As my law school colleague Tony La Viña put it, in earlier days the president had to present an impeccable nominee for chief justice to the Commission on Appointments or risk being rebuffed. How true, how true! And we did get the likes of Manuel Moran and Roberto Concepcion.
As I see it now, the Judicial and Bar Council seems to be hemming and hawing on the way to preparing a “peccable” list. It promises to be a proximate occasion for sinning.
How else explain, among others, the debate on whether the rules of the JBC game should be changed while the game is going on. You don’t do that even in high school competition. And this is judicial Olympics!
A modern Henryk Sienkiewicz might be inspired to write a novel about a team of seven wading through the floods along Padre Faura, in mid-storm, and meeting Ninoy Aquino and asking him, “Where are you going?” and receiving the answer “I am going back to the tarmac to meet my assassin again!”
At this point in our history it might be salutary to recall the high hopes for the JBC.
Under the 1935 Constitution appointments to the judiciary had to go through the Commission on Appointments. Former Chief Justice Concepcion thought that the Commission on Appointments process was too politically tainted. He wanted a depoliticized process, a consummation also devoutly wished by many members of the Constitutional Commission. Hence Concepcion proposed a JBC which, in its final form, would consist of the chief justice as ex-officio chair, the minister of justice and a representative of Congress as ex-officio members, and as regular members a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members would be appointed by the president, with the consent of the Commission on Appointments, and the representative of Congress would be chosen by Congress.
Whether or not the JBC could shield the appointment process from the vagaries of politics was tested when it was preparing a list of persons who could fill the vacancy to be created by the retirement of Chief Justice Reynato Puno. What appeared then was that the JBC could not stop a president who wanted to have her way. She had her way, and the mistake led to very tragic consequences for two people, not to mention for the nation.
Already the flaw in the JBC idea was detected even during the deliberations of the Constitutional Commission. We can see that from the following exchange:
MR. RODRIGO: Of the seven members of the council [JBC], the president appoints four of them who are the regular members.
MR. CONCEPCION: Yes, that is right.
MR. RODRIGO: So, majority of the members of the council are appointees of the president.
MR. CONCEPCION: That is right.
MR. RODRIGO: Can the members of the council be reappointed?
MR. CONCEPCION: They can be reappointed.
MR. RODRIGO: Yes, they can be reappointed, because the tenure of office is staggered—one is appointed for four years, the others are for three years, two for one.
MR. CONCEPCION: The only purpose of the committee is to eliminate partisan politics.
MR. RODRIGO: So, the member who is appointed for a one-year term can be reappointed for a three or four-year term. There is no limitation on reappointment.
MR. CONCEPCION: Yes.
Rodrigo stopped there; but the point of his questioning was that the new process, although intended to eliminate partisanship, strengthened the hand of the president, himself a very partisan animal, and thereby simply transferred partisanship from the Commission on Appointments to the Office of the President. It was for the purpose of lessening the influence of the president that the commission decided to require confirmation of the regular JBC members by the Commission on Appointments.
Recent developments, however, both avoidable and unavoidable, have tended to strengthen the hand of the president some more within the JBC. The unavoidable development is the absence of the acting chief justice or the most senior of the associate justices from the chairmanship of the council. Whether we admit it or not the chief justice carries into the council a clout which the other justices do not yet have. But his absence is unavoidable because of the justifiable inhibition of all justices more senior than the present JBC acting chair. The burden, therefore, of keeping the JBC honest falls to a great extent on the shoulders of Justice Diosdado Peralta who seems to be enjoying the job.
The avoidable development is the replacement of the justice secretary with an undersecretary from the Office of the President. True, both of them belong to the executive department. But the intent of the Constitutional Commission in specifying the justice secretary as ex officio was to remove the choice for this slot in the JBC out of the hand of the president. But given the opportunity to handpick a replacement for a department secretary in the JBC, President Aquino chose one who, by his physical closeness to the Palace, is less likely to exercise independent choice.
Let’s face it, unwittingly perhaps, we of the 1987 Constitution inserted into the document aspects which have made the president of the 1987 Constitution more dominant than the president of the 1935 Constitution. One need not wonder, therefore, why the President is in no hurry to open the document for reexamination.