Role of the Judicial and Bar Council

CONGRESS MAKES THE LAWS AND THE president enforces them. Sometimes, these laws collide with the fundamental rights of our people, either in the way they are crafted by Congress or in the manner the President and other officials enforce or “apply” them.

Importance of judicial independence. In a constitutional democracy such as ours, political issues are settled by popular or majoritarian ways. However, unelected judges decide legal questions by applying relevant laws to a proven set of facts. When a court upholds the rights of a citizen, or acquits a person accused of a crime by the “People of the Philippines,” the winner becomes a majority of one against the whole government.

This awesome power to decide even against the “people” is granted to the judiciary by the Constitution, which, in turn, was approved overwhelmingly by the electorate. But citizens obey judicial verdicts not only because of the authority given to judges by the Constitution but also because of their implicit trust in the wisdom and fairness of these decisions.

To help retain public confidence in our judicial system, magistrates should be chosen prudently. I believe that they must possess four “ins:” independence, integrity, industry and intelligence, and must be impervious to the “plague of ships:” kinship, relationship, friendship and fellowship.

Of these qualifications, independence and integrity are probably the most vital, especially in litigations involving actions of the President or of other executive officials. A judge who does not possess independence and integrity does not deserve to be in the judiciary, in the same manner that a biased basketball referee has no place in the game.

How magistrates are chosen. In the past, the President was given maximum latitude in appointing any lawyer who meets the minimum length of law practice imposed by law. However, before they assumed office, the appointees needed confirmation by the Commission on Appointments (CA), that was (and still is) composed of members of Congress.

In those days, judicial appointees were subjected not only to intensive questioning by the CA but also to various personal demands for favors by its members. Congressmen required the loyalty of judges assigned to their districts. Those promoted to higher courts were publicly ridiculed for their alleged erroneous decisions. In short, the appointees? integrity and independence were unnecessarily diminished by reckless imputations and political power plays.

To remedy the problem, the 1987 Constitution–at the suggestion of former Chief Justice Roberto Concepcion–created the Judicial and Bar Council (JBC) with the “principal function of recommending appointees to the Judiciary.” True, the new Charter still empowered the President to appoint all magistrates, including those in the Supreme Court, but the presidential choices were limited to a JBC-prepared list containing at least three nominees for every vacancy. Magistrates no longer needed CA confirmation; thus, they were liberated from undue congressional inquisitions.

Composition of the JBC. Under the new Constitution, the JBC is composed of (1) the Chief Justice as chairman, (2) the secretary of justice, (3) a representative of Congress, (4) a representative of the Integrated Bar, (5) a professor of law, (6) a retired Supreme Court justice, and (7) a representative of the private sector. The first three are referred to as “ex-officio members” while the last four, “regular members.”

True, the Constitution specified “a representative of Congress.” But, in practice and consistent with the bicameral nature of our legislature, two members of Congress–a senator and a congressman–actually sit in the JBC. Thus, there are, in fact, eight sitting JBC members, each of whom casts one vote. This increase in composition has some implications; for example, the vote needed to approve actions is five (out of eight members), instead of only four (out of seven). Also, the legislative branch has now two votes in the Council while the two other branches of government retained only one each.

During my watch as Chief Justice, there was a proposal to limit the congressional vote to only one, but the suggestion was abandoned because, to resolve the issue, an “adversarial proceeding” was needed. On the other hand, the four regular, full-time JBC members are appointed by the President “for a term of four years with the consent of the Commission on Appointments,” and could be reappointed.

In sum, under the present system, judicial appointees are shielded from direct congressional influence, but JBC members are not. Further, nothing–except the highest form of statesmanship–prevents a politically minded President from suggesting, directly or subtly, to the Council–especially to his or her appointees–the nomination of those he or she intends to appoint. Verily, the President could still “pack” the courts, despite the Concepcion-inspired constitutional innovation.

Apart from structural concerns, the JBC has also been criticized for the ways it has conducted its work: (1) its alleged lack of transparency and lackluster nomination process, (2) its supposed inability to fill up the many judicial vacancies, thereby aggravating delays; and (3) the inclusion in its recommended list of some unworthy nominees who unfortunately get appointed and eventually taint the whole judiciary.

Next week, I shall discuss these criticisms and how the JBC is confronting them.

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