In the aftermath of the May 29 impeachment verdict against Renato Corona, the position of the chief justice of the Republic of the Philippines is now vacant. There has been ongoing, heightened scrutiny over what President Benigno Aquino III can and ought to do in the appointment process in the forthcoming weeks. Should he follow settled constitutional practice where a "short list" of "at least" three nominees is submitted by the Judicial and Bar Council (JBC)? Or could new dynamics — provided they are no less constitutionally permissible — be thrown into the mix? There is no question that the stakes today are still high, though not as tense as in the times of impeachment. Everyone seems to be looking to Aquino to somehow set new precedent and overturn the bad ones, "midnight appointees" among them. If you happen to be in a position of power, or at least stay politically relevant, you might conclude, quite easily, that the government should attempt to expand the deliberative space, or "think-through," over an appointment of a new chief justice.
In what follows, I explore the question of how someone holding the reins of the presidency, under our new circumstances, might better approach the appointment process of a chief justice and avoid a second constitutional "system failure." In particular, I hold on to the idea of expanding what I call "deliberative constitutional space" — our constitutional "think-through" — in addressing this (hopefully temporary) constitutional vacuum. I think Dean Jorge Bocobo made a good, leading sally: Article VIII, Section 9 of the Philippine Constitution can be construed as providing a range of action under presidential discretion: from an obligation to an option. The "obligation" here is that the president must fill every vacancy in the Supreme Court according to the shortlist supplied by the JBC. This is something which he must do, and prior constitutional practice certainly affirms it. When the vacancy happens to pertain to the position of chief justice, it is not clear under Section 9 that the "Member" he appoints, whenever there is no chief justice, should always be a chief justice.
Suppose President Aquino chooses to appoint a new associate justice (presumably from outside the Court) instead of a chief justice (presumably from within the Supreme Court). I think he could not be accused of any constitutionally impermissible action. Here lies his option: he could appoint a chief justice, be it someone from outside the Court or from within, or he may choose not to, and, instead, appoint an associate justice. In our hypothetical, contrarian case, this kind of appointment would imply, and imply very clearly, that the policy choice of who should be the new chief justice may lie with someone else. Meanwhile, the various default rules on who becomes the acting chief justice will continue to operate.
Who could that "appointing" authority be? It seems well-settled, at least constitutionally settled, that the power of appointment should really rest with the president. There is no issue that the power to appoint is essentially an executive prerogative. Precisely, we are trying to better think-our-way-through-and-through, in the aftermath of Corona's impeachment, and perhaps by seeking to expand the space for deliberative scrutiny — by securing a unique kind of stakeholder support, perhaps — to make sure that we'll get it right this time from the beginning.
That new stakeholder, according to Bocobo, would be the Supreme Court en banc. The Philippine Supreme Court could venture to appoint its own chief justice from among its extant membership, much in the same way it can appoint its own acting chief justice. Arguably this self-appointing power should be traceable to an enabling statute, but a case could be made in the name of inherent judicial powers regardless of the absence of explicit statutory or even constitutional text.
However, let us not venture that far. Let us suppose that Aquino will go about constitutional appointments according to settled practice (by "settled," I refer to constitutional practices prior to Corona's midnight appointment). In addition, let us add, as a new dynamic, the institutional voice of the Supreme Court as a decisional factor for the president.
How could our constitutional system ever accommodate that? Even if we concede that a few more chefs might actually spice up and not spoil the broth, wouldn't considering the preferences of the entire en banc, even if court-packed by someone else, be an unconstitutional setup? What do we make of the JBC?
It is here where Bocobo draws the line between recommendatory (non-binding) action on one hand, and binding (read: unconstitutional) action on the other. "What I am suggesting," says Bocobo, "still follows our process but asks the President to get the Supreme Court's nonbinding 'recommendation.'" Accepted practice is that the JBC scrutinizes contenders for an imminent judicial appointment and shortlists them for the president to choose among, but the novelty here would be a hybrid three-stage process: First, the JBC submits its shortlist to the president; second, and possibly simultaneously, the Supreme Court in an en banc session issues a resolution indicating its preferences (akin to congressional resolutions, bills excluded); and third, the president, taking into account this tripartite deliberation, then appoints a justice (I think the first two steps can be switched, and I leave the propriety of that topic elsewhere).
If we go by current politics, no matter who Aquino chooses, some people will say that that person will be beholden to him, by that fact of appointment alone, and will do his bidding. In that regard, Aquino will be no different from former-President Gloria Macapagal-Arroyo. However, if President Aquino can give the Supreme Court en banc freedom to recommend their new chief justice, a policy choice which he would then approve, wouldn't this demonstrate a very real commitment to judicial independence while still fulfilling his constitutional obligations under Section 9?
Bocobo's case makes much sense. I do not think this hypothetical dynamic will run into any difficult constitutional hurdles, although it does tread new ground. Aquino would still appoint the next chief justice, but the innovation, to Bocobo, is to insert the Supreme Court into the loop. This is where presidential discretion can demonstrate a sincere commitment to judicial independence beyond name.
I wish to take it a step further by treating the voice of the Supreme Court en banc as one of inter-departmental courtesy, a request made by one co-equal branch to another, whose substance perhaps even qualifies as a political question, akin to the communicative policy dynamics between Congress and the president. Whenever Congress passes a resolution exhorting sundry institutions under the executive branch to do this or do that, the president and his secretaries or bureau chiefs have all the right (nay, the power) to deny that request, but only at great political cost. There will always be a calculus of political capital factored into any constitutional question, even if the issue can strike one as simply "recommendatory." In a similar vein, denying the preferences of an en banc resolution, which is no ordinary resolution since it expresses the 'will' of the court over one whom they deem to be their primus inter pares, will likely be equally damaging to another co-equal branch.
Including all sitting members of the Supreme Court may certainly expand our deliberative space and may even up the ante beyond what the JBC, quality-wise, could ever provide. Remember the JBC was originally conceived by the 1986 Constitutional Commission to diffuse, if not eliminate, political horse trading over judicial positions. This is a departure for Senate confirmations under the 1935 Philippine Constitution. If we go by the results of the impeachment, and if we find ourselves in agreement with our senators (more or less), then our pre-appointment review process over who should be our top three picks for Supreme Court posts, including the chief justice, was a system failure.
If our tripartite dynamic can hold, over time confidence can be built up that such recommendations can ripen into an entrenched constitutional practice, if not automatically binding. What is more, Bocobo's setup wouldn't require a constitutional amendment, only a little more creative constitutional interpretation. This may go a long way in pushing the boundaries of a whole society's grassroots understanding of such lofty ideals of fidelity to law, impartiality and independence, even-handed justice, transparency and accountability. If Congress and the executive branch are already in the habit of "recommending" policy choice and policy action between and among them, and perhaps rightly so, why not accord the Supreme Court, in the attempt to choose its own, the same institutional dignity and respect?
Edsel Tupaz is a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.
Suggested citation: Edsel Tupaz, Philippine Supreme Court Selection Process Should Change, JURIST - Sidebar, Jun. 27, 2012, http://jurist.org/sidebar/2012/06/edsel-tupaz-chief-selection.php
This article was prepared for publication by Jordan Barry, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org