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
