The Judicial and Bar Council, April 23, 1995

THE Judicial and Bar Council is a creation of the 1987 Constitution and did away with the confirmation of judicial appointments by the Commission on Appointments. The purpose was to depoliticize the judiciary by removing as much as possible the influence of politics in the selection of judges and in their subsequent conduct in office.

It was felt that by continuing the old practice, the new charter would be perpetuating one of the most serious threats to the independence of the judiciary. Judges appointed or confirmed with the help of padrinos tended to repay their debt of gratitude with rigged decisions at the behest of patrons cashing in their chips. Others curried favor with senators and congressmen in hopes that these legislators may prove helpful for future promotions and confirmation.

The Judicial and Bar Council is a constitutional body. It is composed of the chief justice as chairman, the secretary of justice and a member of Congress as ex officio members, and a representative of the integrated bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members are appointed by the president of the Philippines for four years with the consent of the Commission on Appointments. Each of the seven members has one vote. The representation from Congress is shared by a senator and a congressman, each of whom casts one-half vote.

Charges against aspirants for judicial positions are considered in private by the JBC. Complainants may be given a chance to support their objections and the candidate may be allowed to refute them. Hearings are not obligatory, however, and the council may simply act summarily on the charges. There is no right to be nominated after all, and the decisions of the body are highly discretionary.

Among the criteria for the nomination of a candidate are competence, integrity, record in the bar examination, experience in the legal profession, and personality. One perennial aspirant for the Supreme Court has been consistently rejected for lack of delicadeza in openly and personally campaigning for his nomination., Another candidate has been bypassed several times because of a rather servile manner and serious doubts about his integrity and morality.

I sat as a consultant of the JBC for some time and was especially impressed with the diligence of the members, particularly the regular ones, in screening hundreds of applications for the various judicial vacancies. These members even go around the country to interview prospective nominees, many of whom are unable to come to Manila for financial and other reasons. Visits of the JBC members and the schedule of interviews are announced in advance by the local IBP chapters.

But for all the improvement it has effected in the selection of judges and justices, the JBC has not completely succeeded in resisting the influence of politics. The secretary of justice is in that body to express and protect the wishes of Malacañang and there are also the members of the legislature whose principal role is to submit to the council the recommendees of their colleagues in Congress. The fact that the regular members of the JBC are appointed by the president may also emasculate their independence. Where the president’s own preferences are at stake, it is not unlikely that the chief justice may find his only ally in the retired justice of the Supreme Court, but even this is not certain.

The staggering of the terms of the regular members at yearly intervals is good, but perhaps there should also be a prohibition against their reappointment as in the case of the constitutional commissions. The secretary of justice could be retained for his valuable insights in the judicial and prosecutorial systems but only as a consultant without the right to vote. The representation from Congress should be taken out as inimical to the very purpose of the creation of the JBC.

The JBC is supposed to make at least three nominations for each judicial vacancy, but no maximum number is prescribed. The bigger the number of nominations, the wider the discretion given to the president and the weaker the independence of the council becomes. At one selection of the nominee to the Supreme Court, the JBC chose five names but when the Malacañang candidate was not included, his supporters moved to expand the list. This is one way a candidate favored by the president may be accommodated and eventually appointed.

I believe the incumbent justices of the Supreme Court should be consulted on the filling of any vacancy in the body because they will be working with whoever is chosen to sit with them and it is imperative that they have confidence in his ability and integrity. It takes only one member to throw a monkey wrench into their proceedings and make the entire membership ineffective if not suspect, or at least embarrassed by the pariah among them.

A passion for titles, February 25, 1995

WE Filipinos have a passion for titles that other peoples must find comical. Names are not enough, we must embellish them with titles, and the more impressive the better.

It does not suffice that some of our names unabashedly if not always truthfully proclaim the virtues of the bearer. Thus, we are told that Dimalanta is unfading. Panganiban must be feared, and Mabasa is studious. But those are surnames that can’t be helped for we cannot choose our families.

But some proper names are nothing but attempts at self-levitation. Parents have imposed such names as Venus upon a homely daughter and Heracleo upon a weakling. They have embarrassed their children for life.

Other people have adopted surnames to denote their trade, like Smith and Baker and Mason. Others have chosen colors like Brown and Gray and Black. There are also surnames denoting lineage or paternity like Johnson, meaning John’s son, and Patterson and Jameson. And let us not forget Vito Corleone, who was misnamed after his village.

The bearers of those names are addressed simply as Mr. or Mrs. or Miss or Ms. The usual exceptions are when they happen to be doctors or professors or government officials like mayors or legislators. Most professionals, including lawyers, do not deserve or employ a special title.

We have seen often enough on foreign shows how lawyers are not addressed by the judge as “Attorney.” No matter how distinguished they may, they are just “Mister” to the court and the public. But it is different in this country, where we seem to consider lawyers as belonging to a special breed. They are always complimented with the title “Attorney,” even by the Supreme Court.

Filipino practice seems to reserve “Mister” or “Mrs.” only for non-professionals and to address professionals by their occupation or calling. Things have come to such a pass, in fact, that in addition to calling the lawyer “Attorney,” we have to call Mr. Villanueva “Engineer Villanueva:” and Mr. Manalo “Architect Manalo.”

And how about “Socialite” Baby Arenas and “Madam” Imelda Marcos? I wouldn’t be surprised if pretty soon we will be calling Mrs. Mercado in the elementary school “Teacher Mercado” and Mang Julio who fixes our faucets “Plumber Hernandez.”

So obsessed are we with title that we seem to want to cling to them even beyond this life. Some obituaries proclaim the title of the deceased, to remind us that he was Atty. So and So, Engineer This, or Architect That. When it comes to titles in this country, death is not the universal leveler.

The question of titles was formally raised in the Supreme Court some years ago, when the members of the Judicial and Bar Council sought permission to call themselves “Justice.” A similar request was later made by the Office of the Court Administrator.

The members of the JBC submitted that they were justified in using the title because they enjoy the constitutional prerogative of nominating judges and even members of the Supreme Court itself. For its part, the OCA argued that it is a rank higher than the regional and municipal trial court judges because it has supervisory authority over them. Such authority would be exercised more effectively if its members were addressed as “Justices” and not as mere administrators.

The Supreme Court denied both requests. It pointed out that the members of the two offices were not even members of the judiciary, let alone appellate members. The court allowed the members of the JBC to use the word “Honorable” before their names, but it did not make a similar concession to the OCA.

In its resolution of Feb. 21,1989, the Court said that the title of “Justice” may be used only by incumbent and retired justices of the Supreme Court, the Court of Appeals (or its predecessor, the Intermediate Appellate Court) and the Sandiganbayan. No other officer can call himself or answer to that title, including “even those given the rank of said justices.”

Incidentally, there are some titles that are for life even if the holder is no longer incumbent. A judge is always a judge. A general does not lose his rank when he retires. The President does not become ex-President when his term ends; he is still President Macapagal although we may refer to one who has just retired as former President Aquino. Some of my retired colleagues refer to themselves as Justice So and So (Ret.), and so run the risk of being mistaken as Retarded.

The Commission on Elections was correct in refusing Senator Biazon the use of “General” as his nickname as it is a generic title that can be claimed by all other generals running for office. There are other nicknames that cannot pass for titles, like “The Guy” for Magsaysay, or “Bigotillo” for then Speaker Jose Laurel. The use of “Mr. Vilma Santos” as a nickname of Rep. Ralph Recto was not decisively resolved by the House of Representatives Electoral Tribunal.

Going back to the Supreme Court resolution, I suggest that the government corporate counsel not call himself “Justice,” and neither should the hearing officers call themselves “judges.” This admonition against the improper use of titles applies as well to the hearing officers of other administrative agencies like the Department of Labor, the SEC, and the Housing and Land Use Regulatory Board. They are not judges. “Mister” should be respectable enough for them.

May I say that there is absolutely nothing wrong with the simple address of “Mister.” It is certainly less pretentious and sometimes more honorable than “Honorable” or “Congressman” or “Senator.” And how about the respectful “Ginoo” or “Ginang” or the demure-sounding “Binibini?” These sound more democratic in our supposedly classless society.

Cleansing our courts, September 8, 2002

I TAKE this opportunity to reiterate my congratulations to Chief Justice Hilario G. Davide Jr. for the Ramon Magsaysay Award for Government Service that he received recently. Like most of our people, I believe that, more than any of our incumbent public officials, it is the Chief Justice who deserves the distinct honor conferred on him on the basis of his outstanding record, principally as head of the judiciary.

I would also like to comment, if I may, on the speech he delivered at the award ceremonies where he dissented from the remarks made less than tactfully by a foreign diplomat. That was US Ambassador Francis Ricciardone, who spoke publicly of rampant corruption in our judiciary as a deterrent to foreign investment.

My recollection of the rules of diplomatic courtesy is that a foreign ambassador should not involve himself in the internal affairs of the host country and desist from publicly criticizing its government. Any adverse comment on the receiving State should be made privately through official channels lest it be used as political ammunition by the opposition parties.

Ricciardone, assuming his good faith, should have addressed his misgivings to our foreign secretary for transmittal to the Chief Justice. In publicly castigating the Philippine judiciary, he sounded as if we were still an American colony being scolded by Governor General Leonard Wood.

That said, let me now go to Davide’s speech where he denied that our judiciary was a den of thieves as charged by the the outspoken envoy. The Chief Justice did not claim, as indeed he could not, that our courts were completely honest. On the contrary, he admitted, there were “bad eggs” among our judges (and he might have added justices as well) but they did not outnumber their honest colleagues.

Davide stressed that of the 25,000 officials and administrative personnel in the judiciary, only 600 have been disciplined during the past three years of his incumbency as Chief Justice. Three hundred fifty-two of them were magistrates, who were sentenced to the corresponding penalties, including removal. The number of punished offenders, he said, certainly would not justify condemnation of the entire judiciary as a den of thieves.

With all due respect to the Chief Justice, I believe that his explanation is far from realistic. He should know, more than any one else, that the numbers he cited do not show the whole picture of the corruption in the judiciary. That venality is more widespread than he imagines and is closer to the truth of Ricciardone’s remarks.

Davide’s conjecture that most of the complainants against judicial misconduct are “disgruntled litigants” may be accepted but not completely. Some of them may be disgruntled precisely because of the respondent’s improbity or incompetence; many others dare not complain while their cases are pending, and it is only when they lose that they become disgruntled. And there are also those who may not be litigants at all, much less disgruntled, but are concerned and earnest complainants looking for justice.

The Supreme Court has dismissed many administrative cases for the usual excuse of “lack of evidence” but it misappreciates its role as an administrative body and not as a court of justice. As a tribunal, it can act only when its jurisdiction is invoked, but as an administrator, it does not simply await but must initiate action. This means that it should itself seek and produce the needed evidence to enforce judicial discipline if it is to truly discharge its constitutional duty to administer the judiciary.

Chief Justice Davide and some of his colleagues on the Supreme Court and other judicial tribunals enjoy the esteem and confidence of the people, but they constitute only an admirable minority. I must inform him, if he naively does not know it yet, that many of our judges, from the lowest to the highest levels, are regarded with suspicion and contempt by the disappointed and hostile public. This attitude is fanned by rumors that, true or not, have seriously impaired the people’s former faith in our courts of justice. I have to regretfully inform him that the Supreme Court is no longer considered the formidable and irreproachable bulwark of justice.

I say “former” because the judiciary, and especially the Supreme Court, used to be the most respected branch of the government. The justices of the High Tribunal embodied the ideal of the fair and fearless magistrate who could, like Lord Coke of England, defy his monarch’s command with the ringing words: “I will do what becomes me as a judge.”

That precious standard established by the Arellano Court was jealously maintained through the years until it was shamelessly rejected during the Marcos dictatorship. Sadly, that lost value has yet to be fully restored today. In my humble view, this can be done through a more careful selection of the nominees of the Judicial and Bar Council, a stricter supervision of the courts by the Court Administrator, and a more assertive leadership of the Supreme Court in weeding out its misfits.

Chief Justice Davide, my friend, if you would act more aggressively on cleansing our courts of corruption, ineptitude and indolence, you will have performed the noblest achievement of your outstanding career and earned the highest accolade from our grateful nation.

Cheapening the Court, July 20, 2002

THERE  was a notice sometime ago from the Judicial and Bar Council announcing the names of persons who have “applied/been nominated” for two positions of associate justice in Supreme Court. The public was allowed to “submit any information,written report, sworn complaint or opposition” against any of the applicants not later than July 15.

The list contained 21 names, many of which are unfamiliar to me. Popularity, however, is not a criterion for appointment to the highest tribunal. Some of those obscure persons may be eminently qualified except that they are not or have not sought to be in the limelight. As the poet says, “full many a flower is born to blush unseen and waste its sweetness on the desert air.”

I have no complaint against any on the list, whether prominent or not, as long as he has not “applied” to be a member of the Supreme Court. Conversely, I express my respect for those listed, whether prominent or not, who have been nominated by others instead of directly presenting themselves for a seat in the highest tribunal.

It is said that the position must seek the person and not the other way around. This is generally true of the appointive office, and especially so of membership in the Supreme Court. A  justice of the highest court in the land is a cut above ordinary citizens in prestige, competence, and no less important, decorum.

Justices of the Supreme Court are not politicians or cease to be so once they don judicial robes. Politicians from the President down to the barangay kagawad must ingratiate themselves with the public to get or retain their votes. President Macapagal-Arroyo has worn many tribal costumes because she things that is expected of her. Justices, and even only judges, do not engage in such artificialities.

Politicians must act that way if they are to survive the rough-and-tumble of the hustings. They are essentially cheap because they have to go down to the level of the cheap voters. Some upright officials have resisted that demagoguery like the very proper Sergio Osmeña  Sr., who did not even choose to campaign during his last hurrah. But his was already a vanishing breed even during that time.

To succeed in politics today, one must be able to warble a song, dance a jig, or dunk a basketball. These extra-constitutional qualifications may trounce the serious candidate who is only honest and intelligent. It is not wholly the fault, though, of the cheap politician; the greater share is with the bakya crowd. The best proof of their inimical influence is the election of Joseph Estrada as President of the Philippines.

My friend and colleague, the late Celing Fernan, was fond of singing in public even when he was already a member of the Court. But he voluntarily denied himself that pleasure when he became Chief Justice. Judges, and especially justices of the Supreme Court, must conform to a stricter code of decorous conduct. Their function is to interpret and apply the law, not cater to the popular will or be intimidated by the hooting throng.

That is why I am disturbed by the JBC list that included some persons who have “applied” for appointment as associate justice of the high tribunal. From my own viewpoint, their application is unthinkable and impermissible; it is clearly conduct unbecoming a judge. The JBC does not think so, however; it has accepted and even publicized the debasement of the Court and the presumptuous applications themselves.

When I chaired some years ago a committee to choose the best criminal case decision written by a regional trial court judge, I laid down the rule that any entry saying that the accused was “charged of” the crime should be automatically disqualified. I submit the JBC should also disqualify any person who has such a meager respect for himself as to further cheapen it by directly applying to be a justice of the Supreme Court.

I suppose it would be permissible for a person to apply for a judgeship in the lower courts, but a stricter degree of humility, or plain propriety, is required of an aspirant for the Supreme Court. There should be at least one person who believes in the candidate’s eligibility and is willing to spare him the indignity of himself touting his own virtues. If there is not a single person who can do that for him, the applicant is obviously lacking not only in modesty but also ability.

As far as I know, none of the members chosen for the reorganized Supreme Court in 1986 applied for their appointment. I myself was never interviewed by the selection committee, whose membership I have yet to learn. It might have included Justice Cecilia Muñoz Palma because it was her husband, the late Dean Rodolfo Palma, who asked me for my resumé. I can only guess who the other members were.

I hope the JBC will confine its recommendations to those who were nominated by others, excluding those who nominated themselves. The applications of these impertinent persons should never have been accepted at all.