Judicial Succession in View of the 2022 Elections and Chief Justice Peralta’s Early Retirement
Tags: 2022 Elections, Supreme Court, Justice, Philippines, Law

Disclaimer: The views and opinions of this Author do not reflect the views and opinions of the Institutions with whom he is affiliated.

Earlier today, Chief Justice Diosdado M. Peralta announced that he is set to retire early from his post on 27 March 2021. Under the Philippine Constitution, he has a term until 27 March 2022 or his 70th birthday.

As March 2022 falls within the presidential election season, this early retirement would offer a situation that could avoid the controversy surrounding the appointment of the next Chief Justice.

We remember in 2010 when the late Chief Justice Renato C. Corona was appointed to the top post in the Judiciary, people, especially, those who are working under the Aquino administration, questioned whether that appointment is in violation of the prohibition on midnight appointments.

The Supreme Court already ruled that the appointment of a Justice to the Supreme Court is not covered by the prohibition on midnight appoints, yet the Aquino administration was keen to unseat the late Chief Justice. Hence, it resorted to the impeachment process. In other words, the “midnight” appointments of a Chief Justice is legally allowed, but it may be politically unacceptable, especially when the next administration belongs to the opposition of the current administration.

The move of Chief Justice Peralta will avoid that controversy.

But who is in line with the succession? For this purpose, the Author will only look into the five most senior associate justices.

First is Justice Estella Perlas-Bernabe. She is the most senior associate Justice at the Court. She is set to retire on 14 May 2022 — the Saturday after the 2022 elections. If she gets appointed, President Rodrigo Duterte has two options, i.e., (1) not to appoint anyone as Chief Justice because the next President could appoint the next Chief Justice as the last day of the 90-day Constitutional requirement to fill in the vacancy would fall in the next term of the next President or (2) appoint the next Chief Justice at the risk of exposing the same Justice to what had happened to the late Chief Justice Corona. In terms of experience in the Court and in the Judiciary and her “swing votes” that sometimes favor the moves of the current administration, she is the frontrunner in the next appointment.

Second is Justice Marvic Leonen. He is one of the youngest Justices and the second most senior associate Justice. His retirement is set in 2032. With the difference of his world view from the President, the chances of him being appointed by the President are lower compared to Justice Perlas-Bernabe’s.

Third is Justice Benjamin Caguioa. He is the third most senior associate Justice and is set to retire in 2029. He and Justice Leonen share similar judicial philosophy, which would mean that Justice Caguioa’s odds of being appointed are lower.

Both Justices Leonen and Caguioa started their careers as judges when they were appointed as Associate Justices.

Fourth is Justice Alexander Gesmundo. The most senior Duterte-appointee and fourth most senior associate Justice. Most (if not all) of his votes tend to agree with the administration’s actions, which could mean that he has a similar world view and judicial philosophy with the President. Prior to his appointment to the Supreme Court, he served as an Associate Justice of the Sandiganbayan. His chances of being appointed are higher than Justices Leonen and Caguioa.

The last is Justice Ramon Paul Hernando. He is set to retire in 2036. He is the second most senior Duterte-appointee in the Supreme Court and the fifth most senior associate Justice. He has a rich experience in the Judiciary, e.g., he served as a Presiding Judge at trial courts and as an Associate Justice of the Court of Appeals. His odds of being appointed are higher, and might be similar to Justice Gesmundo’s.

Subject, of course, to their application to the vacancy, these most senior Justices of the Supreme Court of the Philippines are good choices as the next Chief Justice. All of them have good academic and professional records fit for the position.