Malacañang’s visible hand in CJ search

 

MANILA, Philippines – Two out of the 20 nominees for the post of chief justice are Malacañang’s allies. Both have pending cases which could lead to their disqualification. But Malacañang is aggressively pushing to have one particular ally saved.

The Integrated Bar of the Philippines (IBP) and the Judicial and Bar Council (JBC) will decide the fate of Justice Secretary Leila de Lima  – reported frontrunner for the post of chief justice – today (Monday, August 6). At 9 a.m., the IBP will decide if it will stand by its earlier resolution ordering a formal, full-blown investigation of De Lima’s disbarment cases – or reverse itself and grant De Lima’s appeal.

Three disbarment complaints had been filed against De Lima. The IBP consolidated two complaints into one since they both cited as basis De Lima’s defiance of a Supreme Court temporary restraining order on the travel ban against former president and now Pampanga Rep Gloria Macapagal Arroyo and her husband, lawyer Jose Miguel in November 2011.

The other case stemmed from a stinging statement made by De Lima against dismissed Chief Justice Renato Corona. On national television, De Lima called Corona a “tyrant who holds himself above justice and accountability.”

Meeting at 11 a.m. Monday, the JBC – the sole body that screens and vets aspirants for the judiciary before the President makes his final choice – will use as basis for its decision the IBP’s move on De Lima. The JBC has a simple rule: contenders with pending administrative or criminal cases should be disqualified.

It’s the same rule that the body will apply in deciding on the case of Solicitor General Francis Jardeleza, also an ally of the Aquino administration. Rappler learned that Jardeleza has a pending administrative case at the Office of the Bar Confidant in the Supreme Court.

We learned over the weekend though that Malacañang is particularly seeking for the dismissal of De Lima’s cases.

Rappler gathered from lawyers that a former government official has been lobbying since last week for IBP to drop De Lima’s disbarment cases.

On August 2, President Benigno Aquino III himself acknowledged that the Palace’s legal staff has been trying to help De Lima sort out the legal mess she’s faced with. Asked by reporters about the issues facing De Lima before the JBC, the President said: “Tinatrabaho ng ating legal staff, tinutulungan siya at siguro hintayin na nating matapos ang processes ng JBC before I make a comment because as you know, I have to wait for them before I can decide. (Our legal staff is working on it, it’s helping her and it’s best to wait for the JBC process to end before I can make a comment.)

‘Unfair’ rule 

Rappler learned from reliable sources privy to what happened last week that Malacañang sent a message to key council members that the President did not want his choice “curtailed” by an “unfair rule” in the JBC about disbarment, and that he wanted to have a “wider option.”

The message was said to have been relayed by Undersecretary Frederick Michael Musngi, a member of the JBC who was appointed by the Palace to replace De Lima after she became a contender. (The Justice Secretary sits as a member of the council.)

Rappler has been calling up and sending text messages to Musngi and Presidential Spokesman Edwin Lacierda to get their side. Both have not returned our calls.

Under Rule 4, Section 5 of the JBC rules, the following are considered disqualifed from “appointment to any judicial post or as Ombudsman or Deputy Ombudsman:”

• those with pending criminal or regular administrative cases
• pending criminal cases in foreign courts or tribunal
• those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than P10,000, unless he has been granted judicial clemency.

The President’s message to the JBC, an independent body formed by the 1987 Constitution, is ironic, since he removed Corona through an impeachment precisely because of the latter’s perceived lack of independence. Mr Aquino has always justified his move to impeach him — and government resources that went with it — based on the principle that the judiciary, in particular the Supreme Court, should be independent from vested interests and executive power.

In all his past appointments to the Supreme Court — the President already has 3 appointees in the Tribunal — he was never known to have influenced the JBC in its choices.

Besides, the JBC has applied this “unfair” rule before in disqualifying other applicants. Examples are then Solicitor General Agnes Devanadera, one of the strongest allies of then President Arroyo, former Energy Secretary Raphael ‘Popo’ Lotilla and Bureau of Internal Revenue Commissioner Jose Bunag. 

In those instances, the JBC did not even allow them to face the public interviews, where they could have articulated their judicial philosophy and answer complaints against them.

The JBC – while it struggled with its definition of what a “regular” administrative case is – has based its previous decisions on one factor: the candidate should be able to show that he or she was cleared by the body that handles his or her cases.

The members of the JBC who will vote on the shortlist Monday are: Presiding Officer SC Justice Diosdado Peralta; De La Salle law Prof Jose Mejia; Milagros Fernan-Cayosa (IBP); retired Court of Appeals Justice Aurora Lagman; retired SC Justice Regino Hermosisima; Sen Francis Escudero; Iloilo Rep Niel Tupas Jr.; and Palace Undersecretary Frederick Michael Musngi. (The SC last week ruled that Escudero and Tupas can still sit in the JBC pending a final verdict on congressional representation in the council.)

Will IBP change its mind?

On the other hand, the IBP board of governors earlier ruled that De Lima’s cases are already regular administrative cases by the time the Supreme Court referred them to the lawyers’ organization.

In its resolution on July 30, the IBP board said that if a complaint is filed directly with the IBP, the IBP investigator can determine if there is merit and dismiss the case if there’s none. But if a disbarment complaint is filed with the SC – which was what the De Lima complainants did – and the High Court refers it to the IBP for investigation, there is a presumption that the SC has already found basis to have the cases probed further.

“Otherwise, the Supreme Court would have summarily dismissed the case, instead of referring it to the IBP to conduct investigation,” the IBP board said in its resolution.

The IBP may change its mind and dismiss De Lima’s disbarment cases, but its own procedure states that its findings or recommendations should still be brought to the High Court before it becomes final.

The buck stops therefore with the High Tribunal.

If the IBP decides by 9 a.m. Monday, does the SC have enough time to adopt its resolution before the JBC takes a vote before noon?

Peralta’s call

JBC presiding officer Justice Diosdado Peralta knows this. As a senior SC magistrate, he knows the Court’s procedure on disbarment cases.

He even explained this to De Lima during her public interview on July 24. Peralta said then that if the IBP recommends the dismissal of her cases, the SC will still have to decide if it will adopt the IBP’s findings or not. 

He added that if De Lima becomes chief justice, the SC will have to decide on her disbarment cases, which presented a clear conflict of interest case.

Will Peralta stand firm on this position?

Peralta, an Arroyo appointee, became the presiding officer of the JBC under unusual circumstances.

The Constitution states that the council should be presided by a chief justice. But since Corona was removed on May 29 by the Senate sitting as an impeachment court for his failure to declare P183 million in peso and dollar bank deposits, Antonio Carpio, being the most senior on the bench, automatically became Acting Chief Justice.

Following Carpio’s decision to accept his nomination for chief justice, he had to be replaced by Peralta, who is the only one among the 5 most senior justices (the others are Carpio, and Justices Arturo Brion, Teresita Leonardo de Castro, Roberto Abad, and Presbitero Velasco Jr) who declined his nomination.

The presiding officer has reasonable influence over the other members of the JBC. 

In 1998, then Chief Justice Andres Narvasa refused to convene the body to vote on the shortlist for the next SC justice, blocking an attempt by then President Fidel Ramos to name a “midnight” appointee. Ramos had wanted to appoint his legal counsel at the time, Renato Corona, but Narvasa said the appointment ban was already in place. The appointment ban bars the president from making any appointments except to temporary posts in the executive branch two months before the elections until his term ends.

In 2010, then Chief Justice Reynato Puno held his ground when he led the JBC in sticking to its decision not to add candidates when then President Arroyo returned the shortlist to them. But he previously buckled when he adopted the proposal of then Rep Matias Defensor to initiate the selection process for a chief justice amid the appointment ban. This allowed Corona’s appointment as chief justice in May 2010. – Rappler.com

More in #SCWatch:

• De Lima did not have the votes. Period.
• De Lima appeals IBP decision on disbarment
• 22 official candidates for Chief Justice
• JBC to interview CJ candidates starting July 24
• 25 accept nominations for chief justice
• Questions for chief justice candidates
• JBC should review process of choosing CJ
• Besides JBC, Palace has judicial search committee
• CONVERSATIONS: How should the JBC choose the next chief justice? #SCWatch