Tuesday, December 12, 2017

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Duterte's bloody war on drugs

Philippine judicial appointment process

See - Rappler.com
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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
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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Why focus on state abuse?

See - https://www.rappler.com/thought-leaders/177854-accountability-human-rights-role-chr-philippines?utm_source=twitter&utm_medium=social&utm_campaign=thought-leaders

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Accountability and human rights: The role of the CHR

Is it the CHR which enjoys enormous powers in the government? Who exactly have been enjoying monopoly of economic and political power in the country who could have done more?

By Joy Aceron
Published 7:15 PM, August 06, 2017
Updated 7:15 PM, August 06, 2017
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Human rights are enshrined in the Constitution. The entire government and its instrumentalities have the mandate to uphold, advance, and protect the human rights of all the citizens. The structure of the government is precisely organized according to which department or unit is responsible for which rights of the citizens.

CHR's role

The role of the CHR, as a constitutional body, is to make sure that the government does its job in upholding, advancing, and protecting the rights of its citizens. It is also its mandate to ensure that the government does not, in anyway, violate human rights, especially civil and political rights. Civil and political rights have been the focus of the CHR because of its raison d'etre as an institution. This set of rights specifically refers to the exercise of rights of citizens vis-a-vis the state or the limit of the power of the state vis-a-vis the citizens.

Why focus on state abuse?

Such focus on preventing the state's abuse of power and its role in human rights is in reaction to the excesses that the state had perpetrated in the past and is premised on two ideas.

The first idea is the principle that public office is public trust. State powers are granted to state instrumentalities by the people only for the purpose of serving the people's interests and welfare. That's a big complex discourse, but that is a fundamental guiding thought that puts any state action subject to accountability for which the CHR is one of the accountability bodies or mechanisms.

Two, the state is supposedly powerful. As defined, only the state has the monopoly of the legitimate use of force. Because the state possesses immense power unique to it, its abuse of power poses a grave threat to anyone and everything. This makes it crucial in a democratic system to put checks on the exercise of power by the state to prevent abuse or misuse of power.

Of course, a powerful state is theoretical, especially in light of other very powerful societal forces (such as terrorists, political dynasties, economic monopolies), but the fact is that the state can legitimately use and control force and violence, while having the public means and resources to do what it intends to. That is power that no other entity has.

This nature of the state makes state abuse and violation of rights unacceptable in democracy. It is a violation of the principle of public office as public trust and it poses grave danger that could cause serious damage to individuals and the entire society.

Oversight to ensure compliance

The CHR plays an oversight role on the government's compliance with human rights. Its role is to check whether the different units of the government are doing their job in upholding, advancing, and protecting the rights of citizens.

There have been efforts to expand the rights that the CHR can scrutinize, to include socioeconomic, environmental, and cultural rights. Aside from practical constraints (such as resources, manpower, institutional capacity, to name a few), the main mandate of the CHR, while vital, remains limited: oversight. The CHR may look at the violation of those rights, but it will most certainly end up demanding the immediately responsible branch or instrumentality of the government to take the appropriate action.

For example, the Department of Labor and Employment (DOLE) is the immediate responsible agency for the right to a decent job. If DOLE is not doing its responsibility, it is legally and theoretically possible for, the CHR, with its expanded mandate, to attend to this right. But the CHR's action will still be limited to pressuring DOLE to respond to cases of violation of the right to a decent job. That's because DOLE is the agency immediately responsible for that problem and because the CHR is mainly an oversight agency especially on this particular right.

Surely, given the state of democracy and justice in the country today, the challenge for the CHR is to review its core mandates and focus and see how it can best serve the interests of ordinary citizens decades after it was formed. The change in dispensation, after years of democracy, demands rethinking in institutions of democracy, like the CHR.

Deeper sense of dissatisfaction

There is no denying that the recent criticism of the CHR are rooted in a much deeper societal dissatisfaction over how the current political order underperformed in protecting and advancing the interests and welfare of its citizens. There is a deeper reason why this is so; and we can only move forward in surfacing, understanding, and addressing the root causes of this growing dissatisfaction over the political system if we start recognizing the part we each play in it and how the current distribution of both economic and political power benefit and hence perpetuate such a situation.

Looking at it from the power perspective, is it the CHR which enjoys enormous powers in the government? Who exactly have been enjoying monopoly of economic and political power in the country who could have done more?

Who has control over vast power are the ones foremost accountable for the failing state of human rights compliance in the Philippines today and who should be held to account by citizens, especially by those failed by the political order. – Rappler.com

Joy Aceron is convenor-director of G-Watch (www.g-watch.org), an action research organization working on accountability and citizen empowerment in the Philippines. Concurrently, she is a research fellow at the Accountability Research Center (ARC) based at the School of International Service (SIS) of the American University in Washington, DC.
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