The unfortunate Calida, ‘16th Justice’

I have not met Solicitor General Jose Calida, but his reputation precedes him. He likes, shall we say, to cut a figure. Arriving at a function in a convoy with flashing lights; deliberately ignoring his candidate’s vice presidential running mate at a campaign rally; going around town telling officers of the court he is replacing Ombudsman Conchita Carpio Morales, and soon. So it wasn’t exactly a surprise when he justified his startling intervention in Janet Lim Napoles’ serious illegal detention case with yet another act of immodesty.

“It is up to the Justices of the Court of Appeals to assess the weight of our pleading. And, modesty aside, the Solicitor General is considered as the 16th Justice of the Supreme Court,” he told reporters on Thursday.

Of all the things he said in that disturbing news conference, this was in my view the most upsetting.

In the first place, no solicitor general publicly refers to himself as the unappointed member of the Supreme Court; it just isn’t done. The boundaries that divide the work of the executive’s chief lawyer from the work of the judiciary are not only constitutionally determined but also ethically set.

It is true that many solicitors general have been named to the Supreme Court; a cursory look at the list of solicitors general since 1901 shows that at least a dozen were eventually appointed to the high court. Associate Justice Francis Jardeleza was the last such appointee. It is also true that the Supreme Court pays special attention to the arguments of the solicitor general, whoever he or (in the lone case of Agnes Devanadera) she is, because the office represents the executive or indeed the government in its entirety.

But it is both unethical and illogical for a solicitor general to assert that he is “considered” as another Supreme Court justice, because in fact he isn’t and because the separation of powers requires that he shouldn’t be.

Secondly, Calida misunderstands the American tradition, where the practice of referring to the government lawyer who most often argues government cases before the US Supreme Court as the “tenth justice” started. This was for the most part a recognition of the stature of the solicitor general; he spent so much time arguing before the justices he was often treated like one. As a courtesy title it was, it is, very much like an honorary doctorate; the honoree can proudly include the distinction in his curriculum vitae, but if he insists on being addressed as “Doctor” real academics will laugh at him.

Thirdly—and this is the despicable conduct deserving of our collective outrage—Calida’s invocation of his supposed stature as the 16th Justice was plainly meant to put pressure on the Court of Appeals. “And, modesty aside, the Solicitor General is considered as the 16th Justice of the Supreme Court.” What possible use could that unusual connecting phrase (“And, modesty aside”) provide except telegraph an insidious (and disingenuous) signal? “I speak for the high court.” Or, “The high court thinks like me.”

This is not the first time Calida has used his position to demonstrate, not justice, but a petty or petulant power. In an exchange with his “Public Enemy No. 1,” Sen. Leila de Lima, he dared her to compare bar exam results in Criminal Law. (Not because this was just, but because he got 100 percent in this one component of a multi-test bar exam.) The “biggest case that was decided during my watch,” he said, “was the West Philippine Sea case, in which we won by a unanimous decision.” While the decision did come down after he took office, he did not take part in the case.

And poor Alan Cayetano: Mr. Duterte’s running mate is asking for an explanation for Calida’s Napoles gambit, because “I know this government does not act without a strategy.” He is resting his hopes on the same person who did not call on him to speak at that rally last year: Calida, champion of the Duterte-Marcos alliance.

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