Sunday, November 23, 2008


As the year 2009 nears, preparation for the appointment of new Supreme Court nominees is underway as nearly half of the High Court’s members are poised to retire this coming year. As a matter of fact, 12 candidates are now being vetted for the post to be vacated by Justice Ruben T. Reyes in early January of next year.

Public advocacy groups, such as the recently formed Bantay Korte, and political observers are raising concerns that this huge number of vacancies that will be created in the Supreme Court in just a year’s time could be used by President Gloria Macapagal-Arroyo – who will have the opportunity to fill all the vacancies before her term ends in 2010 – to safeguard her interests by appointing those who will return the favor should cases involving her land on the doorsteps of the High Court.

We know, of course, that the Supreme Court is composed of 15 members and with the appointment of six grateful justices next year and one more in 2010, when Chief Justice Reynato S. Puno retires, President Arroyo could be assured of seven votes in the Court’s chamber, not to mention Justice Renato Corona who, as the president’s former chief of staff when she was still the vice president, could be counted in her favor.

Whether these fears are unfounded or not, to my mind the important question to be addressed is how effective and credible is the vetting process for prospective appointees to the Supreme Court.

At present, Supreme Court appointees are selected by the president from a list of at least three nominees (known as the “short list”) for every vacancy, that is submitted by the Judicial and Bar Council (JBC) after several applicants for such vacancy are screened.

With the JBC being composed of diverse members from both the public and private sectors, proponents of the system contend that the current selection system is insulated from politics, unlike in the past where only the Justice Secretary submits nominees for the President to appoint.

The suspicion, however, is that the president usually submits a list of her own candidates or indicates favored ones who as a matter of course always end up on the short list.

The problem I see with the current system is that there is not much transparency and publicity in the manner the JBC goes about its business, so much so that there is not much public participation in the process or public participation is practically nil.

As future occupants of the country’s highest judicial body that lays down important decisions for the nation – especially in the areas of civil liberties and exercise of governmental powers – nominees to the Supreme Court should be subjected to the same publicity and rigorous scrutiny, if not more, that the controversial and colorful personalities in congressional investigations are confronted with.

In the United States, the process of confirming and approving appointees to its Supreme Court is considered of utmost importance and in fact appointees are subjected to more scrutiny than other appointees of the president in the executive department. On average it takes about two to three months by the US Senate to confirm or deny Supreme Court appointees.

The present process of selecting Supreme Court nominees in our country might have been depoliticized by the 1987 Constitution, but with a Justice Secretary on board, who is the president’s alter ego, and four ordinary regular members who owe no accountability to any constituency, the influence from a sitting president might just be too strong a temptation to resist.

If, however, appointments to the Supreme Court are subjected to senate confirmations, which the 1987 Constitution does not provide, the vetting process could acquire more exposure and invite public discussion. Never mind the grandstanding, legislators will be more inclined to dig into the appointees’ records and engage them into a discussion of their qualifications, personal background, and judicial philosophy or the lack of it.

With a senate confirmation – in addition to the JBC process – there would be a check and sharing on the president’s appointing power for members of the Supreme Court, similar to the appointment for certain members of the executive branch.

It is true that by adding senate confirmation the process becomes politicized, since party affiliations and alliances will play major roles in determining appointees. There would also be the likelihood that if majority of the members of senate are party mates or allies of the president the principle of check and balance may not serve its purpose.

All these fears, however, are realities we all have to contend with under our present political and governmental structures. Party politics will always play an important role in matters of governance. What is important is that the selection process will become more transparent and invite more public discussion, aside from the fact that senators, administration allies or not, will most likely engage themselves in the discussion and debate that could bring more information out for the public to digest.

Furthermore, for fear of not being able to select only the most qualified and best legal minds for the country’s high court, there is a strong likelihood that senators would become more circumspect in confirming or denying appointees to the Supreme Court, and the prospect of a rigorous confirmation would make applicants with questionable background think twice in submitting their applications.

It will be recalled among observers of US politics that in 2005, Pres. George W. Bush appointed White House counsel Harriet E. Miers to succeed Justice Sandra Day O'Connor after announcing her retirement from the US Supreme Court. But after much criticism and public controversy over her appointment President Bush withdrew her appointment.

This is the importance of transparency and public participation in the selection process. Of special significance is the media's participation. By generating discussion on the background and qualifications of a candidate for the High Court and closely guarding the selection process every step of the way, public opinion could play a vital role in weeding out unfit candidates and generating support for the most qualified ones.

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