Two decades after its creation by the Constitution, the Judicial and Bar Council remains an institution critics say is riddled with “systemic deficiencies” and even defects, and is badly in need of reforms.
Many in the legal profession and in the judiciary, as well as in civil society, say the JBC needs reforming, because it is partly responsible for the problems in the judiciary, exemplified by the rise and fall of Corona, a “midnight appointee” who was eventually impeached and convicted for violating the Constitution and betraying public trust.
The Judicial and Bar Council is now the focus of national attention as it begins the process of recommending a replacement for ousted Supreme Court Chief Justice Renato Corona. The process, if done right, is expected to help restore public confidence in the High Tribunal.
It is understandable that the JBC is under scrutiny and subject of harsh criticism, now that JBC is in the process of screening the candidates for Chief Justice to replace Corona.
The 1987 Constitution vested in the JBC the responsibility of nominating qualified candidates to the judiciary, including the Chief Justice, to the appointing power, the President. It was supposed to remove politics from the appointments processes of the past. From 1972 to 1986, judicial appointments rested solely in the hands of then President Ferdinand Marcos. In the pre-martial law era, appointments to the judiciary made by the President passed through the Commission on Appointments, a bicameral body composed of members of the Senate and the House of Representatives.
The Judicial and Bar Council represents the first and crucial step in the judicial appointments process. Ultimately, however, the person responsible for appointments of all the country’s judges and justices is the President.
For every vacancy the JBC must submit to the President a shortlist of at least three names, after it has investigated and evaluated applicants. The Constitution limits the President to the list officially transmitted to him or her.
But sending back the list if there is no name in it he or she wishes to appoint is one of the many prerogatives of the Chief Executive. The framers of the 1987 Constitution acknowledged this possibility even back then, with some expressing apprehension over the potential abuse of this power.
While some of the reforms being proposed by lawyers, judges and civil society would require amendments to the 1987 Constitution, others can be implemented with simple policy issuances, especially by the President.
Some of proposed reforms involve altering the composition of the JBC, while others have to do with improving its processes. Still others stress the need to rethink the question who could best appoint the country’s justices and judges in a transparent and competent manner and to ensure their independence.
There really is no problem with JBC as an institution. JBC simply accepts the application and documentary requirements, schedules the interviews and some tests and by voting of the members, come up with a shortlist of nominees and then submit the list to the Office of the President.
JBC was simply prostituted during the time of Erap and GMA wherein those “endorsed” by politicians earned additional points during voting.
The JBC is a constitutional body left with a great and important task. The implementers probably found the task so great and important that they included two ex officio Members from Congress: somehow an addition.
I agree fully that the JBC is not an independent, impartial vetting body in selecting the individuals for recommendation for appointment. The process should have been undertaken by a group of individuals who are professionals and expert in this field and pick the best candidates for the appointing power. In order not to politically embarrass or compromise the appointing power, the committee on selections should take the utmost due diligence in the vetting process.
For now, we are stuck with the JBC as the initial determinant of Judicial selection and each Council member should always be ready to face the challenge.