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Philippine Judicial Appointments & Constitutionality

JURIST Columnist Edsel Tupaz of Tupaz & Associates and JURIST Guest Columnist Ira Paulo Pozon of the Office of the Vice President of the Philippines examine the constitutionality of the current composition of the Judicial and Bar Council...

In the aftermath of the impeachment and subsequent conviction of Philippine Chief Justice Renato Corona, the Judicial and Bar Council (JBC) has begun the nomination process that will eventually select the next chief justice of the Supreme Court of the Republic of the Philippines.

In our previous article, Corona Impeachment Creates Constitutional Vacuum, we discussed the "chicken and egg" conundrum currently haunting the JBC — specifically, the lack of JBC leadership in the absence of a chief justice. We also emphasized the role the chief justice typically plays in the JBC, sitting as ex-officio chair of the Council, and, as such, essentially acting as the presiding officer and implementer of the decisions of the JBC. The current situation, where there is no sitting chief justice and the JBC is in the process of filling that vacancy, is a set of circumstances not envisioned by the framers of the Philippine Constitution.

The JBC is again facing increased constitutional scrutiny. We have previously discussed the legality of the most senior associate justice of the Supreme Court, Justice Antonio Carpio, assuming the role of acting chief justice and, consequently, the role of acting ex-officio chair of the JBC. However, today the issues appear to focus solely on the legality and constitutionality of the current membership of the JBC — particularly the two members of the Congress of the Philippines who now "sit" on the JBC.

Sections 8 and 9 of Article VIII of the Philippine Constitution provide:

  • (1) 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.
The issue lies in the membership of Senator Francis Escudero and House Representative Niel Tupas, Jr., who are the respective chairpersons for the Committee on Justice in the Senate and House of Representatives. This most recent question of constitutionality was raised by Francisco Chavez — the former solicitor general who is also a nominee for the position of chief justice. He filed a petition before the Supreme Court, claiming that the crux of the issue is in constitutional language which states that the membership of the JBC shall include "[a] representative of Congress," which logically seems to refer to a single representative, while the current congressional representation boasts two members and, consequently, twice as many votes.

In response to Chavez's petition, Escudero has stated that the JBC began including a member of both the Senate and the House of Representatives since early 2001. The Supreme Court has already ordered the JBC to file its response to Chavez, who has called for a resolution of the issues on constitutionality of membership before the JBC continues its nomination and selection process.

There is a possibility that an incumbent associate justice of the Supreme Court may be the nominee eventually selected by the president as the next chief justice. Out of 75 original applicants, the JBC has whittled down the nominees to 22. As a matter of tradition, the five most senior associate justices of the Supreme Court are automatically included among the nominees for chief justice. Currently, however, there are six incumbent associate justices being considered: Justices Antonio Carpio, Presbitero Velasco, Jr., Teresita Leonardo-De Castro, Arturo Brion, Roberto Abad, and Maria Lourdes Sereno.

An additional legal wrinkle pertains to the question of whether a successor to any vacancy in the Philippine Supreme Court may be selected from those who are not incumbents of the judiciary. Section 9, Article VIII of the constitution states: "The Members of the Supreme Court and judges of the lower courts 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."

The Supreme Court had one occasion to examine and rule on the issue in the case of De Castro vs. Judicial and Bar Council. In that instance, the Supreme Court affirmed the interpretation that Section 9 of Article VIII refers to external candidates as nominees to vacancies in the judiciary. It is unfortunate, however, that the Supreme Court did not make a specific ruling as to whether the president may appoint an incumbent associate justice to the position of chief justice:

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC. Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice? The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. (emphasis added)
However, the Supreme Court has provided some guidance regarding the issues we have raised. In the en banc decision in Dulay vs. Judicial and Bar Council and Executive Secretary Paquito Ochoa, the Supreme Court made two significant rulings. First, the court ruled that the most senior justice who is not an applicant for the position of chief justice shall "preside over the proceedings in the absence of the said constitutionally named Ex-Officio Chairman." Second, the proposition that the JBC may only be chaired by the incumbent chief justice is without merit.

That ruling would place Associate Justice Diosdado Peralta, the fifth most senior incumbent justice, as presiding officer and ex-officio chair of the JBC. In its holding, the Court defined the phrase "Member of the Supreme Court" as referring to the associate justices of the Supreme Court and the chief justice:

Thus, in Section 9 of the same Article VIII on the appointment of Justices and Judges, the phrase 'Members of the Supreme Court' clearly refers to the fifteen justices of the Court -- one Chief Justice and fourteen Associate Justices -- who are within the appointing power of the President.

We likewise do not agree with petitioner that the JBC can only be headed by the incumbent chief justice and no other. The petitioner, in effect, argues that the JBC cannot perform its task without an incumbent chief justice. To follow this logic would lead to an eventuality where a vacancy in the Judiciary will not be filled if a vacancy occurs in the JBC. We can likewise infer from this argument that if the Office of the Chief Justice is vacated, the same will not be filled because there will be no incumbent Chief Justice to act as Chairman of the JBC.

Although it would be preferable if the membership of the JBC is complete, the JBC can still operate to perform its mandated task of submitting the list of nominees to the President even if the constitutionally named ex-officio Chairman does not sit in the JBC. This intention is evident from the exchanges among the Commissioners during the deliberations of the Constitutional Commission of 1986.

Considering, however, that complete membership in the JBC is preferable and pursuant to its supervisory power over the JBC, this court should not be deprived of representation. The most senior justice of this Court who is not an applicant for the position of chief justice should participate in the deliberations for the selection of nominees for the said vacant post and preside over the proceedings in the absence of the said constitutionally named Ex-Officio Chairman.
That decision has already come under scrutiny by Representative Tupas — he is of the opinion that the role of the chief justice in the JBC operates in an ex-officio capacity, which is one that is attached by the virtue of the office. He further argues: "If the Chief Justice inhibits, the Supreme Court would have no representation in the Council. The Constitution never stated that an Associate Justice can sit there." This argument was directly ruled upon in Dulay, wherein the Supreme Court held that it must always have representation in the JBC.

We opine that the rulings of the Supreme Court are timely and of great necessity. The issues raised in the various constitutional questions plaguing the JBC have created doubt as to the legality and integrity of its mandate in creating the shortlist of nominees from which the president is to appoint the successor to the office once occupied by Chief Justice Renato Corona. The clarifications in Dulay were essential in restoring and maintaining public trust in the process of filling up the vacancy in the High Court.

The eyes of the country, and potentially the world, are cast upon this historic process. The stakes are high not only for domestic jurists but for foreign and international audiences as well. The transparency measures undertaken by the JBC, such as Rule No. JBC-10 and the decision to open interviews to the public are significant steps in opening up the selection process to the public at large and of enhancing public awareness of anything which could occur within its hallowed halls.

While a ruling by the Supreme Court over the constitutionality of the current JBC membership may be forthcoming, it would be well for the congressional representatives to the JBC to reconsider their respective positions, given the rules set forth in constitutional text, tradition and prior case law.

Edsel Tupaz was a private prosecutor of the House prosecution panel in the recently concluded impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.

Ira Paulo Pozon is Head of the Vice Presidential Special Concerns Unit of the Vice President of the Philippines. He also serves as Legal Counsel and International Relations Officer to the Vice President. He acquired his MBA from the De La Salle University and his Juris Doctor from the Far Eastern University. His interests lie in corporate law, banking, trade and investment law, and international relations. He currently teaches at the College of Law of the University of the City of Manila.

Suggested citation: Edsel Tupaz & Ira Paulo Pozon, Philippine Judicial Appointments & Constitutionality, JURIST - Sidebar, July 13, 2012, http://jurist.org/sidebar/2012/07/tupaz-pozon-judicial-appointments.php.

This article was prepared for publication by the staff of JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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