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JUDICIAL INDEPENDENCE: Strengthening the Concept of the Separation of

Powers in Judicial Appointments


By: Mark Lawrence V. Banzon
Introduction
Judicial power, as defined in our Constitution, includes the duty of the courts to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government.1
This express grant of power includes the power of judicial review vested in our
courts to test the validity of the executive and legislative acts, as well as the acts of the
Constitutional Commissions, and the local governments, in light of their conformity with
the Constitution. This however does not mean that the courts exercise superiority over the
other branches of the government. This is merely an expression of the supremacy of the
Constitution.2
Judicial power and the power of judicial review are manifestations of the concept
of separation of powers. The need for the separation of powers, specifically among the
legislative, executive and judicial branch of the government have been emphasized by a
lot of philosophers and political scientists, throughout the course of history.

1
2

Sec. 1, Article VIII, 1987 Philippine Constitution


Angara v. Electoral Commission, 63 Phil. 139

A Brief Historical Background


Aristotle, in Book Four of his treatise on Politics has made a distinction among
the deliberative, the magisterial and the judicial powers. This roughly corresponds to the
modern division of governmental powers among the legislature, the executive and the
judiciary.
This doctrine has been incorporated in numerous states across the globe, including
the United States of America.
James Madison, one of the most prominent and known proponent of the doctrine,
stated that the accumulation of all powers, legislative, executive, and judiciary, in the
same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition of tyranny. 3 He also discussed
that in order to lay a due foundation for that separate and distinct exercise of the
different powers of government, which to a certain extent is admitted on all hands to be
essential to the preservation of liberty, it is evident that each department should have a
will of its own.4
It was also held in the US case of Kilbourne vs. Thompson5 that the doctrine of
separation of powers operates to maintain the legislative powers to the legislative
department, executive powers to the executive department, and those which are judicial
in character to the judiciary. Through this allocation of powers, the person entrusted shall
not be permitted to encroach upon the power confided to the others, but that each shall,
by the law of its creation, be limited to the exercise of the powers appropriate to its own

Madison, James. Federalist No. 47


Madison, James. Federalist No. 51
5
Kilbourne vs. Thompson, 103 US 168, 190, 25L.ed. 377,
4

department and no other. There must be independence and equity of the several
departments.
Issue
This paper aims to criticize and to propose some changes and innovations in the
actual application of the concept of separation of powers as applied in the Philippine
Government. The main focus of this paper is the subject of appointments in the Judiciary
including the elimination of the express grant by the Constitution to the President of the
power to appoint the justices and judges of the Supreme Court and the lower courts.
The Constitution provides that the 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 Judicial and Bar Council for every vacancy. Such appointments need no
confirmation. For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.6
Although some countries, like the United States, maintain a similar manner of
selection of justices and judges, I strongly believe that this should not apply in the
Philippines.
Proposed Innovations
I believe that the concept of judicial independence in this country must
necessarily include absolute independence from the President, at least with respect to
appointments in the Judiciary. The President is and always will be the supreme
appointing power, but this should not apply to the judicial department.
The Supreme Court once held that the concept of the independence of the three
branches of government, extends from the notion that the powers of government must be
6

Section 9, Article VIII, 1987 Philippine Constitution

divided to avoid concentration of these powers in any one branch; the division, it is
hoped, would avoid any single branch from lording its power over the other branches or
the citizenry.7
In my humble opinion, it is logically absurd to maintain this concept when the
justices and judges of this country are appointed by the President himself. In law school,
it is always preached before the students that the Judiciary shall always be free from
partisan politics. In reality however, the person who gets to choose who becomes justices
or judges is the President whose position is essentially partisan and political. This power
of the President has always been subjected to scrutiny since they have almost always
appeared improper and politically-motivated.
The Constitution provided a safeguard against in the creation of a Constitutional
organ known as the Judicial and Bar Council. Under the Constitution 8, the Judicial and
Bar Council consists 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. However, I maintain that the creation of this body
however is subject to a lot of loopholes. The Secretary of Justice, as an alter ego of the
President, may nominate a candidate through the advice of the President. Moreover, the
regular members of the Judicial and Bar Council are also appointees of the President
himself.
It is worth mentioning that both the nomination (although in a limited manner)
and the appointment processes are subject to whims and discretion of only one person.
7

Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired
Chief/Associate Justices of the Supreme Court. A.M. No. 11-7-10-SC, July 31, 2012
8
Section 8(1), Article VIII, 1987 Philippine Constitution

For every vacancy, the Judicial and Bar council must submit to the President a list
of at least three names, after it has investigated and evaluated the applicants. The
Constitution limits the President to the list officially transmitted to him or her. However
the list may be sent back if there is no name in it he or she wishes to appoint. This can be
subject to abuse of the appointing power. The President, in his discretion, may also decide
to break or uphold judicial traditions, which includes the rule of seniority, i.e. the
appointment of the most senior member of the Supreme Court to be the Chief Justice.
The President may also appoint a person outside the Supreme Court to serve as the Chief
Justice.
To maintain the independence of the Judiciary, my propositions, which naturally
entail changes in our Constitution, include the following:
First, the Associate Justices of the Supreme Court and judges of the lower courts
shall be appointed by incumbent Supreme Court Justices from a list of at least three but
not exceeding six nominees prepared by the Judicial and Bar Council for every vacancy.
This would result in a practice known as appointment by committee. The person who
receives the highest amount of votes shall be the one appointed. The limitation of six
nominees ensures that one candidate may garner at least two votes.
Second, the Associate Justices shall elect its Chief Justice by a majority vote of all
its respective Members. The list of candidates shall only include the three most senior
Associate Justices. This is similar to the manner of electing the Senate President and the
Speaker of the House of Representatives 9. This also upholds the tradition of the rule of
seniority.
9

Section 16(1), Article VI, 1987 Philippine Constitution

Summary and Conclusion


These innovations, I believe, strengthen the concept of separation of powers. By
implementing these simple propositions, the Supreme Court and the Judiciary as a whole
are pushed towards a more independent role. The action of the President himself is no
longer necessary in appointing the necessary officers for them to function effectively.
Although my propositions might be too pioneering and ambitious, this does not mean
however that I have undermined the principle of checks and balances nor I have given the
Judiciary an uncontrolled power to choose its members.
In his book10, Retired Supreme Court Justice Antonio B. Nachura stated that the
application of the doctrine of separation of powers does not mean doctrinaire nor with
pedantic rigor; it is not independence but interdependence. The concept of
interdependence suggests the application of the principle of checks and balances. In my
propositions, the Constitutional safeguards still find application. The Judicial and Bar
Council will still maintain its composition so that the Executive Department, through the
Secretary of Justice and the regular members, and the Legislative Department, through its
representative, can still monitor the nomination process with respect to judicial
appointments.
Furthermore, Congress can still exercise its power of legislative investigation 11 to
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. In addition to this, the House of Representatives still maintains the power to
initiate impeachment proceedings12 to remove any member of the Supreme Court from

10

Nachura, Antiono E.B., Outline Reviewer in Political Law, 2009


Section 21, Article VI, 1987 Philippine Constitution
12
Section 3(1), Article XI, 1987 Philippine Constitution
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office on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.13
My propositions shall in no way resolve and answer the lingering issues of
corruption, giving and receiving favors and blackmailing, that have been persistently
happening in our government. These are questions, which should be best left to the
wisdom of our leaders, both elected and appointed in accordance with the Constitution
and the law. What this paper seeks to uphold is improving the independence of the
Judiciary and at least reducing the appearances of impropriety in the manner of selecting
their members. After all, the judicial department and the practice of law are covered by
the highest of ethical standards.

13

Section 2, Article XI, 1987 Philippine Constitution