EXPLAINER: How the Judicial and Bar Council works
MANILA, Philippines (UPDATED) – All eyes are on the Judicial and Bar Council (JBC) again as it starts with the selection process of new Supreme Court (SC) associate justices – the first two of at least 10 who will be appointed by President Rodrigo Duterte.
The JBC held public interviews on Wednesday, November 16, and is holding its second one on Thursday, November 17, screening applicants from various legal backgrounds who aspire to replace SC Associate Justices Jose Perez and Arturo Brion. The two are set to retire in December.
The power of the JBC to recommend appointees is not limited to the High Court. Here are other things you need to know about the JBC.
What is the Judicial and Bar Council?
Created through Article VIII Section 8 of the 1987 Philippine Constitution, the JBC screens individuals aiming to lead the office of the Ombudsman, Deputy Ombudsman, Special Prosecutor, and the offices of the Chairperson and Regular Members of the Legal Education Board.
The JBC is “vested with great responsibility” to ensure that the applicants possess the necessary qualifications for positions as identified in various laws, specifically the Constitution.
Its creation, according to the late Chief Justice Roberto Concepcion, was necessary in “attaining and preserving the independence of the judiciary.”
He further described the JBC as “an innovation made in response to the public clamor in favor of eliminating politics from the appointment of judges."
The JBC, prior to 1986, did not exist. The selection and eventual appointment of members of the judiciary relied almost solely on presidents, except for the 1899 Malolos Constitution which allowed the National Assembly to choose the “SC President” but which required approval by the President.
The appointment of the SC Chief Justice was the prerogative of the United States president from 1902 until 1935. The responsibility and power, meanwhile, was given back to the president in the 1935 Constitution. The process was retained by then president Ferdinand Marcos in the 1973 Constitution.
Who are the members of the Judicial and Bar Council?
The JBC, which was created under the supervision of the SC, includes the SC chief justice as ex officio chairperson, and the Department of Justice secretary and representative from Congress as ex officio members.
With the Senate and House of Representatives as part of the Congress, the SC affirmed in 2013 that legislators will have only one representative in the JBC.
Regular members, meanwhile, include a representative of the Integrated Bar of the Philippines (IBP), a retired SC justice, a member of the academe, and a representative of the private sector.
Members of the JBC serve for 4 years, except for the ex-officio members. Regular members are appointed by the president and will have to go through the Commission on Appointments.
In 2014, the Senate, through Senate Bill 2419, sought to limit the re-appointment of a regular JBC member for more than two full terms. It was passed on third and final reading in 2015 but was returned to the Senate in July 2016 without a signature, according its legislative history.
The current JBC, as of November 2016, includes:
- Chief Justice Maria Lourdes Sereno (ex-officio chairperson)
- Justice Secretary Vitaliano Aguirre II (ex-officio member)
- Congressman Reynaldo Umali (ex-officio member)
- Retired Associate Justice Angelina Sandoval-Gutierrez (Retired SC Justices representative and JBC Executive Committee Chairperson)
- Jose Mejia (representative of the academe)
- Toribio Ilao Jr (representative of the private sector)
- Maria Milagros Fernan-Cayosa (representative of the IBP)
These members are responsible for coming up with a short list from which the President will choose the new SC justices.
What is the process in drawing up a short list?
By virtue of Article VIII, Section 4 of the 1987 Constitution, any vacancy in the judiciary such as posts of the Chief Justice, Associate Justice, Ombudsman, Deputy Ombudsman, and other court judges must be filled within 90 days.
The JBC convenes, usually months in advance, if the retirement is expected, to discuss deadlines, and opens the filing of applications or recommendations.
Once applicants have filed their requirements and the deadline has passed, a list containing the candidates is published. The JBC also encourages the public to report information, whether a complaint or anything derogatory, that could help the council in screening the applicants.
The Constitution requires a member of the judiciary to be a Filipino citizen, a member of the Philippine Bar, and a person of “proven competence, integrity, probity, and independence.”
Different offices under the judiciary have their own special qualifications. For example, a member of the SC and the Court of Appeals should be at least 40 years with 15 years of practice as a judge of a lower court, or 15 years of law practice in the country.
Based on the prior screening, the JBC will come up with a number of individuals who will still have to undergo a public interview where they are evaluated and quizzed.
According to the revised rules of the JBC, as of October 2016, interviews are conducted to:
- Observe an applicant’s personality, demeanor, deportment, and physical condition
- Assess ability to express themselves, especially in the language of the law in court trials or proceedings, and in their decisions or rulings
- Test their mastery of the law, jurisprudence, and legal principles
- Inquire into their philosophies and values
- Determine their probity and independence of mind
- Evaluate their readiness and commitment to assume and fulfill the duties and responsibilities of judgeship
After the public interviews, the JBC will again convene to conduct a final deliberation and voting of who will be included in the short list of nominees to be presented to the President. The council has to have “extensively discussed and meticulously deliberated” the qualifications and merits of each applicant.
To be considered for nomination, an applicant should obtain an affirmative vote from at least 4 members of the JBC.
What happens when the short list reaches the President?
The short list of nominees, which should include at least 3 individuals, will then be transmitted from the JBC to the Office of the President once voting and discussion is done.
The Philippine president then will have to choose one from the submitted list. The chosen one does not need to be confirmed by Congress or any other government branch.
The entire process should be completed within 90 days from the vacancy of the judiciary position.
What happens when the names on the short list are not to the liking of the president? Rules of the JBC and the Constitution do not have any provision that addresses this question.
Past presidents had |aired sentiments about the JBC’s short list submitted to them.
In 2009, then president Gloria Macapagal-Arroyo returned the short list to the JBC and requested for more nominees for the two SC positions left vacant by the retirement of then Associate Justices Dante Tiñga and Alicia Austria-Martinez.
Former president Benigno Aquino III, meanwhile, in 2012 also expressed dissatisfaction with the short list given to him by the JBC for the position of chief justice. He, however, did not return the list and eventually chose current Chief Justice Maria Lourdes Sereno. – Rappler.com