Selection of SC justices in PH and US

Shortly, both President Duterte and US President Donald Trump will name new justices to their respective Supreme Courts. Our President will fill up the first two of the 12 vacancies that will occur during his six-year term from a list of nominees submitted by the Judicial and Bar Council (JBC). (See my 12/11/16 column for the nominees’ names.)

Insulation from politics. The first vacancy occurred on Dec. 16, 2016, and the second on Dec. 29, 2016, when Justices Jose P. Perez and Arturo D. Brion, respectively, retired. Under the 1987 Constitution, the vacancies “shall be filled within ninety days from the occurrence thereof.”

To insulate the Court from partisan politics and learning from the sad experiences under the martial law regime of President Ferdinand Marcos, the 1987 Constitution—while still authorizing the chief executive to appoint the justices—limited his or her choices to “a list of at least three nominees prepared by the [JBC] for every vacancy.”

In vetting the nominees, the JBC is guided by two sets of constitutional provisions. The first requires the Court members to be natural-born citizens, at least 40 years old, and to have been for 15 years or more a judge of a lower court or engaged in law practice.

More crucially, the second mandates them to have four important traits: “proven competence, integrity, probity and independence.”

PH system. The JBC is 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.”

“The four regular Members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments.” The current regular members are Maria Milagros N. Fernan-Cayosa, Jose V. Mejia, Angelina Sandoval-Gutierrez and Toribio E. Ilao Jr.

As to who will be the “representative of the Congress” is a contentious issue. In the past, a senator and a congressman both sat as concurrent members but each of them cast only a half vote. At another time, each was allowed a full vote.

At present, the two split the calendar year. Thus, Sen. Richard Gordon sat for the second half of 2016 (July 1-Dec. 31) with one solid vote and Rep. Reynaldo Umali now sits for the first half of 2017 (Jan. 1–June 30) also with one solid vote.

Umali branded this arrangement “unfair” because his assigned slot did not allow him to vote during the vetting for the two Court vacancies in December 2016. Neither will he be able to vote for the next two Court vacancies in July and August this year.

On Dec. 29, 2016, Umali sued in the Supreme Court to allow Congress two votes consistent with its bilateral nature, claiming that the current wording of the Charter was written in the expectation that the lawmaking body would be unicameral.

Our earlier Constitutions exposed the justices to partisan influences by requiring their appointments to be confirmed by the Commission on Appointments, composed of senators and congressmen.

US system. In the United States, the appointment (more accurately, the “nomination”) of federal jurists by the US president must be confirmed by the US Senate, the equivalent of our Commission on Appointments, thereby exposing them to the vagaries of politics. The US Charter does not provide for a JBC, or for the four vital traits, or for a deadline to fill up vacancies.

The nomination a year ago by US President Barack Obama, a Democrat, of Merrick B. Garland, a respected US Court of Appeals justice, to the post vacated by the death of Supreme Court Justice Antonin Scalia on Feb. 13, 2016, was not acted upon by the Republican-dominated US Senate.

The US Senate is waiting for President Trump, a Republican, to name a new nominee who, like Scalia, would be “a textualist, originalist, and conservative.” In turn, Trump vowed to do so within two weeks from his inauguration last Jan. 20.

Which is the better (or worse) system in vetting justices, the Philippine or the American system? You be the judge.

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