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The US Senate’s confirmation hearings on nominees to posts of
federal justices and the US Supreme Court are any or all the
following: messy, divisive, intrusive. Just go over the pained
accounts of the Robert Bork confirmation hearings for Exhibit A. At
times, they are especially nasty, like the hearings that eventually
confirmed the appointment to the Supreme Court of a black,
conservative lawyer with an up-from-the-bootstrap story, Clarence
Thomas.
Anti-democratic views are often stirred by such
transparency. Some had dishonestly placed the dignified but graphic
testimony of law professor Anita Hill, who accused Thomas of sexual
harassment, in the category of soft-porn just to demean the process.
Despite the nastiness the Senate hearings are on
the whole showcases of democracy at its purest, unalloyed sense:
co-equal branches of government, tempering/moderating the
presidential zeal in appointing cronies and favorites,
institutionalizing checks and balance, laying bare the mindset,
mindframe and legal views of nominees to top positions on the bench.
The dirt and the bilge that are raised during the process are deemed
worth it because of the transparency the process requires.
Fragile democracies like the Philippines will be
definitely better off with this kind of harsh and thorough scrutiny
and probe of top judicial nominees. Or, invoking a recent
experience, we can put it this way: the recent Neri decision
probably would have not been penned had we subjected our SC justices
to such intense grilling and questioning. The High Court would not
have written such a partisan decision if ultra-partisan nominees to
the court had been weeded out or shamed into withdrawing during the
confirmation process.
In retrospect, this question is worth asking.
Why did Hilario Davide and Company, the 50 people tasked to write
the 1987 Constitution, fail to vest the Commission on Appointments
with the power to confirm nominees to the higher courts, Court of
Appeals and Supreme Court?
Or, designed a mechanism that would vet nominees
to the higher courts. So we would know what they believe in, what
aspects of law they hold sacred? The Judicial and Bar Council (JBC),
which became the substitute for confirmation, pools names of
nominees to judicial positions, sends them to the president “who
makes the final choice. But this is not the real thing, the
cherished and imperative ritual of confirmation.
The reason of Davide and Company, definitely,
was not the conscious effort to lighten the workload of the CA, so
it can focus its deliberations on the top guys, the cabinet-level
people. Every middle-level military officer and every junior grade
diplomat is required to get the CA nod. And it is not everyday that
a vacancy is created in either the Court of Appeals or the Supreme
Court.
The lame excuse being invoked by everybody is
tradition. Justices, throughout the history of the republic, have
never been covered by the confirmation process. Maybe this is rooted
in a deeply-held belief that nominees to the high court are more
loyal to the majesty of law, the sworn duty to write all those
decisions of justice, humanity and mercy, than to the appointing
power.
This tradition argument could have washed under
more politically stable climes. But the writing and approval of the
new Constitution took place in 1986-87, with the memories of a
parasol-toting SC chief justice still fresh, and with the ink of
approval to the various decrees and issuances of the
recently-deposed Mr. Marcos by a subservient SC still moist.
The courts were a rubber stamp and their general
subservience to Marcos eclipsed the learned, brilliant and trenchant
dissent from lonely pens at the High Court, notably Claudio
Teehankee and Vicente Abad Santos.
The overall context, in 1986 to 1987, favored
vetting and judging the judicial nominees , through a process
bordering on the inquisitorial. But this never happened and what we
got, and still have, is the anemic JBC.
From the late 80s till now, the only iconic
image of a chief justice was the Davide swearing-in of a new
president after EDSA Dos. Three-thirds of Filipinos now feel that
the day was not a day of thanksgiving and celebration.
Before that there was a Chief Justice holding a
parasol for Imelda Marcos. That was a day we all want to forget.
mvrong@yahoo.com
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