The JBC’s moment of truth

On Monday, August 13, the Judicial and Bar Council (JBC) faces a moment of truth, perhaps its most important crossroad in its short history.

What is at stake is its independence and the integrity – not of the applicants to the post of chief justice – but of the members of the council. At stake is the future of the JBC, whether or not it will continue being a bulwark of independence and wisdom.

Many will ask too whether the JBC can be trusted to vet our judges and justices properly or whether it will be reduced to nothing more than a political vehicle to achieve the ends of powerful people.

To understand why this is such a pivotal moment in the history of the JBC, let us review its history, why it was created, and what its role is in our constitutional system.

Beginnings

History shows that the selection of members of the judiciary has always been the province of the executive and the legislative branches of government. Under the American system of judicial appointments the president nominates, and, by and with the advice and consent of the Senate, appoints federal judges.

In recent times judicial appointments have been seen as a political process. Federal judges started off their careers as lackeys of politicians and had to ingratiate themselves with the president or members of the Senate to get appointed into office.

This system was copied under the Malolos and the 1935 Constitutions where the power to appoint was vested in the president but with the consent and confirmation of the Commission on Appointments.

This set-up was supposed to check and balance the appointing authority of the executive with the confirmatory powers of the legislature. But this system in time gave way to the deplorable practice of aspirants who, instead of peddling their qualifications, ended up ingratiating themselves with members of the legislature. 

The padrino system became the norm such that even those with questionable records found themselves appointed, thanks to strong “backers.”            

Those were the old days when aspirants would stand waiting in the halls of Congress, like ordinary jobseekers, trying to catch the attention of congressmen who they believed could get them appointed. Given our political culture, the judges were bound to give back and pay their debt of gratitude to politicians who were instrumental to their appointment.

Under this set-up, the president selects from the list of nominees prepared by the secretary of justice. Normally, those selected were partymates of the president or those with strong political backing.

The Commission on Appointments usually confirmed the nominees of the president in deference to the executive provided that (a) the nominee possessed the qualifications prescribed by the law; (b) had no serious charges filed which cast doubt on his/her integrity; and (c) no member of Congress voiced strong objections to the appointment.

Reforms

In the 1973 Constitution, executive and legislative powers were exercised by then President Marcos such that the appointment of judges and justices was his exclusive prerogative. Appointments did not have to undergo confirmation by Congress. The authority of the president was absolute, provided the appointee presented no bases or reasons for disqualification.

Judicial selection and appointment during this time was essentially a political process subject to political pressure and partisan activities. It was precisely because of this that various sectors, including citizens and organizations, clamored for a radical change in the system. 

The call for reforms was fueled by a persistent perception that the justice system needed an overhaul because of various reasons – not the least of which were corrupt, lazy and incompetent members of the bench.

The Constitutional Commission that crafted the 1987 Constitution saw the need to heed this clamor. Thus, they created an independent body that would recommend nominees to the president. It is a body to be known as the Judicial and Bar Council (JBC) represented by all stakeholders. 

As provided under Sec. 8 Article VIII of the 1987 Constitution, the JBC is created under the supervision of the Supreme Court 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.

It was vested with the authority to recommend appointees to the judiciary. Under this set-up, the JBC prepares a list of at least three (3) nominees who are qualified to fill vacancies to the judiciary. It is from this list that the president must select.

With the JBC, the prerogative of the president becomes much more limited compared to that of appointments which only require confirmation by the Commission on Appointments.

Judicial independence

The late Chief Justice Roberto Concepcion, who was the chief proponent of the JBC, explained the rationale for its creation this way:

“The Judicial and Bar Council is no doubt an innovation. But, it is an innovation made in response to the public clamor in favor of eliminating politics from the appointment of judges.

At present, there will be about 2,200 positions of judges, excluding those of the Supreme Court, to be filled. We feel that neither the President alone nor the Commission on Appointments would have the time and the means necessary to study the background of everyone of the candidates for appointment to the various courts in the Philippines, especially considering that we have accepted this morning the amendment to the effect that no person shall be qualified unless he has proven a high sense of morality and probity.” (Record, Vol. 2, p. 487)

The principal objective then was to preserve the independence of the judiciary and to steer away from the old practice where appointment to the bench was based not on the appointee’s academic or professional track record or moral integrity, but on whether his political supporter – governor, mayor, member of congress – was influential enough to get the nod of the powers-that-be.

One other aim was to avoid the danger articulated by the High Court in the case of De Castro vs JBC “to tie the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election.”

The JBC was designed to ensure judicial independence where the members of the bench are not beholden to political authority but fearlessly dispense justice solely on the basis of truth and fairness. 

Scandalous to amend rules

The Rules of the JBC promulgated in 2000 during the incumbency of Chief Justice Hilario Davide clearly lay down the requirements for appointment to a judicial post. Nominees have to be persons of proven competence, integrity, probity and independence (Constitution, Art. VIII, Section 7, par. 3), and of recognized probity and independence. A nominee should have no pending criminal or regular administrative cases, pending criminal cases in foreign courts or tribunals, or not have been convicted in any criminal case or in an administrative case, where the penalty imposed is at least a fine of more than P10,000.00 unless he has been granted judicial clemency.

Bearing in mind the context of the JBC’s history, it is not only inappropriate but entirely scandalous for some to even suggest that the Rules on Disqualification must be amended even at this very late hour of the selection process, if only to accommodate disqualified aspirants. 

If indeed there is some basis in saying that the Rules on Disqualification are inequitable and unfair, then by all means they must be amended at some future time but not now when there is palpable perception that the move is merely intended to favor a candidate who is believed to be the top pick of President Aquino. 

I have nothing against Secretary Leila De Lima. I can in fact personally attest to her wisdom, competence and integrity. But dura lex sed lex. The law is hard but it is the law.

Any attempt to tinker with the JBC rules at this time would be tantamount to a political maneuver which undermines the JBC and defeats the very purpose for which this independent body was created.

It is nothing but an attempt to erode the constitutional independence of the JBC. As one colleague in the academe puts it – it will weaken the deliberative process and impartiality intended by the 1987 Constitution for this constitutional body.

To be effective and credible, the JBC must be left to its own affairs, performing its constitutional duty without taint of partisan political influence; otherwise, we will return to the old days when politics, not merit, was the decisive and determining factor in getting appointed to the bench.

The members of the JBC are known for their probity, integrity and independence. I know many of them personally and I have faith that they are able to do the right thing. But they are human beings, subject to the same pressures as all of us. My only consolation is that others have been able to withstand the same pressures.

The officers of the Integrated Bar of the Philippines for one have successfully done so. In this moment of truth, it is my hope that the JBC members will live up to their reputation and will forever be remembered by a grateful country.

Otherwise, the consequences to the judiciary and the country (for years and decades to come, way into the future after the chosen chief justice retires) of an unwise and politicized decision will be too terrible to contemplate. – Rappler.com