MANILA, Philippines – If the Judicial and Bar Council (JBC) panel interviews are classroom recitations, retired Supreme Court justice Jose Mendoza is the one to fear, as he made a law school associate dean fumble for words and an incumbent justice scratch his head for answers.

Lawyer Rita Linda Jimeno, the associate dean of the Centro Escolar University (CEU) Law School, went first on Thursday, October 18, for the JBC public interviews to fill a vacancy at the Supreme Court.

Jimeno’s interview was going quite well, until Mendoza took over and started the salvo with a discussion on the equal protection clause.

The 1987 Constitution guarantees equal protection of the law, but Mendoza asked whether the law granting certain discounts on basic goods and services to senior citizens is “discriminatory since (lower age groups) are paying higher prices for medicine, transportation, restaurants and hotels?”

Equal protection of the law, of course, is not absolute. The law allows favoring a certain sector under certain conditions – senior citizens, for one, as well as children and women, while adults and men are not covered by the same specialized laws.

Mendoza asked Jimeno, “What are the 3 levels of scrutiny?” referring to standards set by Supreme Court jurisprudence on when certain acts or persons are not covered by equal protection of the law.

“That was covered in Mosqueda vs Banana Growers,” Mendoza said, referring to a 2016 decision when the Supreme Court struck down a Davao City ban on aerial spray for violating the equal protection clause.

“Unfortunately I wasn’t able to read the decision,” Jimeno said.

“But it is very basic, it’s in the textbooks,” said Mendoza in his soft voice.

Finally, Jimeno said: “The fairness of any act or law or order, number two, to see whether it does not violate the equal protection clause of the Constitution, and three, to see if it’s in accordance to the Constitution.”

Mendoza was not satisfied, but gave up the questioning and told Jimeno: “Anyway, you said you did not read the decision.”

The 3 levels of scrutiny are: rational scrutiny, intermediate scrutiny and strict scrutiny.

The other applicant, Sandiganbayan Justice Alex Quiroz, also was not able to answer the question, prompting Mendoza to just say: “Let’s go to another point.”

Latin doctrines

Mendoza came around to discussing the issue on President Rodrigo Duterte’s unilateral withdrawal from the International Criminal Court (ICC). At the heart of the dispute is whether presidential power is enough to carry the unilateral decision.

Mendoza began by asking: “In the Philippines, who is the sole architect of foreign policy?” to which Jimeno said, “the executive branch of the Philippines.”

“Who is the head of the executive branch?” Mendoza asked, but when Jimeno asked to repeat, the justice just proceeded to say, “it’s the President.”

Mendoza then asked Jimeno about the doctrine pacta sunt servanda. “I cannot recall the meaning of pacta sunt servanda, your honor,” Jimeno said.

It means agreements must be kept.

Jimeno also said she could not recall the meaning of rebus sic stantibus, a principle in international law which renders treaties inapplicable if there are fundamental changes in circumstances.

When explained to him by Mendoza, Jimeno said the doctrine can become the basis of Duterte to validly withdraw from the ICC even without the concurrence of the Senate. (READ: Why usual dissenter Leonen leans toward Duterte in ICC pullout case)

During Quiroz’s turn, Mendoza asked about the Data Privacy Act and whether it violates the right to information.

“There must be an imminent threat insofar as to the liberty of the person, in the writ of Habeas Data, the petitioner must present a compelling reason,” Quiroz said.

Mendoza pointed out that habeas data – a legal remedy which may be availed of by a person who feels that he or she is threatened by the State gathering data on him – is different from the Data Privacy Act.

Quiroz said he’s not aware of the law.

“You will be joining the Supreme Court….” Mendoza began to say, as Quiroz was left scratching his head.

Mendoza, who represents retired SC justices in the JBC, follows in the footsteps of Angelina Sandoval-Gutierrez who was known for her tough questions during panel interviews.

Since being appointed to the council in December 2017, Mendoza has been known to drill down on legal questions, although recent JBC interviews still lacked the hot-topic SC issues like the Sereno quo warranto ouster.

Mendoza is Duterte’s fraternity brother at the San Beda Lex Taleonis. 

The JBC will start interviewing Chief Justice aspirants after the deadline of application on October 26. – Rappler.com