The case of De Lima and Devanadera: JBC’s old dilemma

MANILA, Philippines – The case of Justice Secretary Leila de Lima reflects old misgivings of the Judicial and Bar Council, the body that vets and screens aspirants to the judiciary for appointment by the president.

De Lima argued before the Judicial and Bar Council on Tuesday, July 24, that she should not be disqualified as a contender for the post of chief justice because her disbarment cases “have not yet ripened” to regular administrative cases. Pending the “preliminary determination of merit,” De Lima said the cases remain to be at the investigation level.

Under Rule 4, Section 5 of the JBC rules, the following are considered disqualifed from “appointment to any judicial post or as Ombudsman or Deputy Ombudsman:”

• those with pending criminal or regular administrative cases
• those with pending criminal cases in foreign courts or tribunal
• those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than P10,000, unless granted judicial clemency

The problem with this is that the JBC — after all these years — has yet to have one definitive stand on what a “regular” administrative case is. 

Case in point: minutes after De Lima told the JBC that the Integrated Bar of the Philippines has yet to find merit in the disbarment cases filed against her, Iloilo Rep Niel Tupas Jr talked to reporters about how the JBC should consider the point De Lima raised.

“Our presumption is the disbarment case is a regular administrative case, but now there’s a new stand. Secretary De Lima’s position is, because there’s no determination of preliminary merit yet, it’s not a regular administrative case,” he said. “We need to take a look at that.” 

De Lima’s argument is hardly new, however. This was used by former Solicitor General Agnes Devanadera 4 years ago, when she herself faced the threat of disqualification from being SC justice because of her pending administrative and criminal cases.

Devanadera’s case 

Disbarment and plunder cases were filed against Devanadera then.

Lawyer Fidela Vargas sought the disbarment of Devanadera on Oct 15, 2008 after the Office of the Solicitor General allegedly failed to add parties in the motion for intervention it filed in representation of the Department of Education (DepEd). 

DepEd moved for the intervention because its school buildings stood on a portion of land in Sorsogon being claimed by Vargas’ client. Devanadera was accused of being “ineffective.”

Devanadera also had a separate disbarment case filed against her by labor leader Henaro Bautista, which the Integrated Bar of the Philippines had yet to resolve then.

Bautista demanded a P300-million cost of living allowance from the Metropolitan Waterworks Sewerage System, which the government body denied.

Ilocos Gov Luis “Chavit” Singson also filed a plunder case against Devanadera for her reported failure to nullify the Poro Point Seaport development contract between the Bases Conversion Development Act and Bulk Handlers Inc.

All these cases cost Devanadera her chance for a seat in the SC. The JBC disqualified her because the cases against her were not dismissed. 

Devanadera was not alone, however. 

In the same year, former Bureau of Internal Revenue and SC aspirant Jose Buñag was also disqualified for having pending administrative and criminal cases at the Tanodbayan.

Equal protection 

Devanadera did not take her disqualification lying down, however.

She filed an appeal before the JBC, citing the council’s decision to allow 3 other candidates — Court of Appeals Justices Juan Enriquez, Martin Villarama Jr, and Mariano del Castillo, who also have pending cases — to stay in the running.

Then SC spokesman Jose Midas Marquez said they were not disqualified because their cases at the Office of the Court Administrator remained in the preliminary investigation stage.

Devanadera cried foul — her case before the Office of the Ombudsman was still in the preliminary investigation stage too. 

She said that under the “equal protection clause,” the penalty applied to her should likewise be applied to the 3 other justices.

The JBC reviewed her motion for reconsideration and decided to allow her to seek clearance from the Office of the Ombudsman. The JBC deferred its voting on its shortlist for one week.

De Lima’s turn

Fast forward to 2012, De Lima is making the same plea.

Supreme Court Associate Justice Diosdado Peralta told her in her public interview on July 24, however, that even if the IBP investigation commissioners clear her, the Board of Governors will still also have to assess her cases. And even if the IBP recommends the dismissal of her cases, the SC will still have to decide if it will adopt the IBP’s findings or not.

Peralta, presiding officer of the JBC, said there is little time left for the resolution of De Lima’s cases before the JBC votes on its shortlist on Monday, July 30 — just 5 days away from Wednesday, July 25.

Besides, he pointed out, it would be awkward for the High Court, with De Lima possibly sitting as chief justice, to decide on her own disbarment case if this had to be decided on by the Supreme Court itself. The scenario presented a clear conflict of interest case.

But then Tupas said that the “JBC has the discretion” to consider De Lima’s position that the IBP has yet to determine merit in her cases, which could eventually lead to her remaining in the competition for the post of chief justice.

If she gets disqualified, however, De Lima will do a “Devanadera” and appeal her case, telling the JBC she will see what legal remedies are available. – Rappler.com

 

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