Monday, February 1, 2010

Spotlight on the JBC

Last week, as I was on my way to dinner in the Power Plant Mall, someone approached me to ask, “Do you really want to make Tony Carpio Chief Justice?” The following day a friend asked me, “What do you have against Rene Corona?”

Hitherto I have tried to resist the idea that what has been driving those who claim that President Arroyo has the power to appoint the next Chief Justice is not so much legal reason but political preference. Perhaps I should not try to resist that idea any more.

As for my legal preference, however, I must say that in my present state of soul my preference for Chief Justice is anyone who is appointed by the person who has authority to make the appointment. Two weeks agoI had a full article on this.

That encounter which I had with two inquisitors was followed by a front-page statement from a high ranking official of the Palace that the power to determine whether the President may appoint a Chief Justice belongs to the Judicial and Bar Council. It made banner headline in the Manila Bulletin. I would have wished that the Palace official had supported his statement with legal reasons, because he is a former student of mine; but, alas, he forgot to.

But the pronouncement deserves analysis if only for the reason that it came from the Palace and should perhaps be seen as the official line of the Palace.

Let us look at what the JBC is supposed to be as envisioned by its architects. The principal author of the Judicial and Bar Council was former Chief Justice Roberto Concepcion.

Under the 1935 Constitution appointments to the judiciary had to go through the Commission on Appointments . Concepcion thought that the CA process was too politically tainted. He wanted a depoliticized process, a consummation also devoutly wished by many members of the Constitutional Commission. Hence Concepcion proposed a Judicial and Bar Council which, in its final form, would consist of the Chief as ex-officio Chairman, the Minister of Justice and a representative of Congress as ex-officio members, and as regular members a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members would be appointed by the President, with the consent of the Commission on Appointments, and the representative of Congress would be chosen by Congress.

Whether or not the JBC has indeed protected the appointment process from the vagaries of politics is again being tested even as it prepares to make a list of persons who can fill the vacancy to be created by the retirement of Chief Justice Puno.

But what is the JBC’s role? Section 8 says: “The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.”

The next question that must be asked is: What is the nature of such function? Is it legislative, executive or judicial?

Clearly its function is not legislative. The Constitution has not conferred law making power on it. Neither is its function judicial. The Constitution has vested judicial power solely in the Supreme Court and in such lower courts as may be created by law. By a process elimination, therefore, we come to the conclusion that the JBC’s power is only executive.

Indeed it is executive because it is a participation in the appointing power which is clearly executive in much the same way that the function of the Commission on Appointments, although performed by legislators, is also executive. Nor has the Constitution given the JBC any power to resolve issues such as has been given to the Comelec.

Among the three departments of government which one has the power to determine, whenever there is controversy, the legal allocation of powers among the various offices and agencies of the government? It is no other than the Supreme Court.

In the light of this, how can we justify the claim that it is the Judicial and Bar Council, an executive agency, that holds the power to determine who has the authority to appoint the next Chief Justice? The role of the JBC is much humbler.

The JBC is already in the process of preparing a list? There is nothing to prevent the JBC from doing that. But the crucial question is, after having prepared a list, must or may the JBC submit the list it has prepared to the incumbent President even in the face of the constitutional prohibition found in Section 15 of Article VII?

The question places the JBC in a difficult position. If it submits a list to President Arroyo, it will be seen as authorizing the President to make the appointment. If on the other hand the JBC refuses to submit a list, it will be seen as saying that President Arroyo does not have the authority. Being purely executive, the JBC has no authority to make either judgment.

Caught between these two horns, what may the JBC do? I suggest that the JBC submit a list “To Whom It May Concern.” Of course, it would be no surprise should the Palace decide that it is she “to whom it may concern.” But that would not be the JBC’s problem. And should the President make the appointment, it can create a justiciable controversy over which the justices can fight among themselves. And guess who will win?

Incidentally, contrary to a Philippine Star report on a recent forum, I never said that the President could appoint an acting Chief Justice; in fact I said the exact opposite, by analogy with the Court-repudiated appointment of an acting Comelec Chairman.

1 February 2010

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