The choice of a Supreme Court Justice is the most important appointment a President gets to make. The appointee usually outlives the appointer in tenure, in a position that wields enormous power. He is accountable to no one on the merits of his action. In this day and age, his decisions are central to shaping the attitudes that affect our lives.
Only one appointment surpasses a Supreme Court Justice in magnitude. This happens when the President appoints a Chief Justice.
Chief Justice Charles Evans Hughes writes, in his book The Supreme Court of the United States: “The Chief Justice as the head of the Court has an outstanding position, but in a small body of able men with equal authority in the making of decisions, it is evident that his actual influence will depend on the strength of his character and the demonstration of his ability in the intimate relations of the Judges .... Courage of conviction, sound learning, familiarity with precedents, exact knowledge due to painstaking study of the cases under consideration cannot fail to command that profound respect which is always yielded to intellectual power conscientiously applied.”
As we consider the key criteria in the selection of a Chief Justice, this famous formulation of Chief Hughes should serve as good starting point. Hughes, however, highlights only one of the four Philippine character guidelines on qualifications of Justices. This is competence.
Competence may be enough basis to select an American Chief Justice. There, they have no constitutional litmus tests. But a Philippine Chief Justice must possess, in addition, the virtues of integrity, probity and independence. This is what our Constitution demands.
Integrity. The last SWS survey in 2005 on the top criteria for selecting a chief justice showed knowledge of the law, respect for human rights and sensitivity to the needs of the poor as the top 3. No one will be surprised if, after the Impeachment Trial of Chief Justice Corona in 2012 and the Quo Warranto removal of Chief Justice Sereno this year, moral character were to be the new top criterion.
Four of the Associate Justices who judged Chief Justice Sereno on her integrity are now offering themselves in her place, proferring their own superior virtue. Its an open invitation for a national vetting. For the sake of stability and accord, it would be best if all previous SALNs and any other sworn documents from the time they entered public service be analysed now to avert fallouts that know no prescriptive period.
Integrity subsumes honesty but not just in terms of straight paths. It denotes consistency of character. In this sense, honesty is actually more like probity. Chief Justice Renato Corona himself at his JBC interview last 2010 declared that “it is integrity that gives us the moral right to judge others.” Integrity is extremely important but it must unite with the other equally important qualifications of the candidates. The most important of these is independence.
Independence. From both sides of the fence come calls for the President to abstain from appointing candidates who are politically connected. On this, we agree with Chief Justice William Rehnquist that there is “no reason in the world” why a President should not appoint someone sympathetic to his political principles. And he is right. Indeed, as designed by the Constitution, the public will – as expressed through the popularly elected President – has a say in the composition of the Court and, indirectly, in its decisions.
But delicadeza is not so much the issue as it is the absence of independence. History will bear out that not all issues that may confront the Court during a Chief’s tenure is foreseeable and subject to advance plotting. The President and his Chief may share positions on Martial Law or joint vs. separate voting or on same sex civil law unions but they may not necessarily agree on future cases on other questions. Of the three recent Presidents, Joseph E. Estrada got no sympathy from his appointed Chief, Hilario Davide. President Benigno C. Aquino III was rebuffed in his Hacienda Luisita battle by Chief Justice Sereno’s court and her personal vote.
Independence will come with the territory. There is their tenure. There is the guaranteed non-diminution of their compensation. There is fiscal autonomy. These are designed to strengthen identification of personal interest with that of the institution. These pressures also heighten each member’s extraordinary independence from his colleagues. In turn, it bolsters the Court’s institutional confidence against other branches’ rapacity.
Another surefire way to preserve a magistrate’s independence is to further deliver them from the temptation of executive influence. My father initiated a national discussion on this during his time. The proposal was to disqualify Supreme Court Justices and Constitutional Commission officials from being appointed to another office after their tenure, so as to forestall any appearance of posturing for future reward. President Rodrigo Roa Duterte has just appointed Supreme Court Justice Samuel Martires to the position of Ombudsman. His predecessor, Conchita Carpio Morales, also travelled that road. Predictably, quid pro quo justifications have dominated the commentary.
Chief Justice Artemio Panganiban outlines for us in his book “With Due Respect” the 8 functions of the Office of Chief Justice of the Philippines. He notes that the position requires its holder to perform many demanding roles which make it critical for him or her to possess, in addition to the fourfold constitutional character test, the intangible qualities of leadership, administrative capacity, and the ability to build consensus.
Adherence to the Rule of Law, leadership, administrative abilities, consensus building skills, in addition to competence, integrity, probity and independence. These are the benchmarks on which the next Chief Justice should be selected.