[OPINION] Aftershocks in the Supreme Court

“In a highly politicized context as in the Philippines, appointment to the office of the Chief Justice based on seniority is a tradition that minimizes the jockeying for appointment within and outside of the Court. The tradition of seniority has a way of muting political ambitions and insulates to some degree the office of the Chief Justice from the patronato system.”

These were the words of Raphael Lotilla, a former law professor at the University of the Philippines, in a letter he wrote declining his nomination for chief justice in 2012. The country had just witnessed a first in its history, the impeachment and conviction of a chief justice, Renato Corona, and the search had begun for his replacement.

Hierarchy is king in Padre Faura. You could feel this as you step into the Court and witness the 15 justices descend into the session hall for the occasional oral arguments. The most junior enter first and occupy the seats in the half-moon table that are farthest from the center where the chief justice sits. The most senior sit to the left and right of the head of the Court. 

In weekly en banc meetings, the same rule applies. There was a time when the joke was: by the time the bowl of peanuts that was passed around reached the most junior, there was hardly anything left. And since only the 15 justices attend these meetings – there is not a single staff member present – the most junior, who sits nearest the door, is tasked to open it whenever the coffee server knocks. 

You could also see the hierarchical nature of the Court in the titles of the justices: there is a senior associate justice and there is, simply, an associate justice. Such is the lay of the land in the 3rd co-equal branch of government. 

In Malacañang, President Benigno Aquino III was impervious to the more-than-a-century history of the Court where tradition reigned. Aquino picked one of the most junior justices, Maria Lourdes Sereno, to lead the Court at a time when the institution was still gathering its bearings after the historic impeachment of its chief justice. 

This was the context of Lotilla’s letter. A Court of Appeals justice, shared Lotilla’s view. He told me in an interview for my book, Hour Before Dawn: The Fall and Uncertain Rise of the Philippine Supreme Court, that after shaking up the Court, it was time to restore stability and the equilibrium in the balance of power. “By allowing tradition to take hold, the President allows the theoretically weakest [branch of government] to regain its self respect. In other words, by restraining himself, the executive provides strategic stability.”

Midnight appointment 

President Gloria Arroyo broke this tradition twice. The first time was in 2005, when she appointed Artemio Panganiban, the second most senior on the court, as chief justice. This was a short-lived arrangement as Panganiban served only for 11 months after which Reynato Puno, the most senior, was named chief justice. The disequilibrium that Panganiban’s appointment caused seemed innocuous. 

It was Arroyo’s midnight appointment of Renato Corona as chief justice in 2010 – during the election period wherein appointments were banned – that shook the judiciary. The Constitution (Article 7, Section 15) is explicit: “Two months immediately before the next Presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

The Supreme Court reinterpreted the Constitution and overturned an earlier decision that the ban covered the judiciary. In 1998, the Court, in a unanimous vote, found the appointments of two regional trial court judges to have been “unquestionably made during the period of the ban.” The Court said that the President was “neither required to make appointments to the courts nor allowed to do so” during the ban which takes effect only once in every 6 years.

Amid the highly-charged political atmosphere in 2010, the Court allowed Arroyo to name the next chief justice. They declared the judiciary special, exempting the institution from the ban.

The most senior on the Court, Antonio Carpio, accepted the nomination of the Judicial and Bar Council for chief justice on one condition: that the shortlist be made by the next president. In effect, he opted out of the midnight appointment process.

What we see today are the aftershocks of Arroyo’s appointment of Corona and Aquino’s choice for his replacement. These have caused tectonic shifts in an institution which is still trying to rise from the conviction of Corona.

The Corona trial brought to the fore issues of corruption in the most secretive branch of government. It was part of a cleansing process that began at the top, jolted the Court, and pushed it to be transparent. 

What is most unfortunate is that the impeachment of Sereno is taking place under a strongman who undermines institutions and wants to control the judiciary. 

History has its own momentum, and the Court is caught up in its force. – Rappler.com