Friday, March 30, 2012

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 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

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


  • 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.


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.


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 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.


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.


  1. "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."

    Considering your disdain for facts, and since this your own blog, I guess you are allowed to create realities that don't exist on Planet Earth, eh? But I'll ask anyway.....

    What pressure did GMA exert on which JBC members? How exactly did she pressure anyone? With what? In exchange for what?

    1. Well, I'd prefer that you make a statement rather than grill me with questions. It is a form of argument you use that has no ending because you can ask more questions than I could ever hope to answer. I take it you are stating that Ms. Arroyo exercised no influence whatsoever to get Mr. Corona or any of the other supreme court justices on the bench. That is your, um . . . non-fiction?

  2. She had little sway over the decision-makers of the JBC. The typical choice is the eldest of the Associates becomes the CJ.

    A prez may have some sway over those Associates that are appointed at the begining of the Prez' own term.

    The one complaint I'm aware of (about the JBC system) is that it may give undue favor to those from inside the judicial branch/space.

    I think you threw in the comment about GMA because you think Corona was a midnight appointee and this is why he is tainted.

    There. No questions (you often don't answer them, anyway!).

    1. First let me at least thank you for visiting my blog and taking up a dialogue. Not enough people object, I think, so I actually appreciate that you did.

      Sometimes I think your questions are simply designed to drive me deeper and deeper into a hole from which I cannot possibly have the information to extract myself. Sometimes I answer them to the best of my ability, but you don't accept the answer.

      In this case, I would have to have a bug in Ms. Arroyo's phone to give you the precise information you want. I do know that in 2009 she sent the short list of Supreme Court nominees back to the JBC and threatened a constitutional crisis. The JBC refused.

      I find picking the Chief Justice because of seniority a rather flippant reason. We are talking about the most important judiciary job in the land and we are going by seniority?

      And yes, accepting the midnight appointment to me automatically imposes a measure of mistrust on Mr. Corona, which has been amplified by acts that followed (see my prior blog "A Twofer . . . "). I'd note that two CJ nominees withdrew their names because they did not want to be "midnight appointees".

    2. "The typical choice is the eldest of the Associates becomes the CJ. "

      corona isnt the eldest (most senior). hence he is not a typical choice.

  3. For Real,

    Let me add this morning's reflection.

    There is a point at which you are correct. JoeAm is stretching the limits of his imagination, projecting from a few known news reports (we never know the whole truth of news reports, do we?) to a harsh conclusion. I frankly don't know if there were better candidates than Mr. Corona for the position of Chief Justice, and if he were to be removed from office, I have no idea as to the character or capability of his replacement. If he stays in office, I am skeptical that the court system will be anything but what it is today: a mess.

    I don't know why they worry so much about independence when the courts are so inaccessible and inefficient and basically worthless to the common Filipino.

    I also don't see Mr. Aquino proceeding any differently than Ms. Arroyo. Picking loyalists, sending back lists (he has already done this or threatened it), and otherwise working within the culture of favor to gain advantage. It is the way things work here. I've been disappointed that he can't seem to keep quiet about the impeachment and let the Senate work without his "undue influence".

    But I do believe that the top judicial official in the Philippines ought to be one impeccable person, and not the former chief of staff of the President who picked him, and not a guy whose family has close ties to the president. That does not promote the ideal of independence for the court.

    1. *WIts

      Now we will see how For Real? will argue now without the typical GRP gangstas ganging up on Joe.

      Do not worry though, For Real?, posters here are civilized.

      Keep going then.

  4. *Wits

    I am quite confident that those gangstas are making asses of themselves in the eyes of well-balanced, intelligent, decent-thinking folks.

  5. The choice of Senior Associate to replace the outgoing CJ is a tradition that hasn't been followed perfectly. Plus it's not so clear if most senior means eldest, longest time as an AJ...

    But that's the usual choice. And it's almost always been an SC AJ, not an outsider (Miriam came close, some say). Anyway, GMA picked Corona who was very close in seniority with Carpio.

    That's not shocking. Other Presidents have done it.

    But those who want to label his appointment as a dastardly act make an issue of it. But they also lean much more on the idea that GMA broke the law against "midnight" appointments. There was a legitimate legal argument either way, but the eventual ruling was reasonable.

    In the Constitution, there is one set of rules, processes and procedures for the Legislative (Article VI), Executive (VII) and Judicial (VIII) branches. The Executive rules outlawed presidential appointments during the end of the term, around and after elections. The Judicial rules require that the Prez "immediately" replace the CJ. The seeming contradiction was settled by the SC when it said that Article VII is about appointments for the Executive branch only. And Article VIII is about the required duty of a Prez to pick a CJ only. They do not contradict each other; they are mutually compatible.

    Lastly, appointing a CJ isn't really as important as appointing an Associate -- when "undue influence" could possibly be applied if the AJ is appointed early in the Prez' term. But a CJ does little more than an AJ and his vote is still 1.

    Many SC judges in the Phils -- and in the USA! -- were "close" to the Presidents who appointed them. It's not a sin. And what is Corona's 1 vote going to do for GMA, anyway?

    The whole "midnight" thing has been blown way out of proportion. And you've seemingly latched on to it.

    As a side bar: The one question I kept asking you was "what did Corona do that deserves impeachment and a guilty verdict?" The closest you got was that his SALN was "messy"...which led to "his errors and omissions". But you still haven't said WHAT "errors and omissions"? That's when you cut the dialogue off.

    Now, at your site, there's a shift to the issue of being appointed as CJ by GMA. But at least you are coming around to the idea that Corona or no Corona isn't a big difference.....

    1. For Real,

      "Other presidents have done it."

      So you agree that seniority is an appropriate standard by which to select the highest judicial official in the land. Astounding.

      "And what is Corona's 1 vote going to do for GMA, anyway?"

      So go ahead and select an unqualified, untrustworthy guy, because his one vote can't do much. I suppose the same logic applies to the 13 of 15 Supreme Court justices picked by Ms. Arroyo. Individually, their vote means nothing, so IT DOESN'T REALLY MATTER what their loyalties are. Amazing.

      "The whole "midnight" thing has been blown way out of proportion."

      That and a whole chain of injudicious connections and activities. "Just trust him." Incredible.

      "That's when you cut the dialogue off."

      No, I cut the dialogue off when I couldn't find the "Reply" button a mile up the blog thread, as I told you. I suggested you start further commentary at the bottom of the page, which you did not. And to be frank, I don't like the way you twist words to mean something different, as if there were a Humpty Dumpty New World University and you graduated magna cum laude.

      "The closest you got was that his SALN was "messy.""

      Your request for "evidence" is an argumentative technique used to defeat an opponent who cannot possibly come up with the demanded evidence; hell, it would take phone taps and a visit to Manila to satisfy you. Even authorized law enforcement officials can't get to the guy's dollar accounts. Besides my main argument is that Mr. Corona fails the smell test on probity due to a conglomeration of acts and events, of which a shoddy SALN is one.

      "But at least you are coming around to the idea that Corona or no Corona isn't a big difference....."

      This is my point, you twist my words to mean something new. (1) I am not "coming around" as if your arguments caused me to change my thinking; I've always believed what I stated, but just stated the Aquino perspective now. (2) If President Aquino picks a friend, a dud, an untrustworthy guy who is "in his camp" politically, I'd argue impeach that guy, too. You may lower your standards to find Corona acceptable, but I do not. My point is that the Philippines is the Philippines; a land of allegiances and favors.

      I would add that the Philippine judiciary will become honorable and professional, and truly independent, WHEN IT IS FORCED TO CHANGE by people who do not have the lowball standards you argue for here.

      "Just accept the guy. He's properly old and it really doesn't matter that much anyhow."


    2. "And what is Corona's 1 vote going to do for GMA, anyway?"

      when this first began i too asked this question... but corona HIMSELF is on the record in saying that he has the unilateral power to affect decisions.

      i was amazed at his refutation of his own defense. but its on record.

      " Plus it's not so clear if most senior means eldest, longest time as an AJ..."

      actually, that is the DEFINITION of the word senior.

      "Just accept the guy. He's properly old and it really doesn't matter that much anyhow."

      i join joeam in saying -- this CANNOT BE an actual argument. we can't allow it to be, no matter how tempting.

      in this i am in agreement w B0 -- letting sh_t pass coz of a respect for the "old" isnt good.

    3. Now hold your horses there Cowboys.

      I certainly do not advocate the idea to "Just accept the guy. He's properly old and it really doesn't matter that much anyhow." That's inane. And it's not what I was saying. I do not promote "low-ball standards".

      I stated the fact: The JBC and Presidents have mostly stayed close to the tradition of "seniority"...but have also strayed somewhat. In application, "seniority" has had a few interpretations. There IS a difference between eldest (according to date of birth) and "longest-running AJ" (based on years on the SC itself)

      I didn't approve nor rejest the practice; I noted that "those who want to label his appointment as a dastardly act make an issue of it." The reality, I am saying, is that the choice of Corona was the same basic choice that has historically been made. It was routine, standard, the norm. To suddenly say Corona should not have been nominated and selected ignores reality...regardless of whether or not one agrees with the tradition, it was ordinary.

      I'm not sure who is twisting what here, JoeAm, but I also wasn't saying that 1 vote is meaningless or whatever. I'll try to explain my point better:

      A) The selection of an AJ is more impactful than the selection of a CJ. Why? The CJ's 1 vote is/was already there. But the NEW AJ is a NEW vote; a new dynamic, a new balance of voting distribution.

      B) The selection of an AJ -- at the begining of a Presidential term -- is theoretically much more "influential" than a selection of a CJ at the end of a term.

      So far, I don't see how I'm writing anything earth-shatering. And that's my point -- there's nothing much to debate. So far.

      But then we enter into the "midnight appointment" issue.

      Well, I maintain that there was no MIDNIGHT appointment. The SC's interpretation and explanation of the law was very commonsensical...despite the fact that a valid counter-argument exists (that happens in law, right?). Rules for the executive and rules for the judiciary are very clear and not mutually incompatible. It's a very fair point of view.

      Joe, the following is where I think you run into trouble:

      "So go ahead and select an unqualified, untrustworthy guy, because his one vote can't do much." You keep calling him unqualified and untrustworthy and you list his SALN and his midnight appointments as reasons not to trust him. But you can't explain HOW your SALN and "midnight" accusations are real, true, accurate.

      It's kinda like saying "he's untrustworhty because he lies. And I know he lies because he is untrustworthy." But you can't come up with any examples of the lying.....

      Joe, look at his SALN. Just google corona saln and search in images. It's easy. Now pls explain your problem with it.

      Google the SC's decision on the appointment and then pls explain your problem.

      And by the way, the first time you didn't answer about the SALN is what you cited above, but the second time you couldn't state what was wrong with the SALN was when you said you would be too busy writing this very blog entry.

      So I'm here. Waiting. Let me know when you are ready. Or just say a) what is wrong with the SALN and b) why the CJ's appointment was a big evil act. Thanks...

    4. apparently the CJ is very powerful. he himself said that he (alone) stood in the way of the cojuanco interests in the HL case.

  6. "I don't know why they worry so much about independence when the courts are so inaccessible and inefficient and basically worthless to the common Filipino."

    Tell that to the Hacienda Luisita farmers.....

    1. So you think common Filipinos have ready court access? Are efficient?

    2. 2 decades bro, 2 decades

    3. AJ, I confess to being thin of knowledge about Hacienda Luisita. I have an opinion that giving land to people who can't convert it to cash is not the best way to generate wealth.

    4. The farmers had to wait at least 2 decades for a court ruling that is still not in effect. Embarrassingly pathetic performance for the judiciary in my opinion.

      However, I don have reservations in simply distributing the lands to these farmers.

      I think the gov't has to work out some things before full distribution:
      Guaranteed support for loans in developing these lands
      Easy access to buyers, markets, etc.
      A plan for other crops to plant (I don't think sugar is profitable nowadays)
      A way to discourage farmers from eventually selling these lands.

  7. "My main argument is that 'MR./MRS X' fails the smell test on probity due to a conglomeration of acts and events, of which "ACCUSATION A' is one."

    If "the conglomeration of acts and events" is composed of Accusations A, B, C, D...then these Accusations = the failure of the probity smell test.

    Therefore, if there are many accusations then the subject fails the smell test.

    Resulting strategy ==> keep making accusations until somebody smells bad enough...then push them aside.

    1. For Real,

      Well, again, you repeat this demand that I provide information that even the Senate judges can't figure out, as if I were on the stand and you were the prosecuting attorney grilling me from the position of inherent righteousness. Poor JoeAm is supposed to go look at fuzzy Google images and discern the error of his ways. The truth is clear, there is missing and confusing information on the SALN and the Senate judges can't get to the "why" of it without Mr. Corona's testimony.

      Bonaficio Ridge and Bellagio properties. P18 million in the acquisition cost column. Defense counsel Cuevas: that seems to be the fair market value, but it was recorded in the wrong column. Maybe the secretary entered it wrong. Inadvertence is not impeachable.

      Prosecution: Mr. Corona should come and tell us why.

      Senate President Enrile: Chief Justice Corona would be in the best position to explain why he did not declare his banks accounts and certain properties in his SALN.

      But the confusion aside, which may be determined as inadvertent or intentional, you and I are arguing because we hold Mr. Corona to different standards. You say he is a good judge and has done nothing wrong. I say he may be a good judge in the courtroom but his acts since his appointment as Chief Justice do not reach the "beyond reproach" standard appropriate for high court judges.

      You say the faux-midnight appointment was legal and therefore nothing was wrong with it. I say two other judges withdrew their nominations because they did not want to be tainted by the political bias a late-term appointment suggests.

      Just as those two judges have different standards than Mr. Corona, you and I have different standards.

      You say that his SALN is straightforward and I say it is a confusing mess and we don't know his dollar assets. Why not? It is numbers on bank statements. He has them. Why won't he reveal them? Is this "beyond reproach?" I think not. You say he is within his legal rights. I say a judge should not hide things that are confusing people.

      We have different standards.

      Mr. Corona issued a blistering political letter accusing the President of a witch hunt. I would guess that is fine with you because Mr. Aquino has taken public shots at Mr. Corona. I say if ever there were a person to turn the political cheek, it should be a mature, dispassionate, apolitical judge.

      We have different standards. All the information in the world I might provide would resolve that difference.

      So you hold to your standards. No problem. They are common standards in the Philippines. I'll hold to mine, and to my belief that the Philippines will take an important step to improving its weak judiciary when its Chief Justice is above reproach.

    2. the prosec has made his case. there are inconsistencies in the SALN. the list of inconsistencies will show up somewhere.

      one huge example is the money in his bank account which he claims he is keeping in trust. (yet is in his bank account).

    3. erratum: All the information in the world I might provide would NOT resolve that difference.


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