The New JoeAm: Fact Based fo Sho . . . on the JBC

I get challenged relentlessly for more facts. I whip out my most profound conceptual arguments or literary gems, and it does not satisfy these people. They want the details. The evidence. The proof.

It is a Philippine condition, this obsession with details over construct, but what's a guy to do? It is exhausting to swim against the tide of Philippine methodology. Never mind that the factologists have all the facts in the world, but no meaning in which to put them. That is why there is trash everywhere and people are mowing down the rainforests and making a deadly Disney log ride out of the Cagayan de Oro River. The concepts of cleanliness, health and management of resources for the well-being of all  is swapped down the river for personal convenience.

But let me get to the facts rather than go on a red-eyed diversionary rant.

The Judicial and Bar Council ("JBC") is the group of legal professionals who select the list of approved candidates from which the Executive Branch of government selects the judge or ombudsman to be given a job.

THE MEMBERS

The JBC panel is a bunch of high falootin' factoids I have not fully researched as to their background, allegiances and objectivity. Some of them I am familiar with and others, not.

Ex Officio Chairman:

• Hon. Chief Justice RENATO C CORONA

Ex Officio Members:

• Hon. LEILA M. DE LIMA, Secretary of Justice
• Hon. NIEL C. TUPAS JR., Congressman
• Hon. FRANCIS JOSEPH G. ESCUDERO, Senator

Regular Members

• Hon. REGINO C. HERMOSISIMA JR., Retired SC Justice Representative
• Hon. AURORA SANTIAGO LAGMAN, Private Sector Representative
• Hon. JOSE V. MEJIA, Academe Representative
• Hon. MARIA MILAGROS N. FERNAN-CAYOSA, Integrated Bar of the Philippines Representative

Consultant

• Hon. JOSE MIDAS P. MARQUEZ, Court Administrator

Ex Officio Secretary

• Hon. ENRIQUETA ESGUERRA VIDAL, Clerk of the Court

Certainly any future meetings will be dynamite, given the participation of both Mr. Corona and Ms. De Lima, who recently referred to the Chief Justice as "a walking constitutional violation". Throw in Mr. Tupas and Mr. Escudero who were engaged in the impeachment drama and the tension would be thicker than a carabao's backside.

But the upshot is, this group should be able to find worthwhile candidates.  These are grown-ups. They represent important disciplines, private sector to education. They are professionals.

MISSION

The mission statement of the JBC, issued in 2007, reads well:  Link to Mission

There are five points, generally reciting the aims and good intent of the JBC's work, including speeding up the filling of vacancies; the fifth is particularly noteworthy:

• "To insulate the nomination process from undue influence of any kind."

It must have been written by attorneys who left in the escape hatch of "undue". Any influence considered "due" is fully acceptable. This mission is rather akin to the principles of the Humpty Dumpty New World Dictionary, which allows the writer to define a word precisely any way he wants.

In other words, ANY influence is allowed if it is allowed. Like Ms. Arroyo can push and shove and reject the submitted lists of Chief Justice nominees until it has on it the person she really wants. NOT that she would ever do that, eh? Try to influence the independent judiciary. And President Aquino also seems to miss the point that the judicial process, including that of a Senate trial, ought to be left alone. Left to stand independent.

I tell you, this trade of favors, and all the conniving it promotes, is not good for the nation as a whole. It softens up all the rules of civil behavior and warps them to personal convenience.

But I digress. Back to facts.

TRANSPARENCY

In 2002, the JBC recognized the importance of transparency in its actions through published Rule 10, "Rule to Further Promote Public Awareness and Accessibility to the Proceedings of the Judicial Bar and Council". You can link over to if you want to read the whole document: Link to Rule

The rule states the goal is a "delicate task" and itemizes a process for announcing a long list of potential nominees, a complaint-filing period and process, and public interview schedule. After this is done, the JBC meets in private to formulate its short list.

THE RULES

The main principles by which the JBC operates are spelled out in JBC - 009, "Rules of of the Judicial and Bar Council" signed on October 18, 2000, by members of the Supreme Court. The Supreme Court is the managing body for the entire Judiciary, as well as the interpretive body for the Constitution. Link to Rules

Let me extract some factoids that were meaningful to me. You can read the entire thing if you are interested in the details.

The JBC cites its Constitutional requirement to nominate people "of proven competence, integrity, probity, and independence." I had to look up "probity". It means "adherence to the highest principles and ideals"; synonyms are character, decency, goodness, honesty, integrity, morality, rectitude, righteousness, rightness, uprightness, virtue, virtuousness. The only better character than a judge would be Jesus Himself.

Rules 1 and 2 contain guidelines for number of years a candidate has been a judge or lawyer, and the administrative process and timeframes for filling vacancies.

Rule 3 gets down to business. It deals with competency. The four main criteria are:

• Education:  Scholastic record, bar exam score, civil service record, awards, and membership in professional societies, etc.

• Experience: Laundry lists of the types of government service and private service experiences to consider.

• Performance: The applicant needs to submit his performance ratings and verified statement for the last three years. Established judges need to submit information on landmark decisions penned, caseload, number of cases submitted, number appealed and number of appeals confirmed.

• Other Accomplishments: Authorship of legal texts, articles, professional organizations and the like.

I was impressed with the "Performance" data requirements and wonder if there are benchmarks anywhere against which to compare. The idea is correct, to get performance down to measurable standards. But what is considered "good performance" versus  "bad performance"? I know workload in the courts is heavy (300,000 backlogged cases), there are many judicial vacancies, but also that processes are burdensome and inefficient (a personal experience of it taking four laborious hearings to get a ruling on one annulment request).  The time in court for some cases is not measured in weeks or months, but years.

Rule 4 deals with integrity and instructs the JBC to "take every possible step" to confirm "irreproachable" conduct. NBI and other government agencies are checked. Background checks may be ordered, testimonies received and complaints considered. There is a list of "disqualifications" including

"pending criminal or regular administrative cases". Note that the applicant does not have to be found guilty; if he has a case pending he is disqualified.

Rule 5 deals with testimony and evidence to confirm probity. Rule 6 requires that the candidate be in good physical and emotional condition. The JBC can order that psychiatric tests be conducted. Rule 7 allows JBC members to interview prospective candidates and submit written reports. Rule 8 requires that candidates for the Supreme Court be given in-depth review, and eliminates from consideration candidates who are really old. Rule 9 cites requirements for applicants to the Appeals Court and Sandiganbayan.

Rule 10 states that a majority of all members shall make the determination as to acceptability of a nominee.

JoeAm's EVALUATION

The words are good, the requirements rigorous. The JBC members are diversified and esteemed. One failing, I suppose, in a society that goes by favors, is the tendency to permit outside pressures to have bearing, such as that exerted by Ms. Arroyo to get the candidate she wanted. Furthermore, the simple majority vote decision allows a politically unbalanced panel to approve candidates of a consistent view, conservative or liberal, or in one oligarch's camp or another. This can dramatically affect the tenor of rulings if the court gets pushed toward a clear bias.

I was impressed at the rigor of the statistical requirement for consideration of established judges: caseload, cases submitted, appeals, and appeals confirmed. I wonder, without prejudice, as to the discipline and comprehensiveness of the use of such statistics in daily operation of the courts. Are standards published anywhere? And performance against the standards? Are they actually APPLIED? More research is needed in this area to determine if the statistics are dependable and used rigorously.

Finally, I note that EVEN THE IMPRESSION of possible guilt is enough to remove a candidate from consideration. If a case is pending against him, he is disqualified. The concept of "innocent until found guilty" does not apply to judicial appointments. And for a reason. Probity.

If the standard as to APPEARANCE of propriety is given weight, just as ACTUAL propriety is given weight, then the bar to find an impeached judge "guilty" would be set very low.

It is rather like the advice I give my wife. If the fish smells funny, throw it out.

The JBC rules are very clear. Judges are to be honorable BEYOND QUESTION. The Judiciary remains independent, respected and above reproach only if its judges are of the highest character.