Looking for a Chief Justice

Joaquin G. Bernas, S.J.

Once more we are looking for a Chief Justice.  What guidelines does the Constitution give for the process?  The guidelines are both simple and difficult to follow. 

The simple part consists of the legal qualifications which the Constitution prescribes.  “No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.”  These are easily verifiable.

The more difficult part is determining the character of the person. “A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.” Of these four guidelines for measuring character  the simplest perhaps is the requirement of competence. This can be determined by an examination of the public record of the person either as a judge or as a practicing lawyer.  Measuring “probity, integrity, and independence” is more tricky.

The responsibility for measuring these character qualifications has been given to the Judicial and Bar Council (JBC).    The JBC as a screening body is a departure from the old system when the Senate had that responsibility.  Looking back, my view is that up until the declaration of martial law the Senate had succeeding in ensuring that we had Supreme Court justices who possessed “competence, probity, integrity and independence.”  The old system gave us justices who were pillars in the legal profession.

Since 1987 we have experimented with the JBC.  In the absence of rules on how the JBC should operate, the JBC itself has experimented with different systems.  Currently, in an attempt to respond to the clamor for transparency, it has made a decision, it is reported, that candidates for the judiciary must waive the secrecy of their bank accounts.  How legitimate is that move?

If by this requirement the JBC is saying that a candidate who fails to waive the secrecy of his or her bank deposits is automatically disqualified, my view is that it amounts to an illegitimate attempt to add to the qualifications listed in the Constitution.  Only a constitutional amendment can add to those qualifications.  If, however, voluntary waiver or non-waiver will be considered merely as evidence for weighing probity and integrity, this can be legitimately done.  It would not amount to additional qualification but an application merely of existing requirement.

The JBC, however, is also weighed down by being suspected of lacking independence.  This suspicion arises from the composition of the body.  The JBC is composed of the “Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”  The last four are called regular members. They are appointed by the President with the consent of the Commission on Appointments.  Of the seven members of the JBC, therefore, the President has a hand in the choice of five.  It is therefore not difficult to imagine how the President can have a great influence on the formation of the exclusive list prepared by the JBC from which the President must choose who to appoint to the Court.

The Supreme Court itself can also have a strong influence on who will be chosen as justice.  This factor had a great bearing in the saga of former Chief Justice Corona. 

It will be recalled that the position of Chief Justice was vacated within two months from the presidential election when Chief Justice Reynato Puno reached retirement age.  In Article VII of the Constitution, which contains the extent and limits of presidential power, there is a provision which prohibits the president from making permanent appointments to vacancies during those two months except to executive positions when urgently needed. 

In 1998 the Supreme Court had ruled that the President may not make appointments to the judiciary during the prohibited period.  But in 2010 the Court ruled that the prohibition did not apply to appointments to the Supreme Court because Article VIII required that Supreme Court vacancies had to be filled within ninety days -- as if the Court would not be able to survive without a Chief Justice!  And to think that the next President would still have had forty five days to satisfy the ninety day requirement!  Looking back, former Chief Justice Corona probably rues that decision. 

The Supreme Court at any particular time is sometimes referred to by the name of the current Chief Justice.  In 2010 we had the Puno Court but which was suspected of being in fact an Arroyo Court, thanks to the appointing system which had allowed her to fill the Court with her own people. During the period when the controversy about the President's appointing authority was being debated in media, the gut feel of many was that the majority of the Court would vote the way they ultimately did. Thus the decision did not come as a surprise.   But it developed into a 2012 tragedy from which we should learn valuable lessons

11 June 2012