The news, editorials and columns on the forthcoming 7 vacancies in the Philippine Supreme Court in 2009 have been hugging the Philippine dailies for the past week now. The Philippine Supreme Court being the last bulwark of democracy and freedom, in the midst of dictatorial tendencies of Philippine politicians and military and police generals, such publications are much deserved by the Philippine Supreme Court.
For purposes of legal research of thre visitors of this blog, may I reproduce below the editorial, dated November 10, 2008, of the prominent Philippine Daily Inquirer and the column, also dated November 10, 2008, of Philippine constitutiohnalist Fr. Joaquin Bernas, as well as my 2006 published speech and article on the matter of judicial appointments
Editorial : Gloria and the Supremes
Philippine Daily Inquirer
First Posted 00:12:00 11/10/2008
http://opinion.inquirer.net/inquireropinion/editorial/view/20081110-171221/Gloria-and-the-Supremes
MANILA, Philippines - In a departure from tradition, the Inquirer named an entire institution, the Supreme Court, as Filipino of the Year in 2001. The recognition, in large part, was for the extraordinary role the high court played, in the immediate aftermath of People Power II, to keep the ship of state on even keel. The Court, in a word, saved the Republic at a difficult, tumultuous time.
Will we come to hold the Supreme Court in the same high regard a year from now?
The unsettling question forces itself on us, now that the public has come to realize that in 2009 President Macapagal-Arroyo will have the opportunity to fill as many as seven vacancies in the Supreme Court. This is an enormous responsibility, and one which, perhaps in an earlier time, President Arroyo herself would have shrunk from.
In her Rizal Day 2002 speech renouncing the opportunity to run for President in her own right, and in several speeches afterwards, Ms Arroyo acknowledged that her participation in the events that led to Edsa II and that ended with her assumption of the presidency made her a politically divisive figure. There was, in the words of Jose de Venecia, then the Speaker of the House, too much poison in the air.
That divisiveness remains, because we are still suffering through the post-impeachment era. Indeed, the President has only become a more divisive and a vastly more unpopular figure since she was sworn into office, in her own right, in 2004. Even her decision to pardon deposed president Joseph Estrada last year, after he was convicted on plunder charges, failed to appease Estrada’s many supporters or consolidate her base.
But she continues to hold the reins of power, and next year she will appoint as many as seven new Supreme Court justices. Expect the levels of toxicity to shoot up.
Does this mean we can only expect partisan appointments, justices more loyal to the President than to the Constitution? Not necessarily. We must point out that her elevation of both Artemio Panganiban and Reynato Puno to the honor and office of Chief Justice of the Supreme Court was not exactly in her best, most partisan interest. We should also note that some of her own appointments, such as Antonio Carpio or even Adolfo Azcuna (whom we originally opposed) have voted time and again against the administration in critical cases. Even an appointee perceived in many quarters as possibly too beholden to the President, like Dante Tinga, has displayed a capacity to surprise the Palace. In the recent case involving the Memorandum of Agreement on ancestral domain, for instance, Tinga voted on procedural grounds (thus aligning with the Palace position) but wrote a vigorous opinion that, among other things, found the MOA categorically unconstitutional (thus undermining the Palace strategy).
The high court has also had a history of justices finding greatness in dissent, in turning against their appointing power and into history’s light. Claudio Teehankee Jr., to give only one famous example, was appointed to the Court by Ferdinand Marcos (was in fact and for over a year Marcos’ own secretary of justice)—but he came to symbolize the legal opposition to the Marcosian brand of constitutional authoritarianism.
Dissenters, however, are necessarily lonely voices; they very rarely convince the rest of the Court. And today’s secretary of justice, Raul Gonzalez, is the most partisan in memory; he has effectively politicized the administration of justice. Not least, President Arroyo has learned to make the nominally independent Judicial and Bar Council a virtual adjunct of her office. She has the power to ignore the JBC’s recommendations until her preferred choice appears on the list of recommendees, and it is a power she will not hesitate to use.
That means that the question of a justice’s loyalties is really a question of character. An appointee the public objects to can surprise even the most extreme critic; an appointee with sterling qualifications can disappoint with unbecoming timidity and lack of independence.
We in the Inquirer continue to believe that an appointment to the Supreme Court is an invitation to greatness; because a justice does not run for political office and is usually already an eminent and well-compensated member of the bar, appointees are accountable only to their conscience and the Constitution. Millions of Filipinos will be watching the Court closely, to praise the worthy and criticize those who fail. Count us among them.
Sounding Board
Choosing Supreme Court justices
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:15:00 11/10/2008
http://opinion.inquirer.net/inquireropinion/columns/view/20081110-171223/Choosing-Supreme-Court-justices
MANILA, Philippines - Lawrence Tribe put it very well when he said that “the answers we actually get when we ask questions [about constitutional issues] depend to some degree on who is answering them—including who is sitting on the Supreme Court at the time we ask.” And he quotes Justice Robert H. Jackson as saying, “We are not final because we are infallible, we are infallible because we are final.” But, of course, this is only until a later Court says it was not so final after all.
In recent months we have had decisions coming from the Supreme Court characterized by strong prevailing opinions and equally strong dissenting opinions. You can almost predict with precision which justices will take which side. The latest one, the one on the MOA-AD, could have gone either way depending on which side one swing vote would go. And people are speculating who the swing vote was and why.
Those who have been following the direction of US Supreme Court decisions cannot escape noticing how sharply divided they have also been. Crucial issues about abortion, state powers, school prayer, right to bear arms, war powers and others have been decided by a 5-4 vote with the outcome depending on which side Justice Anthony Kennedy votes. Although the votes divide along liberal or conservative positions, at bottom they can really be for or against the president’s ideological inclination.
Our Supreme Court has also had a history of being linked with the preferences of the incumbent president. It was most pronounced during the authoritarian years when the Supreme Court, not without good reason, was often referred to as the Marcos Court. (I remember the late Justice Cecilia Muñoz Palma coming to my office at the time when she was being considered for the Supreme Court. She asked me what I thought she should say because she was being asked whether she was loyal.) Thus it was that a good number of the provisions of the 1987 Constitution were precisely introduced to reverse decisions of the Marcos years.
My impression is that the influence of the president was not so pronounced during the Cory years and the Ramos years. I prefer not to say anything about the current Supreme Court.
In the coming year the retirement of seven justices will create an equal number of vacancies in the Supreme Court. Will the political preferences of the president have a role in the choice of new justices? I say political preferences for good reason. Our justices have not been known for dividing along ideological lines.
The division among US Supreme Court justices is usually along ideological preferences, and the search for new justices is dictated by ideological alignment for or against the president who might be liberal or conservative. Thus, Jeffrey Toobin’s recent fascinating book, “The Nine,” about the US Supreme Court, concludes: “So one factor—and one factor only—will determine the future of the Supreme Court: the outcome of presidential elections. Presidents pick justices to extend their legacies.” He adds: “We can expect nothing more and nothing less than the Court we deserve.”
Toobin’s conclusion could just as well be descriptive of our current Supreme Court. And there is no reason to believe that the Supreme Court of the coming year will be any different. The President will have the opportunity next year to choose seven men and women of her persuasion. Yes, seven! Perhaps even eight!
Under the 1935 Constitution the president’s choice of justices of the Supreme Court was limited by the need for confirmation by the Commission on Appointments.
Under the 1973 Constitution there was no check on the president’s appointing authority.
The 1987 Constitution did not revive the need for confirmation by the Commission on Appointments in the belief that confirmation by the Commission on Appointments had made the process too political in a pejorative sense. Hence was created the Judicial and Bar Council to act as a check on the appointing authority. Has this been an improvement?
The Judicial and Bar Council consists of the chief justice as ex officio chairman, the secretary of justice, a representative from Congress, together with a professor of law, a retired member of the Supreme Court, and a representative of the private sector as regular members. The regular members are appointed by the president with the consent of the Commission on Appointments. The President can appoint only from a list of at least three names; but she is free to reject all of them and ask for more names until the preferred name surfaces.
The fruit of the pudding is in the eating. You be the judge of the justices appointed under this system. Without a doubt, the preferences of the president are a factor in the choice of the nominees produced by the Judicial and Bar Council.
Of course, presidential preference is also a factor in the choice of US Supreme Court justices. But the major difference between the US process and the Philippine process of choosing is that in the United States the president’s preference is known ahead of time. It is the president who makes the initial nomination and the president’s nominee is subjected to a rigorous public hearing which can result in rejection, as in the case of Robert Bork. The expectation of a strong opposition can cause a nominee to withdraw, as happened in the recent case of Harriet Miers. Nothing like these can happen in the Judicial and Bar Council. In our system, the president’s communicated preference can be sandwiched and disguised by the JBC between two foils.
Serious talk about constitutional amendment after the 2010 elections is growing in strength. If we should have an amendatory process, I am certain that one of the provisions which will be subjected to examination is the manner of choosing Supreme Court justices and other appellate justices. Until this happens, we have to make the present system work.
REACTION PAPER OF ATTY. MANUEL J. LASERNA JR., PROFESSOR OF LAW, FAR EASTERN UNIVERSITY (FEU), DELIVERED DURING A FORUM SPONSORED BY THE KILOSBAYAN AT THE FEU UNIVERSITY CONFERENCE CENTER ON FEBRUARY 23, 2006 AT 2:00 PM ON THE SUBJECT OF THE SCREENING, SELECTION, AND APPOINTMENT OF JUDGES AND JUSTICES, HELD IN THE PRESENCE OF SUPREME COURT CHIEF JUSTICE ARTEMIO PANGANIBAN, FORMER SENATE PRESIDENT JOVITO SALONGA, AND FACULTY MEMBERS AND ADMINISTRATIVE OFFICIALS OF THE FAR EASTERN UNIVERSITY.
I. INTRODUCTION
Article VIII of the 1987 Constitution, entitled “Judicial Department”, governs the screening, selection and appointment of judges and justices, which is our topic in this forum, and other relevant matters concerning the Judiciary.
The principles that should guide the Judiciary in a modern democracy are independence, integrity, probity, competence, accountability, transparency, and good governance.
I dare say that in a time of serious political crisis, such as now, the most important principle that should guide the Judiciary is the principle of “institutional independence and autonomy”. An independent and autonomous Judiciary is the greatest stabilizer of a weak, unstable and unpredictable political community.
One may add the concept of “the legal empowerment” of the basic communities and the concept of “cost-effective access to quality justice” by the marginalized sectors, pursuant to the constitutional doctrine of “social justice” and the ecumenical doctrine of “the preferential option for the poor”, as additional working principles that should guide the Judiciary of a modern democracy.
The challenge that we face in this forum is to share our thoughts on how to improve the present system of screening, selecting and appointing judges and justices so that only the best, the brightest, the independent, the virtuous, the honorable, and the courageous are appointed to dispense and administer justice and to promote and defend of the rule of law in the country.
The vow of our new Chief Justice, Hon. Artemio Panganiban, as expressed in his recent pronouncements, is to lead a judiciary characterized by four (4) INs: Integrity, Independence, Industry, and Intelligence. He envisions a judiciary that is impervious to the plague of the four (4) “ships”: kinship, relationship, friendship, and fellowship. He has vowed to battle what he calls the four (4) ACID problems: access to justice by the poor, corruption, incompetence, and delay in the delivery of quality and cost-effective justice. He has a twin vision of a “reformed judiciary” and a “revitalized legal profession” which is directed towards two (2) loftier national goals: safeguarding liberty and nurturing prosperity.
His working philosophy and personal code of moral conduct, as manifested in his vows and goals as Chief Justice, speak excellently of his own parents, who had taught him, by example, the meaning of selflessness, service, virtue, and dignity, and of his own alma mater, the Far Eastern University, which, by the examples shown by his mentors in the Institute of Law, had developed his moral courage and power of critical and independent thinking to defend Truth, Freedom, and Justice.
II. JUDICIAL APPOINTMENTS UNDER THE CONSTITUTION
Let me cite the substance of relevant provisions of Article VIII of the 1987 Constitution insofar as they may be relevant to the subject matter of this forum.
Sec. 7, Par. 3, Article VIII of the Constitution provides that “a Member of the Judiciary must be a person of proven competence, integrity, probity, and independence”.
To reduce the adverse and corrupting effects of patronage and partisan politics in the appointment of judges and justices, Sec. 8, Article VIII of the Constitution has created the Judicial and Bar Council (JBC), principal function of the Council is to recommend appointees to the Judiciary. The Council is under the administrative supervision of the Supreme Court.
It 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 regular members of the Council are appointed by the President for a term of four years with the consent of the Commission on Appointments.
Sec. 9, Article VIII of the Constitution provides that the Members of the Supreme Court and judges of lower courts 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 by the Commission on Appointments.
Sec. 5 provides that the Supreme Court shall have the power to assign temporarily judges of lower courts to other stations as public interest may require; that such temporary assignment shall not exceed six months without the consent of the judge concerned; and that the Supreme Court shall appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
Sec. 6 provides that the Supreme Court shall have the administrative supervision over all courts and the personnel thereof. Sec. 12 provides that the Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.
III. SERIOUS CONCERNS
Based on my conversations with leaders of the Bar, officials and employees of the Judiciary, leaders of law and justice-oriented non-governmental organizations and people’s organizations, faculty members of law schools, and representatives of the pillars of the Criminal Justice System of the southern district of Metro Manila, in my capacity as the Founder and the incumbent Chairman of the Las Pinas City Bar Association (LPBA), Inc., as the incumbent Vice President of the Integrated Bar of the Philippines (IBP) – Pasay Paranaque Las Pinas Muntinlupa (PPLM) Chapter, and as a member of the law faculty of this University, the common concerns of the stakeholders of the justice system refer to the debilitating, corrupting and demeaning influence of patronage and partisan politics, both local and national, and the influence of blood and social relationships, alma-mater and fraternity links, and religious connections in the screening, selection, and appointment of trial judges.
As to the screening, selection and appointment of justices of the Court of Appeals, Sandiganbayan, Court of Tax Appeals, and Supreme Court, again, the most serious concern of the stakeholders of the justice system refers to the debilitating, corrupting and demeaning influence of partisan politics at the national level, a perception which is widely expounded in the mass media, which diminishes the image of independence, autonomy, incorruptibility, fairness and credibility of the justice system, and which creates internal demoralization within the Judiciary.
The Supreme Court itself, under the leadership of the past Chief Justice, Hon. Hilario Davide Jr., had recognized these concerns. It has, in fact, taken and continues to take major policy, institutional, infrastructural, administrative, and technological steps, under the 2000 judicial reform program called THE DAVIDE WATCH, aided by its international development partners and donors, to a noble vision:
“A judiciary that is independent, effective and efficient, and worthy of public trust and confidence; and a legal profession that provides quality, ethical, accessible and cost-effective legal service to our people and is willing and able to answer the call to public service”.
The Davide Watch and its component programs had the full support of the incumbent Chief Justice, Hon. Artemio Panganiban, who has committed to continue to implement the current Action Program For Judicial Reform (APJR) of the Supreme Court. The APJR deserves the full support of the Bar, the Bench, and the Filipino people, in general.
IV. PROPOSED AMENDMENTS
The provisions of the 1987 Constitution with respect to the screening, selection, and appointment of judges and justices must be amended, to give flesh and substance to the mission statement of The Davide Watch and The APJR:
To “insulate the selection process and appointments to the Judiciary from political patronage”; To “insure that only those of proven competence, integrity, probity and independence are appointed and remain in the Judiciary”; To “assert the fiscal autonomy of the Judiciary”; To “inform and educate the public about the judicial process”, And To “provide effective mechanisms for feedback from court personnel and the public”.
I respectfully propose the following amendments to Article VIII of the 1987 Constitution in relation to the selection and appointment of justices and judges:
1. That in case of vacancy in the position of the Chief Justice of the Supreme Court or the Presiding Justice of the Court of Appeals, Court of Tax Appeals, Sandiganbayan, and other special collegial appellate courts created by law, the most senior associate justice thereof shall automatically and immediately assume the position of Chief Justice or Presiding Justice of such Court, as the case may be, without need of recommendation by the Judicial and Bar Council, or appointment by the President, or confirmation by Congress;
2. That in case of vacancy in the position of Associate Justice of the Supreme Court, the Court of Appeals, the Sandiganbayan, and the Court of Tax Appeals, or a vacancy in the position of Presiding Judge of a first-level and second-level trial court and other special trial or appellate courts created by law, or in case of a lateral transfer of trial court judge to a sala of the same rank, the Supreme Court En Banc, not the President, shall fill the vacancy, within 90 days from the date of vacancy, from a list of three (3) nominees recommended by the Judicial and Bar Council, without need of confirmation by Congress;
3. That the Judicial and Bar Council shall be composed of a representative of the Integrated Bar of the Philippines, a retired member of the Court of Appeals or Sandiganbayan, a retired member of the Supreme Court, a representative of the national association of law schools, a representative of the national association of law professors, a representative of the national association of the judges of first-level trial courts, a representative of the national association of the judges of second-level trial courts, a representative of national association of law and justice-oriented non-governmental organizations, and a representative of the national association of law students, who shall be appointed by the Supreme Court En Banc, without need of
confirmation by Congress. The retired member of the Supreme Court shall be the Chairman of the Council. The members of the Council shall have a term of thee (3) years without re-appointment.
The usual and routine procedures of the Council and the Philippine Judicial Academy (PHILJA) should be maintained, e.g., medical examination, psychological tests, drug tests, public interviews, publication of the names of nominees, notices of the list of nominees to the concerned IBP Chapter, the local voluntary Bar association, and the national law and justice-oriented NGOs, mandatory pre-judicature course, written examination after the pre-judicature course, immersion period, orientation courses, background and lifestyle investigation, and others.
The Supreme Court should create a special investigative unit within its organizational structure that is the equivalent of an Internal Affairs Service empowered to conduct confidential triennial integrity and lifestyle check and investigation of all incumbent justices, judges and judicial personnel, in addition to the annual filing of statements of assets and liabilities.
V. CONCLUSION
In the ultimate sense, the integrity, probity, independence and competence of judicial officials and employees would depend on how zealous and vigilant the Filipinos are, as a united and mature national community, in promoting the rule of law, enhancing the administration of justice, and defending the Constitution from the greed, hate, and delusion of some of its misguided leaders and sectors.
Atty. Manuel J. Laserna Jr.
Professor of Law, FEU, since 1985
AB Journalism, 1979, UP Diliman
Bachelor of Laws, 1984, FEU, cum laude
(Cocofed Law Scholar)
3rd Place, 1984 Bar Exams, 90.95%
Master of Laws (cand.), UST GS, 2000 (FEU Fellow)
Chairman, Las Pinas City Bar Assn Inc.
Vice Pres., IBP PPLM Chapter
