The proposed selection and term of office of justices

In this commentary, I continue with my reflections on the changes in the judicial department, as proposed by the President’s consultative committee to review the 1987 Constitution (“Proposed judicial revisions will weaken the judiciary,” 10/29/18).

Four Federal Courts are proposed to replace the Supreme Court to remove its backlog of cases: a Federal Supreme Court, a Federal Constitutional Court, a Federal Administrative Court and a Federal Electoral Court.

The Federal Supreme Court will be composed of a Chief Justice and eight members. Three, including the Chief Justice, will be appointed by the President, three by the Commission on Appointments of Congress, and three by the Federal Constitutional Court.

The Federal Constitutional Court will also have a Chief Justice and eight members—three, including the Chief Justice, to be appointed by the President, three by the Commission on Appointments, and three by the Federal Supreme Court.

Similarly, the Federal Administrative Court will be composed of a Chief Justice and eight members—three, including the Chief Justice, to be appointed by the President, three by the Commission on Appointments, and three by the Federal Supreme Court.

The Federal Electoral Court, on the other hand, will be composed of 14 members—four, including the Chief Justice, to be appointed by the President, five by the Commission on Appointments and five by the Federal Constitutional Court.

Each Federal Court will thus have a mixture of three classes of members: those appointed by the President, those appointed by the Commission on Appointments, and those appointed by the Federal Supreme Court or the Federal Constitutional Court. What this combination will give us will be interesting to see as an experiment. But can we do this as if we are just brewing different varieties of coffee beans to see if we can have better coffee?

The draft Constitution provides that the candidates must be natural-born citizens of the Philippines, 50 years of age or over, have been judges of lower courts or practiced law for at least 15 years, and must be persons of proven competence, integrity, probity and independence. In addition, members of the special courts must be experts in their respective fields—those of the Federal Constitutional Court in constitutional law, those of the Federal Administrative Court in administrative law, and those of the Federal Electoral Court in election law.

But it does not have a provision for an agency to scrutinize the qualifications of candidates for the Federal Courts. To the contrary, it provides that their appointments “shall not require confirmation,” leaving the authorities no check on the exercise of their power.

The appointment of justices must be a process, consisting basically of the nomination and screening of candidates before the issuance of the commission, and the people should have the opportunity to know them before any of them is appointed. The confirmation of appointments may become highly partisan. The remedy is not to do away with it, but to make it better.

The proposed Constitution likewise provides for a term for the justices. It says “they shall serve for 12 years or until they reach the age of 70, whichever comes first.” It is not clear what the purpose of the term is. But providing for a term of office but making it subject to an age limit is simply self-defeating. A choice must be made: either a term of 12 years or retirement at 70.

In the United States, proposals for a term limit for the members of the US Supreme Court have lately been revived because of the acrimonious confirmation of Brett Kavanaugh as justice of the US Supreme Court. The stakes are high, as the issues before the Court—abortion, same-sex marriage, women’s rights—are election issues, while the chance of naming party members to the Court are long in coming, owing to the lifetime tenure of the justices. Term limits of eight or 12 years have previously been proposed (Stephen Carter, “The Confirmation Mess” [1994]). The purpose is to reduce the stakes and make confirmation less partisan.

We do not have a similar problem here. Justices hold office during good behavior, until they reach the age of 70. The longest period they can stay in office is 30 years, assuming they are appointed at the age of 40 and retired at 70.

Rather, our problem is that of a President having the opportunity to make appointments which can enable him to have a majority in the Court even after he leaves office. Staggered terms of office is perhaps a more appropriate system for this purpose.

A constitutional provision for the screening of candidates for the highest court, and a term of office, may help ensure a Supreme Court worthy of its name.

Vicente V. Mendoza is a retired associate justice of the Supreme Court and professor of constitutional law at the UP College of Law.