Supreme Court of the Philippines

SC verdict doesn’t fix JBC problem

Purple S. Romero

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The Supreme Court rules that Congress should only have one representative in the Judicial and Bar Council, but this doesn't address the council's inherent problems

STAY OR GO? Escudero may be removed or retained as a JBC member.

MANILA, Philippines – The Supreme Court ruled on July 20, Friday, that there should only be one representative from Congress in the Judicial and Bar Council (JBC).

Voting 7-2, the SC ruled in favor of former solicitor general Francisco “Frank” Chavez, who questioned the composition of the JBC, the body that screens and vets aspirants for the judiciary. Chavez argued that the 1987 Constitution specified there should only be one representative from Congress in the JBC and that the council should only have 7 members. 

“The language of the Constitution is clear and unambiguous,” the SC said. 

Justice Jose Mendoza penned the decision. Concurring with him were Justices Diosdado Peralta, Lucas Bersamin, Martin Villarama, Jose Perez, Bienvenido Reyes and Estela Perlas-Bernabe.

Justices Roberto Abad – one of those vying for the post of chief justice – and Mariano Del Castillo dissented. Abad said he saw “no compelling reason” to inhibit from the case.

His fellow nominees for chief justice, however, decided to inhibit themselves from the case: Acting Chief Justice Antonio Carpio, Justices Presbitero Velasco, Teresita Leonardo de Castro. Another nominee, Justice Arturo Brion, was on leave.

The SC said it is up to Congress to decide who between Rep Niel Tupas or Sen Francis Escudero should stay in the JBC. Tupas said the House will ask the Tribunal to reconsider its verdict.

Not less politicized

The decision lessens the influence of the legislative on the selection of members of the judiciary, but does not make the JBC any less politicized than it already is.

Analysts interviewed by Rappler said that the SC ruling removing one of the two representatives from the legislative in the JBC is a “welcome move,” but  it does not correct the flaw of the JBC structure.

Vincent Lazatin of the Supreme Court Appointments Watch said that while the decision “balances the influence” of the legislative branch in the council, 4 of its regular members are still appointed by the President.

They include the representatives from the academe (De La Salle law professor Jose Mejia); the Integrated Bar of the Philippines (IBP official Milagros Fernan-Cayosa); private sector (retired Court of Appeals Justice Aurora Lagman); and a retired SC Justice (Regino Hermosisima).

The council screens aspirants for judiciary posts and the Ombudsman and submits a short list to the President, who eventually makes the final choice. A creation of the 1987 Constitution, the JBC was meant to depoliticize the process of appointing judges and justices. But its sectoral representation has not stopped previous presidents and other vested interests from influencing it.

“The JBC is politicized because its members carry many vested interests, not just those coming from Congress,” said political analyst Prof Prospero de Vera.

Political reality

The very notion, though, that having an “extra” member of Congress meant having an additional ally for the President is wrong.

Dean Ernest Maceda of the Pamantasan ng Lungsod ng Maynila said congressional representatives were included in the JBC to precisely to “check” the President’s influence over the process.

In reality, however, this is not the case.

Lawyer Rico Quicho, a member of the legal of team of dismissed chief justice Renato Corona, sought Tupas’s inhibition from the JBC’s selection of the next chief justice because he is a partymate of President Benigno Aquino III. Tupas was also the chief prosecutor in the Corona trial.

Former President Gloria Macapagal-Arroyo also tapped her congressional allies to influence the JBC. 

In December 2009, it was Quezon City Rep Matias Defensor who proposed that the council open the application process for the next chief justice despite the appointment ban in the 2010 elections. 

Under that ban, presidents are barred from making any appointment except to temporary posts in the executive branch two months before the elections and until his or her term ends on June 30. Defensor’s proposal paved the way for the High Court to eventually rule that the judiciary was exempted from the said ban. Minus legal obstacles, Arroyo then appointed Corona – her former chief of staff, spokesman and legal counsel – chief justice in May 2010.

It was a midnight appointment, her critics charged.

The Aquino administration eventually impeached Corona in 2011 and the Senate, sitting as an impeachement court, dismissed him from office on May 29, 2012.

Not new 

Now that the SC has ruled that there should only be 7 members in the judiciary, one of its members, Jose Mejia, said that the majority vote will now be 4, not 5.

This means it will only take 4 votes to have a contender’s name included in the JBC shortlist.

The JBC really had only 7 members since it was introduced in 1987. From 1987-1994, Congressional representatives sat alternately in the JBC.

But in 1994 the congressional representatives in the JBC became two, increasing the council’s members to 8. They still had half a vote each then. Thus, even if the Senate and the House of Representatives had a representative each in the Senate, they still had only one vote.  

Retired Sandiganbayan Justice Raoul Victorino, a former JBC member, told Rappler that in 2001, then Sen. Aquilino ‘Nene’ Pimentel proposed that there should be two Congressional representatives in the JBC because of the bicameral form of legislature.  

Pimentel however said that the SC ruling though that there should only be one representative from Congress is “technically correct” because that’s what the Constitution said. 

But he added: “Apparently, the JBC provisions were ratified either before the two houses were created or the framers simply overlooked the problem.”

The House and the Senate leadership would have to decide who will represent the Congress in the Council. 

Victorino said they could have a term-sharing agreement, where a congressman will sit in the Council for a specific period, then be replaced by a senator or vice-versa.

Maceda said though that if this cannot be done, it should be Escudero who should retain his JBC seat now because he represents a national constituency. – Rappler.com 


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