ABSURD RULE: There is a campaign to have the successor of Chief Justice Hilario G. Davide Jr., who retires on Dec. 19, chosen or appointed on the basis of seniority.

If seniority were the rule, there would no longer be any need for nominations, for screening by the Judicial and Bar Council, and for the sound discretion of the appointing power, the President, in choosing the Chief Justice.

If seniority were the rule, nobody outside the high court would ever have a chance to be appointed Chief Justice on the spot. On the contrary, history shows that outsiders had been named to the top SC post without “seniority” propping them up.

If seniority were the rule, the SC justices would just keep going up in the chronological and mechanical order of their entry into the tribunal. They would not have to do anything, except to stay alive until they automatically become Chief Justice or retire due to age, whichever comes first.

The “seniority rule” as applied to the selection and appointment of the Chief Justice is absurd.

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GMA MUM: Three senior members of the Supreme Court — Justices Artemio V. Panganiban, Reynato S. Puno and Leonardo A. Quisumbing — were nominated in that order by the Judicial and Bar Council to replace Chief Justice Davide upon his coming retirement.

Under the Constitution, President Gloria Arroyo is empowered to appoint any of the nominees. Prudently, she has not given any hint of her preference.

When I asked her days ago what her criteria were for the incoming Chief Justice, she sidestepped the question. Instead, she said that all the three justices nominated were eminent jurists and were qualified.

While that remark was, I think, meant to evade being pinned down and showing her hand, it could also be seen as revealing that, at the back of her mind, seniority was not the only consideration.

If seniority were the criterion guiding the President, she would NOT have said that all three nominees (also meaning, any one of them) were qualified to be Chief Justice. Impliedly, no one is the most qualified by virtue of seniority.

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NO BASIS: The advocates of the “seniority rule” argue that President Arroyo must appoint Puno, because he was named associate justice in 1993, while Panganiban got into the Supreme Court in 1995 and Quisumbing in 1998.

They claim that the “seniority rule” has been consistently followed since the High Court was organized in 1901. This line has no basis in fact and in law.

It is not true that seniority has been consistently followed. From its establishment in 1901 to the present, the Supreme Court has had 20 Chief Justices, namely: Cayetano Arellano, Victorino Mapa, Manuel Araullo, Ramon Avanceña, Jose Yulo, Jose Abad Santos, Manuel Moran, Ricardo Paras, Cesar Bengzon, Roberto Concepcion, Querube Makalintal, Fred Ruiz Castro, Enrique Fernando, Felix Makasiar, Ramon Aquino, Claudio Teehankee, Pedro Yap, Marcelo Fernan, Andres Narvasa, and Hilario Davide Jr.

Half of these 20 Chief Justices were not the most senior when they were appointed.

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TEN JUNIORS: Note the lack of seniority of these 10 Chief Justices at the time of their appointment:

1. Cayetano Arellano — because he was the first CJ, there could have possibly been no seniority to be either observed or disregarded.
2. Victorino Mapa — the most senior then was Florentino Torres.
3. Manuel Araullo — Finley Johnson was senior.
4. Ramon Avanceña — Finley Johnson, Thomas Street and George Malcolm were senior.
5. Jose Yulo — he was not even an Associate Justice when appointed Chief Justice (he was an outsider).
6. Felix Makasiar — Claudio Teehankee was senior.
7. Ramon Aquino — Claudio Teehankee was senior.
8. Pedro Yap –Ameurfina Herrera and Hugo Gutierrez were senior.
9. Marcelo Fernan — Ameurfina Herrera and Hugo Gutierrez were senior.
10. Andres Narvasa — Ameurfina Herrera and Hugo Gutierrez were senior.

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JUMBLED JUSTICES: A little explanation on Yap, Fernan and Narvasa: When Cory Aquino took over the presidency after the EDSA Revolt in 1986, she established a revolutionary government and abrogated the 1973 Constitution. The Supreme Court thereby lost its constitutional mooring.

A few days later, Ms Aquino established a new Supreme Court and reappointed a number of Marcos appointees to the tribunal, among them Ameurfina Herrera (originally appointed Jan. 17, 1979) and Hugo Gutierrez (originally appointed May 14, 1982).

The incumbencies of Herrera and Gutierrez were therefore practically uninterrupted. But in their reappointment, they were made to appear as “junior” to Yap, Fernan and Narvasa by dating their appointment papers some days later than those of the three new justices mentioned.

Hence, when Chief Justice Teehankee retired, Yap appeared to be the “most senior.” The same was true in regard to Fernan and Narvasa.

This is not a critique against Yap, Fernan or Narvasa. They deserved to be CJs. They were not, however, the justices who had served earliest or the longest when they were named CJs.

The fact is that Herrera and Gutierrez had stayed in the SC much longer than Yap, Fernan and Narvasa, who had all been outsiders before being named associate justices in 1986.

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REFORMIST BENT: The President’s hands should not be tied by a nonexistent tradition of seniority. She should not be held hostage by a myth, an absurd one at that.

It seems that the “seniority rule” is being asserted on the theory that the longer the incumbency, the better prepared a jurist is for the chief justiceship.

But there is no record showing that the most senior justices who were named CJs were chosen on the basis solely or mainly of their seniority. It is possible that, in the assessment of the appointing authority, they were also the most qualified.

There is no provision in the Constitution or in any law limiting the presidential power of appointment only to the most senior. On the contrary, the appointment power plainly depends on the sound discretion of the President.

The most important criterion is obviously not seniority but qualification to lead the judiciary in these times crying for reforms. It would be ideal to give reformist Chief Justice Davide a successor who has shown an inclination and a resolve to reform the judiciary.

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JUST A MYTH: In the United States (whose Constitution is similar to that of the Philippines in this regard), John Roberts was recently appointed Chief Justice when he was a mere Court of Appeals justice and not a member of the US Supreme Court. Note that he was confirmed by the US Senate by an overwhelming 78-22 vote.

Warren Burger was also a CA justice when he was appointed CJ. Robert’s predecessor, William Rehnquist who died a few months ago, was a junior SC justice when named CJ.

Most other US Chief Justices were not the most senior. In fact, some of the greatest, like Earl Warren and Charles Evans Hughes, were complete outsiders.

In Canada, Beverly MacLachlin was only No. 6 among the nine members of the Supreme Court when she was appointed Chief Justice.

In the Philippines, a practice observed half the time, and half the time not, is no tradition. Much less is it a rule. It is a myth.

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JOB INTERVIEW: There is another point that has cropped up: a suggestion widely supported for the nominees for Chief Justice to sit for public interviews in the spirit of transparency and accountability.

Senate Majority Leader Francis N. Pangilinan deplored as a “step backward” the decision of the JBC, after receiving a letter from 12 SC justices, to forgo interviews of the nominees for Chief Justice.

“Selecting the next Chief Justice is not merely a matter between and among the JBC, the Office of the President and the Supreme Court,” Pangilinan said. “It is a matter of concern of the public at large.”

While we are for transparency and accountability, there should be safeguards that public interviews of nominees to the non-political position of chief justice do not degenerate into circus-like affairs similar to congressional inquiries.

Nominees for Chief Justice must not be made to perform in a degrading spectacle. There must be strict provisions for shielding them from public insults, reckless interrogation and innuendoes that destroy not only the person but also the institution he represents.