Airbrushing and tradition

Having been referred to as the “first female chief justice,” Teresita de Castro was asked by the press if this was so. To which she replied, yes, that’s technically the case—only to stumble, a few minutes later, when, in the process of humble-bragging about her instituting reforms while on the family courts committee, she was asked, who put her on that committee? Why, Chief Justice Maria Lourdes Sereno, she replied, momentarily acknowledging the very non-chief justice whose existence no longer technically exists. Which is why De Castro could, in a moment of technical exactitude, accept being called the first female chief justice.

Still, the chain of events that began with the Marcosian substitution—because previously unthinkable, and then unappealable once attempted—of a novel legal theory for a long-accepted legal practice can, hopefully, now be said to have come to an end. The theory was the exception put forward by the court presided over by Chief Justice Reynato Puno in his waning days as chief magistrate that decreed that, while the Constitution prohibits midnight appointments, this prohibition uniquely does not apply to the filling of a vacancy in the Supreme Court. This decision allowed Gloria Macapagal Arroyo to appoint Renato Corona, which then led to the pyrrhic victory of Corona’s impeachment. The tradition of seniority was then discarded by Benigno S. Aquino III, leading to the appointment of Maria Lourdes Sereno, who took it upon herself to alienate the entire court, resulting in yet another example of Marcosian legal creativity (unthinkable until it happened)—the use of quo warranto proceedings to declare Sereno’s appointment null and void.

So, after so much fumbling over the letter of the law, perhaps the best thing to consider is that, with the retirement of De Castro in October, the Supreme Court can return to the spirit of the law—the same spirit that inspired former chief justice Manuel Moran to decline being reappointed to the court rather than accept a midnight appointment as the price. It’s the same spirit that inspired Chief Justice Jose Concepcion to go into early retirement, mere days away from the official date, rather than preside a moment longer over a Supreme Court that permanently disgraced itself by declaring that there was no obstacle to considering the 1973 Marcos Constitution in full force and effect.

Marcos passed over Claudio Teehankee, conveniently ignoring seniority, only for Teehankee to end up chief justice anyway after the Edsa Revolution. If Corona was mistaken in accepting a poisoned chalice, and if his removal meant the chalice was likewise poisoned for Sereno, then it remains poisoned for De Castro. But the third time’s the charm, and when she goes, for the first time since 2010, the next chief justice can be the first to normally assume the chief magistracy after a series of abnormal occurrences.

This early—though not a moment too soon, as two months from now will come soon enough—Senior Associate Justice Antonio Carpio is being mentioned as the logical choice to restore the credibility both of the court and the position of chief justice. Wisely—and appropriately—he declined to be considered for chief justice this time.

But the next time around, he and others can argue that matters have played out; and he could serve as chief justice from October 2018 to October 2019. In every controversy the court has been embroiled in since 2010, Carpio has managed to avoid the perception of partisanship, and his remains one of the most powerful pens on the high bench. Even the President, who began his term displaying the utmost diffidence to Carpio, only to increasingly be grumpy about his opinions, might find it politic to stick to the principle of seniority, since he could still appoint a new chief justice at the end of 2019.

For presidents and judges alike, it would be going too far to expect that the logical lesson from the past nearly 20 years is that there are limits to innovation. But, anyone who ignores tradition does so at great peril not only to their reputation, but the institutional health of the organization they hope to lead.

Three lessons are clearly spelled out: There is no vacancy so serious that it has to be filled at the cost of a clear prohibition in the law. Seniority may be as arbitrary a basis for appointments as any, but in a learned profession, it is one that avoids the corrosive effects of envy or the conceit of premature elevation to high office. And what the law may permit to accept, past example cautions against accepting, on the biblical principle that, really, what does it profit a man to gain the world, but lose his soul in the process?

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