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The board and the SC en banc

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Amelia H. C. Ylagan

Corporate Watch

Isn’t it just like a corporate Board of Directors, this en banc of the 15 Supreme Court Justices that must have a collegial decision arrived at by a majority vote on major issues? It can challenge simple logic why, if even in the Machiavellian business corporation that would protect only a particular and limited group of stakeholders, internal procedures and protocols would be respected and complied with, while in the administration of the Supreme Court of the country, such working procedures in consensus-decision making would seem to be less rigid?

In a private corporation, “Directors or trustees can only bind the corporation by action taken at a board meeting (in quorum) so that… any action may be adopted only after full discussion; … (because) as agents of the corporation managing its affairs, directors or trustees… cannot act individually or separately… (and) have no power other than as a Board (Hector de Leon and Hector de Leon, Jr., The Law on Partnerships and Private Corporations, 2013, p. 312).”

But it can happen that some director or trustee, say the Chairman, would, by some personal motivation or willful deceit, or sometimes by sheer autocratic management style, act individually and separately from the collegial board, without the knowledge and consent of the other directors and trustees.

However, for every major collegial decision, the Board Secretary (unless in collusion) would draft the Board Resolution confirmed by the Board attesting to the quorum at an announced board meeting, and the majority (carried) decision on the issue or action of the corporation. Resolutions and minutes must reflect the discussions, motions, objections, voting, and resolutions for corporate records that must be available to stockholders, regulators and other publics.

The concept of collegial decision making in the Supreme Court en banc bases on the “primus inter pares” role of the Chief Justice as “first among equals,” meaning although the Chief Justice is the titular leader, she/he has only one vote like the 14 Associate Justices have one vote each when deciding full-bench (all present) on major issues or actions. Like the private corporation board of directors/trustees, no individual, not even the Chief Justice can decide or act alone and without the consent of the Supreme Court en banc, where there would have been discussions, motions, objections, voting and the final resolutions.

Comes now a complaint on Chief Justice Maria Lourdes Sereno, filed by lawyer Lorenzo “Larry” Gadon for her impeachment, listing supposed instances of delays and falsification of resolutions and temporary restraining orders (and misdeclarations on her statement of assets, liabilities and net worth [SALN]). Gadon also lists Sereno’s alleged manipulation of the Judicial and Bar Council shortlist for vacancies in the Sandiganbayan and Supreme Court (Rappler, Nov. 28, 2017).

In September, the House Committee on Justice voting 30-4 found lawyer Gadon’s impeachment complaint against the Chief Justice sufficient in form and substance (GMA News, Sept. 13, 2017). Last week, the Committee commenced hearings to determine whether the impeachment rap against Sereno has sufficient ground to be brought up to the Senate for the formal and final impeachment proceedings (The Philippine Star op. cit.).

On Wednesday, Associate Justice Teresita De Castro, after having been authorized by the Supreme Court en banc, appeared with Court Administrator Midas Marquez before the House panel to shed light on the allegations of Gadon against Sereno such as the supposed falsified temporary restraining order and administrative orders said not to have the backing of the court en banc (Ibid.).

Justice De Castro said that Chief Justice Sereno acted beyond her authority when she issued a “blanket” temporary restraining order on party-list proclamations during the 2013 polls, when the recommendation of de Castro’s panel was only for the Senior Citizen’s Party-list (Philstar.com, Nov. 29, 2017).

De Castro protested against Sereno’s alleged misrepresentation of the en banc’s Nov. 27, 2012 deliberations on the creation of the Regional Court Administrator’s Office (RCAO) Region 7, and Sereno’s alleged fabrication of a resolution that created a new office (under the Judiciary Decentralization Office [JDO]) when the en banc merely decided to study the issue further (Interaksyon, Nov. 29, 2017). De Castro told the House Committee that “no one” among her peers tried to correct her on her written protest (The Philippine Star, Nov. 30, 2017).

Sereno’s making questionable decisions without consulting fellow magistrates might be deemed serious grounds for impeachment by the House, now that first-hand confirmation (and not just Gadon’s hearsay) has been testified by de Castro. But Sereno had already publicly replied in September that it was false to say she acted unilaterally in reviving RCAO 7 because the order had already been approved through Supreme Court resolutions, and that the full court had not issued a resolution scrapping the resolutions that created the office (inquirer.net, Sept. 26, 2017).

Sereno also denied tampering with De Castro’s draft temporary restraining order (TRO) in the leadership dispute of the Coalition of Associations of Senior Citizens in the Philippines to benefit other party-list groups affected by a Commission on Elections (Comelec) resolution. She reasoned that upon her evaluation, a Comelec resolution could not be restrained in favor of one group but not the others (Ibid.).

The Chief Justice further stated that “it was not unheard of for a Chief Justice to issue administrative orders because as ‘head of the entire judiciary,’ her ‘broad administrative powers’ had been supported by ‘long-standing practice and tradition (Ibid.).’”

So, it has been “long-standing practice and tradition” that has given the “primus inter pares” more “primus” than inter-pares, as often the chairman is, in practice, the most powerful in the board of directors. Detailed and specific internal rules for collegial decision making and a strictly abided Code of Good Governance and Ethics seem to be lacking more in the workings of the Supreme Court en banc than in the money and profit-oriented and more down-to-basics corporate board of directors and trustees.

It behooves the highest court in the land, the Supreme Court, to streamline its en banc decision making to best practices in private corporations. Why, those accusations of tampering of resolutions and unilateral decisions by Chief Justice Sereno are of 2012 and 2013 vintage! Why did the en banc let those slide with no definite resolutions until now?

And, again, learning from the Corporation Code (Sec. 25): there should be an independent “Board Secretary” to record the minutes and draft the resolutions on major decisions and actions of the SC En Banc. Not the Chief Justice, as it is now.

Perhaps the complaints against Chief Justice Sereno on unilateral and unauthorized actions in the En Banc and by her primus inter pares position should be dealt with internally in the Supreme Court first, before these can be roused up by outsiders.

 

Amelia H. C. Ylagan is a Doctor of Business Administration from the University of the Philippines.

ahcylagan@yahoo.com

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