Thursday, August 23, 2012

The President's interview: A bad idea

The President's interview: A bad idea

"x x x.

Theodore TeTheodore TeThe President has indicated that he willpersonally interview the 8 persons in the list submitted by the Judicial and Bar Council for the post of Chief Justice. This was his practice in the 3 Supreme Court appointments he has made. While he has not indicated that it is mandatory, all indications point to it being so.

Notably, on those 3 occasions, the interviews were conducted of nominees for Associate Justice. On this occasion, however, the interviews that the President has indicated he will conduct involve 5 incumbent associate justices, two government lawyers and one congressman.

As far as the non-judiciary nominees (Solicitor General Francis Jardeleza, Chair of the GOCC Governance Commission Cesar Villanueva and San Juan Rep Ronaldo Zamora) are concerned, the interview might not raise red flags. Where the 5 incumbents (Acting Chief Justice Carpio, Associate Justices Leonardo-De Castro, Brion, Abad and Sereno) are concerned, however, the interview might prove problematic.

The greatest weapon of the Supreme Court is its independence; associated with this is the perception that its members are independent and above influence.
Thus, contact with the members of the Supreme Court is—and should be—limited only to official matters. The danger involved in having justices who are accessible outside of Court sessions and official Court business lies in the possible influence that may be exerted on them by litigants, which would of course include the government, led by the President.

In the United States, the Supreme Court Justices who do attend to an official event like the President’s State of the Union speech do nothing except stand when the President enters, shake the hand of the President and stand when the President leaves. They do not nod, shake their head or even applaud for fear that it might be viewed as an indication of approval or disapproval outside of a promulgated decision. That is how seriously the separation of powers among the 3 branches is viewed.
Wrong message

The danger of a mandatory interview by the President of the 5 incumbent Justices is that it sends the wrong message. Presumably, the President is not going to simply have a nice chat with the nominees but would ask questions that would allow him to determine whether the nominees would possess what appears to be the essential requisite to be chief justice—to be at the head of judicial reforms. 

Having 5 incumbent Supreme Court justices summoned to the Palace to be interviewed on their judicial reform agenda places the incumbents in a most unseemly position—to convince the President that they should be chief justice. There is no question that the President can ask, even hypothetically, on reform that will not implicate a future suit before the Court. 

Viewed in this light, the personal interview by the President is a bad idea.
If any of the incumbents is appointed, the presumption that intuitively and logically arises is that she or he gave the right answers and the others didn’t. This unduly burdens the next chief justice from the start.
On the other hand, if none of the incumbents is appointed, the same presumption arises and it burdens the non-judiciary appointee who will serve out his term based on a perception that he got the post because he passed the interview.

This is the first time that President Aquino will select a chief justice and so it will be the first time ever that aspirants for chief justice, including 4 incumbent associate justices and the acting chief justice, will be interviewed by the President. Notably, no other President has done this; they have preffered to simply pick from the list submitted by the JBC or simply based on seniority.
Aquino's options

There are options, aside from the interview, that are available to the President.
First, his alter ego in the JBC (an Undersecretary from the Office of the President sitting pro hac vice) presumably can provide him with all the information he may want, including his own perceptions, assessments and all other matters that may be important to the President. Presumably, the reason this particular alter ego was asked to sit on the JBC was because he was of the same mind as the President and would have asked the questions that the President would have asked, if he were present during the public interviews. 

If the alter ego did not, then the question should be directed to him—why did he not ask, on behalf of the President, and what exactly did he do in the JBC? Second, he may ask for a transcript of the JBC proceedings to look at the answers given by the nominees to the questions posed by the JBC members and the public. Third, he may engage independent consultants whom he trusts and who know the nominees to advise him.

It may be a matter of management style and something that we cannot begrudge him. Perhaps, the President is simply exercising an over-abundance of caution in conducting his own personal assessment of the nominees on the list. 

Cynics would see it, however, as a sign that the President may be sending a statement to the JBC that he does not trust their input.
Whatever reasons he has, however, the interview by the President of the 5 incumbents -- at least for this particular selection -- does more harm than good to the independence of the judiciary, which is the overarching theme of the President’s goal of judicial reform. -

x x x."