Unintended consequences of the draft judiciary provisions

By J. Art D. Brion (ret.)

(Second of a series)

Today, the positions of chief justice and one associate justice are already vacant and two more associate justice positions (possibly three) shall be vacant within the year. Thus, we are already seeing the Supreme Court appointment process in full operation even during the consideration of the reform of this process.

Under the ConCom’s proposal, the justices of the Federal Supreme Court, the Federal Constitutional Court, the Federal Administrative Court (each with nine justices) and the Federal Electoral Court (with 15 justices) shall be appointed by separate authorities, namely: a third by the President; another third by the Commission of Appointments; and the last third by the court itself.

This system is a departure from the 1987 Constitution that makes the President the sole appointing authority for the members of the Supreme Court.

The proposed innovation apparently addresses the problem of partisanship that could arise when appointments are made solely by the President who largely operates in the political realm and who has tended in the past to appoint known political allies or nominees recommended by these allies.

The reality, of course, is that it is the appointed magistrate who determines whether the appointing authority’s partisan considerations shall affect his court decisions.

The ConCom’s way to address this problem is to distribute the power of appointment and make it a shared privilege among the President, Congress, and the court itself. Thus, the appointment process effectively becomes tripartite and carries with it all the advantages and disadvantages of applying tripartism in the adjudication of legal rights, an altogether different topic from my focus today.

From the prism of partisanship, however, the proposed tripartite structure does not make the system any less partisan; on the contrary, it may render the problem more pronounced as it may all the more emphasize the patronage element.

The system “brands” the appointee and identifies him with the appointing sector, thereby exacerbating the negative aspects of the Filipino utang na loob. This insidious influencing factor cannot be beneficial to the court which should be neutral and bias-free in its decision making.

To my mind, one measure to minimize these effects is to subject the Supreme Court nominees to the most rigid examination of their private and professional lives from the constitutional standards of competence, integrity, probity, and independence. Thereby, the system impresses upon the appointee that he became a court magistrate based on his own merits, not through any “favor” extended to him by the appointing authority.

The draft proposes to give the vetting task to the Judicial Appointments and Disciplinary Council composed of 11 ex-officio and 4 regular members who must personally vote for their chosen nominees. This composition, while large, aptly distributes the areas of expertise in examining the nominees’ private and professional lives.

The vetting system, however, still leaves a significant room for failure under the Constitution’s 90-day limit for filling up a Supreme Court vacancy.

As we are seeing today, there was initially no taker for the position of chief justice more than a month after this position was declared vacant. With the fixed 90-day time limit, this means that, as of today, the council’s time to examine the nominees (who must still accept the nomination to be considered a contender) is already less than 60 days.

Assuming a 30-day time limit for the filing of applications or the acceptance of nominations, the enormity of the council’s task and the insufficiency of time can be fully appreciated once the scope of the examination and the applicable standards are considered.

Consider that the nominee must be a lawyer who has been in law practice or in government service for at least 15 years. While competence and legal expertise may not be very difficult to establish, the other traits, particularly integrity and probity, are not as easy to explore.

Since the nominee will “dispense justice,” the traits of integrity and probity should particularly consider the nominee’s fairness in all his dealings. This should include the fairness and ethical conduct (not only the legality) the nominee exhibited in all his professional actions, most especially in his past judicial decisions.

The Statement of Assets, Liabilities, and Networth (SALN), including the Income Tax Returns and the bank accounts of the nominees, are critical documents for examination to test for probity. These are telling records that should be open to the council and to the public, and should not be shielded from scrutiny by length of time nor by any legislation.

Likewise critical is the lifestyle examination, not only of the nominee but of his family. Can the nominee provide this lifestyle to his family based on his legitimate assets and income?

To what extent should the examination be? Can the council look at the financial records of the nominee’s wife, children, and siblings to determine if they served (or at least raise the suspicion of serving) as conduits for the nominee in concealing his illegal or unethical activities?

Can all these be meaningfully examined by the council and by the public within the allotted time in situations when there are many nominees to the vacant position, as had happened in the past?

How much time should the appointing authorities themselves be given within which to choose from among the list of nominees submitted by the Council? Both reason and practicality require that the appointing powers themselves be allowed time to undertake their own independent investigations.

Overall, will there be sufficient time and opportunity to fully examine the nominees’ competence, integrity, probity, independence, and fitness for the vacant Supreme Court position?

In my opinion and from past experience, the tripartite appointment structure as well as the ConCom’s 90-day limit negate the intent to appoint the best men and women to the Supreme Court, and, in fact, can act as deterrents in carrying out this intent – a consequence the ConCom never intended.