WFW 

The era of the rock star legislator can be traced back to when matinee idol and Sampaguita Pictures leading man Rogelio de la Rosa became a senator. Since then, we’ve had movie, TV and sports celebrities populating our legislative chambers such that, at congressional hearings, it’s the hosts more than the guests soaking up the attention. In this Congress, we have Senators Revilla, Estrada, Padilla and Legarda, among others. In the House, a constellation led by Cong. Lani, Richard and Co.

But when living legends show up, even stars get star struck. The appearance before the Senate of arguably the two most qualified, experienced and respected political lawyers in the country did not go unnoticed. Presidential Legal Counsel Juan Ponce Enrile (JPE) and former solicitor general Estelito Mendoza are not just part of history – in so many ways, they wrote history.

90 the new 60. The two are pillars of the UP College of Law (though JPE is one of my favorite Ateneans), stalwarts of Sigma Rho and Upsilon respectively, pride of Harvard law (both LL.M.s) and holders of virtually every important Cabinet post in the Security, Justice and Peace cluster, not to mention their pedigree as members of the legislative branch.

They have either authored, challenged or defended a huge part of our existing legal and political framework, by themselves or through countless protégés. In the great constitutional battles of our time, both had lead roles to play. Naming a few, Sol. Gen. Mendoza defended the imposition of martial law before the Supreme Court and acted as defense counsel at the Estrada impeachment trial; JPE was martial law architect (and dismantler), Aquino coup plotter, Corona impeachment presiding officer.

At Senator Robin Padilla’s committee on constitutional amendments and revision of codes, JPE counseled on a return to the 1935 Constitution. He also brought up a matter earlier broached by Atty. Mendoza on restoring the imminent danger clause to remove roadblocks that stymied the martial law declaration mechanism.

Brilliance before balance. Atty. Mendoza, at his earlier appearance, animatedly engaged with Senators Padilla and Estrada on the abolition of the Judicial and Bar Council (JBC). The confirmation power over the judiciary was confiscated by the 1986 Constitutional Commission (ConCom) from the Commission on Appointments (CA) and transferred to this nominating body.

When we speak of the rule of law, one of its fundamentals is an independent and impartial judiciary. At ConCom deliberations, horror stories of how magistrates would kowtow to CA members went viral. The JBC was meant to insulate the judicial branch from patronage and partisanship. ConCom president Cecilia Munoz-Palma and member, former Chief Justice Roberto Concepcion, lent their immense gravitas in bringing home the message. “Deliver us from evil: a less political JBC serves the selection process in better stead.”

But many remained steadfast in retaining this time-honored legislative check over the judiciary which was necessary in upholding the underlying constitutional philosophy of checks and balances.

Probation over? Outside the judiciary, the performance of the JBC has received mixed reviews. Indicative is the statement from the Transparency and Accountability Network: “The JBC has a terrible track record. …. if we go with the suggestion to take [the vetting] out of the CA, well, we haven’t done well with a non-CA process either.” Politics negatively impacted on the quality of magistrates but statements like these were an indictment that the new method was not the solution.

Atty. Mendoza’s testimony encapsulates what this experiment has wrought. “ ... while the intention behind the JBC is to depoliticalize the process, what has happened is that the process has been depoliticalized but the power has been given to the number one political power in the government and that is the president of the Philippines.”

Hence, our column title. WFW: weighed and found wanting.

Presidential appointments to the Supreme Court are sensitive, given the awesome power the justices wield. They will decide on matters such as the death penalty, divorce, human rights and a host of constitutional questions.

A 24-man panel of nationally elected officials beholden to no one could arguably administer the 4-fold litmus test in the Constitution, more critically and transparently than a 7-man body, six of whom are appointees of the President. If anyone feels slighted, the pain should be “assuaged by the balm” of a strengthened system of checks and balances.

Also the monastic life. The same considerations apply to appointments to the constitutional commissions. The Commission on Audit, the Civil Service Commission and the Commission on Elections are non-partisan by design.

Precisely, this independence warrants the constitutional standing of the commissions. To insulate them from the departments, the Constitution has embedded safeguards. Congress can only appropriate. Aside from that, officials and employees are appointed in accordance with law; salaries are fixed by law; other functions are provided by law. Commissioners, however, are excluded from the legislative Question Hour.

The commissions enjoy fiscal autonomy. This was emphasized in the exchange between Cong. Edcel Lagman and Comelec Chair George Erwin Garcia during budget deliberations. They addressed one of the rationales behind postponing the Bgy/SK elections. Savings of P7 billion to P8 billion could, supposedly, be realigned to finance the pandemic response and the stimulus package for economic recovery.

Cong. Lagman observed that there can be no such realignment as appropriations released to the Comelec cannot be utilized for other purposes at the behest of Congress or the Executive. The remaining unused funds will constitute a continuing appropriation under Comelec jurisdiction. Chairman Garcia agreed.

As for the courts, commission decisions are not appealable though acts done with grave abuse of discretion are subject to reversal. The Executive’s only role is to appoint. There is a view that resignations by commission officials are not to be submitted to the President but rather to the commissions themselves. They are removable only by impeachment, enjoy security of tenure and fixed salaries during their term. They cannot be reappointed.

There is no equivalent JBC for the constitutional commissions. They all pass through the Commission on Appointments.