Flawed

The role of the Judiciary in maintaining a stable government and preserving a viable democracy should never be underestimated. It is the primary branch of government that upholds the law and dispenses justice which are the two main ingredients keeping a nation alive and well despite the fumbling, mischief and mistakes of the other branches of government. Lord Bryce, in the book “Modern Democracies” (Vol. 2 p.384) best expressed the importance of the Judiciary when he wrote that: “Nothing more clearly touches the welfare and security of the average citizen than his sense that he can rely on the certain and prompt administration of justice. Law is respected and supported when it is trusted as the shield of innocence and the impartial guardian of every private civil right x x x. But if the law be dishonestly administered, the salt has lost its savour; if it be weakly or unfaithfully enforced, the guarantees of order fail, for it is more by the certainty than by the severity of punishment that offenses are repressed. If the lamp of justice goes out in darkness, how great is that darkness”.

In affirming this vital role of our Judiciary, more especially of the Supreme Court (SC) which has been aptly dubbed as the “last bulwark of democracy”, our present Constitution itself contains provisions and introduces innovations to insure its independence; to insulate it from any undue influence, political pressure or even control of the other departments of government.

 Hence, the Judiciary now enjoys more fiscal, jurisdictional, administrative and procedural autonomy while its Judges and Justices enjoy security of tenure, non-diminution of salaries during their continuance in office.

This independence is enhanced by transferring to the SC, the exclusive power to discipline judges and justices of the lower courts; the administrative supervision over all courts; the authority to appoint all officials and employees of the judiciary; to assign judges of the lower courts to other stations as public interest may dictate and to change the venue or place of trial in interest of justice.

Lawyer-members of Congress are likewise prohibited from appearing as counsel before any courts. Congress itself is also prohibited from abolishing the SC or depriving it of its minimum constitutional powers and jurisdiction, or prescribing the manner in which it should sit or determining the number composing it, or passing a law reorganizing the judiciary.

But the most significant innovation introduced by the 1987 Constitution purportedly insuring judicial independence is the creation of the Judicial and Bar Council (JBC) that recommends or nominates appointments to the Judiciary. In the 1935 Constitution, Judges and Justices were appointed by the President with the consent of the Congressional Commission on Appointments. In the 1973 Constitution, only the President was involved in their appointments without check from Congress. Experience shows that both methods resulted in packing the judiciary with so many political appointees after a lot of political haggling and horse trading thereby undermining the independence of the judiciary.

The creation of the JBC as a constitutional body was thus intended to make the process of nomination, screening and appointment insulated from politics and to insure that only persons of “proven competence, integrity, probity and independence” will be appointed to the Judiciary. Hence the Charter itself even fixes its composition, functions, and terms of office and emoluments of its members.

Membership in the JBC really appears to be broad enough to achieve the purpose for which it is created. It has three ex-officio and four regular members or a total of 7. The ex-officio members come from the three main branches of government consisting of the Chief Justice as ex-officio Chairman, the Secretary of Justice, and a representative of Congress. Since there is only one representative of Congress, the allocated seat may alternately be given to a Senator or a Congressman. But if both houses send its representative to the JBC, the seat is split between them, so each is entitled to one-half vote in the deliberations of the council.

The regular members of the JBC consist of a representative from the Integrated Bar who shall serve for four years, a professor of Law for three years, a retired SC Justice, two years and a representative of the private sector, one year. This staggered terms assures continuity as the term of one member expires every year.

Unfortunately, there are flaws in the JBC set-up that do not insure independence and quality appointments in the Judiciary and thus militate against the very purpose for which it was created.

Firstly, the Secretary of Justice as ex-officio member and its four regular members already constituting the majority in the Council are also appointed by the President with the consent of the Commission on Appointments (CA). Hence they are not completely detached from the appointing power nor are they insulated from political haggling or horse trading. Besides, the Charter merely fixes their term but not their term limits. So the President can repeatedly re-appoint these members as happens to some who have been sitting in the council longer than the term fix by the Charter. Expecting independent and quality recommendations from such a council is therefore like expecting clean and healthy fruits from a poisoned tree.

Another flaw surfaced only recently with respect to the existing two vacancies in the SC. Under Section 9, Article VII of the Constitution, the members of the SC “shall” be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy”. It is clear from this provision that the President is not free to choose anyone outside the list. And the JBC already submitted the said list of 3 each for the two vacant SC positions. Yet the President returned said list obviously because not one or both of her choices are in it. Apparently such move is contrary to the spirit and intention of the Constitution. But since the said provision did not categorically say that the President cannot ask for another or additional list of nominees, the move still appears to be above board.

The ball is therefore now in the hands of the JBC and its members. This is a golden opportunity for them to assert and prove their independence from Malacañang despite the speculations, doubts and perceptions to the contrary. Most importantly this is the best chance for them to uphold the spirit and intention of the Charter in creating the JBC. All they have to do is stick to the list, return it to the Palace and insist that the President picks out only from their choices. Any other move on their part is a great disservice and a big let down to our people.

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