Sec. 7 Article VIII of the 1987 Constitution requires a Chief Justice to be at a natural born Filipino, at least 40 years old.
The President appoints the CJ from among the 5 most senior Justices and a shortlist of three nominees to be submitted by the Judicial and Bar Council (JBC); based on “competence, probity, integrity and independence”. Traditionally, the most senior Justice is designated Chief although this changed with GMA’s appointment of Corona.
The JBC is composed of 8 members of whom 4 are ex-officio (The Chief Justice as Chairman, the Secretary of Justice, and the heads of the Justice Committees of the House and the Senate) and 4 regular members representing the Integrated Bar of the Philippines, the academe, a retired SC Justice and the private sector.
The 4 regular members of the JBC are appointed by the President with the consent of the Commission on Audit.
The current JBC members are acting CJ Antonio Carpio, DOJ Sec. Leila De Lima, Sen. Chiz Escudero, Cong. Neil Tupas, Milagros Fernan-Cayosa (IBP), Jose Mejia (Academe), Ret. Justice Regino Hermosisima, Jr., and Aurora Santiago Lagman (Private Sector).
The post of CJ does not have the bare knuckles power of the Presidency but it is weightier than the Senate Presidency or House Speakership who have to co-exist in a bi-cameral body. The CJ, for one, has tenure unlike his counterparts in the political branches of Government. The power of the CJ depends largely on his leadership since, to borrow from the Corona defense, the SC is a collegial body in which the CJ is only one of 15 votes.
By tradition and absent any disqualifying factors, Justice Carpio deserves to be the next Chief Justice. He is the most senior member and if not for the midnight appointment of Corona, would have held the position. He is experienced, is technically and administratively competent and his integrity is not in question. Equally important, he is a leader who can drive a pro-active agenda.
Carpio’s detractors question his independence. They accuse him of ties to the CVC Law firm of which he was once a name partner and of being pro-Administration.
It is hardly unusual for a lawyer of unique standing to have been connected with a major law firm sometime in his career, so to exclude nominees on this basis would be to deprive the country of a large pool of qualified candidates. The question is whether his prior association has compromised his judgment in any matter before him. There is no record it has. He inhibited himself from the Luisita case (as he has from the current selection of the Chief Justice).
Other say the President should not appoint Carpio as CJ because this would confirm P-Noy is out to control all branches of Government. This was the Corona conspiracy theory but, strangely, even some well meaning people have bought into this.
These political purists really have to decide what they want. Do they want a Chief Justice whose ideals happen to be aligned with the President’s or do they want an “independent” just for the sake of being so?
Independence, judicial or otherwise, can be over-rated especially if it means fence-sitting, in-action or worse, being obstructionist and power-centric. There is nothing wrong with taking sides if one is on the right path. In fact what the SC needs, arguably, is not so much independence as greater advocacy. Checks and balances, the theoretical safeguards of our democracy, are fine when the President is of questionable probity but when he is not, they should not be allowed to get in the way of progress.
Carpio is also not one to carry anybody else’s baggage, Presidential or not. Although appointed by GMA, he proved to be too independent for her so she by-passed him as Chief Justice when CJ Puno retired in 2010.
The selection of the CJ has political undertones. The CJ chairs the Presidential Election Tribunal which is still deciding the disputed VP race between Mar Roxas and Jojo Binay. The latter’s supporters are wary of Carpio overseeing this process.
So-called defenders of our democracy believe we should have a Chief Justice with no political ties. Political ties no, but political beliefs yes. When their intentions are noble, we should want leaders in the Executive, Legislative and Judiciary who share the same vision for the nation rather than who stifle each other. This in fact was the intent of the Constitution when it prescribed that the President appoint the Chief Justice. The idea is, even as democracy should protect us in the worst of times, it should be made to work for us in the best of times.
So let’s get real. The President should appoint Carpio as CJ so we can finally, within the law, have all branches of Government united in a common and worthy cause that is our country.