Reforming the Judicial and Bar Council

LAST SUNDAY, I DISCUSSED THE ROLE OF THE Judicial and Bar Council (JBC) in assuring a credible judiciary. Because of deficiencies in the JBC’s structure, and alleged defects in its nomination process, some critics have proposed its abolition and a return to the old system of confirming judicial appointments by the Commission on Appointments (CA).

Reforming systemic deficiencies. As I explained last week, the present system has shielded justices and judges from direct congressional interference, but not the four regular JBC members who need CA confirmation. JBC members are vulnerable to the same political pressures foisted on judges under the old system. Furthermore, judges—as presidential appointees—are still subject to executive influences. This is especially true of magistrates who seek promotion to higher courts (or to other jobs), and of JBC members who aspire for reappointment.

With due respect to the critics, I believe in strengthening the anti-political shield of the judiciary, not in shoving it back to the partisan mud. To accomplish this goal, the Supreme Court should be empowered to appoint the JBC regular members representing (1) the retired Supreme Court justices, (2) the Integrated Bar, and (3) the legal academe. The President may appoint the representative of the private sector, without need of CA confirmation.

Under this proposal, the President will have two JBC representatives (the secretary of justice and the private sector appointee); Congress will also have two (a senator and a congressman); and the Supreme Court, four (the chief justice and the three others named by the Court). In this way, the nomination process will be further depoliticized and judicial independence better assured.

The JBC was created 20 years ago by the 1987 Constitution. Since then, the creation of similar councils has become a favorite global judicial reform project. It has been adopted, in one form or another, in more than 25 countries, especially in Europe and Latin America. This worldwide trend has been “heralded as a way of depoliticizing appointments, guaranteeing the selection of better judges, and advancing judicial independence.”

A study, made by Judge Sandra Oxner of the Commonwealth Judicial Institute of Canada, shows this unmistakable direction. In some countries like France, Italy, Portugal and Spain, the councils—which are much larger in composition, averaging about 20 members—not merely nominate but in fact appoint the judges. Membership in these large councils sometimes includes the president of the country, as in France and Italy. More often, however, the chief justice chairs the council. In Japan, the system is simpler: the Supreme Court performs the work of the council.

Reforming JBC processes in the past. Systemic changes require a tedious process of constitutional amendment. In the meantime, the JBC has tried its best to confront criticisms in the conduct of its business. When it started operating in 1988, the JBC did not have any rules or personnel to assist it. Even the four regular members worked on part-time basis only.

On Oct. 10, 2000, the “Rules of the Judicial and Bar Council” were promulgated. The Rules were intended to implement the constitutional mandate that members of the judiciary must embody “proven competence, integrity, probity, and independence.” At the instance of Sen. Aquilino Q. Pimental Jr. (when he was a JBC ex-officio member), the Rules were amended to allow a single member to veto the nomination of an applicant who has “questionable integrity.”

Later on, the JBC required full time service from—and paid regular compensation (no longer just per diems) to—the four regular members so they could actively help in steering the council. In late 2005, the JBC hired a full time staff, led by an executive officer, to assist it in its administrative work, especially in verifying the candidates? “reputation for honesty, incorruptibility, irreproachable conduct and fidelity to sound moral and ethical standards.”

To be more transparent, the JBC opened its interview of candidates to the media. However, it has refrained from mimicking legislative-type investigations, on the justification that, precisely, the JBC was created to shield judges from abrasive and insulting inquisitions that tend to diminish their dignity. As then chief justice, I launched on April 21, 2006 the JBC website (jbc.supremecourt.gov.ph), showing information about the council, its work and its processes.

Reforming the JBC further. Critics lament that, despite the above reforms, some unworthy candidates are still able to sneak into the JBC nomination list and get themselves appointed. Until the council is completely liberated from political influence, its members will simply have to work more heroically to nominate only the best and the brightest.

To help achieve this, I have some humble suggestions: (1) the names of the JBC members voting for candidates who make it to the nomination list should be made public, in the same manner that the votes of justices are made known; (2) the regular JBC members should observe, by analogy, the judges? code of ethics; for example, they should avoid socializing with candidates; and (3) the regular members—as the full-time vanguards of the judiciary—should, like judges, perform their work with same standard of “proven competence, integrity, probity and independence.”

Next Sunday, I will take up the huge judicial vacancy.

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