MANILA, Philippines – The Judicial and Bar Council (JBC) on Wednesday, December 5, tackled controversial legal issues during its panel interview of applicants for the next vacancy on the Supreme Court (SC) bench.

JBC members asked applicants about their stance on divorce, same-sex marriage, the administration’s campaign against drugs and even privacy issues. The applicants are vying for the spot to be left by Associate Justice Noel Tijam who is retiring in January 2019.

This is one of the more interesting and inquisitive JBC interviews of late, with retired justice Jose Mendoza leading the questioning. Past JBC interviews had missed tough questions on controversial SC decisions.

Court of Appeals (CA) Justice Ramon Cruz, a first time applicant, said he agrees with the SC landmark decision that recognizes divorce in foreign marriages.

In April this year, the SC voted 10-3-1 to recognize a divorce that was secured in the foreign spouse’s country. Though limited in the application, it is a landmark decision in a country that absolutely bans divorce.

“I would agree because that puts on equal level the Filipino woman unlike a situation where the foreign husband would get a divorce outside the Philippines and he could re-marry whereas a Filipino woman could not,” Cruz said.

But Cruz said he did not agree with same-sex union, even though the transgender spouse is able to legally change her gender to female in her birth certificate.

“A foreign transgender female fell in love with a Filipino male. When they applied for a marriage license, they were refused, citing that the foreign transgender female’s birth certificate was amended reflecting a change in designation from male to female. Can they legally contract marriage in the Philippines?” asked Mendoza.

Cruz replied: “Under the Family Code, they could not because marriage under the Family Code is between a male and a female. The change in the birth certificate does not make that person a [female], and I doubt also that the change in the medical certificate is appropriate so under the Family Code, they could not legally marry.”

A same-sex marriage petition is pending before the High Court.

Privacy issues

Mendoza also hammered on privacy issues, even citing the “visitorial powers” of the government when it closed down Boracay and inspected properties and resorts for compliance to environmental laws even without a search warrant.

“Is that constitutional?” Mendoza asked.

Another first-time applicant, CA Justice Ricardo Rosario, said it was a valid exercise of the state’s police powers and that it trumps the property owners’ right to privacy.

“It would depend if the owner of the establishment would voluntarily give consent and allow the inspection,” Rosario initially said.

“What if they do not allow?” Mendoza asked, to which Rosario answered, “I would still maintain, your honor, that the promotion of public interest and public good is more important than the privacy of the establishment owners.”

Boracay workers have petitioned the SC  to declare the closure of the island unconstitutional.

CA Justice Eduardo Peralta said it is time for the SC to discuss the Right to Be Forgotten.

The Right to be Forgotten is a principle in Western countries, concretized by the European Court of Justice in 2014 when it granted the request of Mario Costa Gonzales to order Google to remove from their searches the articles that Gonzales had complained about.

Internet freedom advocates all over the world see the Right to Be Forgotten as being detrimental to the freedom of speech. Local advocates fear it would result to historical revisionism, for example striking articles about Martial Law under the Marcos regime.

“I think this should also be addressed as an interesting field in remedial law in the light of the constitutional provision regarding unreasonable searches and seizures,” said Peralta.

War on drugs

The applicants were also asked about the SC reiteration in People vs Lim, where the High Court warned police and prosecutors that a weak drug case would be thrown out.

The SC said the police should strictly follow rules on procedure as well as inventory of evidence; otherwise their cases would be thrown out. The purpose behind this is also to avoid incidents where cops plant evidence.

Rosario said he did not agree with the decision, as it undermines the administration’s campaign against drugs.

“I think there should be a lenient application of the rules. There’s no need for the apprehending officers to strictly comply with physical inventory for as long as the integrity of the evidence is preserved,” Rosario said.

Rosario added, “I will apply the presumption of regularity that the police officers complied with their function regularly.”

For Peralta, non-compliance on the part of the cops should not result in outright dismissal.

“There can still be justification for non-compliance so as far as my suggestion is concerned, we should also focus on the entire testimony from the prosecution as to whether or not the mass of evidence can stand by the apparent absence of an explanation,” Peralta said.

The JBC was set to interview 3 more applicants as of posting. – Rappler.com