Should another SC justice replace Carpio in JBC?

MANILA, Philippines – The Judicial and Bar Council (JBC) is in a dilemma.

Its presiding officer, Acting Chief Justice Antonio Carpio, has officially joined the race for chief justice, the post to which the council will recommend a shortlist of names.

With less than 2 weeks before the JBC starts the public interviews of the candidates, it must resolve soon whether Carpio should be replaced in the council or not.

Carpio, along with another JBC member, Justice Secretary Leila de Lima, have accepted their chief justice nominations on July 2, the deadline for applications and nominations for the highest post in the judiciary. Prior to this, the two had inhibited from the JBC deliberations.

The JBC is set to start the screening process to come up with the 3 most qualified names it submit to President Aquino, who will then pick among those names the next chief justice.

Some council members say the law is clear: Carpio and De Lima cannot be replaced. They say in the absence of the chief justice, only the acting chief justice can take his place in the council. The same is true for the justice secretary, who cannot be replaced by an undersecretary.

Some, meanwhile, say the JBC can go ahead with the selection process without the replacements as long as it has quorum. According to JBC rules, only 5 votes are needed to have a candidate’s name included in the shortlist.

No legal basis?

The JBC is the body that screens and vets aspirants to the judiciary to the appointing authority, the President. It is the sole body mandated by the Constitution to assess the competence, integrity and independence of the candidates for positions in the Supreme Court, its appellate courts and even the officials in the Office of the Ombudsman.

The JBC has 8 members — a retired SC justice and representatives from the SC, the academe, the Integrated Bar of the Philippines (IBP), the private sector, the House of Representatives, the Senate and the Department of Justice (DOJ).

With Carpio and De Lima gone, only 6 remain — retired SC Justice Regino Hermosisma, retired Court of Appeals Justice Aurora Lagman, La Salle law Professor Jose Mejia, Iloilo Rep Niel Tupas, Sen Francis Escudero and IBP officer Milagros Fernan-Cayosa.

The JBC members have conflicting views on whether Carpio and De Lima should be replaced by other officials of the SC and the DOJ.

Tupas, Escudero and Lagman said no. Escudero said there is no need because they still have a quorum.

Tupas and Lagman, on the other hand, said having another SC justice sit in the JBC has no legal basis.

Lagman explained: “As per the 1987 Constitution, the chief justice is the ex-oficio chair of JBC. The acting chief justice is now the chair by virtue of Batasang Pambansa 129 (the Judiciary Reorganization Act). Thus, I don’t see any legal basis for an associate justice to participate in the JBC.”

But Cayosa offered a different view. “During the initial discussion, the SC may authorize the most senior among the incumbent SC justices who is not to be considered for the CJ post,” she said. She added though that JBC has yet to include this issue in its agenda.

Legal experts interviewed by Rappler also have mixed views. 

Lawyer Marlon Manuel, coordinator of Alternative Law Groups, said the Constitution has specified that it is only the chief justice who can represent the SC in the JBC.

“The membership mandated by the Constitution is specific, i.e. chief justice, not just any rep of the JBC,” he said. “There is no room for flexible interpretation.”

Manuel said the same reasoning applies to De Lima — her undersecretary from the Department of Justice cannot represent the DOJ in the JBC in her place.

But Ateneo School of Government Antonio La Viña said that the SC should have a representative in the council, even if it is not the chief justice. “The next senior justice that is not nominated should be allowed to sit.”

The power of the presiding officer

More than De Lima’s case, Carpio’s is a bigger issue.

La Viña said the rationale behind having the chief justice chair the JBC is to ensure that the SC is represented in the selection of all judges and justices.

Retired Court of Appeals Justice Hector Hofileña agreed. “As a matter of fact, the JBC is under the supervision of the Supreme Court. I believe it is part of the intent to strengthen the judiciary,” he said.

Aside from this, the chief justice, as presiding officer, does not only cast his vote, it is also his duty to convene the JBC. 

In 1998, then Chief Justice Andres Narvasa refused to convene the body to vote on the shortlist for the next SC justice, blocking an attempt by then President Fidel Ramos to name a “midnight” appointee. Ramos wanted to appoint his legal counsel, Renato Corona, but Narvasa said the appointment ban was already in place. The appointment ban bars the president from making any appointments except to temporary posts in the executive branch two months before the elections until his term ends.

Corona eventually became chief justice in 2010 but was removed from his post this year because of his failure to declare P183 million in peso and dollar bank deposits in his statement of assets, liabilities and net worth.

If needed, who will replace Carpio?

If another SC justice is allowed to replace Carpio in the JBC, who will it be?

Mejia said it could be the only senior SC magistrate who declined his nomination, in this case, Justice Diosdado Peralta.

Like Carpio, the 3 other senior SC magistrates — SC Justices Teresita Leonardo de Castro, Presbitero Velasco and Arturo Brion — have all accepted their nominations for the chief justice post.

But Vincent Lazatin of the Supreme Court Appointments Watch said that since only the acting chief justice can head the JBC in place of the chief justice, Peralta would have to be declared as an acting chief justice.

La Viña disagreed. He said Peralta can be in the JBC without that title.

Other options

But some see no need to shake up the composition of the JBC, even if it only has 6 members.

UP Professor Dante Gatmaytan said retired SC Justice Hermosisima can also represent the interests of the SC in the JBC.

Hofileña offered another option: for the other JBC members to choose among themselves who should be the presiding officer. 

“This could be justified as part of the JBC’s inherent power to adopt its rules of procedure,” he said. – Rappler.com