Last of Two Parts

THE Judicial and Bar Council (JBC) was purposely created by the 1987 Constitution to depoliticize and to open up to the citizens the screening of nominees and appointments to the judiciary.

To achieve this, Associate Professor Dante B. Gatmaytan of the University of the Philippines College of Law says the JBC should have looked with favor at full transparency – in the conduct of its processes and in the handling of all its records – as both premise and armor of its grave mandate.

Created by the 1987 Constitution, the JBC is 24 years old but still, it seems to be taking only baby steps. Its transparency and access to information practices continue to swing from close to open, then close again, regimes.

In recent years, buffeted by demand from civil society groups that have zealously monitored its work, the JBC has opened up its processes and records somehow. Yet soon after the demand has died down, and the citizens have stopped looking and asking, it reverted to just token disclosure of the details of its work.

On July 23, 2010, in a letter to the Supreme Court Appointments Watch (SCAW), a network of alternative law and transparency groups, the JBC disclosed “excerpts of the minutes” of its en banc meeting that offered data on which JBC members voted for which nominees to a vacancy in the Supreme Court then.

The letter signed by JBC executive officer Annaliza S. Ty-Capacite, said that the JBC “also agreed to your (SCAW’s) proposal to have the voting records posted (on) the JBC website, but only after the approval by the Council of the minutes containing the said record.”

Months later, the JBC would hold new rounds of screening for nominees to three vacancies in the Court of Appeals, and another in the Sandiganbayan.

By yearend, as it had assured SCAW, the JBC posted on its website (http://jbc.judiciary.gov.ph/) “result of voting” reports that disclosed only the tally of votes that the nominees got. Curiously missing were the more instructive details that SCAW had wanted and which the JBC had promised to share – which JBC members voted for which nominees.

Transparency test

UP law professor Gatmaytan sees transparency as a major test of how judicious the JBC conducts itself vis-à-vis its constitutional duty to allow the citizens front-row seat to the screening of candidates to plum posts in the judiciary.

Gatmaytan had recently co-authored with wife and Northeastern University graduate student Cielo Magno a seminal study titled “Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008)” that was published in the Asian Journal of Comparative Law.

He says: “The JBC was created in response to the politicized selection of justices. Under Martial Law, there was no check on the president’s power to appoint and it was said that most of his appointees did not satisfy the minimum requirements. They were mostly classmates of fraternity brods, and there was no intervention on the part of the public.”

Lawyer Nepomuceno A. Malaluan of the Right to Know, Right Now! Coalition of 160 groups and individuals pushing the passage of the Freedom of Information bill, could not agree more.

Transparency, he says, is the only effective check on the tenuous “balance of power” among the three branches of government that are all represented in the JBC.

“One way to remedy the imbalance is to let sunshine into the JBC to facilitate greater public scrutiny of its performance,” Malaluan says. To achieve this, the JBC “must be committed to providing the largest measure of transparency and public access to its processes and to the documents under its custody, both pertaining to the applicants and to the JBC actions.”

By its own rules, the JBC screening process starts with an open call for applications and recommendations (and submission of the nominees’ personal data sheets or PDS and other documents), publication of the list of nominees, public interviews with the nominees, executive or closed-door sessions of the JBC members, and finally, a public statement on the summary of votes that the shortlisted nominees obtained from the eight-person JBC.

As soon as the JBC has submitted its shortlisted nominees – at least three for every vacancy – the President may choose his appointees to the court within 90 days.

Not quite open

At critical points in the process, however, the JBC seems to be swinging from open to close regimes of conduct. It holds public interviews with the nominees but bans the recording and broadcast of the proceedings by the news media. It reveals some data about the nominees but routinely rebuffs requests of citizens’ groups for copies of many other documents that reveal more details about the nominees.

The JBC keeps under virtual lock and key those that reveal more than just the educational background and work history of the nominees, the details of their business, financial, and political connections.

Apart from the PDS, under the JBC’s rules the nominees and applicants must submit sundry documents – income tax return for the last two years; current year’s clearances from the National Bureau of Investigation, Ombudsman, police, place of residence, Integrated Bar of the Philippines (IBP), Office of the Bar Confidant, and employer; certificate of good standing or latest official receipt from the IBP national treasurer; affidavit that the applicant was not a candidate in the immediately preceding election; proofs of age and Filipino citizenship; results of medical examination and sworn medical certificates; and statements of assets, liabilities, and net worth (SALN) for the past two years.

“Those who fail to comply with the requirements shall not be considered for interview nor considered for nomination,” the JBC has advised.

Tricky matter

The last document in the list, the SALN, is assuredly a tricky matter for the JBC to decide, especially for those nominees coming from the judiciary. Jurists made up nearly six of every 10 applicants that the JBC had screened from 1988 to 2008, according to Gatmaytan’s study.

But since 2006, the Supreme Court has enforced a policy restricting access to the SALNs of all justices, judges, and down to the lowest ranked personnel of the judiciary. This policy, the high court had explained in a “Media Backgrounder” paper, seeks to spare and protect the members of the bench from possible harm and blackmail that could come from irate litigants.

Thus, it would seem like wishing for the JBC to disclose the SALNs of the nominees to the judiciary from the judiciary is whistling in the dark. The JBC and the Supreme Court share just one chair and presiding officer – the chief justice. In addition, two of the seven other JBC members are retired justices.

Apart from the SALNs, citizens’ groups have sought copies of the other documents that the nominees have submitted to the JBC. Invariably, their requests have been met with token action, indifference or outright denial.

Gatmaytan knows as much. For his and his wife’s study on the work of the JBC in its first 20 years of existence, he had tried but failed to unlock doors to JBC documents. “The JBC was created to depoliticize and open up the selection of justices but it is even more secretive now,” he tells PCIJ in an interview. “(As) others have explained,” he writes in his study, “the likelihood of obtaining documents from the JBC is ‘practically nil’ as requests for data are repeatedly turned down.”

More than just accessing documents, he stresses a need for the JBC to respect the public’s right to know. “It goes back to the question of how much we know about the nominees, from the beginning… and it’s clear they got in not because they are relatives or friends but because of objective standards”

The worrisome cases, he adds, are when the public is not informed “if the nominees are related to the members of the JBC,” or could face “potential conflict of interest situations,” especially for those coming from the private sector, or have been remiss in filing asset disclosure statements, especially for those coming from the public sector.

A better informed public, Gatmaytan says, may appreciate the work of the JBC more. “If the process is clear and open to the public, the selection system becomes more legitimate to the public, and the results more acceptable to the public.”

Must know more

In contrast, resorting to secrecy is a path to confusion and failure. He says: “If we keep everything secret, which is how the JBC seems to view its work from the very beginning, keep the public out of it and have nobody involved… it erodes our confidence in the selection process and creates more problems.”

In Gatmaytan’s mind, the JBC should uphold the public’s right to know more about those who would later sit as judge over their lives, rights, and welfare. “We can find out more about the nominees if we are allowed access to their background and more data other than their age, present job, or from which law school they graduated, which are already reported in the news.”

Knowing more about those who would be jurists or Ombudsman is a first step, he says, for citizens “to be more concerned about the quality and diversity” of the courts.

To be sure, Gatmaytan affirms that the JBC’s public interviews afford the citizens a chance to see and listen to the nominees. But these forums also have become no different from the sneak previews or trailers that are shown in movie theaters, with the citizens allowed only to watch in silence.

This is because during the interviews, only the eight JBC members can ask questions. And while the proceedings are documented in writing, cameras and tape recorders are banned, and live TV and radio coverage disallowed.

And although the interviews are open to the public, Gatmaytan says those who have attended the events have raised some observations: the questions are not probing enough, and the interviews seem to be rushed, especially when the JBC has to deal with so many nominees racing after the same plum positions.

Two selection proceedings have been launched of late by the JBC – for nominees to two vacancies in the Supreme Court, and for the position of Ombudsman. Already 28 persons have applied or been recommended to the high court positions, and 32 others, to the Ombudsman’s job.

Once the public interviews are done, public access to the JBC virtually ends as the members repair back to executive sessions. They are furnished the “reports of the interview” that the JBC secretary is instructed to keep secret. “The reports are hereby declared strictly confidential documents which shall be available only to the Members of the Council,” states the JBC’s rules.

Off-limits, secret

With the confidential reports on hand, the JBC members then meet behind closed doors to “draw up” their short list of nominees. They vote using numbered ballots, and the results are tallied by the JBC secretary.

This most critical phase of the JBC’s work remains sub rosa or secret and off-limits to the citizens. Afterwards, the JBC issues a public statement on the “result of voting” for the nominees, sharing only what they like to share with the public.

In July 2010, they disclosed who they voted for; in November 2010, they revealed only the tally of votes that the nominees got.

Rep. Niel Tupas, Jr. of Iloilo, who sits in the JBC as chairman of the House of Representatives’ committee on justice, says that he had been told that the JBC has been disclosing how its members voted. This was decided, he adds, on motion of the late Jay Castro, until his recent death the JBC representative of the Integrated Bar of the Philippines or IBP.

Gatmaytan says that it would do the JBC well if it observes full transparency and disclose how its members voted so the citizens may know why some nominees had been shortlisted and others not. Tupas says he agrees absolutely, adding that he will try to do what he can to open up the JBC process some more.

More reforms

To vote openly and to disclose their vote. At the very least, this is what the JBC members owe the citizens, according to lawyer Malaluan. “The process of appointing justices and judges is critical to the independence and competence of the judiciary. The same is true for the appointment of the Ombudsman.”

But Malaluan says there’s a lot more that the citizens deserve from the JBC. During the nine-year rule of Gloria Macapagal Arroyo, he cites that SCAW and the Bantay Korte Suprema – which drew law schools and media agencies as partners – have mounted vigorous scrutiny of the JBC. The result: numerous proposed reforms for the JBC to do better by the citizens.

These included, Malaluan says, stopping the practice of reappointing regular members

of the council, limiting to three the number of nominees for each vacant position (as required in the Constitution); implementing a more transparent evaluation system; adopting an open voting policy; and rejecting lists of JBC nominees returned by the President without appointment.

Apart from these reforms, however, the monitors of the JBC’s work point to even bigger concerns that are more difficult to settle as quickly. They lament the seemingly qualitative flaws, undefined standards of “the principles of integrity, excellence and competence” against which the JBC members must measure the nominees, or even the backroom wheeling-dealing that sometimes still mar the vote for or against certain nominees.

More research

Leslie Flores of the Transparency and Accountability Network (TAN) that is coordinating the SCAW initiative observes that the JBC seems to lack the people and skills to do “thorough research” into the background of the nominees. The result is a JBC that tends to go easy on job applicants to the judiciary.

In her September 2009 article titled “Lessons from US Supreme Court Appointments: A Quick Look at Justice Sotomayor’s Experience,” Flores compares that when U.S. President Barack Obama nominated Sonia Sotomayor to sit as the first Hispanic and third woman justice of the 200-year-old U.S. Federal Supreme Court, her public and private backgrounds were fully unearthed by officials from the White House, the U.S. Justice department, as well as the Federal Bureau of Investigation. This rigorous pre-screening scrutiny of the nominees does not happen in the JBC, she avers.

Instead, in the JBC’s public interviews, Flores says all the nominees are asked mostly “standard” questions such as their “reason(s) for applying as Supreme Court Justice, their concept of justice, judicial philosophy, their view on the expanded jurisdiction of the Supreme Court… (their) most important contribution to the Supreme Court… how the JBC can improve its processes.”

Indeed, specific questions have been raised, including “Charter Change, Executive Privilege, death penalty, and other current issues.” The candidates have also been asked about their “achievements, expertise… significant cases they have handled…their judicial performance.”

Apart from unraveling the hopes, the wishes, and the self-image of the nominees, however, these questions do not reveal as much background and critical data that may later trigger real or potential conflicts of interest, or offer more insight into the character of the nominees.

Opaque standards

Malaluan sees another gap in the JBC’s work: the standards or measure of why JBC members vote for or against the nominees. “One of the most crucial demands is opening up the evaluation system of the JBC… clearer and standard evaluation system for opaque qualifications such as competence.”

Then, too, he says, the “balance of power” in the JBC that draw representatives from all three branches of government bears constant monitoring. “Through the JBC, the President’s choice is restricted to the list of nominees prepared by the JBC,” Malaluan says. Yet how, indeed, could one branch be stopped from dominating the two others so the integrity and independence of the JBC may be preserved?

There is need, according to Malaluan, for all sorts of “checks” that to prevent this, even as “the balance of power over the composition of the council has tilted in favor of the President” who appoints the four regular members, as well as the Justice secretary.

By sheer tyranny of numbers, too, the pro-administration ruling party or coalition in the Senate and in the House of Representatives, get to appoint the chairs of their committees on justice – who in turn get to sit in the JBC. Too often, these committee chairs would be party allies of the president, too.

The unhappy result, Malaluan says, is some nominees have resorted to pulling strings with some politicians. “With the balance of power in the JBC tilting in favor of the President, applicants for vacant positions in the judiciary and the Ombudsman vie for the endorsement of influential politicians, with those close to the President enjoying a premium.”

Ironically, the JBC has crafted for itself a lofty vision. Its marker at the Supreme Court’s Centennial Building proclaims that it wishes to become “a JBC that is independent, efficient and a proactive sentinel of judicial service, guided only by the principles of integrity, excellence and competence; unfettered by the shackles of friendship, relationship, or other considerations, thus vesting the cloak of Magistracy on those who will best dispense justice for all.”

Additionally, in its mission statement, the JBC promises among other things, “to promote transparency and public awareness of matters involving the nomination process in the Council,” as well as “to insulate the nomination process from undue influence of any kind.”

In theory, the JBC seems certain about where it wants to go, yet also in practice, unsure how to get there. In its 24-year life, it has fluttered from a closed to a somewhat open, then back again to a closed regime of transparency and access.

The next few weeks will test the JBC’s practice. It will soon resume screening nominees to two vacancies in the Supreme Court, and to the Office of the Ombudsman, under a new regime that embraced transparency, accountability, and good governance as its battle cry.

— PCIJ, May 2011