THE FIRST SALVO FOR CHA CHA

Last week Speaker Belmonte made the first salvo for cha cha since  six years ago. He wants it to begin in the House of Representatives and he wants it done not through a constitutional convention but through a constituent assembly.  When he fired this salvo, he  may have been still feeling euphoric because of the successful impeachment of the Chief Justice.  I myself think that the outcome of the impeachment was not due so much to the efforts of the House but to the support of some senators and finally to the admissions of Corona himself.  At any rate, the Speaker wants to limit amendments to economic provisions of the Constitution.

Although he seemed to have the support of Senate President Enrile, the reaction of the Palace was instantaneously negative. “If it ain’t broke, don’t fix it,” said the President.  The view from the Palace is that it ain’t broke.  The Palace thinks that there is no obvious need for changes  in the economic provisions because, notwithstanding the current provisions, the economy is flourishing swimmingly.  We will leave that there.

As to Speaker Belmonte’s proposal, however, history tells us that cha cha with the support of  Fidel Ramos and later with the support of Gloria Macapagal Arroyo did not get anywhere.  How will it fare without the support of President Aquino?  When you add to this the technical problems in the current constitutional text on charter change, how will the Speaker avoid what killed the efforts of Pirma and Sigaw and others.  While we are at it, it might be good to review the inherent obstacles found in the Constitution itself. It should be salutary to recall the obstacles that thwarted charter change under Ramos and under Arroyo.

I am not saying that we should not have charter change.  I myself have a number of changes in mind. When the 1987 Constitution was promulgated, I don’t think anyone among those involved in writing it entertained the thought that the document’s wisdom would never be questioned.  After all, it made some significant and debatable departures from what the nation had considered to be traditional wisdom.  Thus, during the Ramos years there already was a proliferation of amendment proposals.  I recall, for instance, that the Philippine Constitution Association told President Ramos that it had 97 amendments.  Sergio Apostol alone had 147!  There were more, but none succeeded.

During the Arroyo years there were also vigorous efforts at charter change.  In 1995 proponents were so confident that Speaker de Venecia could speak as charter change was all over but the shouting. For her part, the thinking of President Arroyo was that charter change should finally succeed by the middle of that year.  The biggest obstacle they never succeeded in hurdling, however, was the Senate.  It has to be remembered that any change in the Constitution can be achieved with the support of two-thirds of all the members of Congress and not just of the House.

The manner of obtaining the two-thirds vote became a subject of intense debate during the Arroyo years.  During that time there were various modes of computation being bruited about. The most liberal of these (wild, if you wish) was that proposed by Speaker Joe de Venecia.  In the Speaker’s theory even if only one senator should attend a session a session of a constituent assembly, there could already be a valid proposal of amended provided that the total number of votes approving the proposal reached three-fourths of all the members House and Senate put together.  It was a cry of desperation.

Another mode possible was that the three-fourths vote would be based on the total membership of Congress put together.

A third mode of computation is the strict mode. This is what I personally hold, namely, that the vote required is three-fourths of all the members of the Senate and three-fourths of all the members of the House taken separately.

The computation problems which arose during the earlier attempts at amending the Constitution have never been resolved.  The proposal of Speaker Belmonte to give the task of amendment to a constituent assembly will have to deal with this problem before the process can get anywhere.

Why do we have this problem?  The problem is a necessary product of the way the constitutional provision on amendment is worded.  It says:  “Any amendment to, or revision of, this Constitution may be proposed by (1) The Congress, upon a vote of three-fourths of all its Members; or  (2) A constitutional convention.” The provision is a copy of the text of the 1973 Constitution which was meant for a unicameral National Assembly.  But now the same provision is meant  to be used for a bicameral Congress.  How is the bicameral Congress to act?  In joint session or in separate sessions?  If in separate sessions, the two Houses would normally vote separately.  If in joint session, how will they vote:  jointly or separately?  And if voting separately, how will the two-thirds be computed?  Two-thirds of all the members of each House computed separately or two-thirds of the sum total of all members?

I suggest that before Congress can attempt to touch the substantive provisions of the Constitution, it should first find a way of settling how Congress will proceed in the light of the vague amendatory provision of the Constitution.  The oppoents of charter change are probably saying:  Let’s see you do it!

16 July 2012

Obama Care and Us

Even as controversy continues among us over the Reproductive Health Bill, a similar and more wide ranging controversy goes on in the United States.  An important aspect of the US debate is about the implications of freedom of religion.  And since the doctrine on religious liberty was brought to the Philippines from the United States, it might profit us to ponder what is happening and what has happened in the United States.  The recent Supreme Court decision National Federation of Independent Business v. Sebelius covered just part of the total controversy.  The fight of the US Bishops is over an area wider than what had been decided so far.

In a document entitled Our First, Most Cherished Liberty the US Bishops summed up some of the government policies they are fighting against thus:

1. “HHS mandate for contraception, sterilization, and abortion-inducing drugs. . . .  In an unprecedented way, the federal government will both force religious institutions to facilitate and fund a product contrary to their own moral teaching and purport to define which religious institutions are "religious enough" to merit protection of their religious liberty. These features of the "preventive services" mandate amount to an unjust law. As Archbishop-designate William Lori of Baltimore, Chairman of the Ad Hoc Committee for Religious Liberty, testified to Congress: ‘This is not a matter of whether contraception may be prohibited by the government. This is not even a matter of whether contraception may be supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.’”

2. “State immigration laws. Several states have recently passed laws that forbid what the government deems "harboring" of undocumented immigrants—and what the Church deems Christian charity and pastoral care to those immigrants. Perhaps the most egregious of these is in Alabama, where the Catholic bishops, in cooperation with the Episcopal and Methodist bishops of Alabama, filed suit against the law.”

3. “Altering Church structure and governance. In 2009, the Judiciary Committee of the Connecticut Legislature proposed a bill that would have forced Catholic parishes to be restructured according to a congregational model, recalling the trusteeism controversy of the early nineteenth century, and prefiguring the federal government's attempts to redefine for the Church "religious minister" and "religious employer" in the years since.”

4. “Christian students on campus. In its over-100-year history, the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage.”

5. “Catholic foster care and adoption services. Boston, San Francisco, the District of Columbia, and the state of Illinois have driven local Catholic Charities out of the business of providing adoption or foster care services—by revoking their licenses, by ending their government contracts, or both—because those Charities refused to place children with same-sex couples or unmarried opposite-sex couples who cohabit.”

6. “Discrimination against small church congregations. New York City enacted a rule that barred the Bronx Household of Faith and sixty other churches from renting public schools on weekends for worship services even though non-religious groups could rent the same schools for scores of other uses. While this would not frequently affect Catholic parishes, which generally own their own buildings, it would be devastating to many smaller congregations. It is a simple case of discrimination against religious believers.”

7. “Discrimination against Catholic humanitarian services. Notwithstanding years of excellent performance by the United States Conference of Catholic Bishops' Migration and Refugee Services in administering contract services for victims of human trafficking, the federal government changed its contract specifications to require us to provide or refer for contraceptive and abortion services in violation of Catholic teaching. Religious institutions should not be disqualified from a government contract based on religious belief, and they do not somehow lose their religious identity or liberty upon entering such contracts. And yet a federal court in Massachusetts, turning religious liberty on its head, has since declared that such a disqualification is required by the First Amendment—that the government somehow violates religious liberty by allowing Catholic organizations to participate in contracts in a manner consistent with their beliefs on contraception and abortion.”

Most relevant to the controversy among us on the RH Bill is what the Bishops cite as HHS mandate for contraception, sterilization, and abortion-inducing drugs.  The others are not yet a live issue among us.  But when one considers that a member of Congress has already thought up the idea of banning religious objects in government offices, I would not be surprised if other legislators should think up other religion related bills.

Religious freedom came to the Philippines as constitutional law with the arrival of American occupation.  Freedom of religion firmly implanted in our country is not just the right to choose what to believe internally.  It also includes the right not to be forced to act against one’s belief and the right to act according to one’s belief.  We should be vigilant against incursions against these rights.

9 July 2012

First Salvo For Cha Cha

The First Salvo for Cha Cha

 Joaquin G. Bernas, S.J.

Last week Speaker Belmonte made the first salvo for cha cha since  six years ago. He wants it to begin in the House of Representatives and he wants it done not through a constitutional convention but through a constituent assembly.  When he fired this salvo, he  may have been still feeling euphoric because of the successful impeachment of the Chief Justice.  I myself think that the outcome of the impeachment was not due so much to the efforts of the House but to the support of some senators and finally to the admissions of Corona himself.  At any rate, the Speaker wants to limit amendments to economic provisions of the Constitution.

Although he seemed to have the support of Senate President Enrile, the reaction of the Palace was instantaneously negative. “If it ain’t broke, don’t fix it,” said the President.  The view from the Palace is that it ain’t broke.  The Palace thinks that there is no obvious need for changes  in the economic provisions because, notwithstanding the current provisions, the economy is flourishing swimmingly.  We will leave that there.

As to Speaker Belmonte’s proposal, however, history tells us that cha cha with the support of  Fidel Ramos and later with the support of Gloria Macapagal Arroyo did not get anywhere.  How will it fare without the support of President Aquino?  When you add to this the technical problems in the current constitutional text on charter change, how will the Speaker avoid what killed the efforts of Pirma and Sigaw and others.  While we are at it, it might be good to review the inherent obstacles found in the Constitution itself. It should be salutary to recall the obstacles that thwarted charter change under Ramos and under Arroyo.

I am not saying that we should not have charter change.  I myself have a number of changes in mind. When the 1987 Constitution was promulgated, I don’t think anyone among those involved in writing it entertained the thought that the document’s wisdom would never be questioned.  After all, it made some significant and debatable departures from what the nation had considered to be traditional wisdom.  Thus, during the Ramos years there already was a proliferation of amendment proposals.  I recall, for instance, that the Philippine Constitution Association told President Ramos that it had 97 amendments.  Sergio Apostol alone had 147!  There were more, but none succeeded.

During the Arroyo years there were also vigorous efforts at charter change.  In 1995 proponents were so confident that Speaker de Venecia could speak as charter change was all over but the shouting. For her part, the thinking of President Arroyo was that charter change should finally succeed by the middle of that year.  The biggest obstacle they never succeeded in hurdling, however, was the Senate.  It has to be remembered that any change in the Constitution can be achieved with the support of two-thirds of all the members of Congress and not just of the House.

The manner of obtaining the two-thirds vote became a subject of intense debate during the Arroyo years.  During that time there were various modes of computation being bruited about. The most liberal of these (wild, if you wish) was that proposed by Speaker Joe de Venecia.  In the Speaker’s theory even if only one senator should attend a session a session of a constituent assembly, there could already be a valid proposal of amended provided that the total number of votes approving the proposal reached three-fourths of all the members House and Senate put together.  It was a cry of desperation.

Another mode possible was that the three-fourths vote would be based on the total membership of Congress put together.

A third mode of computation is the strict mode. This is what I personally hold, namely, that the vote required is three-fourths of all the members of the Senate and three-fourths of all the members of the House taken separately.

The computation problems which arose during the earlier attempts at amending the Constitution have never been resolved.  The proposal of Speaker Belmonte to give the task of amendment to a constituent assembly will have to deal with this problem before the process can get anywhere.

Why do we have this problem?  The problem is a necessary product of the way the constitutional provision on amendment is worded.  It says:  “Any amendment to, or revision of, this Constitution may be proposed by (1) The Congress, upon a vote of three-fourths of all its Members; or  (2) A constitutional convention.” The provision is a copy of the text of the 1973 Constitution which was meant for a unicameral National Assembly.  But now the same provision is meant  to be used for a bicameral Congress.  How is the bicameral Congress to act?  In joint session or in separate sessions?  If in separate sessions, the two Houses would normally vote separately.  If in joint session, how will they vote:  jointly or separately?  And if voting separately, how will the two-thirds be computed?  Two-thirds of all the members of each House computed separately or two-thirds of the sum total of all members?

I suggest that before Congress can attempt to touch the substantive provisions of the Constitution, it should first find a way of settling how Congress will proceed in the light of the vague amendatory provision of the Constitution.  The oppoents of charter change are probably saying:  Let’s see you do it!

16 July 2012

JBC Odds and ends

JBC Odds and Ends

Joaquin G. Bernas, S.J.

When a reporter asked me whether I would accept nomination to the post of Chief Justice, with a straight face I said no because I hate work and the pay is not right.  Wonder of wonders, somebody told me that my answer came out in media!

But not everything is comical.  There are some legitimate issues coming out.  The first is the challenge to the eight-man composition of the current Judicial and Bar Council. 

Indeed it is true that the Constitution provides for only seven members and only one of them is from Congress.  As I recall, however, this was one of the provisions in the draft of the constitution which escaped the attention of the drafters.  The provision was approved when he Constitutional Commission was still thinking in terms of a unicameral National Assembly.  Thus, only one representative for the legislative body was provided for.  After the Commission decided to go bicameral, no adjustment was made.

In the early days of the 1987 Constitution the practice was for the Senate and House members in the Judicial and Bar Council either to alternate or to be given only half a vote each.  As I understand from the complaint against current practice, the congressional members now each have one vote.  If this is so, it is not such a world shaking inaccuracy.  It can easily be remedied.  But it would be interesting to check back records to see if any nominee has ever been recommended because a majority vote was reached in his or her favor on the basis of the vote of the two legislators.

In fact, however, there are other instances of failure to adjust to  the shift to a bicameral legislative body.  The most serious is the provision on amending the Constitution.  What we have is  copy of the constitutional amendment provision in the 1973 Constitution.  It now says: “Any amendment to, or revision of, this Constitution may be proposed by:  (1) the Congress, upon a vote of three-fourths of all its Members; or  (2) a constitutional convention.”

The Provision has paralyzed attempts to revise or amend the Constitution.  The debate has frequently been stalled on just how this provision should be implemented.  Under the 1935 Constitution the provision clearly required a joint session.  It commanded Congress that, in proposing changes to the Constitution, it must be in joint session but they must vote separately.  The paralyzing debate under the 1987 Constitution is on whether a joint session is required or whether separate sessions can do the job or in either case whether they must vote separately.

Another item that has come up from the JBC is the report that all applicants for the position of Chief Justice should undergo psychological test.  I suppose that this is not just for aspiring Chief Justices but also for all aspiring justices of the Supreme Court. 

The constitutional qualifications of a member of the Supreme Court are listed thus: “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.” And for all other members of the judiciary the Constitution says:  “A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.”

In 2008 when the question arose whether the mandatory drug testing found in the Dangerous Drugs Board Act could be applied to candidates for national office, the Court ruled that the qualifications found in the Constitution for national elective officials was exclusive and that Congress could not prescribe additional qualifications.  Should this ruling of the Court apply to drug testing of applicants for the Supreme Court?

The constitutional requirements for membership in the Court are also exclusive.  They may not be expanded by Congress and much less by the Judicial and Bar Council which has neither legislative nor constituent power.

It might be argued that drug testing can come under the general requirements of “competence, integrity and probity.”  Indeed, psychological fitness for the office can be understood as required.   But this is to be verified not through the technical skills of a psychiatrist but by the ordinary prudential judgment of the judgment of the members of the JBC. After all, psychological imbalance of a person can have external manifestations easily verifiable.  There have been examples of this.  The JBC may not delegate its power to a person who is not one of them. If a psychiatrist were needed for this, the Constitution would have required that one be a member of the JBC.

Finally, I would consider it insulting to require a sitting Justice of the Supreme Court to submit himself or herself to psychological testing for the purpose of determining whether he or she deserves a seat.  In fact, many of the current nominees would also be insulted by the requirement.

2 July 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

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