The group that was solely created for, and has the principal function of, recommending appointees to the judiciary is the Judicial and Bar Council (JBC). So together with the country’s President, the JBC is responsible for the quality of the Supreme Court. Of the 15 current Supreme Court justices, only Justice Lourdes Sereno (appointed August 2010 by President Aquino) was not appointed by Gloria Arroyo.
Under Article VIII Section 8 of the Constitution, the Judicial and Bar Council is composed of the Chief Justice as ex officio Chairman, the Secretary of Justice and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
So, what guides the JBC in recommending any one to be part of the Supreme Court?
First of all, the Constitution set the following minimum requirements for Supreme Court Justices:
1. natural-born citizen of the Philippines,
2. at least forty years of age,
3. must have been for 15 years or more, a judge of a lower court or engaged in the practice of law in the Philippines,
4. a citizen of the Philippines and a member of the Philippine Bar, and
5. of proven competence, integrity, probity, and independence. (Art. VIII, Section 7)
Requirements 1-4 are simple enough to determine but determining “proven competence, integrity, probity, and independence” requires more detailed evidence and thus a longer process.
The Rules of the JBC (JBC-009, November 2000) provide the details that further guide the JBC.
Rules of the JBC in choosing Supreme Court Justices
In determining competence, the JBC considers educational preparation, experience, performance and other accomplishments including the completion of the prejudicature program of the Philippine Judicial Academy; provided, however, that in places where the number of applicants/recommendees is insufficient and the prolonged vacancy in the court concerned will prejudice the administration of justice, strict compliance with the requirement of completion of the prejudicature program shall be deemed directory. (Rule 3, Section 1, as amended effective Dec. 1, 2003)
The JBC evaluates the applicant's (a) scholastic record up to completion of the degree in law and other baccalaureate and post-graduate degrees obtained; (b) bar examination performance; (c) civil service eligibilities and grades in other government examinations; (d) academic awards, scholarships or grants received/obtained; and (e) membership in local or international honor societies or professional organizations. (Rule 3, Section 2)
The experience of the applicant in the following shall be considered:
a) Government service, which includes that in the Judiciary (Court of Appeals, Sandiganbayan, and courts of the first and second levels); the Executive Department (Office of the President proper and the agencies attached thereto and the Cabinet); the Legislative Department (elective or appointive positions); Constitutional Commissions or Offices; Local Government Units (elective and appointive positions); and quasi-judicial bodies.
b) Private Practice, which may either be general practice, especially in courts of justice, as proven by, among other documents, certifications from Members of the Judiciary and the Integrated Bar of the Philippines (IBP) and the affidavits of reputable persons; or specialized practice, as proven by, among other documents, certifications from the IBP and appropriate government agencies or professional organizations, as well as teaching or administrative experience in the academe; and
c) Others, such as service in international organizations or with foreign governments or other agencies. (Rule 3, Section 3)
a) The applicant who is in government service shall submit his performance ratings, which shall include a verified statement as to such performance for the past three years.
b) For incumbent Members of the Judiciary who seek a promotional or lateral appointment, performance may be based on landmark decisions penned; court records as to status of docket; reports of the Office of the Court Administrator; verified feedback from the IBP; and a verified statement as to his performance for the past three years, which shall include his caseload, his average monthly output in all actions and proceedings, the number of cases deemed submitted and the date they were deemed submitted, and the number of his decisions during the immediately preceding two-year period appealed to a higher court and the percentage of affirmance thereof. (Rule 3, Section 4)
The JBC likewise considers other accomplishments of the applicant, such as authorship of law books, treatises, articles and other legal writings, whether published or not; and leadership in professional, civic or other organizations. (Rule 3, Section 5)
In determining integrity, the JBC shall take every possible step to verify the applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards. For this purpose, the applicant shall submit to the JBC certifications or testimonials thereof from reputable government officials and non-governmental organizations, and clearances from the courts, the National Bureau of Investigation, police, and from such other agencies as the JBC may require. (Rule 4, Section 1)
The JBC may order a discreet background check on the integrity, reputation and character of the applicant, and receive feedback thereon from the public, which it shall check or verify to validate the merits thereof. (Rule 4, Section 2)
The JBC may receive written opposition to an applicant on ground of his moral fitness and, at its discretion, the JBC may receive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer countervailing evidence. (Rule 4, Section 3)
Anonymous complaints against an applicant shall not be given due course, unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In the latter case, the JBC may either direct a discreet investigation or require the applicant to comment thereon in writing or during the interview. (Rule 4, Section 4)
The following are disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman:
a) Those with pending criminal or regular administrative cases;
b) Those with pending criminal cases in foreign courts or tribunals; and
c) Those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than
P10,000, unless he has been granted judicial clemency.
Incumbent judges, officials or personnel of the Judiciary who are facing administrative complaints under informal preliminary investigation (IPI) by the Office of the Court Administrator may likewise be disqualified from being nominated if, in the determination of the JBC, the charges are serious or grave as to affect the fitness of the applicant for nomination.
Insofar as pending regular administrative cases are concerned, the JBC shall, from time to time, furnish the Office of the Court Administrator the name of an applicant upon receipt of the application/recommendation and completion of the required papers; and within 10 days from receipt thereof the Court Administrator shall report in writing to the JBC whether or not the applicant is facing a regular administrative case or an IPI case and the status thereof. As regard the IPI case, the Court Administrator shall attach to his report copies of the complaint and the comment of the respondent. (Rule 4, Sections 5-6)
Any evidence relevant to the candidate's probity and independence such as, but not limited to, decisions he has rendered if he is an incumbent member of the judiciary or reflective of the soundness of his judgment, courage, rectitude, cold neutrality and strength of character shall be considered. (Rule 5, Section 1)
The JBC may likewise consider validated testimonies of the applicant's probity and independence from reputable officials and impartial organizations. (Rule 5, Section 2)
Sound Physical, Mental and Emotional Condition
In addition to “proven competence, integrity, probity, and independence” the JBC also evaluates the applicant’s health.
The JBC recognizes that “[g]ood physical health and sound mental/psychological and emotional condition of the applicant play a critical role in his capacity and capability to perform the delicate task of administering justice”. Thus, the applicant or the recommending party is requires to submit together with his application or the recommendation a sworn medical certificate or the results of an executive medical examination issued or conducted, as the case may be, within 2 months prior to the filing of the application/recommendation. The JBC may require the applicant to submit himself to another medical and physical examination if it still has some doubts on the findings contained in the medical certificate or the results of the executive medical examination. (Rule 6, Section 1)
The applicant shall also submit to psychological/psychiatric tests to be conducted by the Supreme Court Medical Clinic or by a psychologist and/or psychiatrist duly accredited by the JBC. (Rule 6, Section 2)
How does the selection process begin? Under the Rules of the JBC, once the vacancy occurs, applications are filed with the Secretariat of the JBC (Rule 1, Sec. 6). Applications may be done by the applicant himself or by recommendation of another person/association/organization. If recommended, the recommendee must manifest acceptance of the recommendation in the recommendation paper itself or in a separate document.
The application must be in the form prescribed by the JBC. (Rule 1, Sec. 7)
The list of applicants or recommendees which the JBC shall consider in a given time shall be published once in a newspaper of general circulation in the Philippines and once in a newspaper of local circulation in the province or city where the vacancy in question is located. Copies of the list shall likewise be posted in three conspicuous places in the province, city, or municipality where the vacancy concerned is located. As far as practicable, copies thereof shall be furnished the major religious, civic, social, professional, business and other non-governmental organizations in the city or municipality where such vacancy is located. The IBP, as well as its Chapter in the province or city where the vacancy is located shall also be furnished copies of the list. The publication shall invite the public to inform the JBC within the period fixed therein of any complaint or derogatory information against the applicant/recommendee. (Rule 1, Sec. 9)
The JBC shall conduct personal interviews of candidates to, inter alia, observe their personality, demeanor, deportment, and physical condition; assess their ability to express themselves, especially in the language of the law in court trials/proceedings and in their decisions or rulings; test their mastery of the law and legal principles; inquire into their philosophies, values, etc.; determine their probity and independence of mind; and evaluate their readiness and commitment to assume and fulfill the duties and responsibilities of judgeship.
The interviews for the positions in the Supreme Court, Court of Appeals, Sandiganbayan and Ombudsman shall be conducted in public. Access by the media to the interviews shall be subject to the rules that the JBC may promulgate. For this purpose, the list of candidates, date and place of interview shall be published once in a newspaper of general circulation in the Philippines and once in a newspaper of local circulation in the province or city where the vacancy in question is located. (Rule 7, Section 1)
No applicant shall be considered for nomination for appointment to a judicial position unless he shall obtain the affirmative vote of at least a majority of all the Members of the JBC. (Rule 10, Section 1)
In every case where the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the Members of the JBC must be obtained for the favorable consideration of his nomination. (Rule 10, Section 2)
In every case, the JBC shall give due weight and regard to the recommendees of the Supreme Court. For this purpose, the JBC shall submit to the Court a list of the candidates for any vacancy in the Court with an executive summary of its evaluation and assessment of each of them, together with all relevant records concerning the candidates from whom the Court may base the selection of its recommendees. (Rule 8, Section 1)
The JBC must consider the nominee’s age with a view to discourage appointment of those who would not be able to serve it for a reasonably sufficient time. (Rule 8, Section 2)
So when you have something to say about the Supreme Court, remember that apart from their qualifications, they are there because of the President and the JBC. And either blame or praise for the quality of appointments lies with them.