Searching for the Chief Justice

THE Judicial and Bar Council is currently receiving applications for the position of Chief Justice. The first step, however, is for the JBC to draw up a job description. We hope it has done this. Evaluating applicants without referring to a formal description of the position to be filled becomes a hit and miss affair. Constitutionally, the Chief Justice has to be at least 40 years old on appointment and has to retire at the age of 70. Theoretically, therefore the Chief Justice may occupy the position for up to 30 years. In practice, the successful applicant is likely to be well over 40 but, nevertheless, the length of time that the job holder is in post will probably extend over several presidential terms. This is a vital moment in Philippine governance.

What do we want from the Chief Justice? At present, the Judicial Branch of government is dysfunctional. We read accounts of judicial findings and we are often cynical. We, the unkind ones, think that inducements must have been made in order for the Supreme Court to so easily reverse itself on cases which had previously been decided ‘with finality.’ We want to read accounts of SC deliberations and to be able to respect its findings. There is a long way to go.

Last December, the Integrated Bar of the Philippines bemoaned the fact that the Judicial Branch was demonstrably the weakest of the three branches of government. The IBP spoke of the “passive power of judicial review.” But when we are talking of the Nation’s governance, the word “review” is not passive. It embodies a powerful concept that provides checks and balances over the three supposedly co-equal branches of government. By reviewing actions taken by the other two branches - the Executive and the Legislative - the Judicial Branch, by referring to the
Constitution and by employing its interpretation of the Constitution through test cases can decide whether either of the other two branches has gone beyond its range of authority (ultra vires). This is not passive.

We need a CJ who, by judicious choice of cases to be heard by the SC, will ensure that the Judicial Branch is a recognized and respected co-equal branch of government.

Management. We need a CJ who is an excellent manager and who can decide which cases will be dealt with by the SC and which will not. I was always surprised, even before the SC flip-flopping, that the Philippine Airline vs. the Flight attendants and Stewards Association case even found its way to the SC. Surely the end of the line could have been reached via arbitration in the National Labor Relations Commission.

The lobbying has begun.

Last Tuesday, after the Independence Day ceremonies, the media took the opportunity to speak to one possible candidate, Kim Henares. Her response was interesting. She cited, from long ago, an illegal dismissal case in which she was embroiled against Ing Bank. She observed how the bank’s lawyers were able to deflect from the salient points by lobbying, possibly assisted by inducements, the decision- makers. “I saw the hardships, the process. You will have to fight the system.” Does this make Henares a stronger candidate? I believe it does. There is nothing wrong with a CJ who comes from a patrician background and who by dint of hard work has climbed the ladder and is therefore a viable candidate. But someone who understands the setbacks and unfairness that the lowly and the downtrodden can receive by an insensitive Judicial Branch is also worthy of consideration.

Last week was a bad week for Ing Bank. In addition to falling foul of Henares’ long felt grievances, it was also fined US $600 million (P25 billion) by the US authorities. The Amsterdam headquartered bank had been found guilty of laundering money from Cuba and Iran, countries which are unacceptable to the US government. Banks are supposed to support, not oppose, the regulatory environment of the countries in which they operate.

Ing Bank has a somewhat cowboyish image. Some years ago it purchased, for US$1, Britain’s long established (since 1762) Baring’s Bank which had been run into the ground by the foolish transactions of what the media like to call a “rogue trader,” Nick Leeson.

More recently, Ing Bank has been accused of losing US$5million by Bacolod based Washington Lou.

Back to the search for the next Chief Justice. Another strong runner is Acting Chief Justice Antonio Carpio. He will surely be on the short-list.

In addition to Kim Henares, currently BIR Commissioner, another CJ candidate from the Executive Branch, is Justice Sec Leila de Lima. There are those who suggest that any Executive Branch candidate will be a Presidential toady. We disagree. Both Henares and de Lima are strong and independent. If either became Chief Justice, we believe that the Judicial Branch would become stronger since both understand the concept of judicial independence. Most of us have experienced different roles in our careers and we are able to adapt quickly to changed circumstances. Or, to put it more succinctly: “where you stand depends on where you sit.”