| DIE HARD III |
 |
| Herman Tiu Laurel |
06/15/2012
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)
Source: The Daily Tribune
URL:
http://www.tribuneonline.org/commentary/20120615com6.html
