The Judicial and Bar Council (JBC) is searching for a new chief justice vice Teresita J. Leonardo-De Castro, and for two associate justices (AJs) vice De Castro also (she vacated her AJ seat on Aug. 28 when she was sworn in as CJ) and Noel G. Tijam (who will retire on Jan. 5, 2019).
Unlike that for Justice Brett Kavanaugh of the Supreme Court of the United States (Scotus), the JBC search is not expected to be acrimonious or partisan. This is because, under the US Constitution, the US process is by its nature dominated by politicians — nomination by the US President and confirmation by the US Senate.
This political nature is magnified by the fact that the magistrates are chosen precisely and unabashedly for their known adherence to the platform of either of the two US political parties. Thus, Republican presidents, like Donald Trump, appoint justices who, by their track record, follow the “conservative” platform of the Republican Party.
On the other hand, Democratic presidents, like Barack Obama, select justices who support the “liberal” outlook of the Democratic Party. This is no secret. In fact, it is always a campaign issue during US elections.
Kavanaugh’s appointment was especially contentious because he will hold the swing vote among the nine Scotus justices who are equally divided into four conservatives and four liberals. The vote of Justice Anthony Kennedy, the prior incumbent, was so decisive that the Scotus during his term was known as the “Kennedy Court” rather than the “Roberts Court” (after CJ John Roberts Jr.)
In contrast, the selection system of choosing our jurists had been partly depoliticized by the 1987 Constitution. The presidential power to appoint them was limited to a list of at least three nominees prepared by the JBC. Unlike in the United States, our Senate (or Congress for that matter) has no role, except that it is represented in the Council by one member.
Truly, the process here has been seamless; the latest proof being the elevation to the Supreme Court a few days ago of bright, industrious (no backlog), 52-year-old Court of Appeals Justice Ramon Paul L. Hernando.
Procedurally, the selection process begins when the JBC formally announces “the opening for application or recommendation” for the vacancy. For the current CJ opening, the five most senior justices (Antonio T. Carpio, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo and Estela M. Perlas-Bernabe) are automatically included, provided they manifest their acceptance.
Thereafter, the JBC determines whether the aspirants meet the minimum qualifications and other requirements. Then, those who passed would be subjected to psychological tests (including IQ).
Within a week, they would be publicly interviewed, and in another week, the JBC would meet again for final deliberation. Those who obtain the votes of at least four of the seven members would be included in the short list for the President.
Though partly depoliticized, the JBC is not perfect. That is why revisions in the JBC’s structure are included in the Charter-change proposals of both the Presidential Consultative Committee and of the House of Representatives.
As for me, I think the following constitutional changes will further insulate the JBC from partisan politics:
(1) It should be treated as an independent constitutional agency with fiscal autonomy, similar to the Commission on Elections and the Commission on Audit.
(2) The JBC regular members should have security of tenure with a fixed term of seven years without reappointment to the same or any other position. The representatives of the Association of Retired Justices of the Supreme Court, the Integrated Bar and the Philippine Association of Law Schools (or academe) should be automatic and should no longer need formal appointment by the President, while the representative of the private sector should be selected by the Supreme Court.
(3) Like justices, the JBC members should be accorded security of compensation that cannot be reduced while in office, and to a retirement package that includes the pay of an incumbent for life, which should extend to their spouses in case they predecease them.
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