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A CJ elected by peers DIE HARD III Herman Tiu Laurel 06/15/2012

Friday, June 15, 2012

A CJ elected by peers

Herman Tiu Laurel
Malacaang, the Judicial and Bar Council (JBC), and the media are making a fuss these days over the names shortlisted for possible appointment as the next Supreme Court (SC) Chief Justice. Seemingly everyone, laymen and lawyers alike, are agreed that the JBC recommends and the Chief Executive appoints. Even SC justices of the past have accepted this.

However, if the question from two brilliant legal minds who have truly proven their worth as constitutionalists and faithful advocates of the Rule of Law were to be heard, maybe some of the SC justices themselves will begin to rethink this accepted practice today that actually compromises, if not totally undermines, and violates the principle of separation of powers of the three branches of government. Such is important because negating the cherished democratic system of checks-and-balances leads to the most feared situation of an absolutely powerful chief executive, where corruption, as the old adage goes, corrupts absolutely.

The two mavericks, at least as far as what the mainstream legal community thinks of their propensity to point out infirmities in established notions of Philippine law is concerned, are Homobono Adaza and Alan Paguia. Their most recent challenge to the SC and the Senate impeachment court, though still not faced squarely by those confronted with their charges of illegalities in the impeachment process, still has not prevented them from thinking of coaxing the high court to respond with an new petition. Thats how tenacious they are.

In contrast, the senator-judges, whose dismal performance as agents of the law has repeatedly been demonstrated, are now evasive and meek in response, such as Sen. Juan Ponce Enrile who could only say that We will face them when the Supreme Court calls for the oral arguments, when he could very well start the debates by publicly responding to Adaza and Paguias specific charges. Lacson and Drilon, in similar fashion, both assume (or pray) that the SC, which has six months to dilly-dally, will eventually declare the issues moot and academic, when the high court, too, may well call for oral arguments immediately if it were really serious with its job.

Legal pundits, no doubt including the Jesuit Bernas, will tell us to look at the Constitution for the basis of this practice of the President appointing the chief magistrate. But a look at the pertinent provisions shows that there is no such specified power, duty or function of the Chief Executive. Article VIII on the Judicial Department, Section 7 (1) provides for qualifications to be appointed Member of the SC; Section 8 (1) and (2) describes the Judicial and Bar Council, its composition and functions and the Presidents appointment of its members.

The critical provision is Section 9 and here we quote fully: 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 JBC for every vacancy. Such appointment needs no confirmation.

Evidently, nowhere can any specific power or duty for the Philippine President to appoint the Chief Justice be found there. In the US, its Constitution clearly states that its president nominates while its Senate confirms the Chief Justices appointment for it to take effect.

The US Constitutions system of appointment of the Chief Justice requires the agreement of two of the three co-equal but separate branches of government the Chief Executive with the Senate (which is part of the Legislature).

The Philippine practice of allowing an undemocratic, i.e. unelected and without accountability to the public, JBC, to nominate and for the President to appoint clearly skirts the checks-and-balance principle and gives the sole power to appoint to the president.

This is the practice which, upon second look thanks to Adaza and Paguia should now be seriously questioned given the repeated crises of democracy this presidential appointment of the Chief Justice has created.

The appointment of Hilario Davide with the alleged sponsorship of Lucio Tan was a big question; then came the alleged midnight appointment of Renato Corona; and today, the Chief Justice-to-be will definitely be suspected as a hatchet man or woman of BS Aquino III and/or his puppet master, the US.

The 1987 Constitution obviously has many flaws. Among its biggest screw-up is the creation of the JBC, which is undemocratic and manipulated by vested interests.

The Vera Files has written one report entitled, JBC partly to blame for problems in Judiciary, and quotes former CJ Reynato Puno: In his centennial lecture at the University of the Philippines College of Law last year, retired Chief Justice Reynato Puno singled out the three ex-officio members as carriers of the virus of partisan politics, who, he said, could turn into the swing votes in determining who makes it to the shortlist to be submitted to Malacanang.

But from outside of the JBC, the influences are being brought to bear as well, such as from the economic oligarchs and giant law firms with notorious records (such as a well-known law firm), whose nominees are said to have invariably found their way to the SC.

The 1987 Constitutional Commissions feigned attempt to insulate (judicial appointments) from politics opened them to even greater intrusion and influence-peddling, with the complicity of the Chief Executive, who has now gained absolute power over the process.

In order to be faithful to the democratic principle and its subsidiary principles of separation of powers and checks-and-balances, Adaza and Paguia contend that the constitutionally correct procedure would be for the Chief Justice to be elected from and by the 15 members of the Supreme Court to rid the CJ of any debt-of-gratitude to any appointing power.

The composition of the SC, invariably drawn from appointments of members by several successive administrations, would ensure diversity, balance, and independence as its members elect a Chief Justice from among themselves.

Such election among peers would ensure the kind of Chief Justice who can guarantee the democratic leadership that a truly democratic government requires.

(Tune in to 1098AM, dwAD, Sulo ng Pilipino/Radyo OpinYon, Monday-Wednesday-Friday, 5 to 6 p.m.; watch Destiny Cable GNNs HTL edition of Talk News TV, Saturdays, 8:15 to 9 p.m., with replay at 11:15 p.m., on A Chief Justice from Among Peers with lawyers Bono Adaza and Alan Paguia; visit http://newkatipunero.blogspot.com for our articles plus TV and radio archives)

(May pahintulot ng pagkopya mula kay Ka Mentong)

SourceThe Daily Tribune

URL: http://www.tribuneonline.org/commentary/20120615com6.html


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