JBC is usurping the President‘s power

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Once again, the Judicial and Bar Council (JBC) is usurping the power of President Rodrigo Duterte to appoint justices and judges.

Under Section 9, Article VIII of the Constitution, the power to appoint justices of the Supreme Court (SC) belongs exclusively to the President. To constitute a valid appointment, the appointee must possess all of the qualifications under Section 7 also of Article VIII.

Section 7 mandates that a justice of the SC must be a natural-born citizen and a person of proven competence, integrity, probity, and independence. In addition, he must be at least 40 years old, and must have been a judge of a lower court or engaged in the practice of law in the Philippines for at least 15 years.

Since the qualifications of a justice of the SC are in the Constitution, Congress cannot modify those qualifications. If Congress modifies them, Congress is guilty of usurpation of the executive power to appoint.

Under the 1935 Constitution, judicial appointments made by the President must have the consent of the Commission on Appointments (CA). There was no CA under the 1973 Constitution.

The 1987 Constitution (the one in force) replaced the CA with a Judicial and Bar Council or JBC. It is composed of the Chief Justice as ex officio chairman; the Secretary of Justice and a representative of Congress as ex officio members; and a representative of the Integrated Bar, a professor of law, a retired justice of the SC, and a representative of the private sector as the other members.

Section 9, Article VIII provides that a justice of the SC shall be appointed by the President from a list of at least three nominees prepared by the JBC.

Like Congress, the JBC has no power to modify the qualifications under Section 7. If the JBC does, then that is a usurpation of the President’s exclusive power to appoint.

Before the JBC prepares its list of nominees for possible appointment as justice of the SC, it invites applicants and then screens them through individual interviews. During the interview, the JBC asks each applicant practically any question under the sun.

That’s where the problem lies.

The JBC is currently interviewing applicants for the post of chief justice, to succeed Chief Justice Lucas Bersamin, who will retire this month — incumbent Associate Justices Diosdado Peralta, Jose Reyes Jr., Andres Reyes Jr. and Estela Perlas Bernabe. They were all asked impertinent questions.

Peralta explained that even if he isn’t a bar topnotcher, he deserves to be chief justice. Jose Reyes was asked about his views on a possible law banning pre-marital sex, to which he answered that as a Catholic, pre-marital sex is immoral. Andres Reyes was quizzed on how he intended to speed up the disposition of cases. Bernabe was asked what she hated each time the SC had their deliberations.

Good heavens! The JBC has no authority to ask questions of that sort.

Under the Constitution, the only job of the JBC regarding applications for judicial appointments is to determine who among the applicants satisfy the qualifications set forth in the Constitution! From a constitutional perspective, it is inappropriate for the JBC to ask any question outside of what the Constitution prescribes for possible appointment — citizenship, age, experience and longevity, competence, integrity, probity and independence.

One’s not having topped the bar examination; views on pre-marital sex; plans for speedy case disposition; or pet peeves during court deliberations — these have nothing to do with the qualifications for chief justice or associate justice of the SC prescribed in the Constitution. Why then does the JBC ask those questions?

By asking impertinent questions, the JBC ends up recommending nominees whom they think are qualified, not just based on the qualifications in the Constitution, but based also on how their impertinent questions were answered by the interviewees. That is a usurpation of the executive power to appoint.

This is not the first time the JBC usurped the power of the President to appoint. In November 2016, the SC voided a clustered-type nomination the JBC submitted to then President Benigno Aquino III. The SC declared it an unconstitutional interference with the President’s exclusive power to appoint.

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