If charter change pushes through, one of the amendments should be to transfer the power to appoint members of the judiciary from the president to the Supreme Court (SC), an aspirant to the High Tribunal said in the first salvo of public interviews of SC aspirants with the Judicial and Bar Council (JBC) held on Monday.

“The appointment to the judiciary should be completely insulated from politics,” said Court of Appeals Associate Justice Ruben Ayson, one of the seven new aspirants for the vacancies left by SC associate justices Alicia Austria-Martinez and Dante Tinga. 

Ayson said the SC alone could best assess the capabilities of both judges and law practitioners to lead the highest court of the land.

“Let the Supreme Court do it (appoint),” he said.

The president is the appointing authority for the members of the SC, with the JBC acting as the vetting body. But court observers say this set up compromises the independence of jurists.

Currently, there are two vacancies in the SC, but three more will be opened up. By the time President Gloria Macapagal Arroyo steps down in 2010, she would have appointed all of the seven remaining retiring justices in the SC.

Con-con, not Con-ass

The appropriate vehicle for charter change is Constitutional Convention (Con-Con), not a Constituent Assembly (Con-Ass), three SC hopefuls said during the interview.

“I disagree with Congress becoming a Constituent Assembly. Congress should hold a Con-Con,” said Ed Vincent Albano, dean of the University of Perpetual Help System (UPHS) College of Law and another SC contender.

An election for a Con-Con will first have to be held while the Constituent Assembly is composed of both houses of the current Congress.  Voting for charter amendments in a Con-Ass is a controversial issue since the 1987 Constitution does not specify if the lower House and the Senate should vote separately or jointly.

Sec. 1 Article XVII of the1987 Constitution says that, “Any amendment to, or revision of, this Constitution may be proposed by the Congress, upon a vote of three fourths of all its members, or by a constitutional convention.”

The High Court’s interpretation of this provision will be crucial.

Changing the Con-con

Con-Con appears to be the only route now to charter change after Camarines Sur 2nd District Rep. Luis Villafuerte withdrew his support for House Resolution 1109, which calls on Congress to convene itself into a Constituent Assembly.

However, House Speaker Prospero Nograles is still pushing for House Resolution 737, which seeks to amend the economic restrictions to foreign investments in the charter, through a so-called fourth mode--amending the charter by simplying passing a law.

Another SC nominee, Court of Tax Appeals Justice Lovell Bautista, also stood for Con-con.  “I recommend the convening of the Con-Con,” he said.

Although he is in favor of charter change via a Con-Con, Albano does not back Nograles' House Resolution 737,  which includes lifting the restrictions on foreign land ownership.

“Why should we allow foreigners to own public lands when many Filipinos do not even own a parcel of land?” he said.

Albano also proposed some measures to keep the Con-Con from being politicized. He suggested that Con-Con delegates should be disqualified from being appointed or elected to a public office within 10 years.

Internal reforms

The contenders were also quizzed on the possible solutions to the problems of the legal profession and the judiciary.

Albano rued the generally dismal passing rate of law students in the bar examinations. He blamed it on the lax enforcement of regulations on law schools. He added that “the government should have more teeth” in sanctioning underperforming law schools.

Albano confirmed that he also faces this problem in the UPHS College of Law, which has a passing rate that ranges from 33 percent to 67 percent. He added though that he has tried to improve their law school's standing by monitoring the performance of their faculty. 

Ayson, apart from suggesting that the appointing authority for the judiciary should be the Supreme Court, also suggested an increase in the court's retirement age. The current mandatory retirement age is 70. Ayson is 68.

Nominated 15 times to the appellate court but was appointed only last year, Ayson stirred a hornet’s nest as a regional trial court judge in Baguio City when he filed complaints against his co-judges for alleged corruption. Three out of four judges involved were penalized, he said. 

Meanwhile, Bautista vowed to help reduce the case backlog in the SC. Each magistrate has an average of 1,000 cases.  Bautista said that he has maintained a “zero backlog” in the tax court.

Pandacan case: defying the court? 

Trouble over the Pandacan oil depot also stirred the first round of the public interviews, especially since Albano himself is legal counsel to the group which asked for the transfer of the oil terminal.

Oil giants Pilipinas Shell Petroleum Corp., Chevron Phils. Inc., and Petron Corp. were ordered to remove their oil depots located in the Pandacan terminal in Manila after the High Tribunal upheld Manila City Ordinance 8027 with finality.

Ordinance 8027, introduced during the time of then Manila Mayor Lito Atienza, reclassifies Pandacan as a residential area and directs the transfer of the oil depots of the Big Three. The companies questioned the legislation but the SC sustained its legitimacy.

Last May 8, the Court decided the case with finality. However, the local government of Manila, now under Mayor Alfredo Lim, passed Ordinance 7177, which mandated the stay of the oil terminal.

Justice Regino Hermosisima, JBC executive director, asked the contenders if the passage of the new ordinance served as a defiance of the Court’s decision.

Albano, who stood as counsel for the plaintiff Social Justice Society, said that the government has long worked around Court decisions with legislation done “under the guise of police power and general welfare laws.”

On the other hand, Ayson said that “the city council has the power to both pass and repeal the law.” Hence, the passage of the new ordinance could “not be completely defined as a defiance of the Supreme Court,” but added that he would decide on the case, if appointed to the SC, based on the “change in circumstances.”