At least one constitutional law expert sees nothing wrong in allowing both houses of Congress one seat each in the Judicial and Bar Council (JBC) which is currently screening nominees for the next chief justice of the Supreme Court (SC).
Ateneo law dean emeritus Fr. Joaquin Bernas yesterday told reporters that while the composition of the collegial body should be really seven, there is nothing wrong if the present JBC is composed of eight members.
Questions on  the composition of the JBC are potentially crucial in the determination of the next chief magistrate since two members — acting Chief Justice Antonio Carpio and Justice Secretary Leila de Lima — have recused themselves from the proceedings, being nominees themselves to the position.
Bernas said while the composition should be seven, it has been a practice that both members of the House sit as ex-officio members.
“It (JBC composition) is really seven but the practice before it really was eight,” Bernas said.
He added it is also not likely that there could be a tie vote.
“The members of Congress are half a vote each or they alternated,” Bernas stressed. Former Solicitor General Francisco Chavez is questioning the current composition of the JBC.
Under the current set-up, the JBC is composed of eight members, namely: Carpio as ex-officio chairman, with De Lima, Sen. Francis Escudero, Iloilo Rep. Niel Tupas Jr. as ex-officio members.
Lawyer Ma. Milagros Fernan-Cayosa, representing the Integrated Bar of the Philippines; lawyer Jose Mejia representing the academe; retired SC Associate Justice Regino Hermosisima Jr.; and Aurora Santiago-Lagman representing the private sector, are regular members.
In his letter dated June 21, 2012 sent to JBC, Chavez said the Constitution provides that “A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed 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.”
“When the Constitution uses the phrase ‘a representative of the Congress,’ it is all too clear to require interpretation that there should only be one representative from Congress,” Chavez said.
Relatedly, Sen. Miriam Defensor-Santiago has turned down her nomination to become the next chief justice, saying she preferred to sit as judge of the International Criminal Court (ICC).
While she admitted being interested in becoming the chief magistrate, her role in the ICC has far more weight than the vacated position in the SC, considered as fourth highest among government officials in the country.
She added an ICC judge gets a higher pay than chief justice.
In declining the nomination made by a certain Victor del Rosario to the JBC last Tuesday, the senator said she does not want to embarass President Aquino by not assuming her post in the ICC since the Chief Executive himself endorsed her and even had the Department of Foreign Affairs assist her in campaigning for her bid as one of the judges.     
“It would be a big embarrassment if I would not push my election as judge of ICC which is better than chief justice and has higher salary,” Santiago said.
The senator added she is still waiting when she would be called to assume her duty in The Hague, Netherlands.
Alongside Santiago’s nomination was that of Sen. Franklin Drilon made by lawyer Nicasio Tan.
Drilon has yet to issue any statement on this latest development although he has already made a pronouncement in the past that he is not interested in the position vacated by former SC Chief Renato Corona, whom the senator meted with a “guilty” verdict in the latter’s impeachment proceedings.
Unless Santiago has accepted the nomination, the JBC cannot act on her endorsement as a candidate to the highest post in the judiciary, Sen. Francis “Chiz” Escudero said.
“I think that’s the proper time for us, that’s the only time that the JBC will have jurisdication over it. As of Monday, there are already 63 nominations and four applications (received by the JBC),” the senator said.  
Escudero, a member of the JBC, said 13 have accepted their nomination.
Escudero said acting SC Chief Antonio Carpio, to this day, has yet to accept his nomination.
Senate President Juan Ponce Enrile said the Senate will declare Santiago’s position vacant only when she resigns from her post to assume the position of an ICC judge.
Meanwhile, two senators slammed those denouncing the psychological examination being required by the JBC to nominees to the post of the chief justice as unconstitutional.
Both Escudero and Sen. Francis Pangilinan, in defending the JBC from the accusation made by election lawyer Romulo Macalintal, said the requirement of the Council is nothing new as it has been in practice even in the past for those seeking any vacancy in the judiciary.
“Why raise it only now? That has been part of the rules of the JBC for judges and for ordinary judges, we also impose that. All the more reason (for the position of) the chief justice,” Escudero stressed.
He also questioned the motives behind Macalintal’s claims that the requirement for aspirants for the CJ to undergo psychological testing is clearly unconstitutional just as the imposition of the submission of a waiver of the nominees’ bank deposits.
“It’s not as if we’ve thought of this only now. That has been around, in practice even long before I assumed the membership in the JBC,” he said.
“The mandate of the JBC is to ensure that those shortlisted are qualified and meet the requirements laid down by the Constitution. I disagree with those who say that these additional requirements are unconstitutional,” the LP senator said.
Malacañang, for its part,  declined to comment on calls for the CJ nominees to undergo a psychological test.
“Psychological test? We cannot comment on that,” presidential spokesman Edwin Lacierda told a press briefing.
In case there is a need for additional requirements, it would be the JBC’s call, he added.
“As to whether the JBC can provide additional qualifications, is something that we leave with the JBC. As to the constitutionality of those requirements, that’s something I cannot comment... If someone will question the constitutionality of these additional requirements, that’s another matter. So that’s why we cannot comment on those additional qualifications,” Lacierda was quoted as saying.        Fernan J. Angeles