How will Sandigan justices handle plunder cases?

First of 3 parts

MANILA, Philippines – By some twist of fortuitous circumstance, President Benigno Aquino III has an appointee in each of the 3 divisions handling the plunder cases of Senators Juan Ponce-Enrile, Jinggoy Estrada, and Ramon “Bong” Revilla Jr. 

The 3 opposition senators were charged in relation to the alleged misuse of their Priority Development Assistance Fund (PDAF) or pork barrel.

Presiding Justice Amparo Cabotaje-Tang, who was appointed by Aquino in October 2013 as head of the anti-graft court, chairs the Third Division trying the case of Enrile.

Aquino’s first appointee to the anti-graft court, Justice Rafael Lagos, is a member of the First Division handling the plunder case of Revilla.

On the other hand, Justice Ma. Theresa Dolores Gomez-Estoesta, who was appointed only last June, is a member of the Fifth Division tackling the plunder case of Estrada.

While they are supposed to exercise independence from the appointing power and while rulings of the divisions can be argued as collegial, presidential appointees – at least during the first years following their appointment – tend to kowtow to the wishes and desires of the President. This is what is referred to as the “first year syndrome,” according to a former Supreme Court justice.

This is also evident among appointees in the Supreme Court. In highly charged political issues, they tend to vote or decide according to the inclination of the appointing power. This was particularly evident during the time of former President Gloria Macapagal-Arroyo, who was able to name all members of the SC in her 9 years in office.  (READ: In the High Court, some justice are more loyal than others)

In the anti-graft court, Aquino has 4 appointees so far, including Justice Oscar Herrera, who was bypassed for promotion 20 times by Arroyo. But Herrera is a member of the Second Division, which failed to snag any of the 3 plunder cases filed by the Ombudsman.

The Fourth division, chaired by Justice Gregory Ong, was not included in the raffle after the magistrate chose to inhibit himself. Ong is a friend of the younger Estrada and has been linked to businesswoman Janet Lim Napoles, co-accused of the 3 senators in the plunder cases. (READ: Exclusive: Napoles parties with anti-graft court justice)

Of the 15 members in the Court, 10 are still appointees of Arroyo. The most senior of the justices, Ong, is the lone appointee of former president Joseph Estrada left in the Sandiganbayan.

Will the present configuration in the anti-graft court affect the outcome of the plunder cases?

‘First year syndrome’

As explained by the former SC justice, appointees to the court, perhaps out of a sense of gratitude, tend to pay their dues to the one who appointed them, in this case the president.

Based on our analysis of SC rulings, newly-appointed justices vote according to Palace lines in the first few cases they handle. Eventually, some justices find their bearing, assert their independence, and vote according to their conscience.

Still, there are others who remain loyal to the end. During Arroyo’s time, there was a core group voting as one, protecting Malacañang’s interests on political matters.

What about in the Sandiganbayan? The plunder cases of Arroyo provide a glimpse of this syndrome as well.

The First Division, which is handling the plunder charge filed against Arroyo over the alleged P366-million misuse of confidential funds of the Philippine Charity Sweepstakes Office, is composed of Justices Efren De la Cruz as chair, and Rodolfo Ponferrada and Rafael Lagos as members. De la Cruz and Ponferrada were both Arroyo appointees, while Lagos was Aquino’s first appointee to the anti-graft court.

When Arroyo petitioned for bail, De la Cruz and Lagos voted to deny it, with Ponferrada in the minority. Ponferrada argued that the prosecution had failed to present enough evidence against the former president.

With the division failing to arrive at a unanimous decision (under the rules, a decision must by unanimous), a division of 5 was created. Presiding Justice Amparo Cabotaje-Tang and Justice Jose Hernandez were called in to break the impasse. (In a division of 5, the rules call for a majority decision.)

How the justices voted followed political lines and possibly, political consideration.

Ponferrada and Hernandez, both Arroyo appointees, voted to grant her bail, while Tang and Lagos, both Aquino appointees, voted to deny it. De la Cruz maintained his original position junking Arroyo’s petition for bail. 

Did De la Cruz sever the umbilical ties that bound him to Arroyo?

When the First Division was deliberating on the bail petition in June 2013, Dela Cruz was in the running for the post of presiding justice vacated by then Justice Francisco Villaruz. Also in the running at the time was Cabotaje-Tang, who had been appointed by Aquino only a year before. Speculations were rife that De la Cruz’s vote was meant to beef up his chances of being appointed over the favored Tang.

Just the same, De la Cruz’s gambit failed to impress Malacañang. Aquino chose Tang to the dismay of other senior justices.

Court observers say Arroyo’s bail petition allowed Tang to quickly pay her dues to Aquino. Appointed presiding justice only a month before the voting, it was her vote that broke tie. She went with Lagos and De la Cruz who thumbed down Arroyo’s petition for bail.

War of the gods

Theoretically, Aquino can no longer pack the anti-graft court with more of his appointees since the tenure of the other senior justices extend beyond his term in 2016.

 

Given the administration’s strong anti-corruption campaign, the crucial role of the anti-graft court cannot be over-emphasized

 

He may however have a chance to appoint a fifth one, if the SC decides to remove Ong after he got embroiled in the scandal involving Napoles. A committee tasked by the SC to look into Ong’s engagement with Napoles has recommended his dismissal from office. (READ: Sandiganbayan justice linked to Napoles splits Supreme Court)

Given the administration’s strong anti-corruption campaign, the crucial role of the anti-graft court cannot be over-emphasized. Early on, Sandiganbayan justices and Aquino clashed over the controversial plea bargain deal struck by former military comptroller retired Major General Carlos Garcia and the Ombudsman.

The plea bargain was hammered during the time former Ombudsman Merceditas Gutierrez 3 months before the 2010 presidential polls. It was the spark that triggered the impeachment move against Gutierrez, who was appointed Ombudsman by Arroyo in 2005.

At the division level, Garcia’s case pitted two Arroyo appointees – Justices Samuel Martires and Teresita Diaz-Baldos versus Herrera – Aquino’s second appointee to the court. In the division of 5 that followed, all 4 Arroyo appointees sustained the plea bargain deal. (READ: Court upholds Garcia plea bargain deal). The SC, however, stopped the agreement from being consummated.

This case highlighted the simmering division between the justices appointed by Arroyo and Aquino. Herrera questioned the manner by which Justices Roland Jurado and Alex Quiroz were picked by then Presiding Justice Francisco Villaruz to compose the division of 5. Reports we gathered showed Herrera even contemplated filing a complaint before the SC. (READ: Court ‘war’ over Garcia plea bargain deal)

The case also drove a wedge between senior justices and Aquino that could be permanent. In an earlier interview with Rappler, one of the justices involved in the Garcia deal said the controversy killed any chances of senior justices identified with Arroyo being promoted in the judiciary.

“We’ve been marked,” the justice remarked.

It might have prompted Aquino to name his own appointee, Cabotaje-Tang, despite her being a newbie in the Sandiganbayan, as presiding justice. Her appointment could give Aquino a better grip in the anti-graft court.

Composition of the court

With only 4 handpicked justices, how will the plunder cases play out beyond Aquino’s term? Aquino’s tenure ends in two years, but trial of the plunder cases is  expected to last for 6 years at the very least. (In comparison, Aquino’s successor will have 5 chances of reorganizing the anti-graft court, with 5 justices retiring before 2022, the year the term of the next president ends.)

Already, fears have been raised that a more sympathetic president allied with the opposition senators could dictate the outcome of the cases. Current surveys show Vice President Jejomar Binay remains ahead of possible contenders in the 2016 presidential race.

With the composition of the court not in his favor, Aquino early on lost an opportunity to strike a more harmonious relationship with the Sandiganbayan justices when he bypassed the more senior justices for promotion. (READ: Justices: Injustice in new anti-graft court chief appointment)

Much like what happened in the SC when Aquino ignored seniority when he appointed Sereno Chief Justice, Aquino’s appointment of Cabotaje-Tang as presiding justice ruffled the feathers of some of her more senior colleagues. (READ: Who’s new head? Sandiganbayan justices restless)

How have the anti-graft justices responded to Aquino’s snub? Not civil to say the least. Having leap-frogged more senior justices, even as she was Presiding Justice, Cabotaje-Tang had no division chairmanship. She was like “a queen without a throne,” as one columnist put it.

Cabotaje-Tang wanted to assume the Third Division chair’s post vacated by her predecessor Villaruz, but this was opposed (with the tacit backing of other justices) by Associate Justice Jose Hernandez, who took over the contested post.

Hernandez cited the court’s internal rules where the most senior in a division assumes the chairmanship in the event of a vacancy.

It took the SC to settle the row and install Cabotaje-Tang as chair of the Third Division. Hernandez was relegated back to his former post as member of the Fourth Division.

Before this fiasco, it could be argued some anti-graft court justices appeared willing to accommodate Malacañang. Setting their eyes on the presiding justice post and vacancies in the Supreme Court, they played along Palace lines, specifically in cases involving Arroyo.

But Aquino played by his own rules, and in the process, antagonized the justices.

Plunder cases beyond Aquino

In the race for the SC position following the retirement of Justice Roberto Abad last May, only one of the 13 nominees – Justice Maria Christina Cornejo – came from the Sandiganbayan. In the past, senior Sandiganbayan justices jostled for SC vacancies, but this time they did not bother to apply. Cornejo was eventually left out in the final short list.

The SC vacancy following Abad’s retirement may be Aquino’s last chance to appoint his own choice in the SC. The only justice scheduled for retirement is Justice Martin Villarama, who bows out on April 14, 2016, just a month before elections. Judges and justices mandatorily retire when they reach the age of 70.

But anti-graft court justices no longer see this as a possible avenue for promotion, considering that Aquino had opposed the alleged midnight appointment of Renato Corona by Arroyo as chief justice two days before the May 12, 2010 polls, a magistrate said. As a presidential candidate then, Aquino argued that Corona’s appointment was not valid since it was covered by the election ban on appointments.

The SC, however, ruled that the appointment was legal and that the judiciary was not covered by the election ban.

A justice, who asked not to be named, said, “It bears watching how the Aquino appointees will act on the plunder cases if Aquino is no longer in power. It is also interesting to find out how the cases will play out with a president sympathetic to the senators.”

At least in the case of Arroyo, she gets reprieve from her own appointees. “There’s no lost love for Aquino.” the justice said. – Rappler.com

To be continued:

Part 2: The justices behind the pork barrel cases
Part 3: Sandigan justices, pork barrel cases: Eyeing the SC?