First among equals

Of the eight functions or duties of the chief justice (CJ) that I wrote about on June 17, the most important is the first—to be primus inter pares, to be the first among equals in deciding cases in the Supreme Court.

Trust, respect and esteem. While associate justices devote most of their time to decision-making, the CJ can spend only about 30 percent of his time to this task because he has seven other duties not required of the associate justices. (I will dwell on these seven at another time.)

Yet, despite his limited time, the CJ is expected to lead the Supreme Court in issuing well-reasoned judgments written by jurists of “proven competence, integrity, probity, and independence.” To be able to fulfill this delicate duty within his limited time, he must have the trust, respect and esteem of his colleagues.

And to be respected by the Court, the chief must have superior intellectual gravitas, unassailable integrity and unquestioned independence. The associate justices usually look up to him for guidance, especially on public interest cases, when the reputation and public face of the Court is at stake.

Unless the chief gains the trust, respect and esteem of his colleagues, he cannot successfully lead the Court. Instead of being healed, the rifts and intramurals that beset the Court in the past may be aggravated. It is thus essential that the Judicial and Bar Council screen the candidates carefully. It must short-list only those who can demonstrate their ability to tackle the eight duties of the chief justice, and possess preeminent intellectual gravitas, independence and moral ascendancy that the associate justices can relate to.

This is not to say, however, that all chief justices swayed the Court all the time. I remember many years ago, a colleague teased our chief every time he voted with the minority, “Chief, you lost again.” The CJ would just smile but I thought that, even in jest, the remark was a cruel joke on the CJ’s leadership.

Thus, when I became CJ, I worked hard to win all the major cases in my Court, notably the decisions striking down (1) Executive Order 464 barring officials from legislative inquiries, (2) the Calibrated Preemptive Response (CPR) policy on rallies and demos, (3) Presidential Proclamation 1094 instituting emergency rule, and (4) the people’s initiative to install the parliamentary system.

Scrutinizing decisions. In recognition of his other duties and time constraints, the chief’s caseload is lightened. Once appointed, he is raffled only one-third of the new cases given to an associate justice. The CJ may not be the top producer, but all Supreme Court decisions must pass his scrutiny before they are promulgated. Unlike the associate justices who sign only the judgments they personally participate in, the CJ certifies all of them at the end portion of each decision.

You see, the Court works in two ways: first, en banc with all 15 justices participating, and second, in three divisions of five justices each. The divisions decide about 85 percent of all cases. The banc takes up only the most important ones constituting about 15 percent of the total. The chief heads the banc plus one division, while the most senior and second most senior associate justices preside over the two other divisions. This is why the latter two are often called “little chief.”

Sometimes, the three divisions inadvertently issue decisions that conflict with one other because they may not be aware of the other’s judgments. At other times, their verdicts may unwittingly contradict existing jurisprudence, thereby violating the Constitution, given that only the banc can reverse or modify old decisions.

Because he has to certify all decisions of all three divisions and of the banc, an eagle-eyed CJ is given the opportunity—and the burden—of reviewing them so they don’t conflict with one other and with previous decisions. At times, he also tactfully corrects grammatical, footnoting, typographical and similar errors.

Supreme Court reforms. The new CJ is also expected to institute reforms in the Court. The Court needs, among other things, to automate its processes, upgrade its e-library, hasten its decisions and tackle other reforms.

The Court has about 6,000 pending cases, some of which exceed the constitutional limit of two years. On the average, each justice handles about 400 cases. The cases are however not evenly divided. New justices take the bulk of the cases. When I entered the Court in 1995, I was assigned over 1,000 cases. I had to work day and night to reduce my caseload, such that upon my retirement on Dec. 6, 2006, I left only about 200 cases, all of them current.

In addition to the 6,000 pending cases, another 6,000 new ones are filed annually. Thus, just to avoid increasing its backlog, the Court must dispose of at least 6,000 cases every year. To do this, most of the new filings are given the short shrift and dismissed outright via minute resolutions. Only about 1,000 are disposed of via full-blown decisions called ponencias. (In contrast, the US Supreme Court writes only about 100 cases yearly.)

The new chief must find ways of reducing this backlog. During my time, I segregated the old cases and encouraged the justices to give them priority via what I called “Operation Zero Backlog.” With the cooperation of my colleagues, we were able to reduce our backlog to almost zero, but this is a recurring problem that has to be attended to continuously. Otherwise, with the influx of new cases, the problem could really persist.

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