What you need to know
The Judicial and Bar Council (JBC) will interview on Friday, March 12, the applicants for the chief justice position.
Here are the sequence of the interviews, by order of seniority:
This pick for a new chief justice is the next test for President Rodrigo Duterte, and pivotal for a Supreme Court under intensifying pressure to stand more strongly for human rights.
Watch the livestream here and tune in to this page for live updates.
Stories from the interviews you should read
● JBC probes double standard in deadline to decide cases
● Base presidential power on 'truth and reason' – Bernabe
● Judges must thoroughly examine search warrants – Gesmundo
● 'Transparency is rule,' but SALNs are 'weaponized' – chief justice applicants
● Hernando defends Supreme Court, 'we are not negligent'
Hernando: I have no qualms in ruling vs Duterte
Justice Hernando, an appointee of President Rodrigo Duterte, said he has no qualms in ruling against the president
"I have no qualms in ruling against the one who appointed me. My fealty is to the Constitution, not to the appointing power," said Hernando.
Hernando has not ruled or voted against Duterte in all interest cases so far decided by the Supreme Court.
Hernando was also asked what about constitutional rights in the war on drugs would he consider looking into.
"Unlawful searches and seizures," said Hernando.
Don't blame judges for search warrants gone wrong
Justice Hernando said during his interview that judges must not be blamed
for issuing the search warrants that resulted in the killings of activists.
While Hernando said that it was necessary to review any rules, the current procedures for issuing a search warrant are okay. Hernando said issuing a search warrant is a different thing from the implementation of the search warrant.
This was asked of Hernando amid calls for the Supreme Court to intervene in courts allegedly turning into warrant-issuing factories against activists.
Justice Bernabe agreed that Statements of Assets, Liabilities, and Net Worth (SALNs) had been weaponized "to some extent."
She said that people always find a way to damage the reputation of a justice with integrity based on information found on the SALNs.
"I really have nothing to hide, but summary would be enough," said Bernabe.
Justice Gesmundo said he has no problem about the publication of their full SALNs, but there is a post-Corona ruling that a request for full SALN must be justified.
"Transparency is the rule. The justices of the Supreme Court are facing certain risks in the performance of their duty but if the intention of getting details of SALN is laudable and legitimate, there should be no problem," said Gesmundo.
The Supreme Court has not given media and other concerned parties full copies of the justices' SALNs. Supreme Court last published summaries in 2017. More on that here. – Rappler.com
Thorough examination needed in search warrants
The issue of search warrants was finally brought up in the JBC interviews by Chief Justice Diosdado Peralta, when he interviewed Justice Alexander Gesmundo.
Although Peralta said it's only for academic discussions, the question was asked in light of search warrants that resulted in the killing of activists.
Gesmundo said judges must not solely rely on affidavits of witnesses and informants, but that he or she must do a thorough examination before issuing a search warrant.
"The judge must conduct a personal searching inquiry," said Gesmundo.
In the cases of activists, groups have pointed out that several search warrants are issued by one judge in one day, raising the question on how thorough the examination conducted was.
Another issue is whether a judge who will eventually handle the main case must get records of the search warrant from the judge who issued it. This was not done in the case of young activist Reina Mae Nasino, because her judge did not issue a subpoena, creating conflicting rulings in the lower courts.
Gesmundo said: "The judge before whom the case was filed should secure the records in the other court that issued the search warrant." – Rappler.com
Bernabe: I'm a textualist, not really an activist
Bernabe said that she is a textualist, or someone who sticks to the text of the law and the Constitution when deciding cases.
"When the law is clear and the intent is clear, I interpret the law with the intent of the framers. If the intent is vague, I would apply reason, logic, and societal implications of that ruling, and fairness of that ruling," said Bernabe.
Asked about her views on judicial activism, Bernabe said she cannot be an activist if the text of the law is clear.
Judicial activism is a principle where the Court doesn't back down from reviewing or even reversing actions of its co-equal branches if it finds that such actions are unconstitutional.
"I cannot be a judicial activist if the law is clear and the intent of the framers is clear because I would run contrary to the separation of powers that is going to be considered a judicial legislation," said Bernabe.
Bernabe added: "But if the law is vague, and the intent is not clear then I can be a judicial activist, meaning I could look at the societal implications of the ruling, the impacts on society, as well as I will exercise reason, logic, and fairness in my decisions."
The slow pace of justice
JBC members Justices Noel Tijam and Jose Mendoza asked Justice Bernabe about the time it takes for the Supreme Court to resolve cases.
Under Section 15, Article 8 of the Constitution, Supreme Court must resolve a case within 24 months. That rarely happens. Bernabe said they have already decided that it is merely directory and not mandatory.
Justice Mendoza followed up: why is the 3-month deadline mandatory for lower court judges, but the 24-month deadline only directory for the Supreme Court?
Bernabe said lower court judges can always ask for an extension if there is a justifiable reason.
In June 2020, the Supreme Court fined Court of Appeals Justice Marilyn Lagura-Yap for failing to decide 160 cases on time as judge. Tijam said for the public and the lower court judges, this seems to be a different standard.
"Is this not violation of equal protection?" said Tijam.
"I don't think so," said Bernabe, but added she recognizes that there must be a balance between having ample time to decide a case correctly while upholding the right of a person to a speedy trial.
Here’s what you need to know about the 3 applicants
Things to remember for these interviews
1. The reason why Duterte gets to pick a new chief justice is because CJ Diosdado Peralta chose to retire one year early. To date, Peralta has not said the reason why.
2. Duterte has made a habit of appointing young justices to the Supreme Court, meaning his picks will serve beyond his term. This is called "packing the Court," which Gloria Macapagal-Arroyo also did in her time.
3. By 2022, only two justices on the Court are non-Duterte appointees. They are Justices Marvic Leonen and Benjamin Caguioa, who will stay on until 2032 and 2029 respectively, barring quo warranto, impeachment, or resignation.
4. The 3 chief justice applicants often voted in favor of Duterte's interest. Justice Bernabe, however, dissented twice – to the De Lima arrest ruling and Sereno ouster.
6. Justice Gesmundo has only been in the Supreme Court for three years, but he has served as Sandiganbayan justice for 12 years.
7. Justice Hernando has the San Beda connection out of all the 3 applicants for chief justice. Hernando showed his progressive side when he favored the scrapping of a civil code provision differentiating a legitimate child and an illegitimate child.
8. The chief justice may be the top magistrate, but he or she is only first among equals. What kind of influence does a chief justice have?
9. Take a look at Bernabe's voting history in this story.