Constitutional reform lessons from the Sereno ouster

THE LEGAL FRONT
By J. ART D. BRION (ret.)

THE ouster of Maria Lourdes Sereno, despite the disruption it caused the judiciary, is not without its salutary side. The experience brought with it potential lessons that the nation should not miss: it highlighted the need and the timeliness of taking a fresh look at the constitutional provisions on the judiciary to determine their responsiveness, efficacy, and continued relevance to our current national situation. I reflect on these potential lessons within the short space this article allows me.

First: Qualifications for the position of Justice of the Supreme Court.

In my view, the Supreme Court – as the highest court in the land – deserves members with the highest qualifications. The qualifying requirements for membership in the High Court should be higher and more specific than the prevailing ones. At the same time, these qualifying requirements should be sufficiently broad to attract the worthy.

Being a judge of a lower court and the practice of law for 15 years may not be enough qualifications for the responsibilities entrusted to Supreme Court justices; responsibilities of the highest order require commensurate qualifying standards.  To be sure, these standards should be higher than the current  15 year temporal requirement.

The main task of Supreme Court justices is adjudication; justices resolve actual controversies arising from violation of rights. They likewise carry the responsibility of interpreting the Constitution, the nation’s highest law. These interpretations, solely made by 15 unelected men and women, become part of the law of the land.

Adjudication on these weighty matters is distinct from the legal counseling and advocacy that practicing lawyers usually undertake, in the same way that the admission to the practice of law does not necessarily carry with it the competence to teach law. These activities – though related, with the law as their commonality – are functionally different from one another; they cannot mutual substitutes for one another.

Sereno is the perfect example to stress these points; she is a lawyer who spent some years with the legal academe, but she never engaged in the real practice of law, much less in adjudication.

She knew the legal profession from the prisms of legal research, writing and assistance to senior lawyers; she had never occupied a senior law practice position, nor resolved a legal dispute in her life at the time President Benigno Aquino III picked her to be an associate justice of the Supreme Court in August 2010.  After two years as associate justice (with less than a hundred full-blown court decisions and opinions to her credit), President Aquino appointed her chief justice in August, 2012.

With no significant law practice and adjudicative experiences to bank on, her colleagues’ tales before the House of Representatives about her watch as chief justice can hardly be surprising. Higher qualifying standards for the position of justice of the Supreme Court would have excluded her and could have saved the nation the harrowing experience of ousting its chief magistrate.

Second, the chief justice position should be for a limited term.

The present extended term for Supreme Court justices is justified by the independence that the judiciary needs, and by the value of the adjudicative service that magistrates render to the nation.

Their extended term must be fixed as they must be able to function independently, continuously, and unimpeded until their compulsory retirement age of 70. Unlike our periodically elected officials, justices must be able to render their rulings undisturbed by the noise of politics and by naggings of some future popular verdict.

Justices need an extended term as a shortened term wastes the experience and expertise acquired during their initial years and may even exclude them from judicial ranks during their prime and productive years.

The chief justice is the “first among equals” within the court. While still essentially a justice, he leads the court in its constitutionally assigned tasks. While he only has a single vote as a justice (and thus stands no higher nor lower than his colleagues), he carries the obligation – together with all other justices – of fostering harmony and the effective operation of the court.

To achieve this collective objective, the chief justice must lead the court fairly, sensibly, and reasonably; his colleagues, in exchange, must unequivocally accept and recognize his leadership.  This ideal relationship is best achieved if the term of the chief justice, as chief justice, is limited.

Blending the extended term of the justices, with the chief justice’s limited term, is not a difficult admixture to attain.  Our amended constitution only needs to:

a. Continue with the current provisions on the appointment and the compulsory retirement age of justices of the Supreme Court.

b. Provide for a shorter term for the chief justice.

c. Provide that the process of appointing the chief justice shall be through the submission to the President, by the court, of a list of at least three nominees from among themselves, from which list the President shall appoint the chief justice.

d. Provide that the President can only appoint from the list of court-selected nominees.

e. Provide that the appointee shall only serve as chief justice during his allotted limited term, or until his compulsory retirement age as a member of the court, whichever event comes earlier.

f. At the end of the chief justice’s term, another chief justice shall be chosen, as outlined above.

g. Provide that the chief justice whose limited term ends sooner than his term as a member of the court, shall return to the position of senior associate justice and serve as such until his normal retirement age.

This system carries the advantage of prior peer recognition and acceptance, as well as a rotating court leadership that allows the ablest among the justices to lead.  The periodical renewal also continually provides the court the advantage of a leadership with vim, vigor, and fresh ideas, while denying the appointing President the expectation that his chosen chief justice shall stay in office long enough to provide him protection long beyond his term as President.

In the case of Sereno, she would have stayed under the current constitutional provisions as a member of the court for 20 long years counted from her appointment as associate justice in 2010, and as chief justice for 18 years counted from her appointment as chief  justice. This length of service allows her to serve beyond the terms of the members of the court when she became chief justice. She would have likewise outlasted the term of President Benigno Aquino by 14 years.

Third, Express recognition of the court’s right to internally defend itself.

Beyond the issue of whether Sereno’s removal should be by impeachment or quo warranto, I believe that the Constitution should expressly recognize the court’s right to defend itself, through the collective action of its members, against the member or members who grossly violate norms of conduct defined by the Constitution.

At its simplest, this is the court’s right of internal self-defense to protect its integrity, the Constitution, and the Republic from member or members (or even against their leader) who blacken its ranks.

To do this, the new Constitution should institutionalize an ethics committee within the court. The establishment of this committee should be mandatory while its continued operation should be a duty that the court and the individual justices are obliged to undertake in good faith.  The committee should have the authority, after due hearing, to punish and penalize members of the court with penalties as grave as expulsion.

Had a constitutionally established ethics committee been in place, the energy-wasting impeachment and quo warranto proceedings the nation saw, would not have been necessary.

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