Breaking the insider tradition?

Since it was founded 111 years ago on June 11, 1901, the Supreme Court (SC) has always been led by an insider, except only once during World War II when the country was occupied by a foreign power. In fact, the exception, former Speaker Jose Yulo, was named chief justice by the occupying Japanese military command, not by a duly elected President.

Starting the tradition. Moreover, since it was institutionalized in 1987, the Judicial and Bar Council (JBC) has always, without any exception, nominated only insiders to the top judicial post. In its 25-year history, the JBC has included in its short list only incumbent Supreme Court justices.

In the past, the nomination process for the post was relatively easy. The JBC simply chose the most senior Supreme Court justices and left the appointment of the most deserving among them to the sound discretion of the President. In this way, the JBC preserved the long-held tradition of choosing only insiders for the top post.

In the early 1900s—during the American regime—insiders were uniformly named chief justices to succeed Cayetano Arellano (the first and longest serving, who held the post from June 11, 1901, to April 1, 1920). After Arellano, Victorino Mapa (second most senior), Manuel Araullo (also second most senior) and Ramon Avanceña (fourth most senior) were appointed by US Presidents Woodrow Wilson, Warren Harding and Calvin Coolidge, respectively. The fifth chief justice, the martyred Jose Abad Santos, also an insider, was chosen by President Manuel Quezon in 1941.

Not even Ferdinand Marcos broke the insider tradition. During his 21-year reign, he named six chiefs (Roberto Concepcion, Querube Makalintal, Fred Ruiz Castro, Enrique Fernando, Felix Makasiar and Ramon Aquino). All of them were insiders; the first four were the most senior justices, and the last two, the second most senior.

Even when all the justices resigned as a consequence of the 1982 bar scandal, President Marcos—at the height of martial law—did not name an outsider. He was tempted to choose one, but his choice—then University of the Philippines president Edgardo Angara—respectfully declined and subtly reminded the martial law ruler of the insider tradition.

Preserving the tradition. Democracy icon Cory Aquino, presiding over her reformist government, opted to preserve the insider tradition. After the peaceful Edsa revolution in 1986, all the Supreme Court justices resigned, enabling President Cory to reorganize the tribunal. She named Claudio Teehankee, the then most senior magistrate, as chief justice. She appointed three other chiefs, Pedro Yap, Marcelo Fernan and Andres Narvasa, but took the precaution of lining them up first as associate justices.

Two other associate justices, Ameurfina Melencio-Herrera and Hugo Gutierrez, had more experience in the high court than Yap, Fernan and Narvasa, having been named there by Marcos in 1979 and 1982, respectively.

But their reappointments to the Supreme Court by Mrs. Aquino were dated later than Yap, Fernan and Narvasa. So, based on the dates of their reappointments, Herrera and Gutierrez appeared to be junior to Yap, Fernan and Narvasa. But in actual fact, Herrera and Gutierrez had much longer service in the high court. Yap served barely two years as associate justice before being elevated to the top in 1988.

However, regardless of whether they were more senior or not, the fact remains that at the time of their appointments as chief justice, Yap, Fernan and Narvasa were already associate justices, and thus considered insiders.

To repeat, the JBC has always nominated only insiders. When Chief Justice Hilario G. Davide Jr. retired, Sen. Miriam Defensor-Santiago wanted to be his successor, but her application was filed a few days late. The JBC refused to extend the period for nominations and chose only insiders.

Then, when I retired on Dec. 6, 2006, Senator Santiago again aspired and went through the nomination process. However, she failed to obtain the necessary votes to be included in the JBC short list. Senator Santiago, a former judge, may have been qualified to be chief justice, but I think she was not included in the short list because of the insider tradition.

Confronting the tradition. The JBC has now finished the nomination process and is poised to vote on a short list in the coming week. Of the 20 finalists, six are incumbent Supreme Court justices while 14 are outsiders, including Cabinet members, academics and practicing lawyers. For the first time, so many outsiders are aspiring for the top.

The insider tradition is entrenched on the rationale that the highest judicial post is career in nature, and that an appointment thereto requires maturing and seasoning that are best acquired through actual high court experience. It also discourages shady politicians from using the vacancy as a bargaining chip in chaotic partisan games. By limiting the field only to worthy incumbent Supreme Court justices, the JBC can better assure judicial independence, so concludes the rationale.

Understandably, incumbent justices frown on complete outsiders, believing that the new chief, like them, should queue up, learn the job hands on, and await his or her turn. An outsider, especially a young one who would dislodge those waiting for their turn, would naturally find difficulty leading the high court and reforming the judiciary.

However, times are changing. Can the JBC now justify the nomination and possible appointment of an outsider? Will it dare break the age-old insider tradition? And for what reasons? Starting tomorrow, the JBC will confront these questions and answer them.

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