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.