Short list for chief justice is out, all 5 justices get in

Lian Buan
Short list for chief justice is out, all 5 justices get in
The short list will be transmitted to Malacañang before the end of Friday, November 23

MANILA, Philippines – The Judicial and Bar Council (JBC) released on Friday, November 23, its short list for the next chief justice of the Philippines which includes all the nominees: Acting Chief Justice Antonio Carpio and Associate Justices Diosdado Peralta, Lucas Bersamin, Estela Perlas-Bernabe, and Andres Reyes Jr.

The list will be sent to President Rodrigo Duterte before the end of Friday, said JBC member Justice Secretary Menardo Guevarra.

The JBC met Friday afternoon and interviewed behind closed doors all the 5 nominees. After the interviews, Carpio, Peralta, Bersamin, and Bernabe got 6 votes, while Reyes got 5.

Duterte is constitutionally required to pick a new chief justice within 90 days of the vacancy, which means he should name Teresita Leonardo de Castro’s replacement before January 10, 2019.

Carpio is the most senior of the 5 shortlisted justices, which would put to test Duterte’s earlier pronouncements that seniority would be the basis of his appointments in the judiciary. Carpio has not relented opposing Duterte’s policies towards China and the West Philippine Sea.

Both Carpio and Bersamin will retire in October 2019. Peralta will retire in March 2022, Bernabe in May 2022, and Reyes in May 2020.

Peralta and Bersamin had been shortlisted for chief justice before – an appointment that went to De Castro despite a short term, with Duterte saying he honors seniority. Reyes got into the shortlist this time.

The nominees

Of the 5 nominees, 3 are appointees of Gloria Macapagal Arroyo, Bernabe is an appointee of Benigno “Noynoy” Aquino III, and Reyes of President Rodrigo Duterte.

Rappler’s review of the 34 most high-profile en banc decisions in the last 12 years indicates that Peralta, Bersamin, and Reyes lean toward the executive or politicians, and under the Duterte administration, toward the President. (See how the 4 justices voted on key issues here.)

The review shows that Carpio was tougher on the executive and politicians. He voted against Arroyo on 3 key cases: Arroyo’s bid to extend her term, attempt to travel abroad, and acquittal from plunder. Carpio has not once voted in favor of cases of interest to Duterte since the president took office.

Bernabe was a little tougher on politicians, but she is also more unpredictable. She voted in favor of Arroyo’s acquittal from plunder, but dissented in the grant of bail for plunder defendant Juan Ponce Enrile.

Notable ponencias

Carpio wrote the 2006 decision that struck down the People’s Inititative to change the form of government, which sought to extend Arroyo’s term. 

Most recently, Carpio wrote the decision that upheld the plunder charges against Jinggoy Estrada. Bernabe concurred; Peralta said there was impropriety with the indictment but voted in favor of the issue being moot due to the ongoing trial. Reyes adopted Peralta’s dissent.

Bersamin expressly voted to acquit the former senator.

Peralta wrote the decision that gave the late dictator Ferdinand Marcos a hero’s burial, which he defended in the last public interview as a way of moving on.

It was also Peralta who wrote the decision that stopped the hold departure order against Arroyo.

Bersamin wrote the decisions that acquitted Arroyo of plunder and granted bail to Enrile, along with the decisons that declared legal the Philippine Airlines retrenchment of thousands of its workers, downgraded charges against Delfin Lee in the P7-billion Globe Asiatique scam, and awarded 20% shares of San Miguel to Marcos crony Danding Cojuangco instead of to coconut farmers.

Bersamin also wrote the decision that declared parts of the Aquino-time Disbursement Acceleration Program (DAP) unconstitutional.

Bernabe penned the decision that abandoned the condonation doctrine which used to be the escape route of officials charged with corruption but who were reelected. She also wrote the decision that declared pork barrel illegal.

In the unprecedented decision that ousted former chief justice Maria Lourdes Sereno, Peralta and Bersamin concurred, while Carpio and Bernabe dissented.

Reyes was appointed only in July 2017 and has, so far, voted in all of Duterte-interest cases. He dissented in the Delfin Lee and PAL cases.

The 5 nominees were not publicly interviewed by the JBC, after the council approved the request of the en banc to do away with interviews of senior Supreme Court justices. (READ: Recent JBC interviews had less tough questions on SC decisions)

The appointment of a chief justice willl open up another vacancy in the Supreme Court such that in 2022, 13 of the 15 justices on the bench will be Duterte appointees. 

A recently-released study shows there’s a probability that a justice who belongs to the same network as the chief justice will vote like the top magistrate, showing just how influential a top magistrate is – even though he or she counts for only one vote. –

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.