Thursday, December 07, 2006 Aportadera: Nomination by JBC or CA confirmation By Billy Aportadera Rights and Duties
THE ballistic outburst of Senator Miriam Defensor-Santiago exposed the flaws in the appointing process of members of the Philippine Judiciary and of the Ombudsman under the 1987 Philippine Constitution.
Before they can be appointed, they have to be recommended by the Judicial and Bar Council. The President selects and appoints from a "short list" submitted by the JBC to her.
Under Section 8 (1) of the Philippine Constitution, the JBC is composed of the Chief Justice as ex-officio chairman; the secretary of Justice and a representative of the Congress as ex-officio 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 Council shall have the principal functions of recommending appointees to the Judiciary [Section 9 (5), Philippine Constitution].
"The members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation." [Section 9, Philippine Constitution]
The JBC has been performing its constitutional function since 1987. The question to ask is whether the quality of the judiciary has improved or has deteriorated with this system of appointment.
The flaw in the JBC is that it is susceptible to pressure from the President to include in the short list her nominee or nominees. The other nominees are included in the short list to window dress or ice the list. The lobbying to be included in the short list of the JBC is also as intense as the lobbying for confirmation by the Commission on Appointments.
Finally, the concept of requiring an application for nomination destroys the noble principle that it is the office that seeks the man to occupy it, and not the man seeking the office. These flaws affect the independence and integrity of the process of nomination by the JBC.
The JBC was conceived to avoid the perceived evils in the process of appointments through confirmation by the CA. Has it been faithful to its constitutional mandate?
On the other hand, the CA has been the constitutional body tasked to check the appointing power of the President under the 1935, 1973 and the present 1987 Philippine Constitution. However, under the 1987 Philippine Constitution, this power of the commission over members of the Judiciary was given to a Judicial and Bar Council.
The commission was created to balance the secrecy attendant to the selection of a candidate for government posts. Since the executive branch's process of selecting government officials is done away from the prying eyes of the public, the 25 men and women who make up the commission are relied on to take a second look at the fitness of the candidate for the job he or she has been nominated for.
The CA has been branded as a "horse-trading" agency. The commission is perceived to be an arena for bickering politicians, rampant favor swapping and patronage.
With 25 congressman and senators composing the CA, "horse-trading" is made with the "best horse" of the horse trader. Otherwise, a member of the Commission can invoke Rule 20, which effectively suspends confirmation of an appointee. This process has been in effect and has ensured that the best appointee is confirmed by the Commission.
Attorney Abelardo "Billy" Aportadera Jr. is a former commissioner of the Commission on Human Rights and former Assistant Ombudsman, is a practicing lawyer and a member of Philconsa, e-mail address: apo_lawoffice@pldtdsl.net; Web address: http://billyaportadera.blogspot.com
