The 1987 Constitution of the Philippines (Art. VIII, Sec. 9) provides that “the Members of the Supreme Court ... shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.”
The old constitutional procedure subjected all nominees to Supreme Court to the strict and partisan scrutiny of the Commission on Appointments of the Philippine Congress, following the American constitutional model. The JBC procedure under the Philippine Constitution, theoretically, shields the judges and justices, and the appointment process, as much as possible, from politics. I assume, of course, rightly or wrongly, that the JBC members are not beholden to the President and the politicians loyal to her.
If the President is not happy with the three recommendees of the JBC, does she have the right to reject the entire list? This constitutional question is yet undecided in Philippine jurisprudence.
The latest letter by Supreme Court spokesman, Atty. Jose Midas Marquez, addressed to the editors of the Philippine Daily Inquirer, seems to give us a clue as to the tentative position, at least, of the incumbent Chief Justice, Hon. Reynato Puno, if not of the entire Supreme Court.
He states in his aforementioned letter that as mandated by the Constitution, the President can only appoint from a list of at least three names submitted by the Judicial and Bar Council (JBC); that, while appointments to the Supreme Court or to any other lower court for that matter, rest on the President’s sound discretion, such discretion is bound by the list submitted by the JBC; that consequently, the President cannot reject all the nominees of the JBC, return its list, and ask for the inclusion of preferred candidates, contrary to the view of others; that this is a limitation on the presidential prerogative; and that to be sure, this cannot be allowed under the watch of the incumbent Chief Justice.
The above position is, of course, debatable, if we consider the constitutional doctrine of separation of powers. May JBC, which is not a constitutional body but merely a constitutional creation, limit the scope of the constitutional power of the President to appoint Supreme Court Justices? I do not think so. May the President reject the entire list of recommendees submitted to her by the JBC and require the latter to submit to her a new list, if she thinks the persons mentioned in the original list are not deserving of her appointment based on her standards, whatever those may be? I think so. But if such is the case, I admit that we may be opening our Judiciary to a worse kind of partisan control, this time by a single Executive and not by a collective Congress. Which is more dangerous to our country? You are free to express your opinion.
There will be seven vacancies in the Supreme Court by next year. By then, 14 out of 15 justices would ba appointees of the incumbent Pres. Gloria Arroyo, who does not have the trust of a great majority of the Filipino people as of the latest opinion surveys.
May I reproduce below the Marquez letter. Thus:
JBC to consider groups’ recommendations
Philippine Daily Inquirer
First Posted 04:24:00 11/29/2008
I write in reaction to the various views and reports on the public’s renewed concern over the appointment of new Supreme Court justices, which the retirement of seven incumbent justices next year will necessitate. (“‘Bantay Korte’ to watch SC appointments,” Philippine Daily Inquirer, 11/18/08; “Choosing Supreme Court justices,” Philippine Daily Inquirer, 11/10/08; “7 justices to retire next year,” Philippine Daily Inquirer, 11/8/08; etc.)
The matter of appointments to the Supreme Court is a matter of high public interest. Thus, Chief Justice Reynato S. Puno himself has called on private groups to help search for the best candidates for the high court. Accordingly, the recent formation of a citizens’ search committee within the Supreme Court Appointments Watch (SCAW) consortium, and the launching of Bantay Korte Suprema are welcome developments toward the call of the Chief Justice.
The 1987 Constitution (Art. VIII, Sec. 9) says, “The Members of the Supreme Court ... shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.” This departure from the old process where presidential appointments to the judiciary shall be confirmed by the Commission on Appointments was introduced by the framers of the 1987 Constitution to shield the judges, and the appointment process, as much as possible, from politics.
As mandated by the Constitution, the President can only appoint from a list of at least three names submitted by the Judicial and Bar Council (JBC). Thus, while appointments to the Supreme Court or to any other lower court for that matter, rest on the President’s sound discretion, such discretion is bound by the list submitted by the JBC. Consequently, the President cannot reject all the nominees of the JBC, return its list, and ask for the inclusion of preferred candidates, contrary to the view of others. This is a limitation on the presidential prerogative. To be sure, this cannot be allowed under the watch of the incumbent Chief Justice.
Rest assured that the JBC will highly consider the recommendations of the SCAW, the Bantay Korte Suprema and other well-minded organizations, and will continue to perform its constitutional mandate functions and duties—independently—to the best interest of the high court, and the country.
In this regard, the public hearing on the first vacancy commenced on Nov. 19, 2008, at the Division Hearing Room, 1st Floor, Supreme Court.
JOSE MIDAS P. MARQUEZ, assistant court administrator; chief, Public Information Office, Supreme Court, Manila
See:
http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view/20081129-175092/JBC-to-consider-groups-recommendations (November 29, 2008).
