[ANALYSIS] Deep Dive | What's the big deal about seniority in selecting the Chief Justice?
The President has appointed the Supreme Court’s 163rd Associate Justice, Lucas P. Bersamin, to be the country’s 25th Chief Justice.
Before his appointment, he was number 3 (appointed in April 2009) on the lineal list of incumbent justices based on the date of their appointment to the Supreme Court, with Senior Associate Justice Antonio T. Carpio, being the most senior (148th Associate Justice, appointed in October 2001), and Associate Justice Diosdado M. Peralta as the second most senior (162nd Associate Justice, appointed in January 2009).
With his appointment, Chief Justice Bersamin automatically becomes number one on the lineal list and considered the most senior among the Members of the Court En Banc.
His appointment, coming after the President himself stated that he would follow the seniority rule in selecting a Chief Justice, made many all stoked about the role of seniority in the President’s choice of Chief Justice.
This week, we take a Deep Dive into the so-called seniority rule in the appointment of a Chief Justice. What exactly is the rule, where is it found, and what are the parameters of the seniority rule?
There is no definition of “seniority” in the Supreme Court’s Internal Rules. It is referred to as a matter of fact.
The United States Supreme Court, which is the model for the Philippine Supreme Court in many of its traditions, also does not define “seniority,” simply stating that “…the nine Justices are seated by seniority on the Bench. The Chief Justice occupies the center chair; the senior Associate Justice sits to his right, the second senior to his left, and so on, alternating right and left by seniority.”
Rule 5 of the Supreme Court’s Internal Rules, on Precedence and Protocol, however, provides for the clearest idea of how the Court views “seniority.” Under section 1, “The Chief Justice enjoys precedence over all the other Members of the Court in all official functions. The Associate Justices shall have precedence according to the order of their appointments as officially transmitted to the Supreme Court.”
Under this section, “seniority” is understood as precedence in rank according to the date their appointment is transmitted. This is also how the Court itself defined “seniority” for purposes of the Court of Appeals, which has the same exact provision on Precedence and Protocol that the Supreme Court has.
In Re: Seniority Among the Recent Appointments to the Position of Associate Justices of the Court of Appeals, A.M. No. 10-4-22-SC (A.M. No. 10-4-22-SC, September 28, 2010), the Court En Banc said that:
“For purposes of appointments to the judiciary, … the date the commission has been signed by the President (which is the date appearing on the face of such document) is the date of the appointment. Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the earlier the date of the commission of an appointee, the more senior he/she is over the other subsequent appointees. It is only when the appointments of two or more appointees bear the same date that the order of issuance of the appointments by the President becomes material.”
Another understanding of seniority has been advanced – that the entire judicial record of the nominee be considered.
In the case of Chief Justice Bersamin, he was appointed judge earlier than all the other 5 nominees, although Associate Justice Estela M. Perlas Bernabe started her career in the judiciary as a technical assistant in 1976.
Considering, however, the Court’s own understanding of “seniority” as one’s rank determined by the date of appointment, it is clear that the most senior, as of the time of selection, was Senior Associate Justice Antonio T. Carpio.
Historical record on seniority
Are Presidents bound by seniority in choosing a Chief Justice?
The Philippines has only had 25 chief justices in its history:
- Cayetano S. Arellano
- Victorino M. Mapa
- Manuel G. Araullo
- Ramon Q. Avanceña
- Jose B. Abad Santos
- Jose Y. Yulo
- Manuel V. Moran
- Ricardo M. Paras
- Cesar C. Bengzon
- Roberto B. Concepcion
- Querube C. Makalintal
- Fred Ruiz Castro
- Enrique M. Fernando
- Felix V. Makasiar
- Ramon C. Aquino
- Claudio S. Teehankee Sr.
- Pedro L. Yap Sr.
- Marcelo B. Fernan
- Andres R. Narvasa
- Hilario G. Davide Jr.
- Artemio V. Panganiban
- Reynato S. Puno
- Renato C . Corona
- Teresita J. Leonardo De Castro
- Lucas P. Bersamin
Maria Lourdes P. A. Sereno, appointed by President Benigno S. Aquino III in August of 2012 to be the 24th Chief Justice, is not on the list as a consequence of the Supreme Court’s decision in Republic v. Sereno, which declared her appointment as Chief Justice void ab initio. As a result, Teresita J. Leonardo De Castro, appointed Chief Justice in September 2018, became the country’s 24th Chief Justice.
The historical record will show that on at least 4 occasions, the President did not feel bound by seniority as the most senior Associate Justice was not elevated to be Chief Justice.
1. Enrique M. Fernando to Claudio M. Teehankee Sr.
When Enrique M. Fernando, the 13th Chief Justice, retired on July 24, 1985, Claudio M. Teehankee Sr. was the most senior Associate Justice but was not named to be Chief Justice. Instead, Ferdinand Marcos named Felix V. Makasiar as the 14th Chief Justice, serving from July 25, 1985 until his retirement on November 19, 1985. Again, Teehankee Sr. was, at that time, the most senior Associate Justice but was again not named to be Chief Justice. Marcos named Ramon C. Aquino to be the 15th Chief Justice, serving from November 20, 1985 until his retirement on March 6, 1986. Teehankee would eventually be appointed the 16th Chief Justice under the Cory Aquino government, serving from April 2, 1986 until his retirement on April 18, 1988.
2. Hilario G. Davide Jr. to Reynato S. Puno
When Hilario G. Davide Jr., the 20th Chief Justice, retired on December 20, 2005, Reynato S. Puno was the most senior Associate Justice but was not named to be Chief Justice. Gloria Macapagal Arroyo named Artemio V. Panganiban to be the 21st Chief Justice, serving from December 21, 2005 to December 6, 2006. Puno would later become the 22nd Chief Justice, serving from December 7, 2007 to May 16, 2010, succeeding Panganiban.
3. Reynato S. Puno to Renato C. Corona to Maria Lourdes P. A. Sereno
When Puno himself retired on May 16, 2010, Antonio T. Carpio was the most senior Associate Justice but was not named to be Chief Justice. Instead, Gloria Macapagal Arroyo named Renato C. Corona to be the 23rd Chief Justice, serving from May 17, 2010 until May 29, 2012, when he was removed as a result of the judgment of conviction from the Senate, acting as an impeachment court. At that time, Carpio remained to be the most senior Associate Justice and served briefly as Acting Chief Justice until the appointment on August 2012 of Maria Lourdes P. A. Sereno as Chief Justice.
4. Teresita J. Leonardo De Castro to Lucas P. Bersamin
When Sereno was removed by the Supreme Court’s judgment in Republic v. Sereno, Carpio still remained to be the most senior Associate Justice. Because he did not agree to be nominated and considered for Chief Justice, Teresita J. Leonardo De Castro was the most senior Associate Justice on the list of nominees for Chief Justice. She eventually became the 24th Chief Justice, until her retirement on October 10, 2018.
Before the appointment of Chief Justice Bersamin as the 25th Chief Justice, Carpio was the most Senior Associate Justice.
Seniority not binding on the President
The 1987 Constitution does not provide for separate criteria in choosing a Chief Justice. The requirements for Associate Justice are the same as the requirements for a Chief Justice. Seniority is not a factor that is required in the selection of a Chief Justice.
While seniority is a tradition that is important for the Court, it is not a tradition that is necessarily binding on the President. The historical record will show that former presidents Marcos, Arroyo, and Aquino did not follow seniority in appointing chief justices.
What would be the advantages of using seniority, as understood by the Court, in the President’s selection of a Chief Justice?
The most obvious would be the absence of a learning curve because the most Senior Associate Justice, presumably the longest serving, would already be very familiar with the Court, its work, and its traditions. The most senior Associate Justice would also be respected in an institution that prizes collegiality and, thus, may be expected to facilitate collegiality.
Binding oneself to seniority, however, would also come with a downside. A President who is looking to institute long term reforms that are unhampered by presidential transitions would be bound to simply elevate the next most senior without regard to his or her own vision of what the judiciary ought to be and ought to do.
But then, the most senior might also be the best choice.
In the end, it really depends on the President’s vision of what the judiciary is. Appointing the judiciary’s head, whether the most senior or not, is the only way by which the President may legally exert influence over the judiciary; after which, that leader may be free to be utterly ungrateful for the appointment – or not. – Rappler.com
Theodore Te, Ted to many, is a human rights lawyer and advocate, law educator, font geek and comic book fan, occasional movie and music reviewer, a life-long Boston Celtics fan and a loud opponent of the death penalty, violations of human rights, government abuse, and social injustice. Deep Dive is his attempt at probing into issues of law and rights, politics and governance (and occasionally entertainment and sports) beyond the headlines, the sound bites, the spin, and the buzz.