Philippine judicial appointment process

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Before the Judicial and Bar Council, how were justices chosen?

The creation of the Judicial and Bar Council is 'an innovation made in response to the public clamor in favor of eliminating politics from the appointment of judges'

Jodesz Gavilan
@jodeszgavilan
Published 6:56 PM, December 11, 2017
Updated 7:13 PM, December 11, 2017
MANILA, Philippines – Among the issues raised during the impeachment hearing against Supreme Court Chief Justice Maria Lourdes Sereno were the alleged flaws of the Judicial and Bar Council (JBC).

In his impeachment complaint, lawyer Larry Gadon, accused Sereno of manipulating the JBC short list to exclude former solicitor general Francis Jardeleza. Jardeleza was eventually appointed to the Supreme Court by former president Benigno Aquino III.

House Majority Leader Rodolfo Fariñas, meanwhile, pointed out the “problems” with the JBC – saying that it had only two elected officials as members and was vulnerable to politics and a “palakasan(patronage)” system. (READ: At Sereno impeachment hearing, Fariñas brings up flaws in JBC)

Created through Article VIII, Section 8 of the 1987 Philippine Constitution, the JBC is the one in charge of screening and scrutinizing court aspirants. Before its creation, how were justices chosen?

Non-transparent process before

The JBC did not exist prior to the 1987 Philippine Constitution.

The 1899 Malolos Constitution allowed a National Assembly to choose who would lead the High Court, with the approval of the Philippine president. From 1902 to 1935, the chief magistrate was appointed by the United States president.

Under the 1935 Constitution, meanwhile, the president appointed all members of the Supreme Court and inferior courts “with the consent of the Commission on Appointments (CA) of the National Assembly.”

The president chose from a list prepared under the supervision of the justice secretary. Many had criticized this process, pointing out that it led to the selection of individuals who were not fit to join but were included because of “connections”.

The list, according to former associate justice and JBC member Regino Hermosisima Jr in 2006, often included “those within the Department of Justice whom the Secretary believes would make good judges, as well as those without the department who are proposed by leaders of the political party to which the President belongs or by other persons who possess a strong influence over the President or the justice secretary.”

Unlike the JBC which publishes the list of candidates for interview and eventually the short list, the prior process did not require the public release of the final list and nominations to the Supreme Court.

While the Supreme Court existed when Martial Law was declared by then president Ferdinand Marcos, the 1973 Philippine Constitutionchanged the process of selection and eventual appointment of aspirants.

The appointment was left in the hands of Marcos and did not require the approval of other government bodies such as the legislative. This move was highly criticized due to its lack of transparency and independence – a staple under the dictatorship.

“The Constitution and the law then had not improved the method by which justices, judges and prosecutors were selected or promoted and were not encouraged to maintain the quality of their work,” Hermosisima said. “The law functioned negatively, not positively, that is, it was designed to keep unqualified misfits out, not to bring the best and the brightest lawyers into the judiciary.”

More ‘transparent’ under the JBC

Responding to the flawed system, members of the Constitutional Commission made sure to improve the selection process in the 1987 Philippine Constitution.

The JBC is “vested with great responsibility” to ensure that the applicants possess the necessary qualifications for positions as identified in various laws, specifically the Constitution. (READ: EXPLAINER: How the Judicial and Bar Council works)

The council, however, also screens individuals aiming to lead the office of the Ombudsman, Deputy Ombudsman, Special Prosecutor, and the offices of the Chairperson and Regular Members of the Legal Education Board.

The council meets, usually months in advance if the retirement is expected, to discuss proceedings and deadlines as any vacancy in the judiciary needs to be filled within 90 days, by virtue of Article VIII, Section 4.

A list containing all candidates is then published after the deadline of applications. To further push for transparency, the JBC encourages the public to report information about the candidates that could help the council in screening the applicants.

The council then comes up with a list of individuals who will go through a public interview. To be considered for nomination to the short list that will be submitted to the President, an applicant should obtain an affirmative vote from at least 4 members of the JBC.

It is from the short list where the President will choose the new justice. Unlike the system under the 1935 Philippine Constitution, the Commission on Appointments does not need to confirm the appointees because they already went through the JBC process.

While there have been controversies in the past concerning the JBC – such as when presidents aired sentiments against the short list – the process definitely improved compared to the time when there was a lack, if not absence of, transparency prior to the 1987 Philippine Constitution. – Rappler.com

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