By Jess Diaz
MANILA, Philippines - The Senate and the House of Representatives decided to withdraw yesterday from the Judicial and Bar Council (JBC) process of selecting nominees for the position of chief justice.
The move could raise questions about the validity of the proceedings for the selection of the next chief justice, and could force President Aquino to simply make his choice without relying on the JBC.
There will be no congressional representation in the JBC until the Supreme Court (SC) rules with finality on how many lawmakers should sit in the council.
This developed as the JBC concluded yesterday its interview of the 20 candidates for chief justice and decided to set the final voting for the shortlist on Aug. 2, with or without the representative of Congress, according to SC spokesperson Ma. Victoria Gleoresty Guerra.
Iloilo Rep. Niel Tupas Jr., who chairs the House justice committee, said the withdrawal was a collective decision of the leadership of the two chambers – Senate President Juan Ponce Enrile and Speaker Feliciano Belmonte Jr.
“We were instructed by the leadership to stop participating in the JBC process starting on Monday until the issue is finally resolved,” Tupas said.
The Supreme Court (SC) has ruled that Congress is entitled to only one representative in the JBC. It has been common practice in the past that both chambers send one representative each – bringing the number of JBC ex-officio members to four along with the chief justice and the Justice secretary.
They were allowed to vote separately in 2001 until the High Court ruled recently that Congress should only have one representative.
Tupas, who has been participating and representing the House in the selection process for the next justice, said the SC ruling was absurd “because a House member cannot represent the Senate and a senator cannot represent the House.”
His counterpart, Sen. Francis Escudero, has stayed away from the JBC proceedings. Tupas had been arriving late to the hearings until yesterday when he didn’t show up at all.
The Senate and the House have appealed the SC decision.
They argued that since Congress is composed of two houses, each chamber should be entitled to one representative in the JBC.
They said the framers of the present Constitution wrote the provisions on the JBC based on their expectation that they would provide for a unicameral parliament, instead of a two-chamber Congress.
When the framers finally voted for a bicameral Congress, they failed to reconcile such decision with the other provisions that had already been written, they said.
“We were instructed not to send a representative to the JBC meeting on Monday or until after our petition has been decided on. This is to emphasize the position of both the Senate and the House as bicameral bodies,” Escudero said.
Tupas attended the first three days of the public interviews as agreed upon by him and Escudero in response to the ruling of the Supreme Court on the petition filed by former solicitor general Frank Chavez.
Defining the Constitution
The Supreme Court’s ruling that Congress should be represented by only one individual in the JBC is now the subject of a motion for reconsideration by the Office of the Solicitor General on behalf of Congress, which argued that the bicameral setup in the country necessitates a two-person membership in the JBC.
“While the Supreme Court allowed one representative from either body, the Senate cannot represent the House and vice versa. Each body has a separate constituency and institution. One cannot bind or represent the other,” Escudero said.
Belmonte said he will hold consultations with members of the House of Representatives to help strengthen the chamber’s position in appealing the decision of the Supreme Court.
Belmonte, Enrile, House Majority Leader Neptali Gonzales II, Escudero and Tupas met at the EDSA Shangri-La yesterday and agreed that they would not be participating in the deliberations.
He maintained the SC ruling could have adverse implications on transparency in the selection process for judicial posts.
Enrile, on the other hand, said that “the composition of the JBC is flawed because it cannot function unless an SC justice presides over it.”
“The Constitution is very clear that the chief justice of the SC – not any justice of the SC (and) not even an acting chief justice – can act as chairman,” he said.
Enrile said the situation is already muddled and Congress cannot allow further violation of the Constitution.
He also pointed out that the Palace’s decision to appoint a substitute for Justice Secretary Leila de Lima in the JBC is another violation of the provision of the composition of the council.
“They appointed a substitute, that’s not authorized in the Constitution. Then the CJ of the SC is not present as the presiding officer. The Constitution, in my opinion, does not contemplate somebody else to take over from him, otherwise that (would) have said so,” said the veteran constitutionalist.
Enrile said the leaders of Congress believe their representatives should not participate until the issue has been “clearly and correctly decided.”
He said that President Aquino will have the sole power to appoint the next chief justice “as a matter of necessity.”
“We are not bereft of any remedy. The President is the appointing power,” Enrile said, adding that the duties of the acting chief justice cannot be the same as the permanent chief justice.
Sen. Francis Pangilinan, on the other hand, said the JBC should postpone its voting until the issue regarding the representation of Congress is resolved.
Insiders vs outsiders
Meanwhile, the JBC said they would continue with their voting for the chief justice shortlist with or without the representative of Congress.
“Not a big loss, if you will look at the number, even if we lose one member, we still have a quorum,” lawyer Jose Mejia, JBC member from academe, said.
Despite the absence of Tupas who represented Congress in the first three days of interviews, the JBC proceeded and interviewed the last four aspirants in what again appeared to be a battle between insiders and outsiders in the judiciary.
Securities and Exchange Commission chair Teresita Herbosa and former executive secretary and San Juan Rep. Ronaldo Zamora were first to face the council.
Both said they could be an effective chief justice even absent any experience as jurist.
“These are unusual times and these would probably call for unusual solutions,” Herbosa told the panel in justifying why an outsider would qualify for the top judicial post.
“Yes, I’m an outsider; I’ve never been in the judiciary. But I can enter it with certain useful skills from the other two branches of government,” Zamora, for his part, argued.
When asked for their platforms, the SEC chair said there is a need to expand access of the public to the courts and for speedy resolution of cases based on merits. She also proposed the creation of more special courts to handle special cases and computer education of judges.
She said she believes the answer to corruption could be transparency by uploading in the SC website memoranda filed by parties in cases so they could be compared vis-à-vis decisions of the high court.
Zamora agreed with this stand of Herbosa on the essence of justice, but for him, the poor should be the priority.
Zamora, who had been in the executive and legislative branches, believes the budget of the judiciary should be doubled in the next two to three years to have necessary improvements in the dispensation of justice in the country.
He said he would push for speedy resolution of cases in the high court – especially the 30-year-old cases involving the late strongman Ferdinand Marcos.
If Herbosa and Zamora both said they have the edge being outsiders, two members of SC who took the last turns in the interviews – Associate Justices Ma. Lourdes Sereno and Presbitero Velasco Jr. – believed otherwise.
“The insiders really have the advantage because you’re talking of a unique institution. Our deliberations are shocking. Appointing an outsider is like appointing a civilian to head a war,” Sereno told the panel, citing the need to have “reforms from within.”
Sereno, President Aquino’s first appointee to the high court in 2010, said she regards the Constitution as the “North Star.”
Sereno, who was called to testify in Corona’s impeachment trial, was asked by the panel about her ascendancy over other members of the court – considering she is 12th in terms of seniority and had often been of dissenting opinion in big cases.
She defended herself by citing the former chief justice Claudio Teehankee as example of a justice who earned the respect of his fellow magistrates in the high court despite consistent dissent against cases favoring Marcos who had appointed most of them.
She said she has already proven her capability of leading a body with more senior members during her term in the steering committee of the consultative council on constitutional amendments.
Velasco, who became second most senior justice of the high court following Corona’s ouster, admitted he initially thought of declining his automatic nomination because he believes in the tradition of appointing the most senior justice, but later on realized he has “a wealth of experience.”
He said he is aware of the intricacies of problems in the court, having been the only aspirant who had served as court administrator. – Marvin Sy, Paolo Romero, Edu Punay, Christina Mendez
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