Why a Judicial and Bar Council

Why a Judicial and Bar Council?

 Joaquin G. Bernas, S.J.

Why did the Constitutional Commission of 1987 abandon the 1935 system?  The abandonment of the old system in favor of the Judicial and Bar Council was largely in response to the criticism that the old system was a rich ground for political patronage.  As I recall, however, the interventions critical of the old system cited examples drawn only from the process of appointment to the lower levels of the judiciary and to promotions in the military.  I do not recall nor does the Convention Record indicate complaints about the process of appointing justices to the Supreme Court. 

We are once again looking for a Chief Justice and in about two years we will be looking for an Associate Justice.  Meanwhile, the process of nominating candidates for the position of Chief Justice has become a joke.  When you look at the names of the more than forty nominees for the single position, they do not exactly make you jump for joy.  You might even find the richness of the list to be an embarrassment.

This never happened before.  Let us look at what the search was like before the advent of the 1987 Constitution.  More, precisely, what was the search like before the Philippines came under martial rule?

Under the 1935 Constitution the Chief Justice and Associate justices of the Supreme Court were appointed by the President with the consent of the Commission on Appointments.  The composition of the Commission on Appointments then was the same as the composition of the current Commission.  “There shall be a Commission on Appointments consisting of twelve Senators and twelve Members of the House of Representatives, elected by each House, respectively, on the basis of proportional representation of the political parties therein. The president of the Senate shall be the Chairman ex officio of the Commission, but shall not vote except in case of tie.”

The big difference was in the scope of the power of the Commission on Appointments to consent to or refuse consent to those chosen by the President.  Whereas under the 1987 Constitution the Commission on Appointments has the power to consent to the appointment of only a limited number of officials, namely, the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, Justices of the Supreme Court, the Chairmen and Members of the Constitutional Commissions, and Ombudsman and Deputy Ombudsman, under the 1935 Constitution the Commission on Appointments had jurisdiction over a much longer list.  The list included all justices and judges of inferior courts, and other officers the President may be authorized to appoint.

When you peek into the list of Justices of the Supreme Court prior to martial law as found in the early pages of each volume of the Philippine Reports, you will see there a catalogue of “who was who” in the Philippine legal firmament prior to martial law.  Compare them with the list of the forty or so nominees for Chief Justice today and see if you are not tempted to weep.

I keep referring to things prior to martial law because I believe that the completely discretionary power of the President under martial law to appoint members of the judiciary was what destroyed the Philippine judicial system.  We have not yet recovered from that debacle and I am not sure which direction the present administration is going.  What then?

One thought I have is that we should give back to the Commission on Appointments the power to confirm appointments to the Supreme Court.  Go back, in other words, to the 1935 system.  But, yes, only for Supreme Court Justices.  Let the JBC continue to handle appointments to lower levels.

Of course, on the evidence of how the impeachment of Corona was conducted by House and Senate, one cannot claim that a Commission on Appointments would work perfectly.  But a fully transparent process of the Commission will help temper the allure of political temptations.  Regrettably, however, a return to the old system can only happen after a constitutional amendment, which may not be near in coming.

Meanwhile, I welcome the decision of the Judicial and Bar Council to open its deliberations to live media.  I would be happier still if the vote of each member will also be open to the public.  The people have the right to know how they vote on a matter of such great public importance.  If the Supreme Court could, in 1991, compel the Board of Censors to make public the voting slip of each censor, with greater reason the vote of the JBC members should be made public.  As spiritual counselors would put it, the devil loves the dark.

25 June 2012

Why a Judicial and Bar Council

Why a Judicial and Bar Council?

 Joaquin G. Bernas, S.J.

Why did the Constitutional Commission of 1987 abandon the 1935 system?  The abandonment of the old system in favor of the Judicial and Bar Council was largely in response to the criticism that the old system was a rich ground for political patronage.  As I recall, however, the interventions critical of the old system cited examples drawn only from the process of appointment to the lower levels of the judiciary and to promotions in the military.  I do not recall nor does the Convention Record indicate complaints about the process of appointing justices to the Supreme Court. 

We are once again looking for a Chief Justice and in about two years we will be looking for an Associate Justice.  Meanwhile, the process of nominating candidates for the position of Chief Justice has become a joke.  When you look at the names of the more than forty nominees for the single position, they do not exactly make you jump for joy.  You might even find the richness of the list to be an embarrassment.

This never happened before.  Let us look at what the search was like before the advent of the 1987 Constitution.  More, precisely, what was the search like before the Philippines came under martial rule?

Under the 1935 Constitution the Chief Justice and Associate justices of the Supreme Court were appointed by the President with the consent of the Commission on Appointments.  The composition of the Commission on Appointments then was the same as the composition of the current Commission.  “There shall be a Commission on Appointments consisting of twelve Senators and twelve Members of the House of Representatives, elected by each House, respectively, on the basis of proportional representation of the political parties therein. The president of the Senate shall be the Chairman ex officio of the Commission, but shall not vote except in case of tie.”

The big difference was in the scope of the power of the Commission on Appointments to consent to or refuse consent to those chosen by the President.  Whereas under the 1987 Constitution the Commission on Appointments has the power to consent to the appointment of only a limited number of officials, namely, the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, Justices of the Supreme Court, the Chairmen and Members of the Constitutional Commissions, and Ombudsman and Deputy Ombudsman, under the 1935 Constitution the Commission on Appointments had jurisdiction over a much longer list.  The list included all justices and judges of inferior courts, and other officers the President may be authorized to appoint.

When you peek into the list of Justices of the Supreme Court prior to martial law as found in the early pages of each volume of the Philippine Reports, you will see there a catalogue of “who was who” in the Philippine legal firmament prior to martial law.  Compare them with the list of the forty or so nominees for Chief Justice today and see if you are not tempted to weep.

I keep referring to things prior to martial law because I believe that the completely discretionary power of the President under martial law to appoint members of the judiciary was what destroyed the Philippine judicial system.  We have not yet recovered from that debacle and I am not sure which direction the present administration is going.  What then?

One thought I have is that we should give back to the Commission on Appointments the power to confirm appointments to the Supreme Court.  Go back, in other words, to the 1935 system.  But, yes, only for Supreme Court Justices.  Let the JBC continue to handle appointments to lower levels.

Of course, on the evidence of how the impeachment of Corona was conducted by House and Senate, one cannot claim that a Commission on Appointments would work perfectly.  But a fully transparent process of the Commission will help temper the allure of political temptations.  Regrettably, however, a return to the old system can only happen after a constitutional amendment, which may not be near in coming.

Meanwhile, I welcome the decision of the Judicial and Bar Council to open its deliberations to live media.  I would be happier still if the vote of each member will also be open to the public.  The people have the right to know how they vote on a matter of such great public importance.  If the Supreme Court could, in 1991, compel the Board of Censors to make public the voting slip of each censor, with greater reason the vote of the JBC members should be made public.  As spiritual counselors would put it, the devil loves the dark.

25 June 2012

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