THE LATEST ON THE JBC

The Latest  on the JBC

 Joaquin G. Bernas, S.J.

Since 1987 the Judicial and Bar Council has struggled with the question whether it should allow two or only one member of Congress to sit in the body.  Last month a divided Supreme Court finally ordered the JBC: You can have only one member of Congress.   How much of a difference will that make?

But first a bit of history as the Supreme Court tells it:  “It bears reiterating that from the birth of the Philippine Republic, the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution and the 1935 Constitution vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments.

“It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.

“Then, under the 1973 Constitution, with the fusion of the executive and legislative powers in one body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The power became exclusive and absolute to the Executive, subject only to the condition that the appointees must have all the qualifications and none of the disqualifications. 

“Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities, the members of the Constitutional Commission saw it wise to create a separate, competent and independent body to recommend nominees to the President. Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called it the Judicial and Bar Council (JBC).”

The Constitution now says:  “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court 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.”

I recall that when this provision was approved providing for only one member of Congress in the Judicial and Bar Council, the thinking of the Constitutional Commission was that the legislative body would be unicameral.  When the Commission decided instead to have a bicameral Congress, the Commission, whether intentionally or inadvertently, did not change what it had approved about legislative participation in the Council. 

When the provision was first implemented, only one member of Congress sat.  By 1994, however, two legislators were allowed to sit but either alternating or sitting together but with only half a vote each.  In 2001, however, the Judicial and Bar Council allowed two members to sit, each with a full vote.

The Court decision of last April 16, put an end to this and said that there should be only one member of Congress.  Will that really make much of a difference in the quality of decisions of the Judicial and Bar Council?

Your answer to this question will be as good or as bad as mine.  But if we must change the system of appointing justices and judges, my preference would be to go back to the 1935 system of requiring confirmation by the Senate for appointments to the Supreme Court.  That system gave us the golden years of the Supreme Court. 

I know that the shift away from this system was justified by the desire to remove political influence from the appointing system.  When the Constitutional Commission was debating the subject, however, the examples given of political influence were not taken from the process of appointing members of the Supreme Court but from appointments to lower courts and to executive offices.

Has the Judicial and Bar Council given us a better judiciary, whether in the higher or the lower levels?  As lawyers would say, Res ipsa loquitur!  Certainly, however, the present system is an improvement on the system under the 1973 Constitution when all appointments were at the discretion of the President.

Even today, however, we must ask how strong the influence of the President can be on the appointment process?  True it is that the President can only appoint from among those recommended by the Judicial and Bar Council.  The Constitution says from among “at least three.”  The JBC can give the President more to choose from. 

Moreover,  look at the composition of the Council.  The Chief Justice, the Secretary of Justice and a member of Congress are ex officio members.  The rest,  consisting of a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector, are appointed by the President but with the consent of the Commission on Appointments.  Will that solve the problem of political (read “presidential”) interference?

Under the 1935 Constitution the President had to present to the Commission on Appointments impeccable  nominees for Chief Justice and associate justices, or risk being rebuffed by the Commission on Appointments. As I see it now, the JBC is so composed as to be proximately exposed to the temptation of serving to the President a platter of “peccable” nominees.  In the end, we get the government we vote for!

6 May 2013