A matter of fitness

The next chief justice, says ex-energy chief Rafael Lotilla, should be the most senior member of the tribunal. That is so “to insulate the post from the patronage system.”

He laments that today’s search for a new justice seems to ignore that time-honored tradition. Gloria Macapagal-Arroyo in particular was in the habit of flouting that tradition, appointing Artemio Panganiban to replace Hilario Davide over the most senior magistrate then, who was Reynato Puno, and Renato Corona over everybody else, and look what happened.

Well, Panganiban proved the opposite. Being appointed over the most senior prospect doesn’t necessarily produce bad results, it can always lead to perfectly good ones. It was so in his case. He did not prove to be abjectly slavish, he proved to be magisterially independent. He struck down Arroyo’s plan to assume emergency powers in 2006 not unlike those of Marcos. As did Puno, who succeeded him and who struck down Arroyo’s plan of changing the Charter.

The problem with Corona was not that he was appointed over the most senior candidate, it was that he was appointed over the fittest candidates. Among all the candidates, he was the least fit. You know that from the fact that he was appointed in the midnight hour. That suggested, one, that his credentials did not inspire belief in the majesty of the law, a thing that would soon come to light from the work of enterprising journalists. And, two, that he was put there for one thing and one thing only, which was to protect Arroyo from having to pay for 10 years of benighted and (after 2004) illegitimate rule.

In fact seniority doesn’t insulate one from the patronage system, it often only guarantees it. At least it often only systematizes corruption, if not guarantees patronage. That system may have a lot of time on its side, but not so a lot of honor. The honor is honored only in the breach and not the observance.

That is the system in the military, a thing its officer corps objects to violently to the point of mutiny when it is disturbed. The reason for it being that seniority assures that once you get to the top you get the pabaon and all the other things chiefs of staff get at the expense of the foot soldier. You wait your turn, so you get mutinous when your turn is deferred or entirely skipped. So natural has the funneling of spoils to the top become, you are reminded of Angelo Reyes earnestly wanting to know what he did wrong. Or in his immortal words, “Was I greedy?”

No, seniority is not a guarantee of avoiding patronage. It’s not even a guarantee of avoiding folly, which we expect chief justices to do. Certainly not so in this country, which teems with people who keep proving that older isn’t necessarily wiser, it is often dumber. Or greedier. That’s true as much of our bishops as of our lawyers, our generals as of our politicians, our journalists as of our activists. Tumanda nang paurong is more the rule than the exception in these parts.

Age and/or seniority are extraneous criteria in selecting the next chief justice. As indeed the notion that we should get one who is not patently “pro-government” or “anti-Corona.” A proscription that’s meant to exclude some of the most decent legal luminaries in this country who supported, and continue to support, P-Noy’s campaign against corruption, and who helped in the effort to impeach Corona. Specifically that excludes Leila de Lima, Conchita Carpio Morales, and Kim Henares, all of whom are government officials and all of whom testified against Corona. And all of whom are anticorruption, and all of whom are projustice.

The separation of powers is best guaranteed not by having a chief justice who is not pro-government, it is guaranteed by having a chief justice who is pro-principle. The idea of being pro-government is a specious concept, anyway: You can always agree with, and be supportive of, government’s anticorruption campaign but disagree with, and oppose, some of its other thrusts, like its stoking of “special relations” with the United States to deal with our crisis with China. I do hope the next chief justice has something to say about the latter.

The best guidepost to follow is Corona himself. Ultimately, the issue in his impeachment was fitness. Corona was impeached, and convicted, for being dishonest and lacking independence. Ultimately, the issue in the appointment of the new chief justice is fitness. We need one who is honest and has a mind of her, or his, own.

Panganiban and Puno showed that you need not be beholden to your appointer, that you can come into your own and rise to surprising heights. Certainly, the three women mentioned above are capable of it. It is not the fact that they are women that commends them to the position. That, too, is not a guarantee of wisdom, as we know from having had a Cory and a Gloria. It is simply the fact that, to a woman, they are fit.

De Lima it was who probed the Luneta massacre of visiting Chinese tourists a couple of years ago, and did it so feistily she was criticized by colleagues for not being the good soldier that her position presumably entailed. Carpio Morales made such a masterful presentation in Corona’s trial and showed a depth of legal learning that rattled even Serafin Cuevas: That’s  a combination of knowledge and wisdom that has few peers. As to Henares, anyone who’s willing to risk public ire by going after Manny Pacquiao must be willing to risk private ire by going against P-Noy.

Those are the only things to consider in choosing the next chief justice: honesty and independence, being anticorrupt and projustice. Those are what make the candidate fit for the job. As that goes, any one of those three is as fit as a fiddle.

They won’t be sintunado, legally at least, if not musically.