Fickle presidents, opaque JBC process, elitist court

First of Two Parts

MOSTLY old, mostly male, mostly born and bred in imperious Luzon and all schooled in imperial Manila. Two in every three were jurists and bureaucrats in their previous lives, and thus, also mostly creatures of habit and routine. In the last 20 years, while 15 of the 80 nominees were female, only three women were eventually appointed.

This seemingly impregnable enclave of the elite is actually the Philippine Supreme Court, the most majestic of all the country’s courts, the final arbiter of constitutional questions, and “the last bulwark of democracy” in the land.

Yet unlike Philippine society, which is becoming more diverse with big numbers made up of the poor, the female, the young, and the rural dwellers, the high court is as homogeneous as when it was born in 1901.

And despite democracy’s rebirth in 1986, the Supreme Court remains an exclusive club, no thanks to the still largely opaque, weak, and snobby processes of two entities responsible for screening nominees and appointees to the tribunal: the Judicial and Bar Council (JBC) and the President of the Philippines.

These are among the findings of an academic paper on the work and output of the JBC from 1988 to 2008 that was published recently in the Asian Journal of Comparative Law.

 

Titled “Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008),” the paper was co-authored by spouses Dante B. Gatmaytan, associate professor at the University of the Philippines College of Law, and Cielo Magno, Fulbright fellow and Ph.D. candidate at Northeastern University in Boston, Massachusetts.

The paper is “an empirical study on the nominations and appointments of Supreme Court justices” in the first 20 years of existence of the JBC, or since it was created in the 1987 Constitution precisely to open up the process to the citizens.

It offers a profile of individuals nominated by the JBC based on gender, age, geographical origin, academic background, and professional experience. As well, it explores “whether the appointing Presidents display any preferences based on personal characteristics relating the effects of these preferences to the diversity on the Supreme Court.”

Same, same crop

Among other findings, the study shows that the nominees and appointees to the high tribunal in the last two decades came from the same background. This homogeneity, the study says, “is sorely unrepresentative of Philippine society,” adding that future research on the high court may hopefully help “determine how this lack of diversity on the Supreme Court can affect the resolution of legal issues.” This lack, say Gatmaytan and Magno, “could also have implications for minorities who may not view the court’s decisions as legitimate.”

The data point to issues that deserve further scrutiny, the couple says. “Supreme Court nominees tended to have the same gender and age, to come from the same region, and to be trained in Manila,” they write. “All the appointees to the Supreme Court came from the same pool of hopefuls.”

Moreover, “with few exceptions, the Presidents appointed nominees with the same gender, age, geographical origin and legal training,” say Gatmaytan and Magno.

For some reason, however, the composition of the Supreme Court, and the social and career background of its justices has generated scant scholarly interest in this country. In 1979, it took an American, C. Neal Tate, to focus his doctoral dissertation on The Social Background, Political Recruitment, and Decision-Making of the Philippine Supreme Court Justices, 1901-1968.

Gatmaytan and Magno meanwhile say that their study on the 20-year record of the JBC from 1988 to 2008 is “necessarily preliminary” because of the dearth of publicly available information on the work of the body, and on the nominees it has screened for appointment to the high court.

“(As) others have explained,” they write, “the likelihood of obtaining documents from the JBC is ‘practically nil’ as requests for data are repeatedly turned down.”

Indeed, the duo obtained the information on the list of nominees and appointees from the inception of the JBC in 1988 through February 2006 through the Philippine Center for Investigative Journalism (PCIJ), in particular via the help of the late Alecks Pabico, at the time PCIJ’s training and multimedia director.

(A list of nominees toward end-2008 was submitted by the JBC to then President Gloria Macapagal Arroyo but because she did not fill the vacancy sooner, those nominees were not included in the study of Gatmaytan and Magno.)

Diversity good

In contrast to the paucity of analytical studies focusing on the Philippine high court, a bounty of literature in the United States – in whose image, likeness, and procedures the Philippines has evolved its judiciary – has inquired into the traditional, political, and professional criteria that influence Supreme Court appointments.

Observe Gatmaytan and Magno: “The literature (in the United States) is thick with arguments that favor the constitution of diverse collegial courts… (and) that judicial diversity is a means of attaining judicial independence and accountability.” Many of these studies suggest, the authors say, “that the appointing powers should strive to create a more diverse Court by taking career experience as seriously as they do race and gender.”

Additionally, these studies say that “requiring prior judicial experience produces in the Court a homogeneity that prevents it from operating optimally.”

“The importance of these studies cannot be overemphasized,” write Gatmaytan and Magno. “Decisions are more likely to be regarded as illegitimate if the decision-making body, whether by a jury or judge, ‘is homogeneous, exclusive, and not representative of a cross-section of the community.’”

The scholars, citing various authors, also say that two arguments favor diversity in the high court – greater diversity “may increase the public trust in the court” and that “the diversity of information and views held by the justices will increase the total information provided to the Court, which will lead to more informed and better decisions.”

From 1901 to this day though, Gatmaytan and Magno note that Tate had found that the high court “constituted part of the political elite that was far less representative than most other elites.”

They quoted Tate’s study as saying that, “the under-represented regions” were “those with the highest population growth and low rates of literacy” or the very places “where social problems are considerably greater.”

The University of the Philippines, they continue, “supplied the majority of the appointees in the post-colonial period (from 1946) since they began churning out graduates in 1913,” and since 1962, “all but two of the justices graduated from the University of the Philippines.” In contrast, the colonial period was “dominated by graduates of the University of Sto. Tomas, the oldest university in the Philippines.”

Back then, as it remains so today, about two-thirds or 58 percent of the justices came from the ranks of the judiciary, notably the Court of Appeals. Then and now, too, Gatmaytan and Magno, citing Tate’s study, say that 25 justices came from the bureaucracy, “usually from the Department of Justice,” while the rest of the justices came from private practice, the academe, and politics. In Tate’s study, the mean age of Supreme Court justices was 57.1 and their mean tenure, 9.2 years.

Law vs practice

According to Gatmaytan and Magno, Tate also discovered that “there was no uniform route to a Supreme Court judgeship – recruitment to the highest court was not ‘simply the reward for long-serving, brilliant, or otherwise ‘meritorious’ judges, despite widespread public endorsement of this idea as a recruitment norm.”

At the very least, though, the 1987 Constitution had enshrined “safeguards to strengthen judicial independence,” including the creation of the JBC and having the appointment of all judges by the president  “no longer subject to confirmation” by the Congress’s Commission of Appointments.

But Gatmaytan and Magno say that there are disparities between what is written in the Constitution and the practices of the JBC.

As a constitutional body, the JBC is tasked to screen candidates for vacancies in the judiciary and then submit to the president the names of at least three nominees for each vacant position.

Created purposely “to limit the President’s discretion in the selection of judicial appointees,” the JBC is chaired by the Supreme Court chief, and should, in law, have only six other members.

Like the chief justice, the Constitution says the justice secretary and a representative of Congress will sit in the JBC as ex-officio members. The four other “regular” JBC members, according to law, are a retired justice and a representative each from the academe, the private sector, and the Integrated Bar of the Philippines.

In practice, however, two representatives from Congress sit in the JBC – the chairs of the respective committees on justice of the Senate and the House of Representatives – thus making for an eight-member JBC. In practice, too, all eight members, including the chief justice, cast one vote each for every nominee, including the three ex-officio members.

Rep. Niel C. Tupas, Jr. of Iloilo, the House’s JBC representative, tells the PCIJ that the Constitution allotted just one JBC seat for Congress apparently because the framers had thought that  the country would have a unicameral legislature.

And whether or not the ex-officio members can and should vote is a question that, he says, the JBC has settled by tradition and not by law. Explains Tupas: “Ex-officio here means ‘by virtue of’ our office, so we sit in the JBC as representatives of our chambers. Ex-officio here does not mean we don’t have voting rights. By tradition, all the eight JBC members cast a vote for the nominees.”

The Constitution, however, does not explicitly state that the JBC’s ex-officio members have voting rights.  A contrary practice exists elsewhere. In Republic Act. No. 4884 of 1966 (which created the National Police Commission or Napolcom) and Republic Act No. 8551 of 1998 (which established the Philippine National Police), two ex-officio members of the Napolcom board are explicitly stripped of voting rights. They are the secretary of Interior and Local Government, who serves as Napolcom chair, and the director-general of the PNP.

Frequent tryouts

Gatmaytan and Magno also found that in the first two decades of its existence, the JBC screened 80 individuals who have been nominated to the Supreme Court, in 35 rounds of nomination processes. But because some of them were nominated more than once – in one case nine times even – the JBC actually submitted a total of 208 nominees to the Supreme Court during the 20-year period.

“Twenty-nine were nominated only once while 51 individuals were nominated multiple times,” say Gatmaytan and Magno. “On the average, nominees were included in the list 2.5 times.”

This trend of several names reappearing as applicants and nominees for the position of justice is worrisome, say the scholars.

“Repeated nomination to the Supreme Court could indicate a shallow bench from where nominees are recruited,” they argue. “This does not augur well for diversity on the court.”

As it is, of the 80 individuals who were included in the list, 65 or 81 percent were men, and only 15 or 19 percent, women.

By background, a vast majority of the nominees came from government service: more than half or 63.8 percent from the judiciary, and another 17.5 percent from the Executive branch. The latter included commissioners of the Commission on Elections (Comelec) and the chairman of a Presidential Fact-Finding Commission on the botched coup attempt of December 1989. The other nominees came from private practice (8.8 percent).

In the first three screening processes it conducted, the JBC submitted only three names for each vacancy to the president, the minimum requirement in the Constitution. Later on, its lists enrolled an average of six names, with a ratio of five male nominees to one female nominee. On one occasion, the JBC list contained as many as 11 names. The study’s authors found no pattern of an increasing number of women nominees over time.

By island-group of origin, 75.6 percent of the nominees came from Luzon, seven percent from the Visayas, and three percent from Mindanao.

8 in 10 males

Out of the 35 screening processes and 80 nominees to the Supreme Court from the JBC, four Philippine presidents who served from 1988 to 2008 appointed 41 justices to the high tribunal.

The average age of these judicial appointees was 63 years, or just seven years shy of the mandatory retirement age of 70 years under Philippine law.

Also among Gatmaytan and Magno’s findings are that an overwhelming 78 percent of these justices were male, and only 22 percent female.

About half or 20 justices graduated from the University of the Philippines. Five justices each came from the Ateneo de Manila University and San Beda College, three each from the University of Sto. Tomas and Manuel L. Quezon University. Three others came from other law schools also located in Metro Manila.

All the 41 justices were educated in Metro Manila, but only 12 had pursued advanced degrees after obtaining law degrees.

A vast majority of 31 justices or 75 percent originated from Luzon, including 14 from Metro Manila. Only seven justices came from the Visayas, while three were from Mindanao (two from Davao City, and one from Zamboanga City).

Presidents’ quirks

In addition, the study reveals the unique preference patterns of the four presidents – the late Corazon C. Aquino (1986-1992), Fidel V. Ramos (1992-1998), Joseph Estrada (1998-January 2001), and Gloria Macapagal Arroyo (February 2001-May 2010) – who appointed the 41 justices.

Ramos and Arroyo appointed 14 justices each for a total of 28, while Cory Aquino appointed seven, and Estrada, six.

Cory Aquino in truth appointed more justices before the JBC was born under the 1987 Constitution. When she took power in February 1986 after the late strongman Ferdinand E. Marcos was ousted by four days of massive people power rallies, she installed a “revolutionary government,” abolished the Supreme Court, and replaced it with an entirely new slate of justices.

Arroyo appointed Antonio Carpio justice when he was just 52, making him the youngest ever to be appointed to the high court. In contrast, Jose C. Campos, Jr. was appointed associate justice when he was already 69 years old, or just months away from the mandatory retirement age of 70. He served in the high court only from Sept. 3, 1992 to April 8, 1993.

Good-bye boys?

Still and all, all four presidents showed a predilection for appointing mostly grey, old men to the high court, or justices in their twilight years, or on the verge of retirement.

But there are fine distinctions among the four chief executives when it came to appointing women. Of the six justices Estrada appointed, three were women. Ramos, for his part, did not appoint any woman to the court, even though the JBC included women in its lists of nominees during his term.

Interestingly, Gatmaytan and Magno note that the two women presidents, Cory Aquino and Arroyo, “did not appear to prefer women when they made their appointments to the Supreme Court, keeping them to a low 28.6 percent of their (respective) appointees.”

The elite law schools also emerge as the favored picking ground for appointees of the four presidents. “Almost three-fourths (71.4 percent) of Aquino’s appointees were from the University of the Philippines,” write the study’s authors. “Macapagal-Arroyo follows with half of her appointees coming from the same university.”

Ramos appointed six UP graduates, and Estrada only two UP graduates, to the Supreme Court.

But by last job posting, all four presidents seemed to have preferred snatching their justices from the ranks of the judiciary and other executive agencies.

Five out of the six justices Estrada installed in the high court were former judges. The sixth justice he appointed was not from the judiciary but was still an old government hand: then Comelec Chairman Bernardo Pardo.

Ramos chose 11 of his appointees from the judiciary; similarly, Cory Aquino and Arroyo snared more than half of their appointees from the ranks of judges (57.1 percent).

Ramos, Estrada, and Arroyo looked to the north too much as source of their appointees to the high court; three-fourths of their appointees were from Luzon. By comparison, Cory Aquino picked four of her seven appointees from the Visayas and Mindanao.

Senior citizens

Because of the mandatory retirement age of 70 years, naming senior citizens to the high court has triggered a fast turnover rate of justices. Cory Aquino and Arroyo performed well in this regard though – the justices they appointed had the longest average tenure (eight years).

In contrast, Estrada’s appointees served the shortest tenure (five years), while Ramos’s appointees, 6.4 years.

This is clearly a regression from the time Tate did his study on the composition of the high court from 1901 to 1968, or before Martial Law.

In Tate’s time and study, 57.1 was the mean age of Supreme Court justices, and their mean tenure, 9.2 years.

In the Gatmaytan-Magno study, from 1988 to 2008, the mean age of Supreme Court justices was 63, and their mean tenure, across all four former presidents, from 5.2 to 8.1 years.

Before Antonio Carpio, it was a Ramos appointee, Hilario Davide Jr., who had served the longest or for 14 years. Davide spent seven of those years as associate justice, and the next seven, as chief justice.

If the incumbent justices were included in the sample, Gatmaytan and Magano say the justices’ tenure would inch up to seven years on average, but still shorter than the 9.2 years average tenure of the justices until 1968.

This would explain why the Philippines had 41 appointees to the Supreme Court between 1988 and 2008 while the United States had a mere seven during the same period. All seven were still at the U.S. high court at the close of 2008.

In 2009, seven more new justices were appointed to the Philippine Supreme Court.