Sereno’s appointment places control over the judicial and executive branches of government in the hands of two graduates of the Ateneo de Manila University, both 52 years old, who obtained degrees in Economics within a year of each other.

Sereno however has always maintained she has no ties with the President. She is said to have left an impression on him when she briefed the Senate on different issues on at least two occasions while Aquino was still a Senator.

Sereno, who was Aquino’s first appointee to the Supreme Court, obtained her Economics degree from the Ateneo in 1980. Aquino got his a year later, in 1981. Sereno went to the University of the Philippines for her law degree. (The name and photo of Sereno, who was known as Lourdes Punzalan Aranal in her college days, do not appear in the Ateneo yearbook Aegis in 1980, the year she graduated).

A VERA Files study on the judiciary noted that only two presidents before Aquino had broken the tradition of appointing the most senior member of the Court as Chief Justice. The first was Ferdinand Marcos who twice bypassed the independent-minded Claudio Teehankee as Chief Justice to appoint Ramon Aquino and Felix Makasiar.

The second was Gloria Macapagal Arroyo, who bypassed Reynato Puno in favor of Artemio Panganiban in 2005. By then, Panganiban had been on the Court for 10 years, while Puno had served for 12 years. About a month before she stepped down from office, Arroyo also bypassed Antonio Carpio and named as Chief Justice her former chief of staff, Renato Corona, who was convicted by the Senate sitting as an impeachment court on May 29, 2012.

Teehankee got his chance to become Chief Justice when in 1986 former President Corazon Aquino named him her first Chief Justice. Carpio will never get that chance since Sereno will be serving for 18 years. Carpio retires in eight years.

The VERA Files study noted that breaking or keeping the tradition of seniority remains a presidential prerogative. But when the JBC was first constituted under the term of former president Corazon Aquino, it informed Aquino in a 1988 letter that it was unanimously endorsing the “established tradition since the beginning…of appointing the most senior Associate Justice as Chief Justice.”

“This tradition has helped to isolate the Supreme Court from the pressures of politics and other extraneous considerations as well as to avoid internal strife and jockeying for position,” the JBC told her.

The VERA Files study likewise pointed out that it falls within the president’s prerogative to appoint anyone he pleases, as long as the appointee passes JBC scrutiny and meets the requirements of the position.

The 1987 Constitution requires judicial appointees to be natural-born citizens, at least 40 years old, and must have been a judge or a practicing lawyer for at least 15 years.

The Constitution also requires a member of the judiciary to be a person of proven competence, integrity, probity, and independence.

Early this year, Sereno voted along with the entire Supreme Court to distribute the 6,000-hectare Hacienda Luisita in Tarlac owned by the President’s family, the Cojuangcos, to farmer-beneficiaries.  But when it came time to decide how much the Cojuangcos should get for the land, she was among the minority who voted to pay them a higher amount based on the value of the land in 2006, rather than the lower 1989 levels. Hacienda Luisita came under agrarian reform coverage in 1989, but its owners opted to distribute stock instead of land to farmers. In 2006, the Presidential Agrarian Reform Council nullified the stock distribution option.

Sereno also voted against allowing former President Gloria Macapagal Arroyo to leave the country to seek medical treatment in late 2011.

Sereno’s appointment to the Supreme Court, first as associate justice and now as Chief Justice, makes her one of a number of Ateneo graduates who hold key government posts under the Aquino administration.

Other government officials who attended the Ateneo during their undergraduate years in the late 1970s to early 1980s are Energy Secretary Rene Almendras, Transportation Secretary Mar Roxas, Pagcor Chairman Cristino Naguiat, Metro Manila Development Authority Chairman Francis Tolentino and Land Registration Authority Eulalio Diaz III. Roxas, however, left the country to finish his studies at Wharton School in Pennsylvania.

In the Judicial and Bar Council, two members who took part in the screening and selection of the Chief Justice are Ateneo alumni. Jose Mejia, like Sereno a 1980 Economics graduate, represents the academe in the JBC, while Michael Frederick Musngi, a palace undersecretary who obtained his law degree from the Ateneo, represented Justice Secretary Leila de Lima who had to inhibit because she was herself a candidate for Chief Justice.

President Aquino and newly sworn Supreme Court Chief Justice Maria Lourdes Sereno during the oathtaking ceremony at the Rizal Hall, Malacañang Palace, Aug. 25. File photo by gov.ph.

Other government officials who graduated from the Ateneo in the early 1980s are Tourism undersecretary Simeon Marfori, and Pagcor Assistant Vice President Jose Christopher Manalo.

Budget Secretary Florencio Abad and Tourism Secretary Alberto Lim obtained their Bachelor’s degrees from the Ateneo in the 1970s. Abad’s daughter and Presidential Management Staff head Julia Abad graduated from the Ateneo in 2000.

Those who went to the Ateneo for their law degrees are Executive Secretary Paquito Ochoa, Bureau of Internal Revenue Commissioner Kim Henares, and Presidential Spokesperson Edwin Lacierda.

When she starts work, among the many cases awaiting Sereno is the electoral protest filed by Aquino’s defeated vice presidential candidate, Mar Roxas, against Vice President Jejomar Binay.—Yvonne Chua, Ellen Tordesillas, Luz Rimban, and Lala Ordenes.

DURING the Judicial and Bar Council’s public interviews of Chief Justice nominees, Integrated Bar of the Philippines (IBP) Representative Maria Milagros N. Fernan-Cayosa remarked, “Everything I would have wanted to ask in order to get to know (Maria Lourdes P.A. Sereno) better is contained in this paper.”

Fernan-Cayosa was talking about Sereno’s position paper presented before the IBP in its public forum on July 20.

Here is the full text of the newly appointed Chief Justice Maria Lourdes P.A. Sereno’s paper entitled “Vision, Courage, and Accountability” from Aug. 2012 The Bar Tribune, IBP’s official publication.

Vision, Courage, and Accountability

The Supreme Court of the Philippines. Photo by VINCENT GO.

By LALA ORDENES

THE Judicial and Bar Council has released the shortlist for the nominees to the highest judicial post in the land. Eight names, led by Acting Chief Justice Antonio Carpio, made it to the list that will be submitted to the President.

The other nominees are Supreme Court Associate Justices Roberto Abad, Arturo Brion, Maria Lourdes Sereno,  and Teresita Leonardo-De Castro.

There are three SC outsiders in the list: Solicitor General Francis Jardeleza, Rep. Ronaldo Zamora, and  Ateneo Law School Dean Cesar Villanueva.

Justice Secretary Leila de Lima, widely considered as a front runner and said to have Palace backing, was disqualified by the JBC because of the two disbarment cases filed against her.

Sen. Francis Escudero is the only one  in the JBC’s eight-member panel who did not vote for Carpio. Carpio is the most senior member in the Supreme Court.

The JBC ex-officio  members who participated in the voting  are Associate Justice and Acting Ex-Officio Chairman Diosdado Peralta, DOJ Undersecretary Michael Frederick Musngi,  Escudero and Rep. Niel Tupas, Jr.

The regular members who voted are retired Justice Regino Hermosisima, Aurora Lagman, Jose Mejia, and Maria Milagros Fernan-Cayosa.

The chief executive must choose from the list to replace fallen Chief Justice Renato Corona.

Corona was removed from office on May 29, when the Senate handed down its guilty verdict in the impeachment case against him.

JBC Shortlist for Chief Justice

JBC Tally Sheet for the Chief Justice position

The Supreme Court of the Philippines. Photo by VINCENT GO.

By LALA ORDENES

FEARING that Congress may be either underrepresented or overrepresented in the Judicial and Bar Council (JBC) proceedings, the Supreme Court  on Friday modified its July 17 decision limiting  Congress to  only one representation in the council that vets judicial nominees.

In an Aug. 3 minute resolution, the SC declared  it in the best interest of justice to allow both Sen. Francis Escudero and Rep. Niel Tupas Jr. to simultaneously sit in the council as ex officio members of Congress.  Escudero and Tupas chair the  Committee on Justice in their respective chambers.

Congress would be underrepresented if the court would eventually overturn its July 17 decision saying that only one member from Congress could sit in the JBC. On the other hand, Congress would be overrepresented if the Court eventually affirms its July 17 decision of allowing only one seat for the legislative branch in the council.

Because of these possibilities, the court halted the immediate execution of its July 17 decision until it has resolved whether or not to allow both chambers to send representatives to the JBC.  The SC ordered the JBC,  Escudero, Tupas and former Solicitor General Francisco Chavez to submit their memoranda within 10 days.  In the meantime, both Escudero and Tupas could participate in the JBC deliberations.

Chavez, in his petition to the High Court, had questioned the presence of two members of Congress in the JBC, saying this runs counter to the Constitution which states that the JBC shall be composed of seven members, including one member of Congress.

Last July 17, the  court declared the current composition of the JBC with two Congress representatives as unconstitutional and ordered the council to reconstitute itself so that only one representative from Congress could sit in the council’s proceedings.

The High Court’s Aug. 3 resolution said, however, the July 17 decision, though immediately executory, has not become final because of the motion for reconsideration filed by Escudero and Tupas.  But the selection process for the Chief Justice has  started  when the JBC opened the application and recommendation of nominees on July 6.

The High Court said the nonfinality and the immediately executory nature of its July 17 decision barred Congress from sending both Escudero and Tupas from sitting in the panel interviews of the nominees.

Only Tupas  sat for Congress in the first three days of the four-day panel interviews last July 24 to 28. Escudero did not attend any of the proceedings.

The final deliberations and voting for the nominees was originally scheduled for Aug.  2.

The bicameral Congress decided to withdraw from the proceedings after the SC, through its spokesperson, said  the voting would proceed with or without representatives from the legislature.

Tupas said  both chambers of Congress decided not to participate further in the proceedings until the issue was resolved.

The Supreme Court then set oral arguments to finally resolve the case on Aug. 2. Sen. Joker Arroyo argued for the Upper House.

In his argument, Arroyo said  despite its two representatives, the legislative branch is underrepresented in the JBC.  He pointed out that the President, who has the final say in the appointment, effectively has five representatives in the JBC: the Secretary of Justice as ex officio member, and the four regular members appointed by the executive.

Section 8 of Article VIII of the 1987 Constitution states that the Judicial and Bar Council is composed of the Chief Justice as ex officio chairman, the Secretary of Justice, and a representative of the Congress as ex officio members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

The July 17 decision came after former Solicitor General Francisco Chavez, who has been nominated to the chief justiceship, filed a petition questioning the practice of having two representatives from Congress in the JBC, despite the Constitutional provision which states that “a representative of Congress” should sit in the council.

Until the Estrada presidency, the two members of Congress who sat in the JBC would take turns attending meetings and taking part in the selection and voting for nominees to be submitted to the President.  The setup changed in 2001 when they were given one vote each. This effectively increased the membership of the council to eight and the number of majority votes from four to five.

The chief executive must choose from a list of at least three nominees submitted by the council. The Constitution provides that any vacancy in the Supreme Court must be filled within 90 days from its occurrence.

The highest judicial post in the land was vacated on May 29 when the Senate handed down its guilty verdict in the impeachment case against former Chief Justice Renato C. Corona.

By LALA ORDENES

CONGRESS is entitled to only one vote in the Judicial and Bar Council (JBC).

In a 7-2 decision with five abstentions, the Supreme Court on July 17 declared the current practice of allowing members from both the Senate and the House of Representatives to participate and vote in JBC’s proceedings unconstitutional.

The High Court also ordered the JBC to “reconstitute itself” so that only one member of Congress could sit in the deliberations of the council that vets nominees to the judiciary.

Citing the doctrine of separation of powers as the main reason for its decision, the court said  Congress should be considered as one body and treated as another co-equal branch of the executive and judicial branches of government with respect to its representation in the JBC.

The court cited the analysis of retired Justice and now JBC consultant Consuelo Ynares-Santiago in the comment submitted to it by the JBC.

Ynares-Santiago said the ex-officio members of the JBC consist of representatives from the three main branches of government: the Chief Justice representing the judiciary, the Secretary of Justice as representative of the executive branch, and “a representative of Congress” for the legislative branch.

The court, following Ynares-Santiago’s argument, said  there could be no other conclusion to be had but to treat each ex-officio member as representing one co-equal branch of government with each having equal say in the choice of judicial nominees.

“The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three,” Ynares-Santiago added.

The current practice is for Congress to have two votes, one each for both Houses of Congress. Sen.  Francis Escudero sits for the Senate and Rep.  Niel Tupas for the House of Representatives.

The court also used the rules in statutory construction and looked into the records of the 1986 Constitutional Commission (ConCom) in arriving at its decision.

The court noted that Section 8, Article VIII of the Constitution, which created the JBC, refers to the use of the singular letter “a” preceding “representative of Congress,” leaving “no room for any other construction” but to designate only one representative of Congress to the JBC.

Even a perusal of the ConCom records would reveal that the intent of the framers of the Constitution is for JBC to limit its membership to seven, the court said.  This seven-member composition of the JBC serves a practical purpose of providing a solution should there be a stalemate in voting, the court added.

In his dissent, Associate Justice Roberto A. Abad said  sticking to the literal reading of Section 8, Article VIII would deny Congress of its representation in the JBC.

Abad said since the representative from Congress is ex-officio, or by reason of one’s office or position, no one is qualified to sit as the legislative branch’s representative to the JBC because there is no such person ”holding office in Congress and working under both houses.”

Associate Justice Mariano C. Del Castillo agreed with Abad.

Former Solicitor-General Francisco Chavez filed the petition as a citizen and taxpayer who has been nominated to the position of Chief Justice.  Chavez did not accept his nomination.

Associate Justice Jose Catral Mendoza penned the decision for the court. The four justices who are nominees to the chief justiceship took no part in the voting. They are, Senior Associate Justice Antonio T. Carpio, Associate Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, and Maria Lourdes P.A. Sereno.

Associate Justice Arturo D. Brion is on leave and took no part.

The High Court treated the constitutional challenge as a “matter is of extreme urgency” since the deadline for choosing the next Chief Justice is fast approaching.

The highest judicial post in the land was vacated on May 29 when the Senate handed down its guilty verdict in the impeachment case against former Chief Justice Renato C. Corona.

The Constitution provides that any vacancy in the Supreme Court must be filled within 90 days from its occurrence.

Until the Estrada presidency, the two members of Congress who sat in the JBC  would take turns attending meetings and taking part in the selection and voting for nominees to be submitted to the President.  The setup changed in 2001 when they were given one vote each. This effectively increased the membership of the council to eight and the number of majority votes from four to five.

Read the full decision:

GR No. 202242, Chavez v. JBC, July 17, 2012

Read the dissenting opinion:
Associate Justice Roberto A. Abad’s Dissenting Opinion to GR No. 202242, Chavez v. JBC

By LALA ORDENES

FORMER Solicitor General Frank Chavez, a nominee to the Chief Justice post vacated by impeached Chief Justice Renato Corona, sent a letter (see below) to the Judicial and Bar Council (JBC) Friday questioning the composition of the council that vets and approves nominees to judicial posts.

According to Chavez, there should only be seven members of the JBC as mandated by the Constitution.  He questions the ongoing practice of the council of allowing the two members from both Houses of Congress to have one vote each. This violates the charter’s provision that guarantees “a representative of Congress” one vote, Chavez says.

The Constitution provides that the JBC is composed of  seven members: three ex officio, or those who are members of the council because of the position they hold, and four regular, those appointed by the President and confirmed by the Commission on Appointments.

The ex officio members are the Chief Justice as ex officio chairman, the Secretary of Justice, and “a representative of Congress.”

The four regular members represent the Integrated Bar of the Philippines, the law schools, retired justices of the Supreme Court, and the private sector.

Chavez said in his letter that the phrase “a representative of Congress” is “all to clear” and does not require interpretation that “there should only be one representative from Congress.”

The current setup of having a senator and a member of the House of Representatives both sit and vote in the Council increased the membership of the JBC to eight.  This is problematic, according to Chavez, because in cases where the Chief Justice as ex officio chairman casts his vote on an issue presented before the JBC, the eight-member body could be deadlocked and there would be no tiebreaker.

The JBC’s interpretation of the Constitutional provision on its membership has changed a number of times through the years.  When the council was first convened and up until 1994, the representatives from both Houses of Congress sat alternately in the council and shared one vote.  Then it changed to dual representation, meaning they sat concurrently on the council but were entitled to half a vote each.  This practice was in place up to 2001, when the two members from the upper and lower house were given one vote each.

Chavez admits that his letter could “earn the ire or provoke adverse reaction” from the JBC.  “It may in fact jeopardize and pare down my chances for inclusion in the final list,” he says. But clarifying the Constitutional provision is more important to him, he says, because he is not seeking the chief justice post anyway.

The former solicitor general was recommended to the chief justice post by Melchor Magdamo, the Comelec lawyer who bared the  anomaly on the overpriced ballot secrecy folder in 2010,  and Manuel Baviera, one of the organizers of the Whistleblowers’ Association of the Philippines.

Chavez is yet to accept his nomination.

The chief justice position was vacated on May 29 when the Senate, sitting as an impeachment court, found Corona guilty of culpable violation of the Constitution for his failure to declare all his assets in his Statement of Assets, Liabilities and Networth (SALN).

Frank Chavez’s June 21 letter to the Judicial and Bar Council

WHILE almost every lawyer in town and a nurse want to be included in the list of candidates for the position of Supreme Court Justice, vacated by the recently convicted Renato Corona, it’s good to see two people declining.

Former Energy Secretary Raphael “Popo” Lotilla wrote a letter the other day thanking   friends who submitted his name to the Judicial and Bar Council, that will screen the nominations and submit to the Malacañang  a short list (usually  three names) from where the President  will choose the next SC justice.

He was nominated by former economic managers and economists Roberto de Ocampo, Calixto Chikiamko, Gloria Tan Climaco, Bong Montes, Simon Paterno and Romeo Bernardo.

Yesterday, former  Defense Secretary Gilbert  “Gibo”Teodoro was nominated by Atty. Jose Mallari.

Teodoro, cousin of the President who ran for president last year under the Arroyo administration’s Lakas-Kampi ticket, has impressive credentials. A bar topnotcher, he obtained his Bachelor of Laws from the University of the Philippines (magna cum laude) and his master of laws at Harvard University.

Teodoro told a friend that he will decline the nomination and that he supports the position of Lotilla.

Lotilla’s position is that, “in a highly politicized context as in the Philippines, appointment to the office of the Chief Justice based on seniority is a tradition that minimizes the jockeying for appointment from within and outside of the Court.”

Lotilla further said: “Without any legal compulsion behind it, this tradition was, in instances few and far between, set aside. But, time and again, its restoration has been welcomed with relief, like a lost valued symbol of character regained anew. Today, we have an opportunity to restore the tradition—or completely to overturn it. It reminds me of a story told, apocryphal perhaps, that the much venerated Justice Jose B.L. Reyes—who was older in age but less senior in tenure in the Court than the respected Roberto Concepcion—was considered for appointment as CJ to allow him to occupy the Court’s highest position. J.B.L., it is said, would have none of it.

“The tradition of seniority has a way of muting political ambitions and insulates to some degree the office of Chief Justice from the patronato system. Over the long term, particularly under future presidencies whose virtues we are unable to anticipate at this point, adherence to the principle of seniority may still be our best option. Restoration of the tradition, which is entirely of Philippine innovation, would then shift the national focus to the quality of every future appointment to the Court, and away from the position solely of the Chief Justice. Would not this be in better keeping with the collegial character of the Republic’s Supreme Court?

“I suggest that only for overwhelming reasons, such as the inability of the incumbent members of the Court to redeem themselves and the institution, should we consider appointing from outside of the Court. Whether these weighty considerations exist, the appointing power can be a better judge from the unobstructed view of the leader’s lair. But my own individual assessment is colored with undisguised optimism: that the members of the Court, individually and as a collective, have distilled from recent experience lessons of primordial import for rebuilding and strengthening national institutions including the Court itself.”

If Lotilla’s suggestion would be followed, acting Chief Justice Antonio Carpio, would be it.

THE Judicial and Bar Council (JBC), in a historic move, decided Monday to allow live coverage of the public interviews of candidates for judicial positions.  This means that cameras and tape recorders are now allowed inside the room where the JBC panel  interviews candidates for vacant posts in the judiciary and the office of the Ombudsman.

The JBC is the body mandated by the Constitution to submit a list of at least three nominees for judicial posts from which the President will make his choice.

The revised JBC rules will first be applied to  the the council’s interviews of candidates for the chief justice position vacated by impeached Chief Justice Renato Corona.

Live coverage for both television and radio had been prohibited by the JBC rules, despite its mandate that the interviews be conducted in public.

Various groups had requested that lifting of the prohibition for greater accountability and transparency in the selection process, but the  JBC had remained firm in its decision not to allow live media coverage of the interviews.  In 2011, after numerous letters from the Supreme Court Appointments Watch (SCAW), a group that monitors the appointment process to the judiciary, the JBC allowed representatives from SCAW to broadcast their observation in real time via the microblogging site Twitter.

Malacañang welcomed the decision to finally grant media access to the interviews.  Presidential Spokesperson Edwin Lacierda said  the move is an “important first step in ensuring that our officials are held to the highest standards of competence, integrity, probity, and independence.”

Vincent Lazatin, a member of SCAW, called the move “a victory for transparency at the JBC.”

In a related development, the JBC has extended its self-imposed June 18 deadline for accepting applications and recommendations to the position of Chief Justice to July 2.  It  also moved its deadline to submit the shortlist of at least three nominees to the President from July 16 to July 30.

The Constitution provides that any vacancy in the Supreme Court shall be filled within 90 days from its occurrence. The decision of the impeachment court removing Corona from office was transmitted to the Supreme Court on May 30.

Lacierda said  the extension “will allow the public, civil society, academe, and others to have time to nominate individuals for consideration.”

There are already 40 nominees to the chief justice post as of Monday.

By VERA FILES

(Conclusion)

Two decades after its creation by the Constitution, the Judicial and Bar Council remains an institution critics say is riddled with “systemic deficiencies” and even defects, and is badly in need of reforms.

While some of the reforms being proposed by lawyers, judges and civil society would require amendments to the 1987 Constitution, others can be implemented with simple policy issuances, especially by the President.

Some of proposed reforms involve altering the composition of the JBC, while others have to do with improving its processes. Still others stress the need to rethink the question who could best appoint the country’s justices and judges in a transparent and competent manner and to ensure their independence.

Changing the composition

One proposal repeatedly being made is the call to limit congressional interference by returning to the practice of allotting Congress only one vote in the JBC, in keeping with the provisions of the Constitution.

In his writings, former Supreme Court Chief Justice Artemio Panganiban said, however, a proposal during his time to terminate the arrangement of having two legislators in the council, each with one vote, was eventually abandoned because of what could have become an “adversarial proceeding.”

To further depoliticize the JBC, Panganiban even proposed that the President be entitled to two representatives in the council (the justice secretary and private sector appointee); Congress also to two (a senator and a congressman); and the Supreme Court to four (the Chief Justice and the three others named by the court).

Retired Supreme Court Associate and now JBC executive committee chairman Justice Regino Hermosisima, who counts among the longest-serving regular members, once suggested further expanding the membership of the council to 12 to accommodate more representatives from the Judiciary.

Indeed, larger judicial councils have been the trend in some countries, according to a study by Judge Sandra Oxner of the Commonwealth Judicial Institute of Canada. Another study, by the International Foundation for Electoral Reforms (IFES), meanwhile, reported an emerging international consensus on a broad-based membership for the councils, to include a majority of judges elected by their peers.

But the most successful models of judicial councils, according to the IFES study, are those with representation from a combination of State and civil society actors who are given substantial powers.

Former 1986 Constitutional Commission (ConCom) member and now Elections Commissioner Rene Sarmiento suggests at least two more JBC members, to be drawn from public interest and human rights groups.

Sarmiento recalled that shortly after the EDSA People Power revolution in 1986 when the country was under a revolutionary government, members of the judiciary were recommended by a select committee, of which he was a member representing civil society. Sarmiento said the committee was successful because of active civil society members.

Regular members

The selection, appointment and reappointment of the four regular members of the JBC—representing the retired Supreme Court justices, Integrated Bar of the Philippines, private sector and legal academe—have been long-running issues because these are perceived to have made them as vulnerable to politics as members of the judiciary.

Presidential intervention in the appointment of the regular members, as well the absence of consultation, grates on the very sectors from which the regular members are drawn. Calls have been made to clip the president’s power to appoint the regular members.

The dominant question is whether to retain the setup where the president appoints their representatives or give them a free hand to make their own choices to ensure that the regular members are “truly representative” of their sector. One analyst describes it as a matter of “respecting the demarcations.”

But even proponents acknowledge this is easier said than done, and may boil down to a “slugfest” even for the most organized sector, the IBP, which they said has been wracked by infighting.

In the case of legal academe, law schools have different ways of listing faculty members, and taking a vote on who should represent the sector might end up being lopsided in favor of schools with bloated faculty rosters.

As for the private sector, reaching a consensus on who should represent it may be a complicated process, given the associations that abound.

But proponents are also quick to say that a mechanism on how to choose their representative must and can certainly be worked out by each sector, even if this would take time.

Panganiban, however, feels the President should be stripped entirely of his power to appoint the representatives of the retired justices, IBP and legal academe to strengthen “the anti-political shield of the judiciary.” The three, he said, should instead be appointed by the Supreme Court. His proposal would leave only the representative of the private sector for the President to appoint.

Altering the practice on appointments of representatives to the JBC falls within the powers and prerogative of the President. He or she may simply adopt a policy to appoint only regular members who have been named by their sector.

CA hand in JBC

Panganiban also wants an end to the practice of having all four regular members undergo confirmation by the Commission on Appointments (CA). “(T)he present system has shielded justices and judges from direct congressional interference, but not the four regular JBC members who need CA confirmation,” he said. 

Restored through the 1987 Constitution, the Commission on Appointment confirms or rejects nominations submitted to it by the President and acts as a restraint on his or her vast appointing power. Although members of the Senate and the House of Representatives make up the 25-member body, the CA is theoretically independent of Congress because it derives its powers directly from the Constitution. In practice, though, the majority of CA members may belong to the political party of the President.

Other court observers do not share Panganiban’s view. They say what is needed is for the CA to play a more focal role and rigorously screen nominations to the JBC, beyond the perfunctory and cursory look. And what is needed on the part of judicial watchdogs, especially those from civil society, is to monitor CA proceedings on the nominations of the council’s regular members as closely as they watch nominations to the High Court.

Back in 1986, Fr. Joaquin Bernas had explained to fellow ConCom members the reasons for making regular JBC members go through the CA wringer: “The requirement of confirmation by the Commission on Appointments, which I understand is provided in the proposal for the legislature, will have the effect of a check on the discretion of the President in the appointments of the Council. “

Term limits for regular members

While there is disagreement over who should be named to the JBC and how they should be picked and screened, members and monitors of the judiciary alike agree on one thing: the need to impose a term limit on the regular members. The Constitution imposes no limit on how many times a regular member can be given a four-year term.

Immediately upon their appointment or reappointment, some JBC members are said to begin lobbying hard with the Palace, politicians and other stakeholders to ensure they clinch another term. They end up owing the President and those who helped him a debt of gratitude and, at times, are forced to do their bidding. Other reappointees, according to a JBC member, develop “bad habits,” like socializing with applicants.

Sarmiento acknowledges that the framers of the Constitution were so focused on restricting the terms for politicians, they overlooked term limits for the JBC members. “We were of the belief that since JBC regular members would not be politicians, there would be no need for term limits,” he said.

Sarmiento and many in and out of the judiciary and the legal profession believe a single four-year term for JBC regular members is enough for members to learn the ropes and guarantee their independence and accountability.

The IFES study also recommends an additional measure: The term of council members should not coincide with that of the appointing authority.

As for the “bad habits” that some regular members reportedly develop while in office, Panganiban said the regular members should also strictly observe the judicial code of ethics. “As the full-time vanguards of the judiciary—(they) should, like judges, perform their work with same standard of ‘proven competence, integrity, probity and independence,’” he said.

Limiting the terms of regular members can be done through only a policy issuance discontinuing the practice of reappointments. The Commission on Appointments, on the other hand, can agree as a matter of policy not to confirm reappointments.

Policy issuances are, of course, subject to changes of leadership in both the executive and legislative branches. But they could set precedents that may lead to something more permanent, including legislation and even changes in the Constitution.

JBC processes

As a vetting agency, the JBC plays a crucial role in preventing the unqualified from getting appointed to the bench. It is thus imperative for the council to adopt and implement rules that ensure applicants for vacancies in the court meet the criteria stipulated in the Constitution and by the Supreme Court.

Having closely observed the judicial appointment process and engaged the JBC over the years, members of civil society groups like Bantay Katarungan and SCAW are in a good position to identify areas of reform in the way the council operates. Officially, SCAW has written the JBC to propose the following:

Use of a score sheet. Instead of the current system where the JBC votes for and ranks candidates, the score sheet would evaluate candidates on the constitutionally mandated criteria and the rules of the JBC to ensure that only those who meet a predetermined minimum score would be shortlisted.

Live media coverage. Allowing live media coverage would widen the audience for the JBC’s public interviews. It would not only “demystify” the JBC process but also contribute to raising the level of public discussion on the appointment process.

Access to information. SCAW has batted for a policy that favors access to information, and clearly and narrowly defines the exceptions to access. “With such a policy in place, the JBC can unburden itself of dealing with mundane and routine information requests, and thus make more efficient use of its time,” it said.

Predictability and regularity in setting key dates in the selection process. Saying the retirement dates of justices of the Supreme Court and of the Ombudsman are, like the constellations, known in advance, the consortium has proposed a uniform timetable for the screening process, such as outlining the number of days before a scheduled retirement that nominations would open.

Minimizing the influence of the Supreme Court. SCAW has asked JBC to delete Rule 8, Section 1 that gives “due weight and regard” to recommendees of the Supreme Court. The rule requires the JBC to submit to the Supreme Court a list of the candidates for any vacancy in the court with an executive summary of its evaluation and assessment of each of them and relevant records concerning the candidates “from whom the court may base the selection of its recommendees.”

The JBC has also been asked to actively search for nominees, instead of limiting itself to those who apply as it does at present, a task it can do in collaboration with civil society. But an even better process, according to the 2008/2009 Philippine Human Development Report, is for the JBC to do away completely with recommendations it gets from politicians and other interest groups, and instead rely on an independent and diligent search mechanism for qualified candidates.

The Bantay Korte Suprema (BKS), a coalition of individuals and groups that monitored Arroyo’s appointments to the High Court, had previously suggested that the council seek the help of the Civil Service Commission in checking the background of applicants. It found the investigations done by the National of Bureau Investigation inadequate.

Just as importantly, the BKS had asked JBC members to explain their votes to the public to generate discussion on the candidates and make known the reasons behind the appointments.

And to assert its independence, the JBC has been urged to spurn Malacanang’s request to submit a second shortlist should the President’s nominee not appear on the first list transmitted to the Palace.

The appointing power

Court observers say other options should be explored to guarantee the independence of the court, especially from the executive branch.

Bernas has argued for a return to the 1935 system that requires appointees to pass through the CA, at least for candidates to the Supreme Court and the Court of Appeals. He agrees with the late former senator and fellow ConCom member Francisco Rodrigo who favored the CA choosing pre-martial justices. Bernas recalls how Rodrigo “valiantly” fought, but failed, to restore the 1935 constitutional provision.

“From President Quezon on to Osmeña, Roxas, Quirino, Magsaysay, Garcia, Macapagal and even Marcos before he declared martial law, the appointments to the Judiciary, especially to the Supreme Court and to the Court of Appeals, were high-class, so much so that we had the highest, the utmost respect for the Judiciary,” Rodrigo had said. “Before the declaration of martial law, we regarded the Supreme Court, up to the Concepcion Court, with awe and respect. And so why should we change this now, merely because of what happened during martial law?”

In the end, the Commission on Appointments’ greater openness in conducting public hearings and disclosing information and documents is said to be a more transparent process than the JBC. It would be just like the US Senate Justice Committee which confirms appointments made by the American president to its Supreme Court, court observers say.

But political pundits say the U.S. system works because of a strong two-party system that provides checks and balances.  Post-martial law politics in the Philippines, on the other hand, has been characterized by a weak party system.

Other proposals on the appointments of judges and justices range from retaining the President’s appointive power but with modifications, to transferring the power entirely to the Supreme Court. Some of the proposals that modify the President’s power to appoint include:

• Enacting a law transferring the President’s power to appoint members of the lower courts to the Supreme Court, but let the President continue appointing justices to the Court of Appeals and Supreme Court.
• Amending the constitution to empower the JBC to confirm and veto the appointments, so that it takes on a role akin to the CA in the pre-martial years. This is expected to depoliticize appointments as the JBC is, unlike the CA, supposed to be a nonpolitical body.
• Amending the constitution to require the JBC to submit only one name to the President like what the select committee did during the revolutionary government days in 1986, since the President can always give back the list.

A radical proposal would transfer the President’s power to appoint members of the judiciary to the Supreme Court sitting en banc.

There is no telling how far the proposed changes to the JBC will go, but there is one thing almost certain about calls to reduce the President’s appointing power. No Philippine President would easily give up the powers that make him one of the most powerful presidents in the world.

(This series is adapted from VERA Files’ study on the post-Marcos judicial appointment process. VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for “true.”)

(L-R) Chief Justices Hilario Davide, Artemio Panganiban, Reynato Puno, Renato Corona. (SC Annual Report)

By VERA Files

(Second of three parts)

The Judicial and Bar Council represents the first and crucial step in the judicial appointment process. Ultimately, however, the person responsible for appointments of all the country’s judges and justices is the President.

For every vacancy, the JBC must submit to the President a shortlist of at least three names, after it has investigated and evaluated applicants. The Constitution limits the President to the list officially transmitted to him or her.

But sending back the list if there is no name in it he or she wishes to appoint is one of the many prerogatives of the Chief Executive. The framers of the 1987 Constitution acknowledged this possibility even back then, with some expressing apprehension over the potential abuse of this power.

The President may also decide to break or uphold judicial traditions, one of these being the rule of seniority—appointing the most senior member of the Supreme Court to be Chief Justice.

There is likewise no prohibition on the President appointing a nonmember of the Supreme Court as Chief Justice, although this would again be departing from tradition. Never in the history of the JBC has an outsider been named chief magistrate. Some sectors have called on President Benigno Aquino III to pick someone outside the High Court as the next Chief Justice.

Another presidential prerogative is appointing friends and allies to the judiciary as long as they pass JBC scrutiny and requirements.

There is nothing illegal in the exercise of such prerogatives. But judicial history shows that such powers come under fire when used blatantly by presidents to protect their own interests, as in the case of Gloria Macapagal-Arroyo. Indeed, Arroyo made the most controversial judicial appointments, which were perceived to have been part of the wall she built to protect herself amid the many legal questions that plagued her presidency.

The point of submitting a shortlist is “to limit the President’s discretion in exercising his or her appointing power,” said the nongovernmental Transparency and Accountability Network which is part of the Supreme Court Appointments Watch (SCAW).

Yet Palace and JBC insiders say this limit can be circumvented. “You are president; there are some people you want to put in the judiciary. If you want him or her, you can ask the Secretary of Justice to nominate (the person),” said a former Palace official.

The president’s congressional allies in the JBC and the regular members he or she appoints—or reappoints—can also get Malacanang’s preferences into the list of nominees. In fact, the President can have as many candidates of his or her choice apply or be nominated to the JBC.

Parallel search

Former Palace officials interviewed for this study say it has been the practice of presidents to form their own search committees to further screen the names on the shortlist submitted by the JBC. The search committee was usually composed of the executive secretary, plus at least two other key officials from the executive branch such as the presidential adviser on political affairs, chief legal counsel or the solicitor general.

Nominees either talked directly to the members of the Malacanang committee and the JBC, or got a padrino (political leaders or Church officials) to boost their chances of getting appointed.

During the time of former presidents Fidel Ramos and Joseph Estrada, the Presidential Management Staff would draw up a matrix for the Palace search committee that included the nominees’ qualifications, achievements, positions, other relevant information. The matrix included a separate column identifying the nominee’s backers or endorsers.

The committee would rank the nominee and then submit their recommendees to the President, who would make the final choice.

When the nominee is appointed, said a former Palace insider, the people who endorsed him or her are the first to be notified. “O, napagbigyan na yung tao mo (We’ve given in to your nominee’s request).” Malacanang keeps tracks of favors given out to allies, the source said.

Aquino also has a search committee for the judiciary, which includes Executive Secretary Paquito Ochoa, separate from the committee that screens candidates for positions in the executive branch.

Ramos appointments

The “midnight appointment” of fallen Chief Justice Renato Corona is not the only such appointment in recent history. On March 11, 1998, then President Ramos named eight associate justices of the Court of Appeals, and on March 30, he appointed two judges.

The election ban on appointments starts 60 days before an election and until the end of the President’s term on June 30. Elections were held on May 10 in 1998.

That same year, the Supreme Court revoked Ramos’ appointment of the two judges—Mateo Valenzuela of Bago City and Placido Vallarta of Cabanatuan City—saying they were nominated by the JBC during the ban on presidential appointments.

It affirmed, though, the appointment of the eight CA justices because they were found to have been appointed by Ramos “the day immediately before the commencement of the ban on appointments.”

In 2010, however, in deciding whether or not to allow the JBC to nominate appointees for Chief Justice during the Constitutional ban on midnight appointments, the Supreme Court reversed the 1998 ruling. In a widely criticized decision seen to accommodate Arroyo’s impending appointment of Corona, the High Tribunal decided that the Constitutional prohibition only applies to appointments in the executive department, not in the judiciary.

Lucio Tan and Hilario Davide

Businessmen were among those who sought favors in the form of judicial appointments. Estrada himself revealed that tycoon Lucio Tan lobbied for the appointment of then Associate Justice Hilario G. Davide Jr. to be named successor to Chief Justice Andres Narvasa, who retired Nov. 30, 1998.

He said Tan invited him to a dinner at Century Park Hotel where they were joined by Davide, whom Estrada eventually appointed Chief Justice. 

Estrada said, however, that even without Tan’s lobbying, he would have appointed Davide, who topped the list recommended by the screening committee and by Narvasa. Davide was also at the time the most senior member of the High Court.

Davide would later preside over Estrada’s impeachment trial and swear into office Gloria Arroyo even without a vacancy in Malacanang. It was also the Davide court that came up with the novel idea of “constructive resignation” to justify Arroyo’s installation as president.

Arroyo appointments

During her presidency, Arroyo had entrusted her cousin Erlinda de Leon and her husband Carlos, a former regional state prosecutor, with the power to screen appointments to the judiciary. De Leon was given the title “special assistant to the President,” and was known to call up JBC members to make Arroyo’s preferences known. Many applicants sought out the power couple, a number through “brokers” that included local politicians like a Manila councilor.

Sources interviewed for this research lament that problems in judicial appointments reached their worst during the Arroyo presidency. Arroyo began her term amid questions of legitimacy following her assumption of the presidency from Estrada who was ousted in the Edsa People Power of January 2001. She faced several attempts to unseat her, including four impeachment complaints filed in the wake of damning revelations of fraud in the May 2004 elections, caught in wiretapped conversations with then Elections Commissioner Virgilio Garcillano, and other controversial decisions.

Arroyo relied heavily on the courts to defend her against the many issues and problems that plagued her presidency, and packed the Supreme Court with her former officials, friends and allies.

The last in a string of problematic judicial appointments by Arroyo is that of Corona, her former chief of staff, to the post of Chief Justice on May 17, 2010, just a week after the presidential elections and barely a month before she stepped down from office. The Constitution prohibits appointments during the 90-day election period. Law and civil society groups filed a case over Corona’s midnight appointment before the Supreme Court, which was by then dominated by Arroyo appointees. The Court upheld Corona’s appointment.

In appointing Corona, Arroyo bypassed associate justice Antonio Carpio who was then the most senior associate justice. Carpio and Conchita Carpio-Morales, the second most senior associate justice then and now the ombudsman, withdrew from the race when Arroyo insisted on appointing the Chief Justice during the election ban.

(As the most senior member, Carpio is now acting Chief Justice and ex officio chairman of the JBC. One of the contenders for the post of Chief Justice, he has inhibited himself from the JBC nominations. So has Justice Secretary Leila de Lima, an ex officio member and likewise a contender.)

Arroyo was one of only two presidents in the country’s history who set aside the tradition of seniority in selecting the Chief Justice. The other was former President Ferdinand Marcos.

In Marcos’ final year in office in 1985, he twice bypassed the independent-minded Claudio Teehankee, then the tribunal’s most senior member, first in favor of Felix Makasiar and later Ramon Aquino. Teehankee would lead the High Court only after Marcos’ downfall in 1986.

Twenty years later, Arroyo bypassed Reynato Puno, who was named to the Supreme Court in 1993, in favor of Artemio Panganiban, who was appointed in 1995.

Panganiban had played a controversial role in installing Arroyo as president in January 2001. Known at the time to be the bridge between Davide and the Arroyo camp, Panganiban later wrote in his book Reforming the Judiciary that he urged Davide to swear in Arroyo as president even when Joseph Estrada was still legally the president. Fearing a coup d’etat, swearing in Arroyo as president was, he said, “the only way to avert violence, chaos and bloodshed and to save our democratic system from collapse.”

Besides being Davide’s personal choice to be Chief Justice, Panganiban had been endorsed by the Catholic Church, particularly Cebu Archbishop Ricardo Vidal who was close to Arroyo—Puno was a freemason and past grand master of the Grand Lodge of the Philippines—and the mining sector.

Panganiban had written the decision that favored opening up the mining industry to foreign investment (La Bugal v. Ramos), said to have earned him points with Arroyo, who authored the 1995 Mining Act (Republic Act No. 7942) when she was senator. The law permits mining ventures fully operated by foreign firms, with or without Filipino capitalization.

Aquino appointments

In the shortlist sent by the JBC to the Office of the President, candidates are ranked according to the number of votes they garner. The ranking, however, is not a guarantee of the President’s final blessings.

Based on the July 2010 tally sheet of votes on the nominees for the position of associate justice that Corona vacated when he was appointed Chief Justice, the top choice of the JBC was Court of Appeals Associate Justice Japar Dimaampao who got six votes. Former University of the Philippines College of Law dean Raul Pangalangan and CA Associate Justice Noel Tijam got five votes each. The last on the list with four votes each were CA Associate Justice Abdulwahid Hakim, Elections Commissioner Rene Sarmiento, and UP professor Maria Lourdes Sereno. Aquino chose to appoint Sereno.

Last year, Aquino appointed CA Justices Bienvenido Reyes and Estela Perlas-Bernabe to fill the vacancies left by retiring justices Eduardo Nachura and Conchita Carpio-Morales. In the JBC’s June 2011 voting, it was CA Associate Justice Jose Reyes who ranked first, with seven votes. Bienvenido Reyes got six votes and Estela Perlas-Bernabe five.

“The assumption is they all went through this very tight screening process, so they are all
qualified,” said a former justice secretary. “Now, all things being equal, baka pag merong nag-push na politician (if a politician pushes), it might also help.”

Some lawyers and former Malacanang insiders say this was likely the case with Bievenido Reyes who served as vice president and finance manager of Best Security Agency Inc., a company whose owners included President Benigno Aquino III and his uncle, Antolin Oreta, husband of former Sen. Tessie Aquino-Oreta. In 2009, Reyes was reprimanded by the Supreme Court which found him guilty of simple misconduct for hastily signing the decision in the case involving the Manila Electric Co. and the Government Service Insurance System.

Court Administrator Jose Midas Marquez and then SC spokesman disclosed last year that Aquino attempted to return the shortlist to the JBC, supposedly because a number of nominees for Nachura’s and Carpio-Morales’ slots had links to Arroyo. But the JBC blocked the attempt, he said.

There were two incidents in the past when a president returned the JBC shortlist for a Supreme Court vacancy.

Arroyo returned the list when Puno was Chief Justice and ex officio chairman of the JBC because she reportedly disliked the nominees. Puno returned the same list to her.

In one instance years earlier, Arroyo also tried to send back the list to the council, then chaired by Davide. The President was said to be looking for the name of Constitutional Commission delegate Adolfo Azcuna for nomination to the High Tribunal. Azcuna had been endorsed by, among others, former President Corazon Aquino. Davide rejected the Palace’s request. Azcuna was subsequently nominated by the JBC and appointed Supreme Court associate justice.

(To be concluded)

(This series is adapted from VERA Files’ study on the post-Marcos judicial appointment process.)