Joaquin G. Bernas, S.J.
Why did the Constitutional Commission of 1987 abandon the 1935 system? The abandonment of the old system in favor of the Judicial and Bar Council was largely in response to the criticism that the old system was a rich ground for political patronage. As I recall, however, the interventions critical of the old system cited examples drawn only from the process of appointment to the lower levels of the judiciary and to promotions in the military. I do not recall nor does the Convention Record indicate complaints about the process of appointing justices to the Supreme Court.
We are once again looking for a Chief Justice and in about two years we will be looking for an Associate Justice. Meanwhile, the process of nominating candidates for the position of Chief Justice has become a joke. When you look at the names of the more than forty nominees for the single position, they do not exactly make you jump for joy. You might even find the richness of the list to be an embarrassment.
This never happened before. Let us look at what the search was like before the advent of the 1987 Constitution. More, precisely, what was the search like before the Philippines came under martial rule?
Under the 1935 Constitution the Chief Justice and Associate justices of the Supreme Court were appointed by the President with the consent of the Commission on Appointments. The composition of the Commission on Appointments then was the same as the composition of the current Commission. “There shall be a Commission on Appointments consisting of twelve Senators and twelve Members of the House of Representatives, elected by each House, respectively, on the basis of proportional representation of the political parties therein. The president of the Senate shall be the Chairman ex officio of the Commission, but shall not vote except in case of tie.”
The big difference was in the scope of the power of the Commission on Appointments to consent to or refuse consent to those chosen by the President. Whereas under the 1987 Constitution the Commission on Appointments has the power to consent to the appointment of only a limited number of officials, namely, the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, Justices of the Supreme Court, the Chairmen and Members of the Constitutional Commissions, and Ombudsman and Deputy Ombudsman, under the 1935 Constitution the Commission on Appointments had jurisdiction over a much longer list. The list included all justices and judges of inferior courts, and other officers the President may be authorized to appoint.
When you peek into the list of Justices of the Supreme Court prior to martial law as found in the early pages of each volume of the Philippine Reports, you will see there a catalogue of “who was who” in the Philippine legal firmament prior to martial law. Compare them with the list of the forty or so nominees for Chief Justice today and see if you are not tempted to weep.
I keep referring to things prior to martial law because I believe that the completely discretionary power of the President under martial law to appoint members of the judiciary was what destroyed the Philippine judicial system. We have not yet recovered from that debacle and I am not sure which direction the present administration is going. What then?
One thought I have is that we should give back to the Commission on Appointments the power to confirm appointments to the Supreme Court. Go back, in other words, to the 1935 system. But, yes, only for Supreme Court Justices. Let the JBC continue to handle appointments to lower levels.
Of course, on the evidence of how the impeachment of Corona was conducted by House and Senate, one cannot claim that a Commission on Appointments would work perfectly. But a fully transparent process of the Commission will help temper the allure of political temptations. Regrettably, however, a return to the old system can only happen after a constitutional amendment, which may not be near in coming.
Meanwhile, I welcome the decision of the Judicial and Bar Council to open its deliberations to live media. I would be happier still if the vote of each member will also be open to the public. The people have the right to know how they vote on a matter of such great public importance. If the Supreme Court could, in 1991, compel the Board of Censors to make public the voting slip of each censor, with greater reason the vote of the JBC members should be made public. As spiritual counselors would put it, the devil loves the dark.
25 June 2012