Judicial and Bar Council: Why Dissolve this Oligarchial Body

In the most exclusive and ex officio fashion, the Judicial and Bar Council (JBC) is tasked by the Philippine Constitution to determine the qualification of potential candidates to the judiciary. The council is empowered to recommend and disqualify applicants based upon legal, moral, and merit qualifications. The purpose of such council is to abjudicate a candidate's qualification by virtue of the council's expertise, not by its representativeness or as a call it "democratic credentials."

This council represents the most elitist institution in the Philippine government. Membership is limited to the Chief Justice as ex officio Chairman, Justice Secretary, a retired Justice of the SC, a representative of the Integrated Bar, a law professor, and a "representative of the private sector -all of them non-elected officials and nominated by the chief executive. Although in the past, the council and its function may have been said as practical, its composition as a public institution is too undemocratic, and indeed, in a sense, oligarchial. Without a doubt, its inclusion in the 1987 Constitution is a step forward from the 1973 Constitution, which enabled the chief executive unlimited appointment powers.

But as a democratic polity, the Philippines deserves better.

Beholden to the chief appointing authority, this council, however morally endowed and meritoriously qualified, is outdated and must be abolished. Its credibility notwitstanding, the council lacks the legitimacy which a confirming authority such as the Commission on Appointments (CA) or the Philippine Senate can provide.

There is no de jure and de facto separation between executive and judicial appointments except that the CA confirms potential candidates in the executive branch while the judiciary are de facto confirmed by the JBC; hence, appointed members of the executive branch have more electoral legitimacy than members of the judiciary, while also noting that the CA's capacity to confer electoral legitimacy is also questionable.

Since the legislative branch does not participate on the confirmation of members of the SC, the Philippine Congress is virtually helpless in restraining the appointing powers of the chief executive. Unlike the system of checks and balances under the U.S. Constitution, the Philippine Constitution lacks a stable structure of checks and balances. Instead, it relies on appointed constitutionally-created commissions, such as the JBC, to function as constitutionally-empowered but supposedly politically-neutral government institutions to restrain the three great departments of government.

Although the Philippine Congress exercises the power to remove impeachable officials, it does not have the authority to prevent the appointment of an unworthy appointee; and yet the ability to prevent "engot" appointments are as much important, if not more, as having the capacity to remove "engot" appointments. Stop gangrene at its root.

Indeed, the 1987 framers tend to dismiss the principle of limited power through the necessary affirmation of actions of a branch of government by another branch of government (appropriations, passage, execution or constitutionality of laws, etc) insofar as appointments of public officials are concerned. To the 1987 framers, clashes of opposing interests (or "ambitions" as Madison puts it) between the two most politically inclined branches of the goverment (the executive and the legislative branch) are unreliable to produce public good (that is, recruit worthy citizen-bar members to the judiciary) and may only be applicable to a mature and informed polity.

The argument that the appointment of SC Justices as being politicized when confirmed by a legislative body (CA or the Senate) is inconsistent and baloney; the appointment of SC Justices is and has always been a political process; it is political because the people must have some say regarding magistrates who shall judge fairly among themselves; more so, it is very political because without the appointment of the chief executive, it is impossible for the Judicial Department to exist, if one has not noticed!

Indeed, how can the judiciary escape the taint of political appointment if the appointing authority is already tainted?

The dilemma lies on the 1987 framers' premise to rely on the person's personal pursuit of common good, instead of strengthening the institutional processes geared towards the common good.

As it is said, politics in the Philippines is too personal. Processes (e.g., due process), whether be it political or legal, are merely a formality that in a culture of "palusot," are usually circumvented.

After all, why do we need due process, if we have benevolent leaders for us to follow?

Sunud-sunurang engot.

Lastly, for JBC to continue in its duty meant that the Filipino people is not yet ready to hold accountable and have a say on who shall judge over them, at least through legislators that act as representatives that confirm magistrates of justice.
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