THE LAST time the Judicial and Bar Council conducted a search for a Supreme Court nominee, it was itself part of the story. The clearest sign that things have considerably settled down since is Justice Secretary Leila de Lima’s unremarked participation in the JBC meetings. No longer a candidate herself, she was able to tell reporters after the JBC decided on its short list of nominees on Wednesday that the “consensus is that it’s a good list. We are satisfied and confident that the President will be able to make a choice out of the seven.”
President Aquino’s choice will fill the vacancy created when Associate Justice Maria Lourdes Sereno was named chief justice last August.
The list of nominees includes four candidates who received seven out of eight JBC votes: Court of Appeals Associate Justice Rosemari Carandang, government peace negotiator Marvic Leonen, former Energy Secretary Raphael Lotilla, and CA Presiding Justice Andres Reyes Jr. Two candidates received six votes—CA Associate Justices Jose Reyes Jr. and Noel Tijam—and one received five—De La Salle University law dean Jose Manuel Diokno.
Leonen is easily the standout in the short list. His role as chief of the government peace panel negotiating with the Moro Islamic Liberation Front, and his impressive skill as a spokesperson for the Framework Agreement on the Bangsamoro that his panel negotiated with the MILF, have landed him in the headlines.
Naturally, questions have been raised about whether it is in the government’s best interest to remove him from the ongoing negotiations. If the President is inclined to appoint Leonen, he faces a dilemma: Does he reward Leonen for his good work by putting that work at risk, or does he penalize Leonen by denying him the reward of a Supreme Court position?
But if the President wants to make an appointment that will signal change, and reinforce his agenda of judicial reform, then he may want to appoint Leonen or any of the “outsiders” on the list, such as human rights advocate Diokno.
If, on the other hand, Mr. Aquino wants to make an appointment that will signal continuity, and emphasize his support for judicial tradition, then he may appoint any of the four appellate justices. Tijam, in particular, enjoys a high reputation in the legal community and would fit anyone’s definition of a career judge deserving of promotion.
As De Lima says, it’s a good list. It’s what happens when the list reaches the President’s desk that concerns us.
Each president handles Supreme Court appointments differently. On one extreme, we have had a president who merely sounded off a prospective candidate if he was interested in the position before making the appointment, and another president who signed the appointment papers even without talking to the appointee beforehand.
President Aquino, who has decided to follow a more elaborate procedure, is on the other extreme. He invites each of the short-listed nominees to a one-on-one meeting. Nothing in the Constitution bars him from doing so, and the language used by his spokespersons suggests that the practice is benign.
Asked whether Leonen had an edge over the other nominees, for example, Secretary Edwin Lacierda said: “That negotiation for peace with the MILF is another matter. We’re now dealing with his views, for instance, a nominee’s views on the judiciary. So that’s something that the President has not discussed with Leonen. So he will give an even-steven chance to all the nominees.”
This sounds merely professional, like a final job interview with the company president before the applicant is hired. But we must be alert to the possibility of even unintended abuse. The position, after all, is a constitutional office, and the Constitution itself lists the only qualifications required of an appointee.
An exchange of views between the President and a prospective justice is justifiable if it is meant to help Mr. Aquino determine for himself whether the nominee has the essential qualities of a judge, as defined by the Constitution: “proven competence, integrity, probity, and independence.” But if he means to use it to impose a litmus test, to make sure that the nominee shares his views on a particular issue, for example, then he undermines both that nominee’s independence and the Constitution itself.