Stacking the Court

Appointees of President Arroyo will dominate the Supreme Court until 2010. It is easy to expect that she will choose justices who will abide by her.

MANILA, Philippines – On his sixth nomination to the Supreme Court, Ruben Reyes thought he had lost his last chance. He had one-and-a-half more years to go before he would end his career in the judiciary and, to his disappointment, President Arroyo picked a much younger man, someone many years his junior. The 68-year-old presiding justice of the Court of Appeals lost to an upstart, Gregory Ong, a 54-year-old Sandiganbayan justice.

For Ong, it was his third nomination to the High Court and not a few were surprised when he made it, including former President Joseph Estrada, who appointed Ong to the Sandiganbayan. When informed of Ong’s appointment to the Supreme Court in May, Estrada told us, “I’m surprised…. There are justices more senior than him.”

For someone not known to be a legal luminary, Ong rose fast, from presiding judge of the Regional Trial Court (RTC) in Pasig to associate justice and later division chair in the Sandiganbayan in a span of four years. Others spend at least five years in the RTC before moving up—and lawyers say even this period is considered short.

The Judicial and Bar Council (JBC), which screens candidates for all courts, submitted to the President an unusually long list of nominees—eight—to fill up a single vacancy in the High Court in May. Most of the time, the JBC keeps its list short, recommending at least three candidates and a maximum of five. JBC records show that since 2001, the council has consistently submitted five names for each single vacancy in the Supreme Court.

In this case, JBC members explained that the deviation was caused by the tie votes received by Ong and four others—who each received five votes. Reyes was on this same list, with six votes, the second highest number of votes. It is unclear why the JBC did not do a second round of voting to prune down the list.

“In case of tie, there can be a runoff,” Chief Justice Reynato Puno, who sits as JBC chairman, said in an interview. But the JBC left it at that.

The JBC is composed of eight members: four regular members, the secretary of justice, one representative from the Senate, one from the House of Representatives, and the SC Chief Justice who chairs it. Sen. Francisco Pangilinan represents the Senate and Quezon City Rep. Matias Defensor, Congress.

Zero Votes for Ong

Justice Secretary Raul Gonzalez, who represents the executive branch in the JBC, voted for only two nominees: Reyes and Ong.

“I voted for Reyes because he is senior and has the shortest time left in the judiciary,” Gonzalez said in a telephone interview in August. “I prefer short-term appointments. I don’t like people who plead for their appointment but when they get appointed, they turn against you. You never know what positions they take after they are appointed…. I’ve felt bitter about Supreme Court decisions lately.”

Gonzalez was referring to the rejection of the administration-initiated people’s initiative last year, and the landmark decisions against Executive Order (EO) 464 and Proclamation 1017. EO 464 bars executive officials from appearing in Congress, while, in 1017, President Arroyo proclaimed a state of national emergency after the failed coup in February 2006, citing threats to national security.

Among the SC justices, not a single one voted for Ong, not even two of his former professors at the San Beda College, Eduardo Antonio Nachura and Romeo Callejo Sr. As a practice, the justices cast their votes first before the JBC does, but only for those seeking to become part of their circle. These votes are then passed on to the JBC which may or may not take heed of them.

To the consternation of the justices, the President picked Ong, who was at the bottom of the list. They were in an en banc meeting when Ong’s appointment was announced. Some of the justices decided to probe into Ong’s records—and that’s when they discovered a basic flaw. They asked the bar confidante to bring all of Ong’s documents when he applied to take the bar and later his lawyer’s oath—and his birth certificate was part of the stack of papers. It was then established that Ong was not a natural-born citizen, a constitutional requirement for anyone to sit on the Supreme Court as well as the lower courts, including the Sandiganbayan.

Ong’s appointment would later turn out to be a fiasco, reflecting the weaknesses of the screening and selection process of justices to the highest court of the land—and the highly political nature of the President’s appointment. In an unprecedented case, the Office of the President had to revoke an appointment to the Supreme Court. “Clearly, Malacañang’s recall of Justice Ong’s appointment indicates that the JBC had failed to do its job and points to a loose screening process,” Vincent Lazatin of Supreme Courts Appointments Watch or SCAW said in May. “The JBC’s function was to submit a screened and prequalified shortlist to Malacañang.”

Aggressive Lobbyists

But for Reyes, what happened was a “miracle.” With what he calls “divine intervention,” the lone vacancy in the Court was once more open—and he finally got his dream. “I’m thankful that Ong got appointed—were it not for him, I would not have made it.”

On August 2, Reyes took his oath, and the poor boy from Bulacan once more “crossed the barriers of anonymity,” as Blas Ople described his situation when he was appointed RTC judge in 1984.

Except for their age difference, Ong and Reyes actually bear a major similarity. They aggressively seek out power brokers to endorse them for plum posts. We talked to various lawyers who have had encounters with Ong and Reyes as well as some justices in the higher courts, and they all had a common observation. Both are “malakad.”

(The lawyers we interviewed requested not to be named for fear that their cases pending in the courts would be affected. The justices, for their part, agreed to talk to us on condition of anonymity so that they could speak freely.)

Malakad is a commonly used term in legal circles, referring to a judge’s or justice’s penchant to use connections to get promoted. Another variation is “magaling sa lakaran,” which means adept at pulling strings.

The appointments of Ong and Reyes to the highest court of the land show that it is their kind who gets ahead in the Philippine judiciary. They exemplify the effective use of political patronage in the country.

In equal part, their rise shows the lack of rigor in the JBC’s selection process. The JBC members use broad criteria that are not supported by a rigid point system; thus their choices can be arbitrary. They are not exacting when it comes to evaluating background information on candidates to the SC.

This is partly because the SC’s Office of the Court Administrator, which is supposed to keep track of performance of judges and justices, including complaints against them, has not been providing adequate feedback to the JBC.

As we see, politics and a lax selection process make for a lethal combination, eroding the quality of justices who rise to our higher courts.

Enter El Shaddai and INC

In addition to politicians, Malacañang officials, and presidential relatives, there appear to be new power brokers in the judiciary—El Shaddai’s Brother Mike Velarde and the Iglesia ni Cristo (INC). They represent votes from big religious groups and their importance has grown against the backdrop of President Arroyo’s survival politics.

We learned that Justice Reynato Puno met with Velarde in late 2005 and asked his support to be Chief Justice. But Puno’s appointment was set back by a year because the President chose Justice Artemio Panganiban.

In 2006, the INC endorsed Presbitero Velasco Jr. for the Supreme Court. He bested four other shortlisted candidates.

The INC and Velarde backed Reyes when he was promoted to presiding justice of the Court of Appeals (CA). When he was in the CA, Reyes, a Protestant, would attend El Shaddai gatherings, which happened to be televised, and his colleagues even saw him on stage with Velarde. Those close to Velarde say that the El Shaddai head and Reyes are friends and that Velarde may have helped him again in his appointment to the Supreme Court.

When asked in an interview weeks after his appointment to the Supreme Court about the endorsement he got from INC and Velarde, Reyes replied, “Don’t I deserve backing?” About Velarde, he said, “I want to believe that he endorsed me.”

Reyes cast his net wide. He approached other persons of influence, anyone whom he thought could help him get to the top, from government officials to those in the private sector who enjoy access to Malacañang. Ong, for his part, always finds connections to whoever is in power, those who know him say.

President Corazon Aquino appointed him city fiscal in Manila in 1986. Under the Ramos administration, he was promoted to the RTC in Pasig. His stock rose under President Estrada as he was close to then presidential son Jinggoy Estrada. Apparently, that was the reason for his appointment to the Sandiganbayan.

Ong, a long-time San Juan resident, admits that Jinggoy, now senator, “remains a friend” but says it is not fair to attribute his appointment to that reason alone. In a written interview, Ong said that his credentials were “carefully evaluated” by the JBC which nominated him to that position.

While in the Sandiganbayan, he persistently worked on his connections to get to the JBC’s short list for the Supreme Court, even nagging one of them. “He is very ambitious, he cultivates people,” says a politician who has dealt with Ong.

In the current administration, Ong has found a link. His brother, Andrew, was a classmate of the President’s brother, Diosdado “Buboy” Macapagal Jr., at the Asian Institute of Management. Moreover, Lucio Tan, it is said, is among those who supported his bid for the Supreme Court.

We asked him to comment on the perception that he mixes with the powerful and influential, including Tan. “There may be instances when I could have met persons who may be considered powerful or influential, but that could only be in official functions or family gatherings which I had to attend in my official or personal capacities,” Ong says.

Secret Voting

What’s troubling with the JBC is the lack of transparency in the selection process. It is a hugely important process yet deliberation and voting records of JBC members are confidential. “The JBC should be accountable,” says Marlon Manuel, a lawyer active in SCAW.

Pangilinan, who has been with the JBC since 2001, has been pushing for the council to open up. Since its creation in 1987 until 2002, Pangilinan says that none of the council’s processes have been open to the public. “They were all shrouded in secrecy, and meetings were held behind closed doors,”

Today, interviews with nominees are open to the public. But still, there’s no record of who voted for whom as members use secret ballots. “We need to reexamine this,” Pangilinan adds. “There was a pendulum swing [in the JBC] to insulate the process from politics, in contrast to the Commission on Appointments which was very public.”

Puno is for opening up the voting records of the JBC. “I don’t mind telling the public how I vote. But it has to be a consensus [of the JBC].”

While parts of the JBC’s selection process are kept from the public, what is completely hidden is the process in Malacañang. Who vets the JBC short list when it reaches the Office of the President?

Based on our queries with various officials, here’s what we gathered. It is the Office of the Executive Secretary that goes over the JBC list, beginning with Undersecretary Edwin Enrile who, according to Bernardino Abes, chairman of the Malacañang-based search committee, “processes the papers and prepares the matrix.” Abes spoke to us by telephone and referred us instead to Enrile. (Executive Secretary Eduardo Ermita and Enrile declined to be interviewed for this story.)

Patricia Sto. Tomas, a former Cabinet member who sat in the executive search committee, says that there is a “small group” that looks at the JBC nominees before the executive branch lawyers like the justice secretary, the Solicitor-General, and the President’s chief legal counsel.”

GMA’s Body Language

The Office of the Solicitor General, Agnes Devanadera says, takes no part in the selection of justices for the Supreme Court especially because “the reality is the Solgen is usually an applicant for the post. Loosely, the Solgen is referred to as the 16th justice probably because of the demands of the work.”

Sergio Apostol also says he has absolutely nothing to do with the selection of justices and judges.

The current chief legal counsel is completely out of the process. This is very much unlike the earlier years when Avelino Cruz, the President’s first chief legal counsel, vetted the nominees for the judiciary.

During President Fidel Ramos’s time, the chief legal counsel, Antonio Carpio (now a Supreme Court justice), was key in screening judicial appointments, according to retired Gen. Jose Almonte, who was then national security adviser.

What Ramos asked Almonte to do was to conduct background checks on the nominees since he supervised the intelligence agencies then. Ramos also wanted to know if the appointees “understood his thinking, his overall plan, so I met them face to face,” Almonte recalls. “Track record was the biggest consideration in choosing a Supreme Court justice.”

Raul Gonzalez seems to have best described the process under Arroyo’s watch: “It is normal for a circle in the Palace, especially me and the legal team, to indirectly sound off the President when there is a vacancy in the Supreme Court. There is no additional staff work (in the Palace) once the JBC list is received…. We learn the President’s preference from her body language. She never tells us, she keeps it close to her chest. I never dare to open up the subject unless she asks. It’s hard to read her.”

While it is ultimately the President’s call, we learned that, informally, two of her special assistants, both lawyers, help her vet nominees to the judiciary.

Reversals by the High Court

In terms of the performance of justices aspiring for the High Court, there have been discussions to look at the number of times the justices’ decisions have been reversed by the High Court. This has never been part of the criteria used by the JBC but since decisions are the core of a justice’s work, the proposal may yet be considered. Reversals are usually made on substantive as well as procedural grounds.

We checked out Ong and Reyes and data we obtained show that, from 1986 to 2006, Ong had a 25-percent reversal rate or two reversals and six affirmations. Reyes had a 33.3-percent reversal rate or five reversals and 10 affirmations. The data further show that other Supreme Court nominees fared much better than Ong and Reyes, with two candidates never reversed by the High Court.

“After I’ve signed my decision or resolution, I consider my work done and I did it according to my best lights,” Reyes says. He concedes, though, that looking at Supreme Court reversals to evaluate nominees “will improve the selection process.”

Outside of his decisions, Reyes’s stint as CA presiding justice was marred by controversies: his daughter was appointed deputy clerk of court (there was no other applicant, says Reyes), he allowed the purchase of new cars for himself and some of the justices (the money, he says, came from the sale of the CA’s old vehicles), and the grocery allowance of employees was either delayed or slashed. It was not clear to the employees if Reyes used the funds meant for their allowance to buy the cars.

All these died down eventually, but these incidents show serrated edges in Reyes’s leadership style that resulted in a bruised relationship with the rank and file.

Admonished by SC

Ong has likewise experienced being at the receiving end of the Supreme Court’s admonitions, apart from his being reversed.

The High Court once ordered him to inhibit himself from the graft cases versus Imelda Marcos because of allegations that had cast doubt on his impartiality. Ong uttered remarks which showed a “predisposition to dismiss the criminal cases” and that his “judicial record favors respondent [Imelda Marcos].”

In a decison penned by Justice Adolfo Azcuna in May 2006, the Court admonished Ong: “Judges should avoid not just impropriety in their conduct but even the mere appearance of impropriety…. It is essential that judges be above suspicion…and that the people continue to trust in the fairness and impartiality of our magistrates, particularly in sensitive cases with far reaching consequences.”

When it comes to academic performance, Ong’s record is far from stellar. While in law school at San Beda, he failed the subject on criminal procedure—which covers rules on criminal cases—with a grade of 69. He took it up in a summer course as a cross enrollee at the University of Manila and passed.

In an interview with the JBC as a nominee to the High Court, he was asked what his field of specialization was, and he replied, “criminal cases.” While he was in the Pasig RTC, indeed, he focused on criminal cases to the detriment of civil cases, a number of which he left undecided when he moved to the Sandiganbayan. This caused him a problem when the SC then withheld his initial salary because of his backlog in Pasig.

Lawyers say it is ironic that Ong, with his poor showing in criminal procedure in law school, eventually became a prosecutor and a justice in the Sandiganbayan which is a court that tries criminal cases. It is hard to know how much weight the JBC gave all these facts when it shortlisted Ong for the Supreme Court. The JBC doesn’t use a point system in evaluating nominees.

But those who know Ong also say that he has a strict work ethic and imposes discipline in the courtroom. He once fined himself a thousand pesos when his cell phone rang in the middle of court proceedings—a violation of his own rule not to disturb court sessions.

Ong says there are lawyers and “parties” who do not like him because he is “overly strict” and he can be “blunt” in expressing his views.

Loyalty or Independence?

With the weaknesses we have seen in the way the justices to the High Court are chosen, coupled with the enormous influence of politics, it is easy to expect that the President will stack the court with appointees who will abide by her.

Justices privy to the selection process admit that, at the end of the day, the appointments are intensely political. “It boils down to loyalty to the President, the appointing power,” a justice in an appellate court said. “There’s [always] tension between loyalty and independence.”

A justice who is intimately familiar with the JBC told us that the President’s criteria are “loyalty and political advantage.” Another justice who has witnessed the appointment process for many years remarked, “The President wants someone to vote for her, right or wrong.”

This sentiment is echoed by a frequent nominee to the Supreme Court who has seen the selection process up close. “When it comes to Malacañang, it’s really politics. The criterion is: you should be good politically for the President.”

As it is, the present Supreme Court is dominated by appointees of President Arroyo: 11 out of 15 justices. Seven justices will be retiring from 2008 to 2009. By the time she steps down in May 2010, Arroyo will have a sweep of the Supreme Court—and only one will have been an original Ramos appointee, Reynato Puno, whom she chose to become Chief Justice in 2006.

“It’s difficult to say that because you are an appointee of the President, that you toe the government line,” Puno says.

Puno will retire on May 17, 2010. However, President Arroyo will not be able to name a new Chief Justice because of the appointments ban during the election period. It will be up to the next president, therefore, to appoint the next Chief Justice.

But there have been cases where high-profile nominees of President Arroyo were rebuffed by the JBC, notably Agnes Devanadera and Sen. Miriam Defensor Santiago. Both didn’t make it to the short list: Devanadera because of pending graft charges against her filed by former Gov. Luis “Chavit” Singson who sued her and several others before the Ombudsman, and Santiago for her personality, among other reasons.

Single Terms

Still, the JBC, many concede, is a much better institution than the Commission on Appointments. It was a response to the practice during the Marcos years when judges and justices passed through the CA and, in the process, promised favors to congressmen and senators in exchange for their confirmation.

“The trouble with the CA, before martial law, was the tremendous lobbying. This contributed to the imposition of martial law. It’s no secret that money played a great role in the CA,” former Senator Jovito Salonga said in an interview. “The military was so disgusted with the CA that they came out in full support of martial law.”

The 1987 Constitution thus provides for the creation of the JBC to insulate the screening and selection process of members of the judiciary from politics. But can politics be really kept out?

The four regular members of the JBC are appointed by the President—each with a term of four years—but they can serve unlimited terms, subject to reappointment by the President. These four members pass through the CA for confirmation of their appointments.

The current ones are: Justice Regino Hermosisima Jr. (who is now on his 10th year on the JBC), J. Conrado Castro (on his second term, but not yet confirmed as we went to press in November), Amado Dimayuga (also on his 10th year), and Justice Raoul Victorino (appointed in 2005 after his retirement as Sandiganbayan justice). Hermosisima represents the retired justices of the Supreme Court, Castro the Integrated Bar of the Philippines, Dimayuga the legal academe, and Victorino the private sector.

Politics already inhabits the confirmation process. It is likely that members who want to keep their posts will not displease the appointing power, apart from politicians in the CA. One JBC member admits that they are “subjected to certain pressures” from the CA, referring to members who endorse friends and relatives. “We make no promises,” the member says, “but most of the time, we nominate them because they always call us up.”

The SCAW has thus proposed single terms for regular members to reduce political manipulation.

Enrile v. Dimayuga

Minutes of the Commission on Appointments’ committee on justice and judicial and bar council meetings from 2001 to 2006 show relatively uneventful confirmation hearings of JBC members. It appears that only one regular member, Dimayuga, was given a tough time, particularly by Sen. Juan Ponce Enrile. A former dean of the University of Sto. Tomas faculty of civil law, Dimayuga, during his confirmation hearing, talked about, among other things, the “California method of selecting applicants who are chosen by peers and subject to balloting after seven years.” He considered adopting a similar system of nomination here and added that “candidates in California are also nominated by a council and consequently appointed by the governor although they are not confirmed by the state legislature.”

Enrile then challenged Dimayuga to show how the California system can cure the ills of the Philippine judicial selection process, to which Dimayuga replied that it was just an idea that may not solve all the problems. Enrile argued that corruption has persisted in the judiciary even under the JBC. The exchange between the two went on.until Enrile “moved to defer the confirmation” of Dimayuga.

The committee then met in a caucus during which Enrile eventually withdrew his reservations about Dimayuga. The latter was confirmed. Enrile and Dimayuga did not respond to our written questions to clarify what took place during the caucus and if the two got to talk after the latter’s confirmation.

Improve the Process

Apart from instituting a point system, opening up voting in the JBC, using SC reversals of decisions as a criterion, and imposing single terms on regular members of the JBC, other legal experts have brought up ideas to improve the process.

Former Chief Justice Artemio Panganiban suggests that to strengthen the “antipolitical shield of the judiciary,” the JBC members should be evenly appointed by the various institutions. In his proposal, the Supreme Court should appoint the three regular members while the President will appoint the private sector representative. Thus, the President will have two representatives, Congress will have two, and the Supreme Court, four.

“In this way, the nomination process will be further depoliticized and judicial independence better assured,” Panganiban wrote in the Inquirer.

Constitutional expert and Jesuit priest Joaquin Bernas takes a different view. He is critical of the JBC, whose composition he finds “too narrow and too vulnerable to manipulation,” thus he proposes that the Senate, as a whole, perform the role of the Commission on Appointments.

“Members of the confirming body would not be the privilege of a few but the prerogative of all senators,” he wrote in the Inquirer. “Giving the power to the Senate could assuage the discontent of many with the performance of the JBC.”

For all its weaknesses, however, the Chief Justice says the JBC still deserves a “passing grade.”

But twenty years after its creation, that’s measly consolation. – with research by Purple Romero/Newsbreak

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