Flawed process

The recent appointment of Presidential Legal Counsel Merceditas Gutierrez as Ombudsman and the on-going search for the next Chief Justice of the Supreme Court (SC) place the Judicial and Bar Council (the JBC) on a tight spot. With respect to Gutierrez, the JBC has been made to look like a rubber stamp when the President announced her choice for the position before it could come out with a list of at least three nominees. As predicted, the JBC really had to include Gutierrez on its list leaving the two other nominees as mere gap fillers to complete the constitutionally required number of nominees to be submitted to the President. Even if Gutierrez is the most qualified for the position and so far I believe she is, the manner of her appointment confirms the long held suspicion that JBC has not served the purpose for its creation. The old setup where Presidential appointees need the nod of the Legislative Commission on Appointments looks much better as far as ensuring that appointments are based more on qualifications than on closeness to the appointing power.

Regarding the on going search for the next SC Chief Justice, controversy also hounds the JBC when it scheduled the interview of the three nominees who are all ranking SC Justices. The constitutional provisions on the creation and functions of the JBC make this move quite odd. The emoluments of its regular members are determined by the SC composed of Justices that includes the three nominees. It is also the SC that assigns other functions and duties to be exercised by the JBC (Section 8 [4 and [5] Article VIII). From these provisions, it is readily apparent that the JBC is under the control and supervision of the SC. In fact, the SC Chief Justice is it ex-officio chairman. Interviewing and screening the members of the body which has control and supervision over it, is simply absurd and downright ridiculous. It is like the superiors being subjected to screening and interview by subordinates for possible promotion as their big boss. Indeed nowhere in the Constitution is such interview by the JBC required. In fact Section 9 Article VIII expressly mentions only the appointments of members of the Supreme Court and judges of the lower courts that require recommendation of the JBC. The Constitution does not explicitly require the recommendation of the JBC with respect to the appointment of the SC Chief Justice. Furthermore, an interview is necessary only to enable the JBC to trim down the list of nominees by picking out the three most qualified among the several nominees for the position. In the present case, there are only three nominees. So there is no more need for an interview.

To be sure, aside from the three nominees, two other SC Justices were also nominated. But they withdrew from the race purposely to do away with the process of pruning down the list to three for submission to the President. When they withdrew, the JBC’s role has been reduced to the ministerial function of submitting the list to the President. Interviewing the nominees no longer serves any purpose. The need to know the judicial philosophy being espoused by each of the Justices nominated is not a valid reason to conduct an interview. There are so many cases penned by each of them where their judicial ideologies and doctrines are clearly set forth. Besides, finding out their thoughts and convictions on matters related to or in connection with the administration of justice more properly pertains to the appointing authority.

These two cases have really exposed the weaknesses of the present system of appointment of the Ombudsman and the members of the judiciary through the recommendation of the JBC. They show that the JBC’s role can be reduced to merely filling the gap in the required list of three nominees or to simply submitting the list that has already been reduced to three without its intervention. Both involve mere ministerial or clerical functions. Ultimately, the choice now more exclusively and solely belongs to the appointing power unlike when the CA had a say over these appointments.

The present set up is disturbing enough especially when the next appointment involves the position of SC Chief Justice. It is true that the President is given wide latitude of choice and can engage in deep selection or even appoint an outsider as Chief Justice. Bush has just done that in the America. We are still fortunate that the President’s choice has been limited to three. Nevertheless, there is still the danger that the element of closeness to the appointing power, which is admittedly a human weakness, may play a vital role in the choice. It is hoped that the President will adhere more to the traditional and objective yardsticks in choosing the Chief Justice like competence, experience, integrity, independence, seniority and of course judicial philosophy that hews close to the basic democratic principles and National aspirations. In the meantime Constitutional changes regarding JBC should be seriously considered and carefully studied.

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