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MANILA, Philippines - What do ex-Chief Justice Renato Corona and former Ombudsman Merceditas Gutierrez have in common?
They were both impeached (Corona was convicted on May 29, 2012; Gutierrez resigned even before the trial started in the Senate in 2011). They were both appointees of former President Gloria Macapagal-Arroyo and identified as her allies.
More significantly, they got the unanimous vote of the 8-member Judicial and Bar Council, the body that screens and nominates aspirants to the judiciary and the Office of the Ombudsman.
The 1987 Constitution created the JBC supposedly to depoliticize the judiciary. It's chaired by the Chief Justice and is composed of a retired Supreme Court (SC) justice and a representative each from the Senate, the House of Representatives, the Department of Justice, the private sector, the academe, and the Integrated Bar of the Philippines.
Getting the unanimous vote of the JBC meant that both Corona and Gutierrez, as far as the 8 were concerned, met the criteria of probity, integrity and independence.
That both were impeached on charges of lack of independence and betrayal of public trust shows that the JBC has to improve its selection process and be more transparent in making their choices, court observers said.
"The impeachment of Gutierrez is a direct testimony to the weakness of the JBC process," said Vincent Lazatin, executive director of the Transparency and Accountability Network.
And it's strike 3 already for the JBC. Even before Corona and Gutierrez, another JBC nominee was put in the hot seat.
In 2007, Sandiganbayan Justice Gregory Ong was nominated by the council as associate justice of the Supreme Court and was in fact appointed to the High Tribunal by Mrs Arroyo. It was later discovered that Ong is not a natural-born Filipino, which is one of the basic qualifications for aspirants to the Court. The SC had to revoke his appointment.
"We have to be very careful in our assessment," former Court of Appeals Justice Aurora Lagman said. Lagman has been in the JBC for almost 4 years. Lagman said she is open to receving recommendations from civil society groups and court observers.
The list of proposed reforms is long, however.
Today, the current members of the JBC are Ma Milagros Fernan-Cayosa (Integrated Bar of the Philippines), Jose Mejia (academe), retired Court of Appeals Justice Aurora Lagman (private sector), Iloilo Rep Niel Tupas (House of Representatives), Sen Francis "Chiz" Escudero (Senate), Secretary Leila de Lima (Department of Justice), and retired SC Justice Regino Hermosisima).
They convene on Monday to begin the selection process for Corona's replacement.
Of the current crop, only Escudero, Lagman and Hermosisima were part of the JBC when the council unanimously voted for Corona. Sen Francis Pangilinan, on the other hand, represented the Senate when the council voted for Gutierrez as Ombudsman.
Be transparent
Where did the JBC go wrong? Lazatin cited lack of transparency.
The votes of the candidates used to be kept secret. The JBC only released their voting tally in 2009. Now it's posted on the JBC website .
Even if the voting tally is made public already, however, the bases for the choices of the JBC members are still not disclosed.
Lazatin said there should be a scoresheet so the public will know how the members graded the aspirant's independence, integrity and competence.
Lazatin, who belongs to the watchdog Supreme Court Appointments Watch, said the scoresheet should also show how the JBC members take into consideration the complaints and the opposition filed against the applicants or nominees.
UP law professor Dante Gatmaytan said a scoresheet could at least show the "minimum" standards considered by the JBC members. "That could do some good," he said.
But Jose Mejia, a member of the JBC, said adopting a scoresheet system may not be easy, however. "It's hard to quantify the qualities of aspirants...what if I'm stingy in terms of giving 'grades?' The scores may not reflect the actual capability of the candidates," he said.
Show it on TV
Another part of the selection process - the public interviews - has been opened to the public already.
It was Senator Pangilinan, former JBC member, who proposed in 2002 that the interviews be made accessible to the public.
But Lazatin said the public interviews should be televised now.
The public interviews are meant for aspirants to articulate their judicial philosophy and answer complaints against them.
If the interviews are aired live, the public will know if anything questionable about the applicants' qualifications and character is raised. "It will raise pressure on the JBC. They would have to justify why they are voting for candidates whose competence or independence is under question," he said.
Ex-JBC member and former Justice Secretary Raul Gonzalez said he sees nothing with the proposal. "It's already public, so I'm okay with it," he said.
Mejia and Lagman said they are open to allowing the news media to air the interviews live. "There used to be concerns that having cameramen inside the room may affect the orderliness of the interviews," Mejia said. "But if we were able to have the impeachment trial aired live, then maybe we can do the same for the JBC interviews."
Do more research
Gatmaytan said the JBC also needs to exert more effort in checking the background of the aspirants. "There's a perception that the JBC only acts on the information that land on their desk," he said.
He said the JBC should look at the decisions penned by the applicants, the papers they had written, the research they have conducted. These would give the council a sense of the aspirants' level of understanding and critical thinking.
Mejia said they already do this, but simply to assess the capacity of applicants in efficiently writing decisions.
Gatmaytan said that in the United States, the Senate examines the writings of the applicants to better understand their political and ideological leanings. It's a way of knowing how the aspirants think and how they stand on various issues that may confont the High Court.
Gatmaytan, one of authors of the study “Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008)," (the other author is Cielo Magno), also said the JBC should consider diverse backgrounds.
In their study, Gatmaytan and Magno found out that the appointees to the judiciary are predominantly male, came from schools in Manila, hailed from Luzon and are members of the judiciary already.
While Gatmaytan clarified that the JBC may not be consciously steering toward the same choices and standards, he said it may be time to make diversity a standard. "We may want to change our lens and look for diverse backgrounds," he said.
SALN submitted
One of the positive steps the JBC had taken long before the Corona impeachment was its requirement for the submission of the applicants' Statement of Assets, Liabilities and Net Worth (SALN).
"It's part of checking their integrity," Lagman said. "It will be easy to compare the growth of their wealth after and before they were appointed with the SALN they gave us," he added.
Gatmaytan stressed though that the public should also play an active role in the selection process. Nominate credible candidates. Question the choices of the JBC. Question even the President's choice.
"I think we forget that we are the ones who have the power," he said. -Rappler.com
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