Calling A Spade…
By Solita Collas-Monsod
BusinessWorld
“Before the 1987 Constitution, a good number of citizens, bar associations and civic organizations, and mass media, especially, expressed dissatisfaction over the nation’s system of dispensing justice with a vehemence that reached new heights, considering, (1) a persistently staggering backlog; (2) lazy, dishonest and incompetent members of the judiciary; (3) cumbersome procedures; and (4) dilatory tactics of litigants and lawyers.”
Thus was the Philippine judicial system prior to the approval of the 1987 Constitution described by former SC Justice Regino C. Hermosisima Jr. in a speech (five years ago) during a workshop of the Judicial and Bar Council (JBC). In a nutshell, Hermosisima said that the system was ineffective because it was unable to get HONEST, DEDICATED, and COMPETENT judges (emphasis his). He described how the members of the judiciary were selected at the time — the President choosing from a list of candidates prepared under the supervision of the secretary of Justice, who in turn included in the list those within the Justice Department whom the secretary believed would make good judges, plus those proposed by political allies and other influential people. For those contending for the Court of Appeals or the Supreme Court, the President or the Justice secretary consulted informally with the incumbent members of those bodies.
The list from which the President chose were never made public, said Hermosisima. And, of course, these nominees were vetted by the Commission on Appointments, adding fuel to the fire of suspicion that the appointments were made based on who the appointees knew rather that on what they knew.
Continues Hermosisima: “Consequently, this method of appointing and promoting judges proved to be one of the major reasons why our people do not trust lower Courts as much as they do the Supreme Court. The people know that, as a general rule, a man can reach the Supreme Court only after years of service in the lower courts or of practice at the bar which has earned him a national reputation. On the other hand, they suspect that judges receive their appointments and promotions more through political influence than merit.”
Which, he concludes, is why the 1987 Philippine Constitution (actually, the brainchild of former Chief Justice Roberto Concepcion ) created the JBC: to eliminate politics from the appointments to the judiciary, as well as the ombudsman and deputy ombudsmen.
Great intention, right? The 1987 Constitution provided that the JBC, which would be under the supervision of the Supreme Court (SC) would be composed of seven members: three ex officio and four regular. The ex officio members would be the SC chief justice as chair, plus the secretary of Justice, and a representative of Congress. The four regular members would be a representative of the Integrated Bar, a professor of law, a retired member of the SC, and a representative of the private sector. They would be appointed to four-year terms, with the usual staggered appointments to ensure continuity, and with these appointments subject to confirmation by the Commission on Appointments.
So how would politics be eliminated? By removing the Commission on Appointments from the picture, at least directly. While the latter had the power to approve appointments of the regular JBC members, it no longer had the power to confirm or reject the judiciary (and ombudman) appointments. The President, however, had to choose his appointments only from a list submitted by the JBC, which would contain at least three nominees per vacancy.
But you know what is said about good intentions: the road to hell is paved with them. And it doesn’t look, so far anyway (after roughly 23 years of existence), that the JBC, as a great intention, is any exception.
Why do I say that? Well, just consider the quotation at the beginning of this column. Can anyone say, at this point, that the situation described has improved after more than a score of years of JBC operation? Can we say that there are more HONEST, DEDICATED, COMPETENT judges now (to borrow Hermosisima’s emphasis) so that our judicial system is more effective? Using Hermosisma’s metric, are the backlogs less staggering? Are the procedures less cumbersome? Are the dilatory tactics of litigants and lawyers now less dilatory (although we are supposed to have a continuous trial system, for heaven’s sake)?
More specifically, let us take the Court of Appeals and the Supreme Court. Every member of these august bodies had to have been vetted by the JBC, who in turn are supposed to have chosen only those who aside from the necessary legal knowledge, also had to have proven morality and probity. So how come we had recent scandals rocking the Court of Appeals (corruption) and the Supreme Court (charges of having an Arroyo court, wishy-washiness, and now even plagiarism)? How do these events reflect on the effectiveness of the JBC in choosing only the best and the brightest, those with independence and probity?
Or for that matter, let us meditate on the choices of the ombudsman. Or deputy ombudsmen. The success rate of the JBC in their choices for this agency has arguably been much lower than in their choices for the courts.
And there are some other, relatively minor, sources of confusion. For example, the Constitution mandates “a representative from Congress” as an ex officio member of the JBC. How come we have two? Former Chief Justice Hilario Davide Jr. explains that it was because this provision was written assuming a unicameral legislature, and we ended up with a bicameral legislature. But can the JBC just disregard the Constitution like that? Particularly because with a seven-member JBC, the four regular members constitute a majority, while now, that is no longer the case, and political interference can more easily come into the picture. And then the Constitution provides for the clerk of the Supreme Court to be ex officio secretary of the JBC. Now there are two: per the JBC Web site, Court Administrator Midas Marquez is also ex officio secretary. How can the Constitution be treated so cavalierly?
It is not only the Constitution that seems to have been treated in such a cavalier fashion. It is also the JBC itself. The newest member of the JBC, who represents the academe, is one Jose V. Mejia. I read his CV in the JBC Web site — and very frankly, there is nothing particularly outstanding about it. But he happens to be the law classmate of Executive Secretary Ochoa. What does this say about the politicization of the JBC? Another member of the JBC by the way, reportedly has a proclivity for being wined and dined by candidates for vacancies. What does this day about probity in the JBC itself?
The only way we can ensure that the JBC goes about its business properly is to subject its processes to the merciless lens of transparency and public scrutiny. For its own credibility, if not for the sake of the country, the JBC must do so. Or set another stone on the road to hell.
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