SPEECH OF JUSTICE REGINO HERMOSISIMA, JR

THE PAN PACIFIC HOTEL, ADRIATICO, MANILA

MARCH 10-11, 2006

            Chief Justice Artemio V. Panganiban, Senior Supreme Court Justices Rey Puno and Leo Quisumbing, Senator Kiko Pangilinan, Congressman Datumanong, My Colleagues in the Council, S.C. Clerk of Court Villarama, Executive Director Anna Ty Capacite, Directors Fargas, Magturo and San Pedro, Fellow Workers In Government, My Friends:

            Before the 1987 Constitution, a good number of citizens, bar associations and civic organizations, and mass media, especially, expressed dissatisfaction over the nation’s system of dispensing justice with a vehemence that reached new heights, considering, (1) a persistently staggering backlog; (2) lazy, dishonest and incompetent members of the judiciary; (3) cumbersome procedures; and (4) dilatory tactics of litigants and lawyers.

            Apart from quantitative problems, there was a widespread disapprobation of the quality of the justice dispensed.  A committee on judicial reorganization, heretofore organized by previous administrations, warned that “these are problems both grave and pressing that call for remedial measures.”  The felt necessities of the time, to borrow a phrase from Justice Holmes, “admit of no delay, for if no step is taken and at the earliest opportunity, it is not too much to say that the people’s faith in the administration of justice will be shaken.”

            “The rectitude and the fairness in the way the courts operate must be manifest to the members of the community, particularly to those whose interests are affected by the exercise of their functions.”

            Actually, the furor boils down to this:  PROPER JUDICIAL SELECTION.

            The effectiveness of any judicial organization, no matter how it is planned and structured will suffer if it is unable to get HONEST, DEDICATED and COMPETENT judges.

            Serious attempts had been, made to solve the foregoing problems.  The Constitution endowed the Supreme Court with rule making power over procedure and with control over the practice of law.  In 1940, the Court discarded the old Code of Civil Procedure and adopted Rules of Court patterned after the Federal Rules of the United States; and revised these rules in 1964.  Congress increased the number of trial courts to keep pace with the population growth of our municipalities, cities and provinces; and increased the jurisdiction of municipal and city courts.  It had imposed higher qualifications for appointment to the bench; it raised judicial salaries; and extended and increased retirement benefits.  It established a Court of Appeals and specialized courts.  It institutionalized the Judiciary Division in the Department of Justice to supervise the housekeeping chores of trial courts; and the prosecution staff to assist in the prosecution of offenses.  It enlarged the jurisdictions of the Court of Appeals and increased its membership so that the Supreme Court could have more time to better perform its function as the final interpreter of the law.  It has standardized and simplified appeals from quasi-judicial bodies and eliminated double appeals filed merely for delay in cases originally tried by inferior courts.

            These remedies had alleviated the situation somewhat, but our people still did not repose as much confidence in other courts as they do the Supreme Court.

            Why had not new courts, more judges, and modern procedures cut down the gargantuan backlog?

            The Constitution and the law then had not improved the method by which justices, judges and prosecutors were selected or promoted and were not encouraged to maintain the quality of their work.  The law functioned negatively, not positively, that is, it was designed to keep unqualified misfits out, not to bring the best and the brightest lawyers into the judiciary.

            The bar then was fragmented and, for that reason, it could hardly contribute as much as it should to improve the judicial system, to raise the quality of the profession and to protect the public and itself from abusive or corrupt judges and irresponsible or dishonest lawyers.

            All appointments to the bench, then, were made by the President, subject to confirmation by the Commission on Appointments.  As a rule, the Commission on Appointments, in deference to the President, confirms every appointment provided that (a) the nominee possesses the qualifications prescribed by the law; (b) no serious charges are filed impeaching his integrity; and (c) no member of Congress expresses a strong objection to the appointment.

            The President generally selects the nominees from a list of candidates prepared under the supervision of the Secretary of Justice. The list includes those within the Department of Justice whom the Secretary believes would make good judges, as well as those without the Department who are proposed by leaders of the political party to which the President belongs or by other persons who possess a strong influence over the President or the Secretary.  Before inclusion in the list, the candidates undergo such screening as the Secretary may deem necessary.  Occasionally, the President or the Secretary consults with the Chief Justice and members of the Supreme Court, the Presiding Justice and Justices of the Court of Appeals and leading members of the bar with respect to certain candidates, especially those who aspire for appointment to the Court of Appeals or the Supreme Court.

            The final list from which the President makes his choice is not published.

            The Presidents nominations are not published by the Commission on Appointments.

            Consequently, this method of appointing and promoting judges proved to be one of the major reasons why our people do not trust lower Courts as much as they do the Supreme Court.  The people know that, as a general rule, a man can reach the Supreme Court only after years of service in the lower courts or of practice at the bar which has earned him a national reputation.  On the other hand, they suspect that judges receive their appointments and promotions more through political influence than merit.  The sight of most of the nominees milling around Congress, anxiously following up their nominations during the closing days of the session of the Commission on Appointments, serves to strengthen the suspicion.  Lack of publicity concerning the nominees before their nomination or confirmation adds fuel to the fires of suspicion.

            To remedy the situation, a bill that would require that nominees to the trial bench must have first qualified in a competitive examination given by the Supreme Court was filed in the Senate.  Chief Justice Concepcion advocated a similar remedy, extending the requirement of prior competitive examinations to appointments to the Court of Appeals.  The bill failed to pass.

            Indeed, such a requirement would have minimized political influence and would have infused in the nominee a sense of having earned his nomination by his own merits.  It would have served to enhance the independence of judges and to bolster public confidence in our system of justice.

            At the time, however, this was not proven to be feasible.  It imposed added work to the Supreme Court.  Some lawyers who would make excellent judges would be reluctant to abandon their practice because of financial losses.  Besides, they would be averse to the taking of an examination as though they would take the bar a second time.

            Thus, it was thought at the time that a better method would be to limit the Presidents’ power of appointment to nominees proposed by a Judicial Nominating Commission, composed of judges, lawyers and laymen.  The Commission would be charged with the duty of conducting careful checks into the background of all nominees, giving full publicity to the identity of the candidates and seeking out the best available talent to fill the vacancies from the lowest to the highest in the judiciary.

THE 1987 PHILIPPINE CONSTITUTION

            Reacting to the foregoing concerns, the Constitutional Commission enacted the 1987 Philippine Constitution and provided that:

SEC. 8 (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court 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.

(2)                 The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments.  Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired justice for two years, and the representative of the private sector for one year.

 (3)  The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.

(4)  The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court.  The Supreme Court shall provide in its annual budget the appropriations for the Council.

(5)                           The Council shall have the principal function of recommending appointees to the Judiciary.  It may exercise such other functions and duties as the Supreme Court may assign to it.

SEC. 9.  The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

Thus, it has been mandated that the Judicial and Bar Council shall have the principal function of nominating appointments to the Judiciary.  The Justices of the Supreme Court, the Court of Appeals, the Sandiganbayan and the Judges of the lower courts, and the Ombudsman and his Deputies shall, in addition to other requirements, be appointed by the President of the Philippines from a list of at least three nominees proposed by the Judicial and Bar Council for every vacancy.  Only those nominated by the Council in a list to be officially transmitted to the President may be appointed by the latter as Justices or Judges or as Ombudsman or Deputy Ombudsman.

RATIONALE FOR THE JUDICIAL & BAR COUNCIL

According to CON COM President, Justice Cecilia Muñoz-Palma, the JBC was the “baby” of Chief Justice Roberto Concepcion.  The late Chief Justice justified its creation in this manner:

“The Judicial and Bar Council is no doubt an innovation.  But, it is an innovation made in response to the public clamor in favor of eliminating politics from the appointment of judges.”

“At present, there will be about 2,200 positions of judges, excluding those of the Supreme Court, to be filled.  We feel that neither the President alone nor the Commission on Appointments would have the time and the means necessary to study the background of everyone of the candidates for appointment to the various courts in the Philippines, especially considering that we have accepted this morning the amendment to the effect that no person shall be qualified unless he has proven a high sense of morality and probity.” (Record, Vol. 2, p. 487)

The very rationale of the JBC’s creation and existence is itself the main argument for its continued existence – THE NECESSITY OF ATTAINING AND PRESERVING THE INDEPENDENCE OF THE JUDICIARY.

When I first joined the Judicial and Bar Council as member, I was not furnished with any written guidelines or criteria for the efficient selection of judges and justices, obviously because there was none.  The Hon. Teresita Cruz Sison disclosed that there were some unwritten policies and rules which were supposed to govern the Council but which were not steadily adhered to or assiduously followed.  It was then that I was commissioned to place in writing these policies and guidelines for the Council.  Chief Justice Andres Narvasa referred the rules that I wrote to the then consultant, Senior Associate Justice Hilario Davide, Jr., for revision and editing.  When the Hon. Hilario Davide became the Chief Justice, he refurbished them and set down these guidelines and criteria into clear and precise Rules.  These Rules now form the guidelines and criteria which govern the selection process conducted by the Council.

Frankly, I see no reason to amend, revise or add to these Rules, except when necessities of the time so require.  This workshop provides the forum for the revision, the amendment or to make additions to the Rules.

The criteria, it must be remembered, involve the applicant’s “competence” as attested to by his educational preparation, experience, performance, and other accomplishments:  the applicant’s “integrity”, “probity” and “independence of mind”; and “his physical, mental and emotional condition”.

The Judicial and Bar Council thus has adopted the following cumbersome procedure for the selection and nomination of prospective nominees to any judicial post:

The Council shall open for applicants vacancies in the judiciary taking into account the advice of the Supreme Court and the condition of the dockets of the positions involved.  The Council for that purpose shall publish notices of such vacancies once in a newspaper of general circulation.  A deadline is set for the filing of applications with the Secretariat of the Council.  The application must be in the form prescribed by the Council.  The Secretariat shall prepare a master list, in alphabetical manner, by region.  The regular members will set a date for the first preliminary meeting.  They will discuss the qualifications of the applicants to a particular court and arrive at a number that is to be submitted to the Council’s first en banc meeting purposely for publication and verification.  Then the Council in a given time shall publish the list of applicants agreed upon once in a newspaper of general circulation and once in a newspaper of local circulation in the Province or City where the vacancy in question is located, in order that the public can inform the Council of any complaint or derogatory information against the applicant.  Copies of the list shall likewise be posted in three conspicuous places in the province, city, or municipality where the vacancy concerned is located and shall be furnished the IBP, major religious, civic, social, professional, business and other non-government organizations.  The Executive Judge of the Regional Trial Court which has jurisdiction thereto shall see to it that these requirements are complied with.  The Council shall refer the names of applicants to the DOJ, NBI, OMBUDSMAN, COURT ADMINISTRATOR, SC BAR CONFIDANT to conduct discreet investigations.  A month after the publication, more or less, the regular members will set the second preliminary meeting to determine which of the applicants who may be subjected to panel interview, psychological examination and psychiatric evaluation.  The applicants thus selected shall be scheduled for panel interview and to undergo psychological examination and psychiatric evaluation.  The regular members shall then determine which of the applicants may be submitted to the Council en banc.  In the final en banc meeting, the Council shall choose at least three (3) names for transmittal to Malacañang.

GOOD PHYSICAL HEALTH, A REQUISITE

Good 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.  The applicant or the recommending party shall 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 two months prior to the filing of the application or recommendation.  At its discretion, the Council 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.

PSYCHOLOGICAL/PSYCHIATRIC TESTS

The applicant shall 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 Council.

These tests arrive at a psychological composite of human experiences and traumas.  There are five tests involved:  (1) the Wechsler Adult Intelligence Scale to measure mental capacity;  (2) the Rorschach Psychodiagnostic Technique to determine the manner of dealing with social environment;  (3) the Bender Visual Motor Gestalt test to determine the effect of the aging process on mental capacity;  (4) the Machover Figure Drawing Test to determine maturity and sense of responsibility; and  (5) the Hand Test to determine moral integrity.  These tests are not conclusive as to one’s capabilities or qualifications as a judge but they have helped the Council in determining those who are not qualified.  The personality and character of a prospective judge is very important for it is only with emotionally and mentally stable judges will the public be secure that the judges will be able to decide vital issues and controversies fairly and without prejudice.

PANEL INTERVIEWS OF CANDIDATES

Likewise, the Council en banc, or any panel of members thereof as may be authorized by the Council, shall conduct personal interview in public 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; evaluate their readiness and commitment to assume and fulfill the duties and responsibilities of judgeship and determine the seriousness amounting to incapacity, of the complaints/charges against them.

The interviews may be held or conducted outside of Manila.

REFERRALS TO: NBI, PNP, DOJ, OMBs,

COURT ADMINISTRATOR, SC BAR CONFIDANT AND IBP

After applications are filed, the JBC refers them to the foregoing agencies for favorable or derogatory comments.  Complaints and even anonymous adverse feedback are likewise referred to these agencies for discreet investigation and report.  In some instances, personnel of the JBC conduct such investigations.

REACHING OUT

Not included in the Rules is the fact that, during times when it is felt that there is a dearth of qualified applicants for certain judicial positions, the JBC reaches out to deserving lawyers and calls on them to apply and serve.  We request, particularly, the IBP, the Philippine Bar and other organizations to induce capable lawyers to make applications.

As a matter of fact, the JBC, during the incumbency of Chief Justice Andres Narvasa, offered to nominate prominent legal luminaries like Father Joaquin Bernas, Adolf Azcuna, the late Haydee Yorac, and Eduardo de los Angeles to the position of Associate Justice of the Supreme Court.  Perhaps, by reason of inadequate compensation, these lawyers declined our several offers at the time.  Years later Adolf Azcuna applied for and was readily appointed Associate Justice of the Supreme Court.

I feel that the JBC should call on the patriotism of good and deserving lawyers to allow themselves to be recruited no matter the financial sacrifice.

MANDATORY PHILJA REQUIREMENT

Section 10 of Republic Act No. 8557 provides:

Section 10. As soon as PHILJA shall have been fully organized with the composition of its Corps of Professional Lectures and other personnel, only participants who have completed the programs prescribed by the Academy and have satisfactorily complied with all the requirements incident thereto may be appointed or promoted to any position or vacancy in the Judiciary.

Appointments and promotions of judges have slackened lately because PHILJA, being strict, disciplined, and rigid, choose only a few qualified participants.  But, this is good law and we might as well abide by it.  It was passed in consonance with the suggestion of Chief Justice Marcelo Fernan, Chief Justice Concepcion and Senator Jose W. Diokno.

This is one concern that the JBC should look into and provide a policy.

Another concern that should be looked into is this:

How to improve the disciplinary system.  The entire disciplinary system of the Judiciary should be strengthened by infusing it with the necessary capacity to detect, investigate, and gather evidence on corrupt practices, speed up the processing of administrative cases, and impose stronger sanctions in accordance with the provisions of law.  The disciplinary system should be integrated with the implementation of the Code of Ethics and with the accountability and performance management system of the Judiciary.

A mechanism for weeding out non-meritorious complaints should be designed and established.  This will involve, among other things, the establishment of clear and organized definitions of acts to be considered violations of existing laws, rules and procedures and the corresponding nature and gravity of disciplinary action attached to each act.

The disciplinary system also requires stronger collaboration with other anti-graft and corruption agencies, such as the OMB, PCAGC, CSC and COA, as the case may be.

The Judiciary should establish stronger collaboration with civil society groups and the media to strengthen their contribution in the detection and investigation of charges of graft and corruption.  In particular, the Judiciary should design and establish accessible “complaints” desks and uncomplicated procedures to allow the public across the country to file their complaints or for the public to provide information and evidence on corrupt practices.

In sum, strategic reform measures under judicial appointments and career development should include:

1.     Removal of political influence from judicial nominations for the appointment process.

2.     Less politicization of Presidential appointments.  Constitutional and JBC criteria should instead be followed.

3.     Strengthening of judicial career path to attract first and second level trial court judges, linked with professional growth training.

4.     Build on and strengthen PHILJA initiatives to institute Trial Court Performance Standards and Measurement Systems.

5.     Mandatory judicial education annually for each judge on conduct on and off the bench.

6.     The JBC should appoint a corps of investigators whose job is to look into the veracity of complaints or ad verse feedback affecting aspirants for judicial positions.

7.     Furnish the JBC Chairman and the Ex-Officio Members with the Bio-data, profile and, especially, the report on the panel interview of each and every applicant to positions in the judiciary.

8.     Expand the membership of the JBC to include the two (2) Senior Associate Justices of the Supreme Court, the Presiding Justice of the Court of Appeals, the Presiding Justice of the Sandiganbayan, and the Court Administrator.  This needs a Constitutional amendment.

Come to think of it, if we are going to impose the aforesaid criteria very strictly and assiduously on aspirants to the judiciary, considering that lawyers who have had a lot of law practice or who had served the government for a good number of years, may have developed some idiosyncrasies, unethical, unpopular or eccentric habits, an unnatural and imposing character, and materialistic instincts and tendencies, they being only human, my experience is that only less than thirty (30%) percent of aspirants frankly deserve appointment, and less than ten (10%) percent deserve promotion.  Some may not, of course, have made good in law school or in the bar, but yet are such late bloomers that by conscientious effort, and experience, dedication and study, and through innate intelligence, have developed and metamorphosed into good materials for the Bench.

And so, a lot of wisdom, understanding, experience and know-how will be needed in the judicial selection process.  It is for this reason that the suggestion that members of the JBC should not stay in office for long may not hold true.  Members, the regular members I mean, come to the forefront in personally meeting aspirants and candidates alike, looking into their roots, their family standing in society, their educational background, their personal looks and attributes, composure and knowledge of the law, their performance and experience, their health and personal well-being, in other words, their capacity for the position they aspire for.  It is a pity, for example, to lose the sterling qualities and the expertise of the likes of the Hon. Teresita Cruz Sison, the first woman President of the Philippine Bar Association and for seventeen (17) years National Treasurer of the IBP, Justice Alfredo Marigomen, a Bar topnotcher, a law practitioner, and a CFI judge and Justice of the Court of Appeals for 30 years, and Dean Amado Dimayuga, Dean Emeritus of the oldest University of the Philippines, who, by experience, contact with and study of aspirants through the years, can spot for us the good from the bad, the qualified from the unqualified, the deserving from the undeserving.  Really, it pays to know the aspirants personally.  Only then can we separate the grain from the chaff; and only then will we know what it takes to be a good judge or justice.

RCH/laq

JBC Workshop March 2006