In his recent column, constitutionalist Fr. J. Bernas opined that Rule 8, Section 2 of the Judicial and Bar Council which provides that “in the selection of nominees to a vacancy in the Supreme Court, the Council must consider his age with a view to discourage appointment of those who would not be able to serve it for a reasonably sufficient time” and that “the Council shall not consider for nomination non-career and career applicants who may no longer be able to serve the court for at least five years or for at least one and one-half years, respectively, before reaching the compulsory age of retirement” is unconstitutional because the constitutional age requirement for Supreme Court justices is that they must not be more than 70 years old and because the JBC and Congress are not allowed to add to the constitutionally enumerated qualifications, and because by enacting a rule which automatically excludes a non-career person who is 65 years old or a career person in the judiciary who is 68 years old, the JBC has effectively amended the Constitution, which it may not do.
In a recent column, retired Supreme Court Justice I. Cruz stated that under Art. VIII, Sec. 8(1) of the Constitution, the Judicial and Bar Council is composed of the chief justice as chairman, the secretary of justice, and a representative of Congress as ex officio members plus four regular members appointed by the President with the consent of the Commission on Appointments. The consent of the secretary of justice is a given because he is a Cabinet member under the president’s control. The representative from Congress is usually from the majority party headed by the president who can also order his concurrence. But there will still be need for the cooperation of at least two of the regular members to make the needed nomination of the chief executive’s chosen one. He added: How does the president get it? Simple. All he has to do is promise the regular members that when their terms end, they will be reappointed. This is not a trivial favor; this means that the reappointed members can, if they comply with his command, continue serving for another four years and enjoying the same benefits as the members of the constitutional commissions.
See their columns below, thus:
Sounding Board
Disqualifications by the JBC
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:36:00 12/15/2008
Filed Under: Laws, Judiciary (system of justice), Government
IN the past week, the Judicial and Bar Council excluded from consideration three applicants for a seat in the Supreme Court. The excluded applicants were Atty. Adolfo D. Robles, Solicitor General Agnes Devanadera and former BIR Commissioner Atty. Jose Buñag.
Attorney Robles was disqualified for the reason that, if appointed, he would serve for less than five years in the Court. Solicitor General Devanadera and Attorney Buñag were disqualified because of pending administrative or criminal charges against them. What are we to make of these disqualifications?
The disqualifications were made on the basis of internal rules of the Judicial and Bar Council. Attorney Robles was disqualified on the basis of the following Rule 8, Section 2 of the JBC:
“Sec. 2. Age of prospective nominee. In the selection of nominees to a vacancy in the Supreme Court, the Council must consider his age with a view to discourage appointment of those who would not be able to serve it for a reasonably sufficient time. The Council shall not consider for nomination non-career and career applicants who may no longer be able to serve the court for at least five years or for at least one and one-half years, respectively, before reaching the compulsory age of retirement.”
Robles was disqualified because he completed 65 years last July 1 and would therefore serve for less than five years before he reaches 70 if appointed to fill the coming January vacancy.
Consider, however, that the constitutional age requirement of Supreme Court justices is that they must not be more than 70 years old. Moreover, unlike in the case of justices and judges of lower courts, not even Congress is allowed to add to the constitutionally enumerated qualifications. It would seem to me that by enacting a rule which automatically excludes a non-career person who is 65 years old or a career person in the judiciary who is 68 years old the JBC has effectively amended the Constitution. We know that the JBC has no authority to do that.
It is true that in addition to the prescribed age, citizenship and technical qualifications the candidate must also, according to the Constitution, possess “proven competence, integrity, probity and independence.” But where does age come under these four categories? What is also anomalous for being discriminatory is that there is an earlier cut-off age for persons who are not in the judiciary. Is there evidence that persons who do not belong to the judiciary age less gracefully than justices and judges? Or is it that those who do not belong to the judiciary are less likely to render effective service in the Supreme Court?
I suggest that by fixing the retirement age of justices at 70 the Constitution has effectively excluded age from consideration by the Judicial and Bar Council. Health, yes; but not age. Health can be subsumed under the required “proven competence.” After all, we assume that being a justice of the Supreme Court is not a walk in the park.
Next, there is Rule 6 whose Section 1 is about physical health and Section 2 is about mental health. “The applicant shall submit to psychological/psychiatric tests to be conducted by the Supreme Court Medical Clinic and/or psychiatrist duly accredited by the Court.” However, there is nothing in the rules which says that failure to submit to these tests would be a ground for disqualification. If there were, it would be another added qualification not allowed by the Constitution. It will be recalled that only last month the Supreme Court declared unconstitutional a law which required candidates for national office to submit to drug testing. The Court considered this an illegitimate attempt to add qualifications for the office.
At any rate, even without psychiatric tests, members of the JBC should have enough perspicacity to be able, by themselves or through witnesses, to detect if a particular candidate for the Supreme Court manifests signs of imbalance.
Finally, what about the disqualifications based on pending administrative or criminal charges? These come under Rule 4 on “Integrity” which disqualifies those “with pending criminal or regular administrative cases” and judges “facing administrative complaints under informal preliminary investigation by the Office of the Court Administrator.” How do these disqualifications stand when put side by side with the constitutional presumption of innocence?
I can see that judges and justices should be pure as Caesar’s wife, as the saying goes, even if we really don’t know how pure she was. However, accusations are just accusations, and how many of those charged have been cleared after investigation? I suggest therefore that pending charges, whether criminal or administrative, should not automatically be ground for disqualification. Certainly, however, they should be ground for closer scrutiny by the JBC to ascertain if indeed they are indications of lack of the constitutionally desired integrity, probity or independence.
Little by little, through experience and through the watchfulness of the public, the workings of the Judicial and Bar Council are being improved. If this continues and if the JBC members themselves maintain personal integrity, probity and independence, the JBC may yet become the tool for improving the judicial system that former Chief Justice Concepcion hoped it would be.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081215-178011/Disqualifications-by-the-JBC
Separate Opinion
The Judicial and Bar Council
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 01:05:00 12/14/2008
Filed Under: Judiciary (system of justice), Laws, Constitution
AN innovation in the 1987 Constitution that has received much praise deserves the opposite. It reveals the naiveté of the hard-nosed politicians in the constitutional commissions who approved it.
Former Chief Justice Roberto Concepcion may be forgiven for reportedly proposing it because he belonged to the guileless members of the Supreme Court who, unbelievably, were unaware of the dark influence of the Commission on Appointments on the President’s power of appointment. The kindest you can say about the politician-commissioners who supported the proposal is that they should have known better than to allow presidential abuse of judicial integrity.
It was an indefensible defect of the old system that the president’s appointment of judges was subject to the prior consent of the legislators of the districts to which they were intended to be assigned, and to their formal confirmation later by the Commission on Appointments. This last requirement applied even to justices of the Supreme Court, who had to also court the blessings of Congress like generals and even consuls.
As this practice impaired the independence of the judiciary and made it subservient to the political departments, the constitutional commissions of 1986 decided to correct it. But how? Like a mental retardate grappling with a simple problem, it created the Judicial and Bar Council.
Under the present rule, appointments to the judiciary, including the Supreme Court, are no longer subject to confirmation by the Commission on Appointments. The president of the Philippines can now appoint a judge, or even a justice, without legislative clearance. The only need now (besides the prescribed constitutional qualifications) is that the appointee must be previously and formally nominated by the Judicial and Bar Council. Any judicial appointment without such nomination is invalid and ineffective.
That is the only check on the president’s power to appoint judges, but is it really a check? I mean, is it really an effective check?
Under Art. VIII, Sec. 8(1) of the Constitution, the Judicial and Bar Council is composed of the chief justice as chairman, the secretary of justice, and a representative of Congress as ex officio members plus four regular members appointed by the President with the consent of the Commission on Appointments.
The regular members enjoy the same compensation and privileges as the members of the constitutional commissions except that they may be removed like ordinary public servants and not by impeachment. Another dissimilarity is that after their staggered terms of four years, they may be reappointed in the president’s discretion.
A majority vote is needed for a nomination to be made by the seven members of the JBC. So the president who wants to appoint a particular individual as a judge, or even a justice of the Supreme Court, or even its chief justice, will need such majority for that appointment. The name of that candidate must be included in the list of at least three nominees to be submitted to him by the JBC, without which his preferred choice is not eligible for consideration, let alone appointment.
We presume at the outset that the chief justice will have an open mind on the matter and that, as head not only of the JBC but the Judiciary itself, he will not be subject to the coercive persuasions of the president of the Philippines. But it will be different with the other less objective and more obliging members of the JBC.
The consent of the secretary of justice is a given because he is a Cabinet member under the president’s control. The representative from Congress is usually from the majority party headed by the president who can also order his concurrence. But there will still be need for the cooperation of at least two of the regular members to make the needed nomination of the chief executive’s chosen one.
How does the president get it? Simple. All he has to do is promise the regular members that when their terms end, they will be reappointed. This is not a trivial favor; this means that the reappointed members can, if they comply with his command, continue serving for another four years and enjoying the same benefits as the members of the constitutional commissions. They will continue to receive flatteries and favors from persons seeking to be nominated for judicial appointment or promotion. They will continue to be addressed as “honorable.”
I do not submit that this has been happening in the JBC regarding the several appointments made by President Macapagal-Arroyo to the courts of justice, including the Supreme Court. But I do think that this may happen, and probably has, considering some recent judicial appointments that have raised eyebrows. It is just possible that they were nominated by some of the regular members of the JBC who have been or will be re-appointed with GMA’s gratitude for cooperating with her.
I remember with pride that during my tenure on the Supreme Court, there were at least two times when the appointment of aspirants to the Supreme Court strongly recommended by the president of the Philippines was blocked by the JBC. Even then, the four regular members were not tempted by the hope of their deserved re-appointment if they obeyed Malacañang.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20081214-177882/The-Judicial-and-Bar-Council
