THE ESSENTIAL THING

Improving the legal system itself,

not just the selection of judges

Ma Merceditas N. Gutierrez, Ombudsman

In last Friday’s column, I discussed the work of the Judicial and Bar Council (JBC), the official entity in our country created by the 1987 Constitution to recommend to the President on who to appoint to the judiciary.  From a list of three nominees the JBC prepares, the president chooses one.  I want to add that if the President is not satisfied with anyone in the list, she could ask the JBC for another list. 

That is the present procedure.  But it could still be improved, if the point is to further shield the appointment process in the judiciary from the influence of politics. This could be done if the President is shorn of the privilege to ask for another list and instead is given no choice but to pick up one nominee from the list already given her by the JBC. This should also speed up the appointment of judges, especially for salas that have heavy caseloads or have been vacant for sometime.  But this may require a Constitutional amendment.

I also want to add that for the JBC to do a really good job, careful attention should be given to the qualifications of the nominees. Articles the nominee has written about the law and the legal process, social commentaries authored by him and books produced singly or collaboratively are important indications of the quality of the nominee. If the nominee has been a judge, his having received, or even just his having been nominated for, an award in judicial excellence are also good leads to his competence to hold higher office in the judiciary.

But this is all as far as improving the selection and appointment process for judges and magistrates is involved. Hand in hand with this is the attention that should also be given to improving the legal system itself.  Even if a country has good judges and justices that administer the law fairly, if that law is inadequate or deficient in some real way, the administration of justice, especially where law intersects the other developmental aspects of society, will not go very far, and will leave that society  still unable to advance.

Now today is the age where the world is getting smaller, and not just because of the marvels of modern communications and the speed of travel.  The world is, in that unforgettable description of Marshall McLuhan, a global village, or fast becoming a real one, because nations located in one huge but defined geographical area, or scattered all over the world, see it as serving their respective individual and collective interests to form trading blocks and engage in some mutual economic cooperation – and competition - with one another. 

This regional and international cooperation and competition among nations is not made possible without reform in these nations’ respective legal systems, especially in the areas where law and its enforcement impact on economic and social growth.  How could this improvement of the legal system be done in our own case?  I can but suggest some limited ways.  For instance, our Department of Trade and Industry (DTI) could lead the way in suggesting needed changes in the legal infrastructure touched upon by commercial and trade considerations, so that our country could become competitive in these areas. 

The Bangko Sentral ng Pilipinas (BSP) and the National Economic Development Authority (NEDA) could follow by crafting regulatory policies and suggesting laws to ease up the flow of local and foreign investments, especially in areas traditionally reserved for Filipinos but which remain undeveloped due to lack of capital and expertise.  The Overseas Workers and Welfare Administration (OWWA) and the Philippine Overseas Employment Administration (POEA) could suggest laws on how government and private enterprise could systematically tap the financial and technical muscle of overseas Filipinos for national development.  The new laws could give overseas Filipinos novel incentives and protection for their cooperation.

The Department of Energy and Natural Resources (DENR), particularly the Bureau of Mines, could suggest legislation on how to balance the need to exploit to the fullest, especially with foreign cooperation, the minerals in our soil against the need to protect our environment.  The Supreme Court itself could issue rules and regulations that could continuously educate our judges on commercial law, trade and developmental issues. 

On this last point, I really see the need for our lower court judges to be able to tackle infrastructure cases properly, so that among others the factual backdrop surrounding them could really be ventilated.  Gone should be the days when lawyers try to “constitutionalize” every infrastructure case so they could go straight to the Supreme Court even though they know the High Tribunal could normally not inquire into questions of facts.

My point in all of these is that our country should not just invest in the proper selection of those who will occupy the bench, but in the continuing improvement of the legal system itself which provides the bases for our national competitiveness and our ability to advance our economic interests in cooperation with other nations of the world.  The legal system should be as much of our serious concern, just like health, peace and order, and education, which are basic public goods so necessary to a good quality of life for all Filipinos. £

Original published in the February 19-20, 2010 issue of Business Mirror.