The Judicial and Bar Council, meeting this week to agree on a short list of candidates for chief justice, would do well to remember one specific untruth Renato Corona said at his impeachment trial. He infamously began his premeditated walkout from the Senate trial by intoning the words, “The Chief Justice of the Philippines wishes to be excused.” But in fact, there is no such office, and therefore no such official.
The Constitution specifies the one official who is entitled to such a simple, sweeping title. “The executive power shall be invested in the President of the Philippines,” we read in the very first section of Article VII. In contrast, the leaders of the two chambers of Congress are defined (Article VI) by the limits of their office, beginning with the provision for their election: “The Senate shall elect its President and the House of Representatives, its Speaker …”
This delimitation explains why it has never been the tradition to refer to the leader of the House of Representatives as the Speaker of the Philippines; he (and it has always been a he) is always formally introduced as the Speaker of the House. The limits of the office represented by the Senate President (and, yes, that official too has always been a he, although Sen. Loren Legarda once served as majority leader, the senator who effectively runs the Senate from day to day) is in the title itself.
And the chief justice? The fourth section of Article VIII provides that the high court “shall be composed of a Chief Justice and fourteen Associate Justices.” (Other mentions have the phrase “Supreme Court” in the vicinity.)
These distinctions are not merely a matter of protocol; they encapsulate the very theory of the separation of powers. Note the difference in the first sections of the three great Articles establishing the three branches of government. “The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives …” (Article VI) And, “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.” (Article VIII) In contrast, the executive power is vested in one person—not coincidentally, the one person with the lone, rightful claim to the simple, sweeping title.
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Corona still could not technically, legally, excuse himself from the witness stand that fateful day in May even if he had used his actual title: chief justice of the Supreme Court of the Philippines. He had, fatally, overreached, attempting to wield a power he did not have. (The power to excuse him from the witness stand belonged to the Senate President, the head of a co-ordinate branch of government. Is that why he declined to mention “the Supreme Court” in his script?)
But his use of the false title, “Chief Justice of the Philippines,” serves as a tantalizing clue to the set of problems that led to his impeachment trial in the first place. He acted as though the judicial power was vested, largely, in him. Hence the mistaken use of the judiciary’s regular assemblies to make partisan speeches; hence the egregious encouragement of Supreme Court staff wearing protest paraphernalia; hence the unfortunate decision to allow the reputation of the entire Court to be dragged through the impeachment mud.
One must add, however, that unlike the case of the US Supreme Court, against which our own high court inevitably, traditionally measures itself, the chief justice of the Philippine Supreme Court is also the administrator of a vast, national bureaucracy; this additional set of responsibilities complicates the popular axiom that the leader of the judiciary is only the first among equals.
Corona’s replacement must come into office not only with a renewed appreciation of the duties and functions of a collegial Court; he, or she, must begin the new term with a deep sense of the high court’s role in history.
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It is precisely this sense of history that should put paid to any and all arguments against politicians joining the Supreme Court. Some of the best justices to have served on our high court were either political giants (e.g., Jose Laurel, Claro Recto) or reputable politicians (e.g., Marcelo Fernan, Hilario Davide). Political experience, by itself, is not a disqualification. In fact, it can be a decided advantage, since most constitutional issues that reach the Supreme Court will have a political cast.
If we take a peek, again, at American judicial history, we find that some of the US Supreme Court chief justices generally reckoned to be among the greatest were politicians too (John Marshall, who served as John Adams’ secretary of state; Charles Evans Hughes, who ran as Republican Party presidential candidate against Woodrow Wilson; Earl Warren, who maneuvered his way into the Court from the governorship of California).
That same sense of history, however, should also remind us that the Supreme Court has been well-served by non-politicians as well as outright outsiders. Indeed, if a formula were to be pulled together from the experience of successful Courts, the equation it seems must include at least two factors: the composition of the Court as a good mix, a balance between politicians and academics, between career judges and prominent practitioners; and the leader of the Court as a lawyer who is both genuinely consultative and strongly strategic. In other words, a court general—to borrow from our rich basketball lore.
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jnery@inquirer.com.ph/johnnery.wordpress.com