First of two parts
A few weeks back, a party was held at a clubhouse in Manila to mark the birthday of a member of the Judicial and Bar Council (JBC). Notable personalities in the judiciary were present in the affair, some of whom were old friends.
But there were those, like other JBC members, who got uncomfortable when they saw some of the visitors. Among the well-wishers were aspirants to the Supreme Court.
Under ordinary circumstances, that would not have been a source of discomfort. But the JBC, the body which vets nominees to the judiciary, the Ombudsman and the Deputy-Ombudsman, was at that time in the midst of a selection process for the first of the seven vacancies in the High Court. “The presence of the candidates raises questions of impropriety of the candidates as well as on the celebrant,” an SC observer said.
We gathered from our sources who were privy to the event that the candidates did not gate-crash. They were actually invited. This raises questions on the ethical conduct of the celebrant. As for the candidates, whether or not it was an invitation they could not refuse, “the mere fact that they were there does not speak well of them,” the observer, who has intimate knowledge of the Supreme Court, said.
Of the original 14 candidates, we learned that only about three did not attend. This provided an opportunity for those who were present to lobby.
And since it was the birthday of a JBC member, the guests brought gifts. A JBC insider told us that aspirants "should not spend any centavo when they apply for the post."
This scene provides a snapshot on how the screening and selection process in the third branch of government can be compromised. The dynamics of relationships as well as the personal and political convictions of JBC members play a vital role on who gets to sit on the bench.
The ties that bind
For all its noble aims, the JBC is not insulated from pressure and has its inherent weaknesses. The composition of its members alone makes its prone to political pressure.
The JBC is composed of eight members: the Chief Justice, one each from the Senate and the House, the justice secretary, a member of the Integrated Bar of the Philippines, a retired SC justice, and representatives from the private sector and the academe. The last four members are the regular members.
The four regular members are nominated by the President and confirmed by the Commission on Appointments, which is essentially a political body since its members are from both Houses of Congress. The regular members have a term of four years, but there is no limit to the number of times a member may be reappointed by the President for a new term.
Observers noted that such reappointments may expose a JBC member to Malacañang influence. A member with a desire to keep his or her post may accommodate Malacañang’s choice. This in fact may be the reason why one member’s term has been renewed by the Palace several times, observers say. The suspicion has some basis: The JBC is known to accommodate requests.(There is now a proposal to limit the regular members' term to only one.)
As for the ex-officio members, Malacañang is represented by the justice secretary (Raul Gonzalez) and under the present political set up, the Palace can easily count on another member: the representative from the House (Quezon Rep. Matias Defensor).
A Malacañang alter-ego to the JBC, Gonzalez makes no effort to hide it. In JBC interviews, he interrogates the candidates on political issues such as charter change, executive privilege and the issue on voting in Congress. Asked by abs-cbnnews.com/Newsbreak on why he had to put the candidates on the spot, Gonzalez said he wants to determine the aspirants’ positions and inclinations.
For his part, Defensor’s loyalty is in no doubt. As chair of the justice panel in the House, he presided over the junking of the latest impeachment attempt against Arroyo. He told us that he was the one who convinced the JBC to conditionally accept the nomination of businessman Rodolfo Robles despite the age issue. JBC rules state that a non-career applicant should be able to serve for five years and Robles was five months short of the requirement. Robles reportedly enjoys the backing of the President; they are family friends.
The Senate representative too, may stand by Malacañang’s choices, depending on the political environment. During his first years in the Senate, Francis Pangilinan was a reliable political ally of the President. It was only after the “Hello Garci” tape was exposed that their relationship soured.
Thus, at any given time, the President already has two (or three) votes in the JBC. All she needs are two (or three) more votes for her own choices to be short-listed. A candidate must get at least five votes to make it to the shortlist.
Spotlight on the JBC
A constitutional body created to supposedly insulate the judiciary from politics, the JBC has, for the most part, been also insulated from public view. Its proceedings were mostly held in secrecy, and its members, except for those in the political branches, preferred to keep a low profile.
Former JBC member and Senate representative Francis Pangilinan, when he came on board in 2001, saw the need for greater public access to its proceedings. He was aware of the responsibility that the JBC exercises, and yet public participation was missing.
Along with other SC watchers, he lobbied with the JBC to allow the public to attend its interviews. It took sometime before it got the nod of the JBC but opening its proceedings was already a big leap forward. Still, Pangilinan knew there were areas that needed an overhaul.
The opportunity presented itself recently when, for the first time, the Tribunal is confronted with seven vacancies occurring in one year. Fears have been raised that President Arroyo would pull all stops to prolong her stay in power and charter change moves in the House of Representatives seem to confirm this.
While the House and the Senate, which is opposed to charter revision at this time, may engage in a tug-of-war over the interpretation on the vague constitutional provision whether the two chambers should vote separately or jointly in proposing charter revisions, the real battleground is said to be at the SC, which is the final arbiter of constitutional issues.
Of the 15-members of the Tribunal, 13 are appointees of the President, including Chief Justice and ex-officio JBC chair Reynato Puno. The two, who are not her appointees-- Justices Leonardo Quisumbing and Consuelo Ynares-Santiago---are hanging their robes next year.
abs-cbnNEWS.com/ Newsbreak had earlier reported a pattern among recent Arroyo appointees: They vote consistently along Palace lines on crucial political issues, including the Romulo Neri executive privilege case, the airing of the “Hello Garci” tape and the botched Moro ancestral domain case. This indicates that a group of justices are faithful to the Palace.
With the seven vacancies, the Palace’s grip in the SC is seen to get tighter. And the first line of defense to ensure that this does not happen is the JBC.
Aware of the implication of this development, civil-society groups have sought to scrutinize the screening process in the JBC to make it more responsive and responsible.
The Transparency and Accountability Network, in partnership with Asia Foundation, Philippine Association of Law Schools, and the lawyers’ group Libertas, has revitalized its Supreme Court Appointment Watch or SCAW (Newsbreak is a SCAW media partner). Pangilinan for his part, formed the Bantay Korte Supreme to drum up public engagement in the selection of SC justices.
Such undertakings have put the JBC in a spotlight it had never experienced before.