Chapter 5

Nominating the Best and the Brightest*

 

A year ago, on February 11, 2005, I was summoned by my revered guru, former Senate President Jovito R. Salonga, to come down from the perches of the Olympian gods and address the fifth anniversary celebrations of Bantay Katarungan (Justice Watch) and the monthly forum of Kilosbayan.  Obedient to his call and ever faithful to his teachings, I spoke on the topic “Judging the Judges.”[1]

 

          During that occasion, I recalled that our Constitution requires four attributes from every magistrate; namely, competence, integrity, probity and independence.[2]  On the other hand, the New Code of Judicial Conduct for the Philippine Judiciary, which took effect on June 1, 2004, speaks of independence, integrity, impartiality, propriety, equality, competence and diligence.[3]

 

 

Attributes of a Good Magistrate

 

 

         

For simplicity and ease in remembering these essential attributes, I encapsulated them into four Ins; namely, integrity, independence, industry and intelligence.

 

 

          I shall no longer repeat my discussion of the four Ins. Suffice it to say that I stand by these four attributes as the standards by which to judge the performance of our judiciary and all our judges.  This standard holds true for our incumbent magistrates, as it does for all those aspiring to wear the black robes.  In fact, I believe that these criteria are even more important for the entry of new magistrates.  While it is essential to be ever vigilant in cleansing the judiciary of the errant and the misfit, it is even more necessary to see to it that a new entrant to the bench be possessed of these four Ins.  Otherwise, the water of the judicial reservoir will always be murky, polluted and unclean, if the new water that flows in is muddy and contaminated with the germs of incompetence, indifference, influence and indolence.

 

 

          Now that I have been chosen Chief Justice of the country and ex-officio chairperson of the Judicial and Bar Council (JBC), I have been placed in a leadership position to reform the entry problems bugging our judicial enclave.  This, I realize only too well.  And so, upon my first official days of work in January 2006, I immediately convened the JBC. Together with the members, we reviewed at length its mission, processes, and effectiveness (or lack of it) in achieving its goals; the main problems restricting its work; as well as the criticisms of the public.  Most important, the Council discussed ways of solving the problems and meeting criticisms, as well as elevating the entry standards into the judiciary.

 

 Three General

JBC Functions

 

Broadly speaking, I believe that the task of the Judicial and Bar Council can be divided into three Ss: search for, screen and select the best and the brightest lawyers to join the judiciary.  In the past, the JBC concentrated only on the second and the third Ss; that is, to screen and to select nominees.  However, on my initiative, the JBC agreed to expand its functions by conducting an activist search.  Indeed, how can the judiciary recruit the best and the brightest, if the pool from which the JBC screens and selects is not wide enough and deep enough to attract the excellent and the ethical?

 

Doubtless, the quality of the judiciary hinges on the worth of the members composing it; in turn, their worth depends on the quality of the nomination process. This truism is stated in the United Nations Declaration of Basic Principles on the Independence of the Judiciary.[4]  For the purpose of selecting worthy magistrates, judicial councils have been created to guarantee the selection of the better ones, in order to advance judicial independence and depoliticize appointments.[5] 

 

One such council was brought into existence by the 1987 Constitution, which created a Judicial and Bar Council (JBC).  The Council has been vested with the authority to recommend at least three nominees each for vacant positions in the judiciary,[6] as well as for the ombudsman and the deputy ombudsmen.[7]  To “forestall as much as possible the influence of partisan politics,”[8] the appointments subsequently made from the nominations do not require the confirmation of the Commission on Appointments.[9]

 

Wider Search

 

           As I said earlier, the nomination process should begin with the enlargement of the pool from which the filtering is to take place.  Thus, the JBC agreed to conduct nationwide dialogues with the various sectors interested in improving the quality of our judges.[10]  These sectors are the bar; the government agencies involved in the delivery of quality justice, like the prosecutors, the government corporate counsels, and the public attorney; the academe; the nongovernment organizations like Kilosbayan and Bantay Katarungan; the media; the civic groups; and the general public. [11]

 

To search actively for candidates to vacant courts, the JBC has also agreed to resort to radio and television public service announcements, which are more pervasive in scope. And to make it more accessible, promote transparency in its processes, and provide a feedback mechanism for the public, a JBC website was developed, hyperlinked to and accessible from the main page of the Supreme Court website.[12] The website was launched on April 21, 2006.

 

          However, the present Supreme Court and Court of Appeals vacancies -- important and critical as they are -- have required immediate attention, because the Constitution set deadlines for the selection process. [13]  For the Supreme Court vacancy created by the retirement of Chief Justice Hilario G. Davide Jr. and my ascension to his post, the process must be completed within 90 days from the vacancy, which occurred on December 20, 2005. 

 

To give the President at least three weeks within which to appoint from the list of JBC nominees, the Council had to speed up the process to be able to submit its list by February 27, 2006, at the latest.  Thus, it had time to dialogue with only these groups:  (1) the bar, led by the Integrated Bar of the Philippines (IBP), the Philippine Bar Association (PBA), and the Women Lawyers’ Circle (Wiloci);[14] (2) the Society for Judicial Excellence, the association comprised of all the winners of the annual Search for Judicial Excellence since 1991; and (3) the media.

 

 

          I must add that after the JBC is finished with the nomination process for these SC and CA vacancies that need to be filled immediately, it will resume on a nationwide basis its dialogues with the groups I adverted to earlier.

 

 

          During these dialogues, the JBC intends to be proactive in encouraging the application or nomination of the best and the brightest by pointing out various reform projects the Supreme Court has been able to put in place, including the following:

 

1.  The doubling of the judicial compensation through

the enactment of Republic Act (RA) 9227, which authorized the 100 percent increase of the take-home pay of justices and judges over a four-year period from 2003.  As of November 6, 2005, the monthly pay has been increased by 75 percent; and in November this year, by the full 100 percent.  Thus, towards the end of this year, the full implementation of the law will have meant a doubling of the judicial compensation.

 

 

2.       The heavy workload of the judges will be eased, once we are able to fill the vacancies.  The Office of the Court Administrator reported that in trial courts nationwide, as of June 30, 2006, there was a total of 618 judicial vacancies, which was 28.86 percent of the total 2,152 authorized judicial positions in the trial courts.[15] This figure shows a slight improvement over that at the beginning and the end of last year, during which the vacancy rate was about 32 percent and 29.49 percent, respectively.  This minimal improvement, despite the pay increase, is due to many factors, principally (a) the promotion of lower court judges, which shifted the vacancies to the lower judicial levels; and (b) the slow pace of filling vacancies, a process that takes an average of one year and three months, according to statistics.

 

The bulk of the vacancies are in first-level courts -- especially in rural, far-flung or less urbanized areas, and those with peace and order problems.  For a long time, the practice of the JBC has been to post administrative circulars, announcements, notices of vacancies, lists of applicants,[16] and schedule of interviews in the courts and other public places;[17] publish those issuances and announcements in the print media; and disseminate them to the Integrated Bar of the Philippines (IBP) and other organizations.[18]

 

In spite of these efforts to publicize the search, some vacant courts had only one or two applicants; while others had none at all.  Of course, when the number of nominees is less than the constitutional requirement of three for every vacant post, the vacancy cannot be taken up by the council.

 

In the past, after a vacancy occurred, the JBC used to take about three months to announce the opening, and several months -- sometimes years -- for the Palace to announce the appointment.  To address this problem, the council now announces the vacancies, as well as the acceptance of applications for them, three months before the

compulsory retirements of the incumbents.[19]  The search, screening and selection process can then begin even before the vacancy actually occurs.  The goal is to finish the nomination process on or before the date of the actual vacancies.

 

Thus, from January to July of this year, the JBC has started to announce way ahead of time the following vacancies, among others: 10 in the Court of Appeals, 246 in Regional Trial Courts, 34 in Metropolitan Trial Courts, 47 in Municipal Trial Courts in Cities, 191 in Municipal Trial Courts, and 261 in Municipal Circuit Trial Courts.[20] 

 

Based on a continuing inventory of vacancies, the JBC also determines the necessity of re-opening the acceptance of applications when the number of applicants is less than sufficient.[21]  Forthwith, it also announces vacancies arising from judges’ optional or disability retirement, promotion, resignation, death, or dismissal from the service.

 

Under this plan, the JBC hopes to submit the list of nominees to Malacañang on the very day the vacancy arises.  The council will make representations with the President to release the appointment within 90 days thereafter.  In this manner, after the project is implemented, the time lag will be reduced dramatically, and the vacancy rate will drop by half.

 

 

3.                 The personal security problem of judges is being addressed by the Supreme Court.  The newly created Supreme Court Security Committee, headed by Justice Cancio C. Garcia, is fast at work in tackling this menace.

 

4.                 The improvement of working conditions of judges through the construction of more dignified halls of justice is underway.  Recently, I inaugurated the new Halls of Justice of Guagua, Pampanga, and the City of Iloilo.  On the other hand, the City of Manila -- the capital of the country -- will soon have its own hall of justice.  A few months ago, the Supreme Court was able to take over the old Government Service Insurance System (GSIS) building on Arroceros Street.  It is now being renovated, with funding assistance from the World Bank.

 

More Thorough and

Transparent Screening

 

After broadening the search, the next step is a more thorough and transparent screening of the candidates.  Apart from evaluating their qualifications, the JBC conducts background investigations,[22] as well as psychological and psychiatric examinations.[23]  As a final step to eliminate unfit candidates and to choose the best and the brightest among the aspirants, it conducts personal interviews.[24] 

 

Subsequently, to enhance public awareness of its proceedings, the JBC has opened to the public the interviews of applicants for the positions of ombudsman; and of justices of the Court of Appeals, Sandiganbayan, Court of Tax Appeals, and the Supreme Court.[25] 

 

In screening applicants, the JBC looks into the applicants’ track record and personal background, including the existence of administrative cases or administrative sanctions against them.  With regard to track record, we consider each applicant’s educational background, bar ratings, books and papers published, speeches, and employment record.[26] 

 

For judges, we take into account the length of their service in the judiciary, present stations, quality of decisions (reversals and affirmations), and speed of disposition of cases,[27] among others.  An Award for Judicial Excellence will certainly be a plus.  Bantay Katarungan may be pleased to know that regional trial court judges who had less than five years of experience in their courts were disqualified for promotion to the Court of Appeals.[28]

 

For prosecutors and private practitioners, factors such as the number of cases won or lost, the quality of memoranda and briefs filed in courts, and appearances in the Supreme Court and the Court of Appeals are considered.

 

           Background investigations will continue to be conducted to check the applicant’s lifestyle, family origin, character, or reputation in the community.  At present, this work is done mostly by the National Bureau of Investigation (NBI).  Due to insufficient personnel, however, there is a delay in the investigation itself or in the submission of reports, 95 percent of which have been positive.  Under its new staffing pattern, the council is set to hire 12 investigators to augment this lack of NBI personnel.

 

          Under the JBC Rules, those who are facing administrative complaints and are under informal preliminary investigations may be disqualified, if the charges are so serious as to affect their fitness for nomination.[29]   Those who have pending serious criminal or regular administrative cases are also barred from being nominated to judicial posts.  So are those who have been convicted in any criminal or administrative case, in which the penalty imposed was at least a fine of more than P10,000.[30] 

 

          I was present during all the interviews conducted on February 14, 15 and 16 for the screening of the 14 candidates for the lone vacancy in the Supreme Court.  I was pleased to note the presence of the Bantay Katarungan monitors, who diligently attended even after office hours, up to 7:00 or 8:00 p.m.  I hope they were satisfied that their written questions were propounded to the applicants during the interviews by the JBC members,[31] especially by Justice Raoul V. Victorino. Although he was a new member of the council, he took pains to explain that the questions he was asking came from Bantay Katarungan.

 

 

The Stricter Process

of Selection

 

 

The final phase in the JBC process is the selection, which is usually done after verbal discussions and secret voting by the council members.  An innovation adopted this year was the implementation of a new rule.  That rule disqualifies a candidate upon the negative vote of a single member on an integrity issue, as provided under Section 2 of Rule 10 of the JBC Rules.

 

          We are mindful of the fact that some applicants, in their bid for judgeship, try to secure -- maybe through go-betweens -- the recommendations of well-known figures in society.[32]  The latter, in turn, yield to the intercession of the go-betweens. In this regard, I enjoin the organizations and individuals concerned, especially the politicians, to exercise prudence in giving out endorsements by refraining from recommending the undeserving. 

 

          At any rate, in sizing up a candidate, we assess the quality of recommendations or endorsements by taking into consideration the credibility of the endorsers, the length of their professional or personal association, the degree of their closeness or relationship with the applicants, as well as the specific bases of the endorsements.  If the JBC finds from other reliable sources that certain candidates do not deserve to be nominated, no amount of recommendation can save them.   

 

 

To repeat, the final selection is done by secret ballot of the JBC members.  Subject to the “integrity vote,” only those who obtain a majority of the votes of the Council are included in the list to be submitted to the President.

 

One measure that has been suggested to ensure the transparency and integrity of the selection process is the use of a point system.  Under this system, points are allotted to each selection criterion. The scores given to each of the applicants on the criteria to be adopted will then be added to determine their rankings.

 

Conclusion

 

          I realize that the Judicial and Bar Council has been criticized in the past for allegedly being complacent -- if not ineffective -- in its role of screening and nominating candidates for judicial positions, particularly in the appellate courts.  Some critics have even proposed its abolition and a return to the old system.  They claim that appointment by the President and then confirmation by the Commission on Appointments is more effective in rejecting unqualified applicants.

 

In response, I ask our critics to consider that the JBC was an innovation started by our country in 1987 and now copied in various forms by many other countries in the world. 

 

Please note that, unlike the Commission on Appointments, the Judicial and Bar Council is deemed to be a part of the Judicial Department, not of the Legislature.  The creation of the council is found in Article VIII of the Constitution, which governs the judicial branch.  In fact, the Constitution expressly places the JBC “under the supervision” of the Supreme Court, with the Chief Justice as its chairperson.  Thus, it conducts its systems and procedures pursuant to the more somber and more dignified judicial process, not to the more political and partisan slinging in the legislature.

 

 

While I do agree that the JBC must be more proactive, more transparent, more assertive and more accountable in the discharge of its functions, I ask everyone to be a little patient while its new leadership is installing reforms and instilling a new spirit of transparency, assertiveness and accountability in the council.

 

 

As I end, may I reiterate my appreciation of the Bantay Katarungan and the Kilosbayan for their perseverance in helping the Judicial and Bar Council in its campaign to search for, screen and select quality magistrates; and to weed out the unfit and the misfit.  I am certain that, with your unqualified support and continuing commitment, the JBC will fulfill its noble task of nominating the best and the brightest.

 

 

Maraming salamat po!