Another opportunity for true reforms

P-Noy has another opportunity to realize his promised reforms in the government when he appoints and fills up the position of Ombudsman that has recently become vacant with the resignation of Merceditas Gutierrez and of two Supreme Court (SC) Justices that will become vacant with the retirements of Justices Eduardo Nachura today, June 10, 2011 and Conchita Carpio-Morales on June 19, 2011. These three positions are undoubtedly vital not only in the administration of justice but also in P-Noy’s avowed fight against graft and corruption.

The Ombudsman is a creation of the 1987 Constitution (Section 5, Article XI) and is also called the “Tanodbayan” which is the original title of said position created under the 1973 Constitution. As envisioned in the present Charter, the Ombudsman is supposed to be the “champion” of the people who shall “act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision or instrumentality thereof including government owned and controlled corporations” (Section 12 Article XI). In fulfilling this role, it has been vested with the power to conduct preliminary investigation and file cases against government officials. The prosecution of these cases however which was also lodged in the Tanodbayan under the 1973 Constitution is now assumed by the Special Prosecutor also created under the 1987 Constitution. The Special Prosecutor may also conduct preliminary investigation and file cases against government officials. But only when it is authorized to do so by the Ombudsman (Section 7, Article XI).

The SC Justices on the other hand are members of the highest court in the land which is the final arbiter of “actual controversies involving rights which are legally demandable and enforceable, and the ultimate authority to determine whether “there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government” (Section 1, Article VIII). Its decisions are therefore final and inappealable such that whatever it has decreed becomes part of the law of the land and should be accepted as true and correct, fair and just. That is why it is also called the “court of last resort”. And being the court of last resort it is important that its decisions must actually, or at least perceptively serve the ends of truth and justice.

The appointees to these positions must therefore be not only the best and the brightest, competent and capable but more importantly, independent, upright and beholden to no one. For this purpose, the framers of our present Constitution amended the process of filling up these positions. Prior to the present charter, appointments to these positions were made by the President subject to confirmation by the Congressional Commission on Appointments (CA). Under the present setup, the appointing power is still the President and his appointees are no longer subject to CA confirmation. But he can appoint only from a list of at least three nominees recommended by the Judicial and Bar Council (JBC) created by the present Constitution (Sections 8 and 9 Article VIII). The idea here is to insulate the appointees from politics and ensure their independence.

Based on past experiences however, appointments to these positions have not been completely insulated from politics. Neither do they ensure the independence of the appointees. In reality, the power of the President to fill up these positions has been reinforced because it is no longer subject to the principle of check and balance by an independent branch of government as represented by the CA. While it is true that the President can only appoint from a list recommended by the JBC, the latter cannot also be considered an entirely independent body immune from political pressure and influence.

The JBC is composed of the SC Chief Justice, the Secretary of Justice, and a representative of Congress as ex-officio members. Its regular members consist of a representative of the Integrated Bar, a professor of law, a retired SC Justice and a representative of the private sector. They are also appointed by the President with the consent of the CA (Section 8, Article VIII). Based on this membership composition and the manner of their appointments, it is obvious that the JBC members are vulnerable to the pressure and influence of the President and members of Congress who have a big say in their appointments. Hence as shown many times in the past the nominees of the JBC for appointments as Ombudsman or members of the Judiciary are those backed up by politicians specifically the President and members of Congress. One glaring proof of this fact is the ex-Ombudsman herself who was openly preferred by Malacañang to the said position and who made it to the short list despite doubts about her independence because of her perceived closeness to the former Malacañang occupants, being then also the Presidential legal adviser.

Thus under the present setup, it cannot be said with certainty that appointees to the position of Ombudsman and two associate SC Justices will be completely independent and beholden to no one. There will always be doubt on this point. A lot depends on P-Noy to erase or just lessen this doubt. Right now he must already be aware that the JBC members may be inclined to defer to his preferences for the positions. Hence he should absolutely refrain from making any statement or from giving the slightest hint about his preferences for the positions. He should also ask his staff in Malacanang not only to keep quiet but to stop giving covert and overt signals about his choices. But if he really cannot help but express his preferences, he should see to it that they have no ties at all with him or his group, especially his kakampi, kaklase or kabarilan, to use the words of the opposition.

The JBC can also do its part. They should really conduct a thorough screening of the candidates. And with respect to the position of SC justices they should give due weight and regard to the SC recommendees pursuant to its own Rule 8, Section 1.  

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