New JBC rule needs clarity

The Judicial and Bar Council (JBC) — the agency authorized by the Constitution to vet candidates for judicial posts (and for ombudsman) — recently required a new age cap for those aspiring for a seat in the Supreme Court.

Specifically, JBC’s 2020 Revised Rules (Sec. 1, Rule 8) states, “For the position of Associate Justice or Chief Justice of the Supreme Court, the Council shall consider applicants only if they

“1. have at least two and one half (2.5) years remaining to serve as an Associate Justice or Chief Justice… if they have served as [a] Associate Justice or Presiding Justice of an appellate court; [b] Court Administrator; [c] Chairperson of a Constitutional Commission; [d] Solicitor General; or [e] Department Secretary; or

“2. have at least five (5) years remaining to serve as an Associate Justice or Chief Justice of the Supreme Court, if they had not served any of the positions in the immediately preceding paragraph or if they are private practitioners.”

The new edict was unanimously approved by the JBC led by its ex-officio chair, CJ Diosdado M. Peralta; its other ex-officio members, Justice Secretary Menardo I. Guevarra, Sen. Richard J. Gordon, Rep. Vicente S. E. Veloso III; and its four regular members, retired Justice Jose Catral Mendoza, retired Justice Noel Gimenez Tijam, retired Judge Toribio E. Ilao Jr., and retired Judge Franklin J. Demonteverde.

Under the Rules, applicants need at least four votes to be nominated. Though both Senator Gordon and Representative Veloso signed the Revised Rules, they are entitled to only one JBC seat (which is rotated at half a year each) and to only one vote.

Simply stated, those aspiring to be associate justice or chief justice should not be over 67.5 years old if they are among the five officials mentioned in Item 1. Otherwise, if not among the five — like private lawyers, undersecretaries, and trial judges — they should not be over 65.

The obvious aim is to give appointees enough time to know the labyrinths of the Supreme Court and to contribute meaningfully to the reduction of its clogged dockets. Indeed, having been a member of the Court, I know that newcomers need some time to adjust to the Internal Rules of the Court and to its distinct judicial culture.

When Justice Tijam was vetted for the Supreme Court, he was a member of the Court of Appeals (CA); however, he was already over 68 years old. In my column on March 19, 2017, I noted that his critics — including then CJ Maria Lourdes P. A. Sereno — precisely questioned his short stint in the Court: from March 8, 2017 to Jan. 5, 2019.

Despite Sereno’s opposition, four JBC members voted for him because of his undisputed qualifications (San Beda College salutatorian/cum laude, notable CA track record) and his commitment during his JBC interview to dispose of 1,000 cases during his brief stint.

Indeed, he served his short term with passion and dedication. I do not know, though, whether he succeeded in disposing of 1,000 cases. Also, he penned some high-profile decisions, including the one ousting Sereno via quo warranto.

By voting for this new rule, did Justice Tijam imply that he is now in favor of barring those who, like him, are to serve for less than two and a half years? Does he now agree that it is extremely difficult to contribute meaningfully to the work of the Court with a term of less than two and a half years?

Let us examine the rule further. If a vacancy in the post of chief justice occurs, will the Supreme Court justices who have less than two and a half years to serve be excluded automatically? To be sure, the rule is rather ambiguous. As lawyers are wont to say, there is a gap in the law.

The rule will take effect only on June 8, 2020. But if it were applied to CJs Teresita J. Leonardo-De Castro, Lucas P. Bersamin, and Peralta, none of them would have qualified.

Nonetheless, Justice Mendoza, who represents the retired justices in the JBC, was quoted by abogado.com.ph to have said, “A sitting associate justice of the SC is not contemplated in” the controversial rule. That may be so. In fact, in the past, the three (or sometimes five) most senior (but not all sitting) justices were automatically nominated for a vacant CJ post.

With due respect, the rule needs clarity and should be amended especially in regard to the chief justiceship to avoid ambiguity and needless suits (like quo warranto) when the time comes.

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