JBC should review process of choosing CJ

Theodore Te
Given our recent experience with the immediate former Ombudsman and the immediate former Chief Justice, the JBC should take this opportunity to seriously rethink how it is discharging its role under the Constitution

Atty. Theodore TeAs all eyes turn to the growing list of names of those who would become Chief Justice of the Philippines, several things need to be said about the Judicial and Bar Council, the constitutional body created to recommend appointments to the judiciary as well as to the Office of the Ombudsman, and its preferred process for choosing the next Chief Justice. 

First, the JBC is a peculiar entity – a strange brew of executive, legislative, judicial and private individuals, some elected, others appointed.  It occupies no place in the constitutional hierarchy yet it would determine the judicial and accountability systems of the country simply by its power to vet and shortlist nominees for appointment by the President to the judiciary (including to the Supreme Court) and to the Office of the Ombudsman (including the Ombudsman and his/her Deputies). 

While operationally under the Supreme Court, it is unclear where accountability lies because the JBC includes two members of Congress, a member of the President’s cabinet as ex officio members, and a legal academic in addition to its regular members and the Integrated Bar representative. 

That the Chief Justice heads it is, by itself, strange because it implies that the choices of the JBC as to members of the judiciary could be rejected by the President even after the Chief Justice would have indicated a preference.

Second, the JBC needs to understand that its role is two-fold. In its Rules (JBC-009, November 2000), the JBC describes itself as being “vested with a delicate function and burdened with a great responsibility; its task of determining who meets the constitutional requirements to merit recommendation for appointment to the Judiciary (being) a most difficult and trying duty…” Trimmed to essentials, the JBC screens and then recommends for appointment; these two are its express functions but implicit in the screening and recommending functions is also the implied and inherent power to reject or veto. 

When it gives a shortlist to the President, as its Rules direct, the JBC makes a value judgment – that only those in its short list possess those minimum qualities prescribed in the Constitution – of “competence, integrity, probity and independence” such that they would deserve an appointment. This much is clear in one of the preambular paragraphs of the JBC Rules when it refers to  providing “certain guidelines or criteria …to ascertain if one seeking such office meets the minimum constitutional qualifications and possesses qualities of mind and heart expected of a member of the Judiciary.”

This dialectic between vetting and recommending, on one side, and rejecting and vetoing, on the other, becomes particularly significant when we consider that 5 of the incumbent associate justices are “automatically” considered as nominated, unless they decline, and that these 5 would be subjected to the same JBC rule as those who would be applying for a seat in the judiciary or the Supreme Court for the very first time.

The JBC does not provide for a separate set of criteria for choosing the Chief Justice, even among the incumbents; Rule 2 of its Rules provide for the minimum qualifications stated in the Constitution and pertinent statutes but it is absolutely silent on additional qualifications for Chief Justice. 

The incumbents who would aspire to be Chief are presumed to have those minimum qualifications already, having already passed JBC scrutiny once before and it, thus, makes no sense for these incumbents to again subject themselves to JBC hearings especially since the JBC does not provide for additional qualifications for determining qualification to the Office of Chief Justice.  

Thus, on one hand, such a procedure would be superfluous and on the other hand, may even be unconstitutional. It would be superfluous because incumbents who aspire to be Chief may already be presumed to have those minimum qualifications which the JBC will be looking for; it may be considered unconstitutional if one considers that non-inclusion on a short list of an incumbent may be considered as a value judgment on minimum qualifications for continued possession of office, which cannot be done by the JBC but solely by the House, through impeachment proceedings, and the Senate, acting in impeachment.

Third, the JBC needs to contextualize its proceedings in choosing the next Chief Justice. The situation presented is unprecedented. We have never had a vacancy for Chief Justice because of removal from Office. While the rules provide for a process to vet and recommend nominees to the judiciary, including the Supreme Court, the selection of a new Chief Justice cannot be equated simply with the selection of a trial court judge, which is what its rules currently provide. 

Note that the JBC rules apply to all members of the judiciary because the Constitution makes no distinction as to minimum qualifications for appointment to the judiciary  except that it imposes additional qualifications for the Supreme Court members but not specifically for the Chief Justice.

Contextualizing its role in this entire process, the JBC may want to consider adopting a specific rule of procedure for selection of a Chief Justice. This becomes particularly important because of the lessons of history – the very same rules were used in recommending the removed Chief Justice for appointment – and adding a new rule for waiving secrecy of bank deposits is simply a cosmetic change. 

Suggestions

Before the process starts, therefore, the JBC may want to consider the following suggestions, among others:

1. Crafting a new and specific rule to govern selection of a Chief Justice, setting forth therein criteria and/or factors to be considered as well as procedures to govern nominations of incumbent members of the Court or the judiciary, at large, and those from the private practice or the academe. A new rule would distinguish the process, as far as any incumbents are concerned, and would imbue the search with the gravitas that it deserves; after all, the Chief Justice is the head of a co-equal branch of government and sits on the Court as primus inter pares.

2.  Refining and streamlining the vetting process by appointing a General Counsel, whose Office shall be primarily in charge of screening the nominations, inquiring into information that would be relevant to measure the criteria set forth by the JBC in choosing a Chief Justice and who shall be tasked with interviewing the nominees during the public hearings. Using a General Counsel would allow more range in questioning as well as intelligence gathering. 

The tendency of JBC members would be to ask questions limited to the particular sector they represent and these questions would tend to be formulaic and predictable.  A General Counsel for the JBC would be able to ask questions that transcend those artificial sectoral bounds and would make the JBC process more relevant to the public at large, because many of these questions could actually be submitted by the public.

3.  Incorporating a mechanism where adverse information against nominees may be securely transmitted, with utmost confidentiality and privilege, and processed for the consideration of the JBC. This mechanism would be vitally important because of recent experience – that there is much information that cannot be obtained simply because there are no witnesses who are willing to come out for one reason or another.  Should fear of reprisal be a consideration, this mechanism should address that.

4.  Provide for a complete record of its proceedings as well as the reasons and considerations that weighed for or against its choices to the short list. The JBC should put on record its reasons simply because the President is expected to appoint from the short list it provides. Without these reasons, the President cannot be guided or enlightened as to the reasons why particular names are on the short list and others are not. 

Publishing the reasons also makes the process more transparent and the JBC more accountable. The Constitution vests the JBC with the power of effective recommendation, i.e., the President can only appoint from the list it provides; the JBC is expected to be accountable for how it exercises this vast and largely unreviewable discretionary power.

I am one of those who believe that the experiment with the JBC, as substitute for Commission on Appointments confirmation, has not succeeded. Until the Constitution is amended, however, the JBC remains. Given our recent experience with the immediate former Ombudsman and the immediate former Chief Justice, I believe that the JBC should take this opportunity to candidly and seriously rethink how it is discharging its role under the Constitution and how it can best make meaningful this historic choice of a new Chief Justice. – Rappler.com


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