JBC violated selection rules in Jardeleza case – SC

Aries C. Rufo

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The Supreme Court decision reinstating then Solicitor General Francis Jardeleza as nominee to the High Court indirectly reprimands the JBC for allowing the Chief Justice to abuse discretion and violate due process

MANILA, Philippines – In what could be an indirect reprimand of the Chief Justice, the Supreme Court has ruled that the Judicial and Bar Council (JBC), which she chairs, violated its own rules and the “basic tenets of due process” in the case of then Solicitor General Francis Jardeleza.

The High Court said it is not striking down the “unanimity” rule that Chief Justice Maria Lourdes Sereno invoked to keep Jardeleza out of the short list of nominees for the SC. 

However, it called on the JBC to review this, among other rules in the selection of justices. The JBC is the body that vets nominees to the judiciary and the Ombudsman.

Jardeleza has since been appointed by President Benigno Aquino III as SC justice after the High Tribunal, voting 7-4, said the SolGen should have been included in the shortlist submitted to Malacañang.

The ruling was promulgated August 18, but the SC made public the full text of the ruling only on Friday, September 5. Sereno and Senior Associate Justice Antonio Carpio inhibited from the voting.

During the vetting of candidates for a vacant SC post, Sereno opposed Jardeleza’s nomination, citing questions on his morality and integrity. She invoked Section 2 Rule 10 of the JBC which allows a member to veto the nomination of a particular nominee. 

Jardeleza, however, was not informed of the issues raised against him until he was facing the council, and his motion to have these issues put in writing was not granted. Jardeleza sought intervention in the High Court.

Sereno would later reveal that her issues against Jardeleza stemmed from his questionable stance on the Philippine position in the maritime dispute with China in the West Philippine Sea, as well as allegations of insider trading and extra-marital affair when he was in the private sector (READ: The inside story: Jardeleza accused of disloyalty to PH)

Grave abuse of discretion

In the ruling penned by Justice Jose Mendoza, the SC said the JBC “violated its own rules of procedure and the basic tenets of due process” when it denied Jardeleza the right to be informed of the issues raised against him and given ample to prepare for his defense.

In the first place, the Court noted, Jardeleza’s acts that could have jeopardized the Philippine maritime case against China before an international tribunal was not an issue of integrity and morality as contemplated in Section 2 Rule 10 of the JBC rules.

What Sereno considered as “act of disloyalty” to the Constitution on Jardeleza’s part was viewed by the Court as more of a legal “disagreement” in handling the maritime dispute case.

“The approach taken by Jardeleza was opposed to that taken by the legal team. For said reason, criticism was hurled against his ‘integrity.’ [But] no connection was established linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or to betray the Constitution,” the SC said.

If at all, “disagreement in legal opinion is but a  normal, if not an essential form of, interaction among members o the legal community.”

While the allegations of insider trading and extra-marital affairs fall within the purview of integrity and morality under Section 2, Rule 10, these issues were only raised on June 30, when Jardeleza was summoned and appeared before the JBC to explain his side. 

In that meeting, Jardeleza moved for the allegations to be put in writing and that he be allowed to cross-examine his accusers. The JBC, however, insisted that Jardeleza refute the allegations during the meeting.

Even if Jardeleza was given the chance to orally rebut the immorality charges against him, the Court said, he was denied a reasonable chance to defend himself “because he was merely asked to appear in a meeting, where he would be, right then and there, subjected to an inquiry.”

The High Court observed that while the JBC discussed the question on Jardeleza’s integrity as early as June 16, “Jardeleza was not given the idea that he should prepare  for his defense.” 

“These circumstances preclude the very idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but to provide the person a reasonable opportunity and sufficient time to intelligently muster his response,” the ruling said.

In a separate concurring opinion, Justice Teresita de Castro faulted Sereno for failing to inform Jardeleza about the integrity issues raised on him, which could have afforded Jardeleza due process.

Referring to the motion that the JBC, through Sereno, filed with the SC detailing its opposition on Jardeleza, De Castro said the Chief Justice could have given the same document to Jardeleza when he first demanded that the allegations be put in writing. 

“If only she had taken the time to prepare this written opposition even as late as June 24 when [Jardeleza] had requested in a letter for her to do so, and given him a reasonable five-day period to answer, this matter could have been judiciously resolved well ahead of the constitutional deadline for the President to appoint,” De Castro said.


The justices who concurred with Mendoza also gave a piece of their mind on how the JBC procedures could be safeguarded from abuse by any member.

The unanimity rule, the Court said, “is vague and unfair” and “leaves much to be desired and should be reviewed and revised.”

In particular, it should be clarified whether the unanimity rule should be invoked before or after the voting. Sereno invoked and insisted on the rule even after the JBC had voted on the nominees that included Jardeleza.

“Any assertion by a member after voting seems to be unfair because it effectively gives him or her a veto power over the collective votes of other members,” the decision said.

The SC said the JBC should also clarify what covers a candidate’s integrity. “Integrity as a ground has not been defined. While the initial perception is that it refers to the moral fiber of a candidate, it can be, as it has been, used to mean other things.”

Moreover, the JBC should clarify who can invoke the unanimity rule, whether a JBC member or an outsider – the same position taken by Malacañang when it insisted on Jardeleza’s inclusion in the list of nominees.

The SC also reminded the JBC that its vetting process must comply with the minimum requirements of due process. “As always, an applicant should be given a reasonable opportunity and time to be heard on the charges against him or her, if there are any.” – Rappler.com

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