Estelito Mendoza proposes JBC abolition, judiciary appointees to go through CA

Veteran lawyer Estelito Mendoza on Tuesday proposed the abolition of the Judicial and Bar Council (JBC) and give the power to screen the appointees to the judiciary to the Commission on Appointments (CA).

At a hearing of the Senate constitutional amendments committee, Mendoza said the power to appoint the members of the judiciary has been "concentrated" on the president and without the participation of the members of Congress.

"The present Constitution provides [that] members of the judiciary shall be recommended by the JBC and this JBC is supposed to depoliticalize the process but as I analyze ... what has happened is that the appointment of the members of the judiciary has now been concentrated on the president without the voice and participation of the  members of Congress," Mendoza told the Senate panel.

"So as far as that is concerned, I will propose that the Constitution be amended to provide that the members of the judiciary shall be appointed with the consent of the CA," he added.

He cited as an example the appointments made "at the behest" of former President Rodrigo Duterte.

"For example, the last appointed (Supreme Court) Justice (Filomena) Singh and I think as far as her qualifications are concerned, they are outstanding as she really deserves to be appointed to the SC but her appointment went through the process, through a blink of an eye without the participation of the members of Congress," he said.

"So in the reality of the present Supreme Court, all those appointees are handpicked by President [Rodrigo] Duterte and members of Congress have no participation at all," he went on.

"I propose to change the method of appointments to the judiciary from the JBC to the confirmation by the CA."

Mendoza emphasized that the CA is composed of members of the majority and the minority blocs of Congress which are not "controlled by the President."

Senator Robin Padilla, the panel chairperson, then asked if this means that the JBC should be removed, Mendoza answered in the affirmative.

"Yes, because while the intention behind the JBC is to depoliticalize the process, what has happened is that the process has been depoliticalized but the power has been given to the number one political power in the government and that is the president of the Philippines," he said.

Should the JBC be abolished, Mendoza said the recommendations for the posts in the judiciary may come from anyone, including the president and members of Congress.

"Yung mga recommendees maaring kung kanino man galing kung members of the House or member ng Senate. Miski sa taga-labas dadaan lang sa members ng CA," he said.

The veteran lawyer expressed confidence that this proposal could gain support from members of the Senate and the House of Representatives as lawmakers will be interested in participating in the confirmation of  appointees in the judiciary.

"I anticipate that whether it is by direct vote of the Congress, the 3/4 vote will be obtained because the members of the House will all be interested in having a participation in the appointment of the members of the judiciary and that participation is guaranteed through the membership of the CA," he said.

Under the 1987 Constitution, members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy. Such appointments need no confirmation.

The JBC is 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.

Meanwhile, the 1987 Constitution provides the CA the power to approve or disapprove the appointments made by the president of the Philippines. 

In the same hearing, Mendoza also mentioned the need to amend the provision of the 1987 Constitution on the declaration of martial law.

He said the deletion of the phrase "imminent danger" from the 1987 Constitution might cause a delayed action from the government in war situations.

"What the 1987 Constitution did is to remove the phrase 'the imminent danger thereof' but in my view, if you remove that, (it) would mean you cannot declare martial law or suspend the writ of habeas corpus until war is already, actually in the country. It is not a practical solution," Mendoza said.

Section 9 of the 1973 Constitution provides that "  The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it be­comes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."

However, the 1987 Constitution amended this provision and provided more requirements before a president can declare martial law.

Prior to giving this proposal, lawyer Anthony Amunategui Abad Jr. from the Ateneo de Manila University said among the reasons politicians are not supportive of charter change is due to the "trauma" from Martial Law.

"Well, on one side is yung trauma ng martial law and the whole period ng dictatorship. So there are still people who are scared na baka babalik uli sa batas militar, gagamiting ang constitution for dictatorship purposes," Abad said when asked by Padilla why politicians are fearful of amending the constitution.

Padilla then asked if people are no longer considering this, noting that Marcos  even won the 2022 presidential elections.

"Di po kaya prof parang after 35 years na-realize ng mga tao na parang lumipas na yon kasi ang presidente po natin ngayon ay si Presidente Ferdinand "Bongbong" Marcos na anak ng sinasabi nilang dating diktador pero nakabalik siya. Di po kaya parang lumipas na?" he asked.

Abad agreed that this has long passed, adding that the 1987 Constitution is "in principle" a temporary constitution which was ratified for stability.

"Matagal nang lumipas. Kasi yung 1987 Constitution, in principle, temporary contitution lang yan. Sinabi lang ni (late former President) Cory (Aquino) na i-ratify natin yan para magkaroon ng stability pero then ayusin natin," he said.

"So dapat pinag-aralan na yung pagbabago sa 1987 Constitution as early as 1989 or 1990 dapat inayos na natin noon," he added.— RSJ, GMA News