Opinions from the Bar: Should the SC Nominees Have Been Interviewed by the JBC?

Opinions from the Bar:

Should the Three SC Nominees
for Chief Justice Have Been Interviewed by the JBC?

By Leon L. Asa

It is consoling that the Judicial and Bar Council had narrowed down its choices for the position of Chief Justice to the three most Senior Justices, namely, Justices Reynato S. Puno, Artemio V. Panganiban, and Leonardo A. Quisumbing.

After having reached the compulsory retirement age of 70, Honorable Hilario G. Davide Jr. retired as Chief Justice of the Supreme Court on 20 December 2005.

The three (3) most Senior Justices – Justices Reynato S. Puno, Artemio V. Panganiban, and Leonardo A. Quisumbing – were automatically nominated for the position of Chief Justice.

The Young Lawyers Asso-ciation of the Philippines recom-mended Sen. Miriam Defensor-Santiago to the same position. Senator Santiago accepted her recommendation but a little too late.

Under Section 8 of the Rules of the Judicial and Bar Council, Rule No. JBC-10 provides
In case of recommen-dations, the acceptance by the recommendee must be made before the deadline. Applications or recom-mendations filed beyond the deadline will not be honored.

Senator Santiago’s acceptance of said recommendation was sub-mitted after the deadline, so it was consequently rejected.

JBC Member Sen. Francis N. Pangilinan moved for the extension of the deadline so that the name of Senator Santiago would be included. The JBC, however, reiterated its previous stand and denied said appeal.

Section 9 of the 1987 Consti-tution provides that members of the Supreme Court shall be appointed by the President from “a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.”

Instead of immediately sub-mitting to Malacanang the names of the three Senior Justices pursuant to Section 9, the JBC, however, planned to interview the three nominees in a public hearing on 01 December 2005.

In a letter dated 28 November 2005 addressed to Chief Justice Hilario G. Davide Jr., the twelve (12) Supreme Court Associate Justices vigorously objected to the public interview seriously contemplated by the JBC, enumerating cogent reasons for their opposition. Said letter is hereunder reproduced in its entirety:

28 November 2005

Chief Justice Hilario G. Davide, Jr.
Supreme Court
Manila

Dear Chief:

We write to express our alarm at the departure from established practice, one that has become part of our judicial tradition, in the selection of nominees for Chief Justice. We refer to the plan of the Judicial and Bar Council to interview, for the first time, sitting Justices of the Supreme Court nominated for Chief Justice

We do not agree with this new procedure for the following reasons:
1. Since the adoption of the 1987 Constitution, the JBC never interviewed nominees who were already incumbent Jus-tices of the Supreme Court.

Thus, the JBC did not interview Chief Justices Fernan, Narvasa and you. There is no sound reason to depart from this established practice.

2. The ostensible reason for interviewing the nominees is to find out how they intend to manage or administer the Judiciary, the assumption being the Chief Justice is the Chief Executive of the Judiciary. This assumption is a gross misconception. The Chief Justice is not the Chief Executive of the Judiciary or even of the Supreme Court.

Section 6, Article VIII of the 1987 Constitution is clear: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” Section 6 of the same Article states: “The Supreme Court shall have the following powers: x x x (6) Appoint all officials and employees of the Judiciary in accordance with Civil Service Law.”

Section 11 of the same Article further provides: “x x x The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.”

Thus, the Supreme Court en banc, not the Chief Justice, manages and administers the Judiciary. The Supreme Court en banc, not the Chief Justice, appoints and disciplines all personnel, other than judges and justices, of the Judiciary.

If the JBC intends to interview the nominees to find out how they intend to manage or administer the Judiciary, then such interview is pointless. Besides, there are only three nominees. The JBC will have to recommend all of them in any event since the President must choose from at least three nominees.

3. The JBC should instead exa-mine the judicial philosophy of the nominees. Sitting Justices of the Court express their judicial philosophy in their written decisions, including dis-sents. The JBC should find out whether the nominee’s judicial philosophy is what is best for the nation. The Chief Justice “leads” the Court and the Judiciary not as an executive manager for he is not one, but as an intellectual leader as expressed in his judicial philosophy.

Sitting Justices nominated for Chief Justice are unlike appellate court justices nominated for the Supreme Court. A sitting Justice of the Supreme Court expresses his judicial philosophy in his written decisions.

The JBC does not need to interview a sitting Justice of the Supreme Court to find out his judicial philo-sophy. All that the JBC needs to do is to scrutinize the decisions of the nominees. The JBC either agrees with the nominee’s judicial philosophy or not. A one-hour interview with the nominee will not change the nominees judicial philosophy.

In contrast, an appellate court justice does not necessarily express his own judicial philo-sophy in writing his decisions because whether he likes it or not he is bound, under stare decisis, to follow decisions of the Supreme Court.

Thus, the JBC needs to interview appel-late court justices to find out their own judicial philosophy, and whether such judicial philo-sophy is for the best interest of the nation.

4. Lastly, the JBC is under the supervision of the Supreme Court. Section 8(1), Article VIII of the 1987 Constitution states: “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex-officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.”

There is something inherently wrong when members of a subordinate body can accept or reject nominees of a superior body supervising such a subordinate body, on a matter involving the choice of presiding officer of the superior body, when the nominees all come from the superior body.

Such a situation is inconsistent with the order of hierarchy found in the 1987 Constitution. Such a situation could not have been the intent of the framers of the 1987 Constitution when they placed the JBC under the supervision of the Supreme Court. The established practice of automatically nominating the three most senior members of the Court for Chief Justice is more in accord with the consti-tutional provision placing the JBC under the supervision of the Supreme Court.

Consequently, we respectfully request the Chief Justice to convey to the Judicial and Bar Council our views on this important matter which we believe will have a lasting impact on the indepen-dence of the Supreme Court, a principle the 1987 Constitution zealously protects.

Thank you.

Very truly yours,

(Sgd.) Leonardo A. Quisumbing
(Sgd.) Consuelo Ynares-Santiago
(Sgd.) Angelina Sandoval Gutierrez
(Sgd.) Ma. Alicia Austria-Martinez
(Sgd.) Antonio T. Carpio
(Sgd.) Renato C. Corona
(Sgd.) Conchita Carpio Morales
(Sgd.) Romeo L. Callejo, Jr.
(Sgd.) Adolfo S. Azcuna
(Sgd.) Dante O. Tinga
(Sgd.) Minita V. Chico-Nazario
(Sgd.) Cancio C. Garcia

On 01 December 2005, the date of the scheduled public interview – the JBC decided not to conduct the interview.

Quoted hereunder is the report on the meeting of the JBC on 01 December 2005:
The Council, voting 6 in favor and one against, with the Chief Justice abstaining, granted the request contained in the letter dated 28 November 2005 of the 12 SC Associate Justices NOT TO CONDUCT INTERVIEW but with vigorous and serious objections to the substantive grounds relied upon.

The grant is solely on the ground that only three have been considered for nomination and since the Constitution requires that at least three names should be submitted to Malacanang, it necessarily follows that these three have to be recommended by the JBC. The interview is moot and academic.

One of the letter-writers is the third Member of the Court to be considered for nomination.
This is only pro hac vice, not to be a precedent for future action, where more than three are nominated or where outsiders are nominated, the Council shall proceed with the public interview.

The JBC shall submit to Mala-canang at the earliest opportunity three names to be considered for the position of Chief Justice in alphabetical order.
In the afternoon of 01 December 2005, the JBC forwarded the list of the nominees to Malacanang.

The position of Chief Justice of the Supreme Court is without question of great importance. The Judicial Depart-ment is the third branch of government which is co-equal with the Executive and Legislative Departments.

The Chief Justice is the fifth in line of constitutional succession.
Would it not diminish the dignity of the Office of Chief Justice if the Chief Justice who would be appointed would be subjected to a public hearing by the Judicial and Bar Council primarily to determine his competence or his ability to administer the judiciary? As plainly stated in the said letter of the 12 SC Justices, “it is the Supreme Court en banc, not the Chief Justice that manages and administers the Judiciary.” Perforce, it is not necessary to interview the nominees for Chief Justice to find out how they will manage or administer the Judiciary.

The JBC already interviewed the three Justices when they first applied for the position of Associate Justice. Their experience as Associate Justices for years surely has increased their competence.

Their well-written ponencias, concurring opinions, and sometimes scathing dissenting opinions in celebrated cases are an open book and striking evidence of their competence and qualifications. Their judicial philosophy is clearly expounded in several landmark cases. It is, therefore, superfluous and an exercise in futility if said nominees would be subjected to a public interview by the Judicial and Bar Council.

Congratulations to the outgoing Honorable Chief Justice Hilario G. Davide Jr. for a job well done. Congratulations also to the new Honorable Chief Justice Artemio V. Panganiban.