JBC odds and ends

When a reporter asked me whether I would accept nomination to the post of chief justice, with a straight face I said no because I hate work and the pay is not right. Wonder of wonders, somebody told me that my answer came out in the media!

But not everything is comical. There are some legitimate issues coming out. The first is the challenge to the eight-man composition of the current Judicial and Bar Council (JBC).

Indeed it is true that the Constitution provides for only seven members and only one of them is from Congress. As I recall, however, this was one of the provisions in the draft of the Constitution which escaped the attention of the drafters. The provision was approved when the Constitutional Commission was still thinking in terms of a unicameral National Assembly. Thus, only one representative for the legislative body was provided for. After the Commission decided to go bicameral, no adjustment was made.

In the early days of the 1987 Constitution, the practice was for the Senate and House members in the JBC either to alternate or to be given only half a vote each. As I understand from the complaint against current practice, congressional members now each have one vote. If this is so, it is not such a world-shaking inaccuracy. It can easily be remedied. But it would be interesting to check back records to see if any nominee has ever been recommended because a majority vote was reached in his or her favor on the basis of the vote of the two legislators.

In fact, however, there are other instances of failure to adjust to the shift to a bicameral legislative body. The most serious is the provision on amending the Constitution. What we have is a copy of the constitutional amendment provision in the 1973 Constitution. It now says: “Any amendment to, or revision of, this Constitution may be proposed by:  (1) the Congress, upon a vote of three-fourths of all its Members; or (2) a constitutional convention.”

The provision has paralyzed attempts to revise or amend the Constitution. The debate has frequently been stalled on just how this provision should be implemented. Under the 1935 Constitution the provision clearly required a joint session. It commanded Congress that, in proposing changes to the Constitution, it must be in joint session but they must vote separately. The paralyzing debate under the 1987 Constitution is on whether a joint session is required or whether separate sessions can do the job or in either case whether they must vote separately.

Another item that has come up from the JBC is the report that all applicants for the position of chief justice should undergo a psychological test. I suppose that this is not just for aspiring chief justices but also for all aspiring justices of the Supreme Court.

The constitutional qualifications of a member of the Supreme Court are listed thus: “No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.” And for all other members of the judiciary the Constitution says:  “A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.”

In 2008 when the question arose whether the mandatory drug testing found in the Dangerous Drugs Board Act could be applied to candidates for national office, the Court ruled that the qualifications found in the Constitution for national elective officials were exclusive and that Congress could not prescribe additional qualifications.  Should this ruling of the Court apply to psychological testing of applicants for the Supreme Court?

The constitutional requirements for membership in the Court are also exclusive. They may not be expanded by Congress and much less by the JBC which has neither legislative nor constituent power.

It might be argued that psychological testing can come under the general requirements of “competence, integrity and probity.” Indeed, psychological fitness for the office can be understood as required. But this is to be verified not through the technical skills of a psychiatrist but by the ordinary prudential judgment of the members of the JBC. After all, psychological imbalance of a person can have external manifestations easily verifiable. There have been examples of this. The JBC may not delegate its power to a person who is not one of them. If a psychiatrist were needed for this, the Constitution would have required that one be a member of the JBC.

Finally, I would consider it insulting to require a sitting justice of the Supreme Court to submit himself or herself to psychological testing for the purpose of determining whether he or she deserves a seat. In fact, many of the current nominees would also be insulted by the requirement.