.

The designation of Artemio Panganiban as Chief Justice raised two issues: the system engenders cronyism and the system is exclusionary in that it limits potential appointees to sitting members of the Court.

The last time President Gloria Macapagal Arroyo selected a Chief Justice, her decision generated controversy. Arroyo ignored the most senior member of the Court, Reynato Puno in favor of Artemio Panganiban. Puno was named to the Court three years earlier.

No President since Ferdinand Marcos has bypassed the most senior member of the Court when designating the Chief Justice. Marcos’ refusal to honor the tradition of seniority was regarded as a means of retaining control over the judiciary. He bypassed Claudio Teehankee, a Justice critical of the Marcos regime, twice to prevent or delay his rise to the post of chief justice. See Bernardo M. Villegas, The Philippines in 1985: Rolling with the Political Punches, 26 Asian Survey 127, 128-129 (1986).

Some saw Panganiban’s designation as Chief Justice as the President’s way of thanking him for helping secure the presidency in 2001. (Jocelyn Montemayor, Palace: CJ choice is no ‘bayad-utang’, Malaya, December 22, 2006). In 2001 Panganiban prevailed upon the then Chief Justice Hilario Davide to intervene in the unconventional removal of Joseph Estrada as President ostensibly to avoid the possibility that military elements might take advantage of the volatile political situation. So visible was his participation in the installation of President Arroyo that when the legitimacy of the Arroyo administration came before the Supreme Court, both he and Chief Justice Davide inhibited themselves from the Supreme Court proceedings. (Christine Avendano, Armand N. Nocum, & Juliet Labog-Javellana, Panganiban named 21st SC Chief Justice, Philippine Daily Inquirer, Dec. 21, 2005).

Another issue that came up last December involved the nomination of Senator Miriam Defensor Santiago to the position of Chief Justice. She was not considered for the position, however, because the Judicial and Bar Council refused to extend its nomination period to enable her name to make the list of candidates. In response, Santiago suggested that the council should be abolished under a new Constitution, or if not its budget should be slashed "to the barest minimum" as a warning.

Santiago complained of "apparent discrimination without basis" when the JBC declined to extend the period of nomination for the post of chief justice but extended the same for the post of Ombudsman. The senator said it appears that the main function of the JBC is to ensure that only incumbent justices will be nominated as chief justice, thus excluding any other candidate, no matter how qualified.

Santiago added that "Under the present system, it is possible for a Supreme Court justice to support his personal protégés for appointment to the JBC, and in turn for those protégés to vote for him as chief justice when a vacancy occurs. That would be very unhealthy for the judicial system." ( JP Lopez, Miriam wants JBC budget slashed, Malaya, December 06, 2005).

On December 26, 2005 the Philippine Daily Inquirer had an editorial that called on President Arroyo to choose the next Justice of the Supreme Court "not with her own personal and political interests in mind, but with those of the institution and the nation." The present docket of the Court makes it difficult for the President to follow the Inquirer's plea. Arroyo struck out three times earlier this year when the Court (two-thirds of whom are her own appointees) ruled against her administration on three crucial issues (EO 464, Proclamation 1017, and the Calibrated Preemptive Response policy).

Arroyo's political future is tacked on her campaign to amend the Constitution and to shift to a parliamentary government-the temptation to appoint an ally must be irresistible. Even inevitable.

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