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Newsbreak Magazine, in a special edition on the judiciary published April 2009, tackled the inherent weakness in the screening process conducted by the JBC. This story, “Eyes on the JBC,” by Aries Rufo, shows how the process could be manipulated by those in power. It also details how some JBC members, beholden to the appointing power, allow themselves to be compromised. The story becomes relevant again 3 years later, following the controversy involving the Supreme Court, the choice of justices, and the ongoing impeachment trial of Chief Justice Renato Corona. Rappler is republishing the Newsbreak story.
MANILA, Philippines – Sometime ago, a party was held at a clubhouse in Manila to mark the birthday of a member of the Judicial and Bar Council (JBC). Notable personalities in the judiciary were present at the affair, some of whom were old friends.
But there were those, like other JBC members, who got uncomfortable when they saw some of the visitors. Among the well-wishers were aspirants to the Supreme Court.
Under ordinary circumstances, that would not have been a source of discomfort. But the JBC, the body which vets nominees to the judiciary, the Ombudsman and the Deputy-Ombudsman, was at that time in the midst of a selection process for the first of the 7 vacancies in the High Court. “The presence of the candidates raises questions of impropriety of the candidates as well as on the celebrator,” an SC observer said.
We gathered from our sources who were privy to the event that the candidates did not gate-crash. They were actually invited. This raises questions on the ethical conduct of the celebrator. As for the candidates, whether or not it was an invitation they could not refuse, “the mere fact that they were there does not speak well of them,” the observer, who has intimate knowledge of the Supreme Court, said.
Of the original 14 candidates, we learned that only about 3 did not attend. This provided an opportunity for those who were present to lobby. And since it was the birthday of a JBC member, the guests brought gifts. A JBC insider told us that aspirants “should not spend any centavo when they apply for the post.”
This scene provides a snapshot of how the screening and selection process in the 3rd branch of government can be compromised. The dynamics of relationships as well as the personal and political convictions of JBC members play a vital role in who gets to sit on the bench.
The Ties that Bind
For all its noble aims, the JBC is not insulated from pressure and has its inherent weaknesses.
The composition of its members alone makes its prone to political pressure. The JBC is composed of 8 members: the Chief Justice, one each from the Senate and the House, the justice secretary, a member of the Integrated Bar of the Philippines, a retired SC justice, and representatives from the private sector and the academe. The last 4 members are the regular members.
The 4 regular members are nominated by the President and confirmed by the Commission on Appointments, which is essentially a political body since its members are from both Houses of Congress.
The regular members have a term of 4 years, but there is no limit to the number of times a member may be reappointed by the President for a new term.
Observers noted that such reappointments may expose a JBC member to Malacañang influence. A member with a desire to keep his or her post may accommodate Malacañang’s choice. This in fact may be the reason why one member’s term has been renewed by the Palace several times, observers say.
The suspicion has some basis: The JBC is known to accommodate requests. (There is now a proposal to limit the regular members’ term to only one.)
As for the ex-officio members, Malacañang is represented by the justice secretary (Raul Gonzalez) and under the present political set up, the Palace can easily count on another member: the representative from the House (Quezon Rep. Matias Defensor).
A Malacañang alter ego in the JBC, Gonzalez makes no effort to hide it. In JBC interviews, he interrogates the candidates on political issues such as charter change, executive privilege, and the issue of voting in Congress. Asked by Newsbreak on why he had to put the candidates on the spot, Gonzalez said he wants to determine the aspirants’ positions and inclinations.
For his part, Defensor’s loyalty is in no doubt. As chair of the justice panel in the House, he presided over the junking of the latest impeachment attempt against Arroyo. He told us that he was the one who convinced the JBC to conditionally accept the nomination of businessman Rodolfo Robles despite the age issue.
JBC rules state that a non-career applicant should be able to serve for 5 years and Robles was 5 months short of the requirement.
Robles reportedly enjoys the backing of the President; they are family friends.
The JBC later scrapped the age limit for non-career applicants.
The Senate representative may also stand by Malacañang’s choices, depending on the political environment. During his first years in the Senate, Francis Pangilinan was a reliable political ally of the President. It was only after the “Hello, Garci” tape was exposed that their relationship soured.
Sen Francis “Chiz” Escudero replaced Pangilinan late last year after the change in the Senate leadership. A Nationalist People’s Coalition member, Escudero’s political color remains vague. He is identified with the opposition, yet he is a member of the majority bloc that installed Senate Juan Ponce Enrile, a staunch Arroyo ally, as Senate chief. In his first JBC participation, he voted for a candidate supposedly favored by the Palace.
Thus, at any given time, the President already has 2 (or 3) votes on the JBC. All she needs are 2 (or 3) more votes for her own choices to be short-listed. A candidate must get at least 5 votes to make it to the shortlist.
A constitutional body created to supposedly insulate the judiciary from politics, the JBC has, for the most part, been also insulated from public view. Its proceedings were mostly held in secret, and its members, except for those in the political branches, preferred to keep a low profile.
Former JBC member and Senate representative Francis Pangilinan, when he came on board in 2001, saw the need for greater public access to its proceedings. He was aware of the responsibility that the JBC exercises, and yet public participation was missing.
Along with other SC watchers, he lobbied with the JBC to allow the public to attend its interviews. It took sometime before it got the nod of the JBC but opening its proceedings was already a big leap forward. Still, Pangilinan knew there were areas that needed an overhaul.
The opportunity presented itself recently when, for the first time, the Tribunal was confronted with 7 vacancies occurring in one year. Fears have been raised that President Arroyo would pull all stops to prolong her stay in power and charter change moves in the House of Representatives seem to confirm this.
While the House and the Senate, which is opposed to charter revision at this time, may engage in a tug-of-war over the interpretation on the vague constitutional provision whether the two chambers should vote separately or jointly in proposing charter revisions, the real battleground is said to be at the SC, which is the final arbiter of constitutional issues.
Of the 15-members of the Tribunal, 13 are appointees of the President, including Chief Justice and ex-officio JBC chair Reynato Puno. The 2, who are not her appointees—Justices Leonardo Quisumbing and Consuelo Ynares-Santiago—are hanging their robes this year.
There’s been a pattern among recent Arroyo appointees: They vote consistently along Palace lines on crucial political issues, including the Romulo Neri executive privilege case, the airing of the “Hello, Garci” tape and the botched Moro ancestral domain case. This indicates that a group of justices are faithful to the Palace.
With the 6 vacancies, the Palace’s grip on the SC is seen to get tighter. And the first line of defense to ensure that this does not happen is the JBC.
Aware of the implication of this development, civil-society groups have sought to scrutinize the screening process in the JBC to make it more responsive and responsible.
The Transparency and Accountability Network, in partnership with Asia Foundation, Philippine Association of Law Schools, and the lawyers’ group Libertas, has revitalized its Supreme Court Appointment Watch or SCAW (Newsbreak is a SCAW media partner). Pangilinan for his part, formed the Bantay Korte Supreme to drum up public engagement in the selection of SC justices.
Such undertakings have put the JBC in a spotlight it had never experienced before.
Winds of Change
Like other collegial bodies, the Judicial and Bar Council has been described as an old boys’ club. Its mantra, it seems, is to maintain the status quo, uphold secrecy and resist reforms.
But recent scandals in the Court of Appeals and growing concern that recent appointees to the Supreme Court were based on political connections have put pressure on the JBC to be rigorous.
Civil-society groups are now closely watching over its performance. After all, it is from its short list that the President chooses justices to the Supreme Court and lower courts.
Critics point out that the JBC, apart from President Arroyo, is equally to blame for questionable appointments, failing in its mandated duty to pick out the best of the lot.
This is even acknowledged by former Chief Justice Artemio Panganiban, who wrote in his book, Liberty and Prosperity, that the JBC is being criticized “for allegedly being complacent—if not ineffective—in its role….”
He noted that “some critics have even proposed its abolition and a return to the old system. They claim that the appointment and then confirmation by the Commission on Appointments is more effective in rejecting unqualified applicants.”
Expectedly, it is a criticism that does not sit well the JBC. One member we interviewed argued the JBC may have it faults, but it cannot be totally blamed for being remiss in its duty.
The JBC Process
At a glance, the JBC’s regular screening and selection process may serve its purpose. Panganiban explained that candidates are sized up based on track record and personal background. Educational background, bar ratings, books and papers published, and employment record are also considered. For the career applicants, the length of stay in the judiciary, quality of decisions and speed in disposition of cases are important.
The public interviews may also make or break an applicant, but one member, Quezon City Rep Matias Defensor, tells us that he prefers not to interview nominees to the SC. “Candidates to the SC should be entitled to a certain degree of dignity,” he argues. He said candidates should be invited to apply instead.
But there are factors that ultimately determine an applicant’s fate. For one, while it is supposed to insulate the judiciary from politics, the JBC remains a natural magnet for endorsements and lobbying. The biases, political inclinations and convictions of the members also play a crucial role.
Representatives from both Houses are well too familiar with the pressure coming from their colleagues. A staff member of Sen Francis Pangilinan, who sat in the JBC for 8 years, says senators write or personally endorse or lobby for a candidate. Defensor tells us of having a similar experience.
Candidates, too, are not beyond lobbying. They would seek backers, from political to Church officials, to boost their campaign. Sometimes, they would pay personal visits to the offices of the JBC members.
Malacañang also engages in lobbying. We learned that in his first years on the JBC, Pangilinan got phone calls from a Malacañang official to vote for a particular candidate.
Integrated Bar of the Philippines (IBP) representative J. Conrado Castro however says that no one lobbies with him, not even Malacañang. He also says rejects invitations to social dinners.
Lobbying by friends, colleagues and backers may spell the difference. Defensor says that “all things equal (among the candidates) I’ll consider the one recommended by a friend.” He explains that at least, the qualification of the candidate can be vouched for by the one who recommended him or her.
This is where the members’ personal convictions and biases come into play. We learned that there are JBC members who are open to compromises and accommodate requests—at the expense of the standards of probity, excellence, integrity and independence sought of judicial candidates.
One member apparently sees no impropriety in receiving candidates, in the guise of courtesy calls, inside his office. Thus, there are candidates with questionable integrity who get the nod of the JBC and get appointed to the SC.
In our interviews with observers and insiders, present JBC members can be classified into 2—those who are open to and espouse reforms and those who are comfortable with the status quo. Some appear to be independent, while others are tied to their political inclinations and those of the appointing power.
Those for reform appear to outnumber those who resist it. The adoption of open voting is one indication that the JBC, as a whole, is responding to calls for greater transparency and accountability. Of the 8 members, only Justice Secretary Raul Gonzalez and former Supreme Court Justice Regino Hermosisima Jr, representing retired justices, voted to maintain secrecy.
The open voting, first proposed by Castro, took sometime before it gained support. We learned that even Pangilinan initially was lukewarm to it.
But the growing sensitivity of some JBC members to criticism led to a change in mindset. Castro, who was unsure if the open voting would be adopted, himself was pleasantly surprised that his proposal gained the support of majority members. “It was a drastic change,” he says.
Castro hopes that more reforms will be considered by the body in response to calls for a more responsive JBC.
Challenge to JBC
Panganiban, in his book, noted that the “quality of the judiciary hinges on the worth of members composing it; in turn, their worth depends on the quality of the nomination process.” With the winds of change blowing on the JBC, can it rise to the challenge of its mandate?
Although it is supposed to be independent in its process, the presence of Malacañang’s alter ego in the person of the justice secretary and political allies in the JBC undermines this. The nomination of Sandiganbayan Justice Gregory Ong, who was supposed to be Malacañang’s choice, illustrates this. He garnered enough votes to get into the short list and was appointed over more qualified candidates. His appointment was later withdrawn after questions on his citizenship surfaced, causing embarrassment not only to the Palace but to the JBC as well.
Moreover, the President is not averse to using her power of appointment to undermine the system. Our sources confirm there was a time when the Palace sent back the short list to the JBC after its choice failed to make it. But the JBC stuck to its short list.
It would appear that the credibility and strength of the JBC hinges heavily on the character of the Chief Justice, as ex-officio chair. While members are independent of each other, those we interviewed said the Chief Justice has the power to influence the others. If the Chief Justice is not open to new ideas, the “reformists” in the JBC can only do so much.
For instance, the open voting proposal would not have taken off if the Chief Justice was not supportive. Puno sent a “subtle signal” that he was for it, says an insider. “That gave us hope it has even chances of being adopted.”
During Panganiban’s time, he initiated an active search, in contrast to the passive search and screening process before. Qualified and ethical candidates were invited to join the judiciary. It was also during his time that the JBC adopted a new rule where a candidate is disqualified if he gets a negative vote of a single member on an issue of integrity. The quality of the JBC’s choices will provide a peek into how far the winds of change have swept through the JBC. – Rappler.com