Responsibility for selecting justices

I AM glad that the members of the Judicial and Bar Council (JBC) are preparing to face the challenge of nominating only the best and the brightest to the seven Supreme Court vacancies to be created by the retirement of an equal number of justices in 2009. Never in the normal history of the Court has almost one-half of its membership changed within just one year. (I say “normal” to exclude extraordinary events like the judicial cleansing undertaken by the Aquino revolutionary government in 1986.)

Scrutinizing the JBC. The Constitution provides that members of the Supreme Court (and the entire judiciary) shall be appointed by the president from a list of at least three individuals nominated by the JBC for every vacancy. The president’s power to appoint justices is severely limited; the field of choice is restricted only to those nominated by the council. Having been pre-screened by the JBC, judicial appointments are no longer passed upon by the Commission on Appointments.

Clearly then, the primary responsibility for choosing worthy justices falls squarely on the JBC. If the council nominates only the most qualified as it should, and expunges politics and favoritism from its selection, then every appointment made by the president would be unquestionable. However, even if just one undeserving candidate is smuggled into the list, the whole selection process tumbles because the president could then appoint that unworthy one. For this reason, the JBC’s process of searching for, screening and selecting (I call them the “three ‘s’ functions”) nominees cannot afford a single mistake.

Yes, the task of the JBC is not easy. The Constitution specifies three quantifiable requirements for Supreme Court members: natural-born citizen, at least 40 years of age, and practice of law or judgeship in a lower court for at least 15 years. More significantly, the Charter requires all jurists to possess four non-quantifiable qualities: “proven competence, integrity, probity, and independence.” Of these, I believe the most important are independence and integrity. How to find these most elusive but most essential qualities is the JBC’s ultimate task.

The selection process for the first vacancy that will occur when Justice Ruben T. Reyes retires on Jan. 2, 2009 has already begun. The JBC set tomorrow, Oct. 13, as the deadline for the filing of applications. This early deadline is not generally known. I think it should be extended.

Monitoring the JBC. Relevantly, the initiative of Sen. Kiko Pangilinan, the Senate’s representative in the JBC, to convene the “Bantay Korte Suprema” is laudable. He is inviting the legal community, academe, civil society and business groups to organize themselves and participate actively in the selection process and to make sure that the public understands it.

The Pangilinan initiative dovetails with an existing method of checking the background of candidates. Authored by Dean Amado L. Dimayuga, JBC member representing the academe, the system was derived from the Judicial Nominees Evaluation Commission, the JBC’s equivalent in the state of California.

Under this method, the applicant is required to fill up a personal data questionnaire that asks for a list of courts in which he or she has appeared as counsel during the last two years as well as the names of the prosecutors, private attorneys, court personnel and other references in the legal community. If the applicant is an incumbent judge, he or she must list colleagues in the judiciary. Then, survey forms are sent to randomly picked references. From the responses (at least 20 must be received), the JBC makes an evaluation of the candidate. This system has been piloted and has produced some good results.

Judging the JBC. Also praiseworthy is the proposal of J. Conrado P. Castro, JBC member representing the Integrated Bar of the Philippines, that the votes cast by JBC members be recorded and made public. At present, the voting for Supreme Court nominees is done by secret ballot. Hence, there is no way of knowing who voted for whom.

However, the Castro proposal will make the process more transparent and the JBC members more accountable for their actions. When magistrates misbehave and are sanctioned, the natural question is: who were responsible for the appointment of the errant jurist’ At present, there is no way to divine who among the eight JBC members voted for the penalized magistrate. The Castro plan will pinpoint responsibility for bad choices.

The votes of individual justices in all Supreme Court decisions, including the most controversial, are made known. Thus, I see no reason why the votes of JBC members should be hidden from similar scrutiny. Transparency translates to accountability that in turn breeds public confidence in our institutions and officials.

Obviously, the JBC is expected to nominate only the best and the brightest from among the most eminent, not from those who barely qualify. To select the finest for the seven vacancies is a monumental task. The JBC members will be praised or condemned by the quality of all their choices. Will they pass the test?

Aside from Pangilinan, Dimayuga and Castro, the other JBC members are Chief Justice Reynato S. Puno (chair), Justice Secretary Raul Gonzalez, Rep. Matias Defensor Jr., retired Supreme Court Justice Regino Hermosisima Jr., and retired Court of Appeals Justice Aurora S. Lagman.

For further info on the JBC, see my columns on Sept. 9, 16 and 23, 2007 via my website, cjpanganiban.ph

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