Unveiling more Supreme Court secrets

MANILA, Philippines—Apart from creating the Ethics Committee that will preliminarily investigate “all complaints involving graft and corruption and violations of ethical standards, including anonymous complaints, filed against members of the Court,” which I discussed in past columns, the Supreme Court unveiled other secrets in its recently issued Internal Rules. I see this self-imposed demystification as the Court’s partial answer to the growing demand for more transparency and accountability.

Ponente’s identity. In the past, the “gods of Padre Faura”—as the justices are called, to stress their inaccessibility—were very secretive about the identity of the “member-in-charge” of each case. This secret was so carefully guarded that many lawyers and litigants have been held in contempt for claiming to know this confidential information.

The secrecy, so goes the theory, is aimed at protecting the members-in-charge from undue influence by lawyers and litigants. This confidentiality is meant to level the playing field. The revelation of the members-in-charge will unnecessarily expose them to bribery, or to importuning from close relatives, friends and supposed patrons. But the problem is that lawyers with “insider” connections are still able to breach the wall of secrecy.

Lawyers cannot be totally blamed for wanting to know the identity of the members-in-charge, not necessarily to bribe or unduly influence them but to study their background, legal philosophy, work habits, and previous decisions on the same issues, to be able to calibrate their arguments and predict with reasonable certainty the litigation’s outcome.

Veil of secrecy lifted. It is also of common knowledge in legal circles that, given their heavy caseloads, justices tend to focus mainly on the cases assigned to them individually and to concur with the study and recommendation of their colleagues assigned to other cases. Justices trust each other implicitly such that each of them effectively wields the judicial powers of the Court as a collegial body when they gain their colleagues’ concurrences.

But now, the Internal Rules laid aside this secrecy, by authorizing the clerk of court to “make the result of the raffle available to the parties and their counsels or to their duly authorized representatives, except the raffle of (a) bar matters; (b) administrative cases; and (c) criminal cases where the penalty imposed by the lower court is life imprisonment…”

The advocates of this change say that now the field is in fact leveled because every litigant could now know the identity of the member-in-charge. Trial court judges decide their cases openly. Why then should the justices be shrouded in secrecy? Certainly, they can be trusted to resist bribery and pressures, and to decide cases fairly and objectively.

Precise reason required. The Constitution requires all justices “who took no part, or dissented, or abstained from a decision or resolution (to) state the reason therefor.” Yet, many of them used to write “No part,” or “In the result” without any further remark. Now, under the Internal Rules “the inhibiting member must (repeat, must) state the precise reason for the inhibition” (Rule 8, Sec. 1). Too, “a concurrence ‘in the result’ should state the reason for the qualified concurrence” (Rule 13, Sec. 7).

With the effectivity of the new Rules, there would be no more restricted concurrences without the precise reason being stated. This new procedure will probably cascade to the three appellate courts, the Court of Appeals, Sandiganbayan and Court of Tax Appeals.

It is said that three institutions cannot be completely democratized: the Church, the military and the judiciary. They follow a strict hierarchy. The Pope outranks everyone in the Church. His ex-cathedra pronouncements on faith and morals are deemed infallible. In the military, orders of the commanding officers cannot be countermanded even by the unanimous vote of the enlisted personnel. As they say, rank has its privileges.

The same is true with the judicial hierarchy. The lower courts and quasi-judicial agencies are duty-bound to obey decisions of the Supreme Court, whether they agree with them or not.

In turn, members of the Court observe rules of precedence and protocol among themselves. Under the Internal Rules, the chief justice enjoys precedence over all members of the Court in all official functions. So too, the associate justices have precedence “according to the order of their appointments as officially transmitted to the Supreme Court.” This is commonly referred to as seniority. The earlier the Court receives the appointment, the more senior the jurist is. The seniority rule is observed in three ways, thus:

In the chairmanship of the three divisions, the chief justice, the most senior and the second most senior head the three divisions of the Court. Seniority is also observed in the selection of the chair and members of the Senate and the House of Representatives Electoral Tribunals.

In seating arrangement in all official functions, the chief is seated in the center, the first most senior on his right and the second most senior on his left, the third most senior on the right of the first most senior, the fourth most senior on the left of the second most senior, and so on.

In the “choice of office space, facilities, equipment, transportation and cottages,” the chief gets the first crack, and then the associate justices in the order of their seniority.

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