Ousted Chief Justice nominee thrown out of hearing room
Philippine Daily Inquirer
5:27 am | Friday, July 27th, 2012
Lawyer Vicente Velasquez, a Chief Justice aspirant who was disqualified by the Judicial and Bar Council on Wednesday for failing to meet documentary requirements, attempted to get into the council’s hearing room Thursday but was bundled out by security personnel.
Velasquez said he wanted to secure a copy of the disqualification resolution.
He was arrested on Wednesday for alleged tax deficiency as he was preparing a petition to be filed with the Supreme Court questioning his disqualification. He posted a bail of P5,000 for his provisional liberty.
President Benigno Aquino risks demoralization in the judiciary if he breaks tradition and picks an outsider to replace ousted Chief Justice Renato Corona.
“You have impeached the Chief Justice and his person, you have not impeached the rest of the court,” acting Chief Justice Antonio Carpio told the Judicial and Bar Council (JBC) on the third day of its nationally televised hearing to recommend a successor to Corona.
The 62-year-old Carpio acknowledged Mr. Aquino’s constitutional prerogative to appoint an outsider from the short list of three candidates for Chief Justice to be submitted by the JBC on July 30.
“I will not deny that it will be bad for their morale,” Carpio warned, referring to the ranks of the judiciary and noting that the only instance an outsider was named top magistrate was during World War II when the country was occupied by the Japanese.
“The tradition encourages the incumbents in the appellate court, including the Supreme Court, to look forward to the day that they will be senior and will have the chance to be Chief Justice,” he said.
He said he did not think it was necessary to appoint an outsider to reform the judiciary and stressed that decisions are not reached in the Supreme Court as a body and only after extensive debates. “We are not a club, we have heated discussions.”
Carpio’s questioning lasted more than two hours—the longest during the day. Also interviewed yesterday were Associate Justice Teresita Leonardo-de Castro, University of the East law dean Amado Valdez and Ateneo law dean Cesar Villanueva.
The council will interview four more nominees today, wrapping up the screening of 20 aspirants that began on Tuesday. It will submit a short list to the President on July 30.
Iloilo Representative Niel Tupas asked why Carpio remained silent on accusations by Corona that the acting Chief Justice had a hand in his removal. Carpio explained that he did not want to inhibit himself from cases in the high court involving Corona. He also said he believed the accusation would be found to be untrue.
Carpio also denied the allegation that he had schemed with President Aquino and Transportation Secretary Manuel Roxas to oust Corona, saying he never talked to them. He even said people were saying he would not get the position of Chief Justice because he was not close to the President.
Pressed by Tupas on that allegation, Carpio told the congressman: “You would know that because I never talked to you.” This drew laughter from the audience.
Corona also said that he did not think Corona’s impeachment trial was an affront to the judiciary, explaining that the Constitution gave Congress the power to impeach officials.
Carpio disagreed with the assertion by Associate Justice Roberto Abad, also a nominee, on Wednesday that Corona’s impeachment trial had left a “wounded” judiciary.
Carpio said that the impeachment was “directed at a person” and the high court members were not affected.
But he said the impeachment trial brought up problems about the judiciary, including clogged dockets and allegations of corruption.
“It has come out to the fore because of the impeachment and we have to address it because of the perception of the people,” he told Tupas, head of the House prosecution team that was repeatedly slammed during Corona’s trial for being unprepared.
The Congress representative in the JBC left the panel after his questioning of Carpio, as he did the past three days of interviews, which he did not attend in its entirety. Tupas, along with Senator Francis Escudero, is appealing the Supreme Court decision allowing only one representative from Congress in the JBC.
Asked by Tupas what he would have done if he were in the shoes of Corona and was facing removal, he said he would have allowed the impeachment process to proceed “in a dignified way.”
Tupas asked Carpio if he would have resigned to save the nation the agony of undergoing a trial. “If I misdeclared my SALN (statement of assets, liabilities and net worth) to that extent, then I would resign right away,” he said.
To the query of JBC member Jose Mejia, Carpio also said court members never discussed the impeachment of Corona when he was on trial in the division-level or when they were in en banc meetings and that he found this “weird.”
World Bank fund
Justice De Castro was asked about allegations that the Corona court had misused World Bank loans for the Supreme Court’s Judicial Reform Support Program.
De Castro, who chairs the program’s management committee, said the total funds questioned by the bank were around $115,000, which she said was a “small percentage” of the total $21-million loan. The World Bank originally listed about $160,000 worth of “ineligible” expenditures.
She said items questioned by the bank included the payments made to an employee who lectured on docket declogging and another who talked abroad about the Supreme Court’s Justice on Wheels program and lunch for the visiting chief justice of Guam.
De Castro said the expenses for such events should have been deducted from the World Bank fund. If there was no consent, the expenses should have been taken from the government fund.
“They were not disallowed. There was just a problem of where to charge the amount. Those were minor expenditures. Nothing spectacular about the disturbance of those funds. And I’d like to point out ineligible does not mean irregular. It only means that it should be charged to the loan because according to them (WB), we did not secure their agreement,” she said.
“None of the justices ever touched money in that loan,” De Castro said, adding that it was the Project Management Office that was in charge of disbursing the expenses. The terms of the loan ended last month, she said.
Excessive court fees
Valdez, on the other hand, raised the issue of excessive court fees that he said was unconstitutional and deprived people of access to justice. Asked by retired Court of Appeals Justice Aurora Lagman if he would stop this, Valdez said, “We have to be reasonable, find a middle way.”
With a vast experience on agrarian reform law, the UE law dean also was asked about his stand on the issue of just compensation in the case of Hacienda Luisita, the estate owned by the family of President Aquino that the high court had ordered to be distributed to its workers.
“You have to go to the table and compute how much reward had been received (by the family) and appeal to their patriotism so farmers have this land.” But Valdez also said an inventory should be made for beneficiaries of land reform in general to see if “we are able to achieve the purposes of land reform.”
Villanueva, a former dean of the Ateneo Law School, said he wanted the Supreme Court to be primarily a constitutional court.
“It should not overburden itself with [ordinary] cases, it should concentrate on important cases,” he said. Focusing on constitutional issues, he added, would make the court a “true pillar” of democracy.
Villanueva said his judicial philosophy was that the Supreme Court “should serve the needs of the country.”
He said his top three priorities were to unite the judiciary, come up with a road map for the judiciary and ease the case loads of the judges and justices.
Ma. Lourdes Sereno had a very interesting thing to say to the Judicial and Bar Council (JBC) when it was her turn to be interviewed last week. Appointing an “outsider” as chief justice, she said, was like appointing a civilian rather than a general to lead an army to war. The notion of appointing an outsider to patch up the fissures or rifts within the Supreme Court was a case of trying to solve a nonexistent problem. “What is there to heal? There is nothing to fix.
“Our justices have the quality that after heated arguments, we laugh at our own jokes even when they’re corny… There were no recriminations (after the Corona impeachment). No one said, ‘This impeachment trial happened because of your dissent.’ We were laughing and being professional about it.”
Earlier, Antonio Carpio expressed a kindred view. The tradition, he says, has been to appoint the most senior member of the Supreme Court chief justice. “That tradition encourages the incumbents in the appellate court, including the Supreme Court, to look forward to the day that they will be senior and will have the chance to be chief justice.” He is currently the most senior member of the Court.
Sereno’s metaphor is a felicitous one. Arguably, it stretches things a little—a civilian and general being cut out of a different cloth than an “outsider” and “insider” in the Supreme Court who are both lawyers. But making allowances for the hyperbole to drive home the point about the different world justices inhabit, which can be alien even to other members of the legal profession, I agree. Appointing an “outsider” will be like appointing a civilian to lead an army to war.
Which is why I’d prefer one.
That’s so where the war is like the Vietnam War or the Iraq War. Infinitely preferable to have a civilian rather than a general waging it. A general can only ask how best to prosecute it, which in the case of Vietnam meant asking how best to kill as many Vietcong as possible, never mind if it included as many civilians in the process. A question that was answered, among other methods, by the napalm bomb. Theirs not to reason why, theirs but to do and die, as Alfred Lord Tennyson put it in his heroic poem about the charge of the Light Brigade, which in fact was an idiotic, senseless and completely suicidal assault by a saber-armed British cavalry against Russian artillery in the Battle of Balaclava during the Crimean War.
You have a civilian to wage a Vietnam or Iraq War, there might not be a war to begin with. His first instinct won’t be to ask how best to prosecute it, it will be to ask why in God’s name they’re in it at all. Or closer to home, the situation won’t be to ask like Fabian Ver when told by Marcos to jump from a building, “What floor, sir?”; it will be to say like Juan Tamad, “After you, sir.”
That is the kind of war the Supreme Court has been fighting all this time.
At the very least, the problem is not that the justices are in a state of acrimonious dissension, the problem is that they are not. They are in a state of smug camaraderie from inbreeding. It is not unlike the “mistah” system in the military where people observe a pecking order religiously on pain of being treated like, well, an outsider, the better to make one’s transition to the higher ranks smooth. Hell, to make sure one rises up at all. It breeds a culture of conformity, if not omerta. You may express a dissenting opinion in Court decisions but you may not complain about your colleagues however their behavior is egregiously unethical.
Sereno, of course, has been a notable exception, dissenting from the Court’s decision to reopen the PAL case, which it had already ludicrously ruled with finality three times, warning that it would “open a Pandora’s box full of future troubles for Philippine judicial decision-making.” But she is precisely that, an exception and not the rule.
At the very most, which is why I say the Supreme Court has been waging a war like the Vietnam or Iraq War, the problem is not that the justices do not know their law, it is that they do not know their justice. Or put another way, it is not that they do not know their means, it is that they do not know their ends. Or put still another way, it is not that they do not know their law and their means, it is that they have forgotten that law is but the means to an end, and that end is justice. Theirs not to reason why, theirs but to say goodbye.
That became patent, if it had not been made so already by the Erap impeachment trial, indeed if that had not been made so already by Gloria’s law, which made black white and white black, in the Corona impeachment trial. The chief justice in particular gave a contemporary face to Marcos’ proposition that if you could find, or invent, a law to justify something, it must be just. That trial proved not just that non-justices are “outsiders” to the Supreme Court, entities who could never hope to inhabit the world the justices did, it proved that the people themselves were so.
The divide was unbridgeable. On one side was a tiny group who believed that the law should shape reality, and on the other the people themselves who believed that reality should shape the law. On one side was a tiny group who believed that the law was verse, chapter, and tome, and on the other the people themselves who believed that the law was history, experience, and a sense of right and wrong. On one side was a tiny group who believed that the law was in good shape, justice was being done, above all to themselves who grew prosperous by the day, and on the other the people themselves who saw law as comatose, if you were rich you would never see the dark of a jail cell.
Continuity is the last thing the Supreme Court needs, a violent break with the past is first.
The Judicial and Bar Council has a seemingly impossible task before it: to follow its own rules, even or especially when they are clear as daylight. According to news reports, one member of the JBC wants to suspend a particular provision, self-evidently for self-serving reasons—and the result is yet another postponement of a crucial vote, the selection of the short list of nominees for the next chief justice.
Enough already. Today’s meeting must proceed with the selection, lest the Aquino administration, with the unwitting cooperation of the entire JBC, completely squanders the political capital and the unprecedented opportunity created by the impeachment and conviction of Renato Corona.
According to Iloilo Rep. Niel Tupas Jr., a member of the JBC and a close political ally of President Aquino, it was Michael Frederick Musngi, appointed by Malacañang to temporarily take the place of Justice Secretary Leila de Lima in the JBC, who sought the suspension of a key rule on disqualification—precisely to allow the JBC to consider De Lima’s nomination. “Well, probably it’s obvious because he is the representative of the executive,” Tupas told the Inquirer in Filipino. We regard Tupas’ disclosures with not a little skepticism, because he seems to be distancing himself from his own political allies, even when other news stories, such as one carried in the Philippine Star, reported that it was he who seconded Musngi’s proposal.
But regardless of the source, the reality is that there is an ongoing attempt to include in the all-important short list certain individuals who are, by the JBC’s own rules, disqualified.
Rule 4 of the Rules of the Judicial and Bar Council specifies the safeguards necessary to assure the integrity of its short-listed candidates. Section 5 of Rule 4 identifies those individuals who “are disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman”—note the phrasing, which does not use the permissive language (“shall,” “may”) of bureaucracy but the categorical language (“are”) of everyday reality.
First on the list of the disqualified: “Those with pending criminal or regular administrative cases.”
Unfortunately for De Lima, Solicitor General Francis Jardeleza and Securities and Exchange Commission chair Teresita Herbosa, they all have pending criminal or administrative cases. According to both the letter and the spirit of the JBC’s own rules, they “are” categorically disqualified. Not “must be” or “should be” disqualified, but simply, existentially, necessarily disqualified.
There should be no ifs, ands, or buts about this. The three eminent lawyers may appeal to the conveniently vague principle of equity, or argue from the unimpeachable integrity of their own personal lives, but the fact of the matter is there are actual cases pending before them. Judging by their legal reputations, it may only be a matter of time if all three eventually win their cases, but at the moment they are simply, necessarily, ineligible for any judicial appointment.
Tupas makes a distinction between immediate and prospective suspension. Those of us closely watching this sequel to the historic Corona impeachment can only ask: Why even bother? For Musngi, or Tupas, or anyone else, to bend the rules is to subvert the very spirit that drove Corona out of office.
(We must take note of a related but entirely dissimilar issue. The disbarment case filed by Lauro Vizconde against Senior Associate Justice Antonio Carpio had to be dismissed, as the Supreme Court ruled last Friday. It is a longstanding principle, and an entirely logical one, that disbarment cases against sitting members of the high court cannot prosper, because the Constitution provides only one means for unseating those members, through impeachment. If Vizconde wishes to pursue the issue, he must do the needful thing and push for impeachment.)
It is possible, of course, that all this—this continuing debate over accommodating De Lima, and De Lima’s own previous protestations that she is favored by the President—is only an elaborate production, designed to allow Mr. Aquino to appoint Carpio, the acting chief justice, with the minimum of controversy. If true, then Malacañang is playing a dangerous game.
A new civics lesson then, taught by intra-JBC maneuvering: Better to think of the JBC’s own disqualification provision as a safeguard necessary to assure the integrity, not so much of the short-listed candidates, but of the short list itself.
As my law school colleague Tony La Viña put it, in earlier days the president had to present an impeccable nominee for chief justice to the Commission on Appointments or risk being rebuffed. How true, how true! And we did get the likes of Manuel Moran and Roberto Concepcion.
As I see it now, the Judicial and Bar Council seems to be hemming and hawing on the way to preparing a “peccable” list. It promises to be a proximate occasion for sinning.
How else explain, among others, the debate on whether the rules of the JBC game should be changed while the game is going on. You don’t do that even in high school competition. And this is judicial Olympics!
A modern Henryk Sienkiewicz might be inspired to write a novel about a team of seven wading through the floods along Padre Faura, in mid-storm, and meeting Ninoy Aquino and asking him, “Where are you going?” and receiving the answer “I am going back to the tarmac to meet my assassin again!”
At this point in our history it might be salutary to recall the high hopes for the JBC.
Under the 1935 Constitution appointments to the judiciary had to go through the Commission on Appointments. Former Chief Justice Concepcion thought that the Commission on Appointments process was too politically tainted. He wanted a depoliticized process, a consummation also devoutly wished by many members of the Constitutional Commission. Hence Concepcion proposed a JBC which, in its final form, would consist of the chief justice as ex-officio chair, the minister of justice and a representative of Congress as ex-officio members, and as regular members a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members would be appointed by the president, with the consent of the Commission on Appointments, and the representative of Congress would be chosen by Congress.
Whether or not the JBC could shield the appointment process from the vagaries of politics was tested when it was preparing a list of persons who could fill the vacancy to be created by the retirement of Chief Justice Reynato Puno. What appeared then was that the JBC could not stop a president who wanted to have her way. She had her way, and the mistake led to very tragic consequences for two people, not to mention for the nation.
Already the flaw in the JBC idea was detected even during the deliberations of the Constitutional Commission. We can see that from the following exchange:
MR. RODRIGO: Of the seven members of the council [JBC], the president appoints four of them who are the regular members.
MR. CONCEPCION: Yes, that is right.
MR. RODRIGO: So, majority of the members of the council are appointees of the president.
MR. CONCEPCION: That is right.
MR. RODRIGO: Can the members of the council be reappointed?
MR. CONCEPCION: They can be reappointed.
MR. RODRIGO: Yes, they can be reappointed, because the tenure of office is staggered—one is appointed for four years, the others are for three years, two for one.
MR. CONCEPCION: The only purpose of the committee is to eliminate partisan politics.
MR. RODRIGO: So, the member who is appointed for a one-year term can be reappointed for a three or four-year term. There is no limitation on reappointment.
MR. CONCEPCION: Yes.
Rodrigo stopped there; but the point of his questioning was that the new process, although intended to eliminate partisanship, strengthened the hand of the president, himself a very partisan animal, and thereby simply transferred partisanship from the Commission on Appointments to the Office of the President. It was for the purpose of lessening the influence of the president that the commission decided to require confirmation of the regular JBC members by the Commission on Appointments.
Recent developments, however, both avoidable and unavoidable, have tended to strengthen the hand of the president some more within the JBC. The unavoidable development is the absence of the acting chief justice or the most senior of the associate justices from the chairmanship of the council. Whether we admit it or not the chief justice carries into the council a clout which the other justices do not yet have. But his absence is unavoidable because of the justifiable inhibition of all justices more senior than the present JBC acting chair. The burden, therefore, of keeping the JBC honest falls to a great extent on the shoulders of Justice Diosdado Peralta who seems to be enjoying the job.
The avoidable development is the replacement of the justice secretary with an undersecretary from the Office of the President. True, both of them belong to the executive department. But the intent of the Constitutional Commission in specifying the justice secretary as ex officio was to remove the choice for this slot in the JBC out of the hand of the president. But given the opportunity to handpick a replacement for a department secretary in the JBC, President Aquino chose one who, by his physical closeness to the Palace, is less likely to exercise independent choice.
Let’s face it, unwittingly perhaps, we of the 1987 Constitution inserted into the document aspects which have made the president of the 1987 Constitution more dominant than the president of the 1935 Constitution. One need not wonder, therefore, why the President is in no hurry to open the document for reexamination.
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.
* * *
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.
* * *
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.
For the first time in history, the Judicial and Bar Council conducted psychological tests, psychiatric evaluations, and live panel interviews in the process of selecting the next chief justice. Why? Is the objective to psychologically forestall a similar incident that irretrievably disgraced the ousted Chief Justice Renato Corona? Isn’t the transparent purpose to treat the “wounded” image of the Supreme Court? Or, hopefully, improve the holistic delivery system of the judiciary? Will the test items and the results or scores of each nominee be made public?
We wonder if the previous 23 chief justices starting with Cayetano Arellano would have been willing to undertake the psychological test, psychiatric evaluation, and live panel grilling just to be appointed chief justice. We are also curious if they had “personality disorders” according to diagnostic characteristics or scientific personality assessments.
Psychology is that province of knowledge about scientific research on human behavior and personality. Through such research, an array of psychological assessment scales has been developed to measure various aspects of psychological functioning and personality characteristics.
In “Psychological Tests—Sense or Non-Sense?” Patrick Merlevede, jobEQ’s leading researcher, says: Most test developers and test users have good intentions, yet due to inadequate training, there is considerable misuse of test data. He warns about the bad use of tests in general and about “nonsense” claims that some people may make regarding the tests they put on the market. Test constructs and psychometric quality should underlie the psychological tests, he says. For example, what theory of judicial privilege or duty underlies the rationale of the test? How are the test questions on “proven competence, integrity, probity and independence” formulated? How are clogged dockets decongested, or the Judicial Development Funds handled? How is hard-ball politics factored in? Will the psychiatric test manifest the delusional denial mode of the “no-need-to-heal, nothing-to-fix, business-as-usual” at the Supreme Court?
Psychometrics is that branch of psychology dealing with the measurement of mental traits, capacities and processes. Did the test show who among the applicants are the most insightful, sharp, conceptual, creative, and mentally honest? Or the most rational, incisive, detached and objectively critical? Or the hands-on judicial manager and effective leader and administrator? Or the most reserved, respectable, independent-minded, just and incorruptible?
Specialists and experts say these psychological tests can be used to assess the applicants for chief justice, and flush out possible areas of concern:
1. Pathological/psychological/neuropsychological problems. The test can measure the applicant’s depression, anxiety, paranoia, psychopathic deviance, schizophrenia, personality disorders, and other clinical disorders, if any. It has been used in various settings, including judging or decision-making, security screening, criminal sentencing, child custody, gun control and police selection.
2. Personality traits. Some tests are designed to describe personality differences among “normal” persons, others to identify abnormal patterns of personality, and still others to identify specific “personality disorders.” Personality assessment can be important in the selection of people for various types of jobs (police officer, executive, decision-maker).
3. Motivational factors. “Why we do what we do” is an important question for judges, employers, retailers, corrections psychologists, and persons facing significant life decisions. Psychologists have developed tests of motivation that help identify what is important to different people in predicting or influencing their behavior.
I had the good fortune of experiencing a close, though brief, personal brush with some chief justices. I relished observing them quietly. But a few of my officemates and some lawyers, especially those in human rights, said, jokingly perhaps, that some of them justices were “sira-ulo” (crazy) or had “personality disorders.”
I worked at the high court as a clerk in 1974, the last year of my law studies, courtesy of our professor Roberto Concepcion, who had just left his job as chief justice. He told our class he had advanced his mandatory retirement because he was disgusted with the Marcos dictatorship that illegally authorized barangay assemblies to vote by the raising of hands in the infamous 1973 ratification cases during martial law. He urged some of us to enter public service after passing the bar, and get elected. When I bantered that politics was dirty, he rebuked us thus: “But who will cleanse the dirty atmosphere of politics? When young, reform-minded and idealistic people like you become weak-kneed, negligent and irresolute, God help this country!”
After Concepcion, five associate justices—Querube Makalintal, Fred Ruiz Castro, Enrique Fernando, Felix Makasiar and Ramon Aquino (in that order)—became chief justice one after the other. They were believed to be kowtowing to martial law. Historical accounts say that Makalintal and Castro were the “swing votes” in the ratification cases that upheld the Marcos Constitution and made legitimate his brutal dictatorship. When Ninoy Aquino was denied his privilege of the writ of habeas corpus, Makalintal was quoted as saying, among other things, that the Supreme Court justices were conscious of “the future verdict of history.”
At which Ninoy aptly addressed them: “Today, you are my judges. Tomorrow, history will judge you.”
Lutgardo B. Barbo is president of Taguig City University, faculty member at Ateneo School of Government, and former president of Philippine Normal University.
By Christian V. Esguerra, Christine O. Avendaño, TJ Burgonio
Philippine Daily Inquirer
2:41 am | Wednesday, August 15th, 2012
President Benigno Aquino III will appoint the next Chief Justice who can best carry out the judicial reform that began with the ouster of Chief Justice Renato Corona, Malacañang said on Tuesday.
“He will be looking for a prospective Chief Justice who has the integrity, competence, political will and commitment to pursue and put into effect these reforms,” Budget Secretary Florencio Abad, senior political adviser to the President, said in a text message.
Abad said judicial reform is among the key pillars of the President’s “reform agenda.”
“The President did not support the impeachment and subsequent conviction of the former Chief Justice and invest political capital in the process only to end up with a Chief Justice who is unable to follow through effectively, and in a sustained way on this reform process,” he said.
The Judicial Bar Council (JBC) sent the Palace on Monday a short list of eight candidates for the next Chief Justice. Vetted out of 20 nominees, they are acting Chief Justice Antonio Carpio, Associate Justices Roberto Abad, Arturo Brion, Ma. Lourdes Sereno and Teresita Leonardo de Castro, Solicitor General Francis Jardeleza, former Rep. Ronaldo Zamora and former Ateneo law dean Cesar Villanueva.
Abad said it was the President’s call whether to name the next Chief Justice before Aug. 27.
Toss-up: Sereno, Jardeleza
He did not comment on Sen. Panfilo Lacson’s information that the choice for the next Chief Justice was a toss-up between Sereno and Jardeleza.
Sereno is Mr. Aquino’s first appointee to the high tribunal. She upheld the position of Mr. Aquino’s family in the recent court ruling on the issue of just compensation to workers of Hacienda Luisita. Jardeleza is a former lawyer of the President’s uncle, businessman Eduardo Cojuangco.
Justice Secretary Leila de Lima said yesterday she did not intend to protest her exclusion in the short list although she felt that the Supreme Court, the Integrated Bar of the Philippines (IBP) and the JBC had ganged up on her to squelch her bid to be the next Chief Justice.
‘Anybody but De Lima’
“Anybody but De Lima, that’s my feeling,” she told reporters. Asked to elaborate, she said: “I don’t know. Because of the belief that I am the favored candidate of the Palace? That’s my suspicion.”
Upon the prodding of the high court, the IBP is investigating De Lima on two disbarment cases stemming from her defiance of a Supreme Court temporary restraining order against her issuance of a hold departure order in spite of the absence of criminal charges filed against former President Gloria Macapagal-Arroyo, and her disparaging remarks against Corona while he was still Chief Justice.
“There is nothing that I can do now that can undo the turn of events,” she said. She called the JBC decision “quite unfair to me.”
Spokespersons of the high court and the IBP denied De Lima’s conspiracy theory. “No such conspiracy,” court spokesperson Gleo Guerra said in a text message. IBP spokesperson Trixie Cruz-Angeles said De Lima was “understandably upset” but that the group “acted on her case in accordance with the rules.”
Rep. Niel Tupas, representative of the lower house in the JBC, said on Tuesday that Malacañang Undersecretary Michael Frederick Musngi had asked the council to reconsider its decision not to include De Lima on the short list.
“Before the voting, Undersecretary Musngi—of course, understandably, he still had a last-ditch effort—appealed,” he said.
JBC decision final
Tupas struggled to reply when asked if the JBC would stand its ground in case the President returns the short list. It happened during the Arroyo administration, but the council did not waver.
The Iloilo representative said he did not “think the President would do that.” But he later said: “That’s a final decision by the JBC.”
Tupas said he sympathized with De Lima, but denied her allegation that she had been “singled out.” He said De Lima’s case was different from those of Jardeleza, who was included in the short list, and Securities and Exchange Commission chair Teresita Herbosa, who missed the cut.
“She was never singled out. It was really based on the rules of the JBC,” he said. “I regret that she was not included.”
Tupas and De Lima worked on the same side in Corona’s impeachment trial. De Lima took the witness stand for the prosecution, which was headed by Tupas.
“For me, it was OK for her to become Chief Justice. It just so happened that there are rules,” he said.
Tupas said the eight members of the JBC were equally divided (4-4) on Musngi’s move to either suspend or amend the rule disqualifying nominees with pending administrative cases. He said suspending the rule would benefit only De Lima because both Jardeleza and Herbosa had been cleared for nomination.
The JBC was initially set to submit only five names of prospective Chief Justices to the President. But Tupas said the number ballooned to eight when the council opted to include all nominees that got a majority vote of five.
To no one’s surprise, the Judicial and Bar Council (JBC) bought the “insider is best” argument and put five of them in its final list of eight. They are Antonio Carpio, Roberto Abad, Arturo Brion, Ma. Lourdes Sereno, and Teresita de Castro. The “outsiders” are Solicitor General Francis Jardeleza, former congressman Ronaldo Zamora, and former Ateneo law dean Cesar Villanueva.
It was Carpio who argued that tradition demanded that the most senior justice, namely him, succeed the last chief justice. Going against it, particularly by appointing an “outsider,” stood to demoralize the judiciary. That the JBC bought his argument you see not just in that it put five justices in the final list, but that it put him ahead of the line.
But what a pass we’ve reached, that after the glorious feeling of finally having ousted a chief justice who did little to advance the cause of justice, indeed who did so much to thwart it, we’re reduced to choosing between people who threaten more of the same or who have skeletons in their closets. God, that we should once again be put at the mercy of judges, or a selection committee, whose capacity for discernment, never mind imagination, does not extend beyond their noses. Given the task of weeding out the chaff from the grain, they threw out the grain and left the chaff. Where is Chel Diokno here? Where is Raul Pangalangan here?
As this list goes, you’ve got only two choices if you expect at least some change. One is Sereno, if only for her disagreement with reopening the Fasap case which the Supreme Court had already, and quite absurdly, ruled upon “with finality” three times. Of course she’s the youngest, but then age has never been the natural ally of wisdom in this country, as shown by the plethora of public officials na tumatanda nang paurong.
The Fasap case quite incidentally shows the kind of chief justice we need. That is the boy in the story of the emperor’s new clothes. He is not like everyone who agrees that the emperor is wearing finery because not to say so would be to be thought of as a fool. He (or she) is the boy who cries out, “The emperor is naked!” because he is. Put more plainly, we need a chief justice who has the capacity not for legal erudition but for common sense, a thing that has become uncommon with judges and lawyers generally. Can anything be more nakedly, or commonsensically, unjust than reopening a case the Court has already ruled upon with finality, let alone three times?
The other is Villanueva. He is the only “outsider” there who has nothing to hide. Unless the list is seriously rectified before P-Noy picks the next chief justice, he’s the one who most commends himself to it. Being an academician and an “outsider” are not his weaknesses, they are his strengths.
The notion that picking an “outsider” would demoralize the judiciary is silly. At the very least, if all you have to show for your tenure in the Court is to have produced legal concepts like a finality with no finality, to have assured that Lucio Tan would never lose his cases, to have protected Corona and Gloria Macapagal-Arroyo over and beyond the call of greed, you ought to be demoralized. Hell, you ought to be ashamed of yourself.
At the very most, it’s refuted by life. One of the best American chief justices of the 20th century was Earl Warren who was as outsider as you could get. He had been a three-time governor of California and was in fact on his third term when Dwight Eisenhower offered him the position of solicitor general. But before that could happen, the chief justice, Fred Vinzon, died. Eisenhower picked Warren to replace him to bridge the divide between the liberals and conservatives, to the monumental chagrin of the justices. Warren ended up being more liberal than conservative, to the monumental chagrin of Eisenhower who said appointing him “was the biggest damned-fool mistake I ever made.”
Not so for the rest of the country. Lacking judicial experience, Warren initially had senior associate justice, Hugo Black, handle meetings. But he learned quickly and was soon running things himself. He didn’t just gain confidence, he gained insight. He it was who produced such landmark decisions as ending segregation between blacks and whites in public schools, championing “one man, one vote,” providing free legal counsel to indigent defendants, and outlawing mandatory opening prayer in public schools. His tenure as chief justice did not demoralize the judiciary, it lifted it up to lofty heights, thrusting the Supreme Court into the frontlines of social change.
The point is simple: Where the inside view is corrupted by inertia, myopia, cynicism, blindness, and resolute self-interest, the thing to do is to get the outside one. You need new blood to stop the cretinism that comes from incestuous relationships. It bears saying again and again, what we need from the new justice is not continuity, it is a break. What we need from the new chief justice is not to keep the Supreme Court as a bastion of legalism, it is to turn it into a leading institution for reform.
As in Warren’s America, we find ourselves mired in our own versions of mindless stupidities like segregation. What we need is a chief justice who has the vision, resolve and courage to fight the meddling of the Church in state affairs (not just the Catholic Church but the other churches; surely there’s something unconstitutional in the INC’s use of religion to compel bloc voting?) and the eroding of the moral fabric of the judiciary, the Supreme Court itself presiding over the wrenching of law from justice, wielding law to thwart the advance of justice, using law to keep justice from touching the corrupt, the murderous, the oppressive.
7 SC justices ‘snub’ Sereno
By Christine O. Avendaño, Marlon Ramos
Philippine Daily Inquirer
12:15 am | Tuesday, September 4th, 2012
If the absence of half of the 14 associate justices was meant as a snub, Chief Justice Maria Lourdes Sereno did not show she was in the least slighted, saying in her first flag-raising ceremony she was appointed by God to head the Supreme Court and asking colleagues to shun intrigues.
“This is neither the work of man nor of any political bloc. This is not a product of lobbying from business or economic interests but by God who knows all the plan of our nation,” said Sereno, still flashing her ear-to-ear smile since she was sworn in by President Benigno Aquino on Saturday as the replacement of ousted Chief Justice Renato Corona.
Sereno, 52, who was leapfrogged over five senior associate justices to become head of the judiciary for the next 18 years or until the retirement age of 70, said it was God who appointed her and that it was probably time to give the leadership of the high court to “one of His humble servants.”
Only six associate justices showed up for Sereno’s first flag-raising ceremony at the Supreme Court. They were Associate Justices Mariano del Castillo, Roberto Abad, Estela Perlas-Bernabe, Bienvenido Reyes, Jose Mendoza and Jose Perez.
Seven other associate justices, led by Antonio Carpio, who by tradition was next in line as Chief Justice under the previously respected seniority rule, were absent from the event. The other no-shows were Associate Justices Teresita Leonardo-De Castro, Diosdado Peralta, Lucas Bersamin, Arturo Brion, Presbitero Velasco and Martin Villarama Jr.
Of the 14 justices, only four attended Sereno’s oath-taking on Saturday at the Palace — Villarama, Bernabe, Castillo and Reyes.
A clear snub
A senior court official said the absence of the seven magistrates was “intentional” and was meant to “send a strong cogent message.”
“It’s very clear that the justices snubbed the new Chief Justice. How else would you describe that?” the official, who asked not to be named, told the Philippine Daily Inquirer.
“Their absence in the first public appearance of Sereno before the court employees was very telling. It’s a rebuff of her appointment as Chief Justice,” said the official, who added that the majority of the justices were questioning Sereno’s capability and experience to lead the judiciary.
“Not only did they question her leadership and management skills. Most of the justices I spoke with also doubt her knowledge of the law and even her psychological state,” the source added.
Two other court insiders said that the justices’ decision to give Sereno the cold shoulder was intended to “register their strong opposition to her appointment.”
“Sereno should expect that kind of treatment for the next several years,” one insider said.
Tension will go away
Sought for comment, former Solicitor General Francisco Chavez said the absence of the justices was “just a tail-end of some disappointments on their part.”
“I understand they were rooting for the justices other than Sereno. That’s their disappointment and I think that the solution to this problem lies in the vastly untapped area of human relations,” Chavez said over the phone.
However, he said the tension “will eventually go away and that they will be able to find ways and means to discharge their functions as a collegial body.”
Asked if he thought the justices snubbed Sereno, he said: “No. I wouldn’t say that unless this goes on for three or four times. Then I can say that it’s not only a snub, but it’s a repudiation of (Sereno’s) appointment.”
In an impromptu speech in Filipino at the flag ceremony, Sereno told her fellow justices that she had accepted with much humility her appointment as Chief Justice.
She said that the world would testify that her appointment “came from God alone.”
Describing herself as a “servant-leader,” Sereno called on her colleagues to work hard and not to mind any intrigues and idle talk. “Let’s double our energy in our work. Can I count on you to do this? Can we ignore intrigues, can we also not listen to rumors?”
She said it was about time to unite in bringing service to the public. “This is our promise to the people,” Sereno said, asking court officials and personnel to join her in this objective. She was answered with cheers and applause, and the Chief Justice thanked them.