How the JBC defied Malacañang
MANILA, Philippines - It's no secret that Malacañang tried to exert pressure on the Judicial and Bar Council (JBC) to lift its rule on disbarment and pave the way for the inclusion of Justice Secretary Leila de Lima in its shortlist.
As early as late June, Rappler began tracking how presidential aides and emissaries set up a situation that would favor De Lima. Up to Monday, August 13, when the JBC voted on its shorlist, allies of President Benigno Aquino III were still trying to find a way to include De Lima.
De Lima was initially a reluctant candidate for the post of chief justice after Renato Corona was removed on May 29. In June, when she was nominated, she told reporters she would rather have an insider named to the judiciary's highest position.
At that point, according to at least 3 senior officials close to him, President Aquino had made up his mind on only one thing: it would be anybody but acting Chief Justice Antonio Carpio.
Two Cabinet officials offered reasons for this. The President reportedly noted in one meeting: How could he pick Carpio when even "our own allies" were against the justice? While he did not name those allies, he was apparently referring to the so-called Samar bloc in the administration led by Vice President Jejomar Binay and Sen Salvador "Chiz" Escudero.
The Binay camp is allergic to "The Firm" or the CVC Law office which Carpio co-founded. One of its founders, Avelino Cruz Jr, and some of its lawyers served as election counsels of Mar Roxas in his failed vice presidential bid in 2010. Binay defeated Roxas, but the latter filed an election protest which is now pending with the Presidential Electoral Tribunal headed by the chief justice.
The constant buzz in the Binay camp -- long before Corona was impeached in December 2011 -- was that The Firm was out to get Binay out of office before 2016.
Aquino himself is not particularly fond of Carpio. After all, he was already a lawmaker (congressman then senator) when talks about The Firm's forceful -- and some say nasty -- inroads in the judiciary started to circulate. His cousin, Antonio "Tonyboy" Cojuangco, was forced out of the Philippine Long Distance Company (PLDT) under the Ramos administration on account of the anti-monopoly drive led by then National Security Adviser Jose Almonte and Carpio, who was then presidential legal counsel.
The President too has faced one defeat after another in the Supreme Court, starting with its verdict that nullied the Truth Commission that he formed in 2010. In his mind and heart, he wanted an outsider to head the judiciary.
So the question for the President by late June was, who could be the next chief justice?
Drilon was considered
By June 18, the first deadline set by the JBC for the acceptance of nominations, the President had no clear candidate in mind. By coincidence (or was it?), the JBC extended its deadline to July 2, saying it wanted to give more people a chance to apply.
The President then considered a Liberal Party stalwart, Sen Franklin Drilon; he was promptly nominated to the JBC on June 26. But he promptly said no.
That was when Malacañang began its earnest courtship of De Lima.
On June 29, Friday, De Lima discussed the issue briefly with the President in Malacañang. On Saturday, June 30, word got around that she was going to accept the nomination. She confirmed it in a text to reporters on Sunday, July 1, before going to Manaoag in Pangasinan to "pray." De Lima was known to be a preferred choice.
The road to Padre Faura seemed smooth at that point. Except that in December 2011, at the height of the impeachment move against Corona, two disbarment cases were filed against her with the Supreme Court. And last July, the SC brought these cases to the Integrated Bar of the Philippines (IBP) for review. (Editor's note: We earlier wrote that the SC referred these cases in January. We apologize for the error.)
The IBP, which opposed Corona's impeachment and was perceived to be a silent ally in those days, was not about to cut De Lima and Malacañang some slack.
In the last week of July, a former government official made some calls to IBP governors to help rally support for De Lima, lawyers told Rappler. The effort failed. In a unanimous vote on July 30, it decided to order a full-blown investigation of the disbarment complaints against her.
The battleground shifted to the JBC, which is dominated by judiciary insiders and presided over by SC Justice Diosdado Peralta, an ally not only of Corona but also of former President Gloria Macapagal-Arroyo.
Due to the deadlock on the disbarment issue -- on top of the floods in Manila -- the council had to postpone its "final deliberations."
Up until Monday, August 13, when the JBC finalized its shortlist, the President's subalterns tried to lift the rule on suspension in the JBC.
JBC rules state that contenders with pending regular administrative and criminal cases must be disqualified. Undersecretary Michael Frederick Musngi moved to have the rule suspended on August 10; the JBC could not reach a consensus, hence the voting was reset to August 13.
JBC insiders told Rappler that when the council met on August 13 -- after postponing its vote on the shortlist for 5 times -- the push to have the council's rules suspended was muted and a different tack was pursued.
When the council met on August 10, a related event transpired. The SC dismissed the disbarment case filed by Lauro Vizconde against Carpio. The SC said sitting justices can only be removed through impeachment.
Sen Francis Escudero, who was not expected to attend the meeting on August 13 because his father died that day, pointed out that following this logic, even if a candidate had pending cases, these would have all been dismissed once he or she was appointed to the High Court.
There are 3 out of 20 contenders to the highest post in the judiciary who may be disqualified because of pending administrative cases -- De Lima, Solicitor-General Francis Jardeleza and Securities and Exchange Commissioner Teresita Herbosa.
De Lima faces 3 disbarment complaints. The IBP consolidated two complaints into one since they involved De Lima's defiance of an SC temporary restraining order issued in favor of former President Gloria Macapagal-Arroyo and her husband, lawyer Jose Miguel in November 2011. De Lima barred the Arroyo couple from leaving the country because they are under preliminary investigation for their alleged role in alleged cheating in the 2007 elections.
The other case stemmed from De Lima's rebuke of Corona whom she called a "tyrant who holds himself above justice and accountability" on national television.
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 he has been granted judicial clemency.
Escudero said that since sitting justices could not be disbarred anyway, why not just keep the 3 contenders?
Four JBC members -- retired SC Justice Regino Hermosisima, retired Court of Appeals Justice Aurora Lagman, Integrated Bar of the Philippines representative Milagros Fernan-Cayosa and Justice Diosdado Peralta -- argued, however, that Carpio's case is different because he is already an incumbent SC magistrate. De Lima, Jardeleza and Herbosa are not.
Test of integrity
Musngi then raised another argument. He said that if some of the JBC members insist that it will take a unanimous vote for the rule on disqualification to be suspended because it involves an issue of integrity, why not apply it to all?
After all, Rule 10, Sec 2 of the JBC Rules states that, "In every case where the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the Members of the Council must be obtained for the favorable consideration of his nomination."
Reading the rule closely will show that the question of integrity covers an "applicant who is not otherwise disqualified." Hence, it can be applied to all contenders.
Peralta, Lagman, and Cayosa invoked this rule when they blocked Musngi's move to have the rule on disqualifying candidates suspended on August 10.
Musngi wanted to have the rule suspended in the name of "fairnes and equity." He was stopped by Peralta, Lagman, and Cayosa. Lagman said there should be a compelling reason to suspend the rule.
Five votes -- or a majority vote -- would have sufficed to suspend the rule, but the 3 JBC members said that because the issue involves a question of integrity, the vote should be unanimous.
There was no consensus on August 10. On August 13, Musngi's move just fell through.
An insider told Rappler that before the JBC meeting ended, Musngi gave an impassioned speech, saying he still believed that the rule was "unfair."
Did they single her out?
Clerk of court Enriqueta Esguerra-Vidal then informed the JBC that Jardeleza's case -- a disbarment complaint filed at the Office of the Bar Confidant -- has not yet been acted upon by the SC, while the motion for reconsideration on the disbarment case against Herbosa had been dismissed.
That left De Lima with her pending cases, which, according to the IBP, should be formally investigated. On this basis, the JBC ruled to disqualify De Lima.
The council's decision surprised many because Malacañang had lobbied hard for her inclusion in the shortlist. Given the council's past actions in 2010, there were fears it would give in to Malacañang.
After all, in 2010, notwithstanding a ban on appointments (in place two months before an election and until the end of the president's term on June 30), the JBC facilitated for then President Arroyo the choice of a new chief justice.
The council however stood its ground this time around. De Lima was President Aquino's pick, but she wasn't the JBC's. - Rappler.com