Jardeleza's SC entry and Sereno's eroding clout

MANILA, Philippines – The Supreme Court may have a new member but Chief Justice (CJ) Maria Lourdes Sereno may not be exactly thrilled about it.

Already at odds with President Benigno Aquino III over the high court's decision to declare unconstitutional specific acts under a special government spending program, Sereno suffered a double setback in a span of less than 24 hours.

First, her own colleagues in the tribunal rebuffed her Tuesday, August 19, when they decided to include Solicitor-General Francis Jardeleza in the short list submitted by the Judicial and Bar Council to the President. Sereno chairs the JBC which vets nominees to the judiciary and the Ombudsman. Voting 7-4, the majority ruled that Jardeleza was denied due process when his name was stricken from the original shortlist. 

The President delivered the second blow when he appointed Jardeleza the following day, despite her vigorous opposition to the former Solicitor General. (READ: Jardeleza appointed as Supreme Court justice)

“How can you call the SC a Sereno Court when her own members are repulsing her?” asked University of the Philippines professor and expert on international law Harry Roque.

Roque pointed out that Sereno has been relegated to the minority in some of the major cases before the SC. These include the Reproductive Health Law issue and the Cyber Crime Law.

“She’s supposed to be the first among equals. You’re the Chief Justice but you are always with the minority,” Roque pointed out.

Nemesis

Sereno’s hold on the SC has been tenuous and shaky since her appointment as chief justice, bypassing the more senior justices in the high court.

Her foremost nemesis is Justice Teresita Leonardo-de Castro, an appointee of former President Arroyo. She and De Castro had clashed several times – first on the reopening of the Regional Court Administration Office, followed by Sereno’s alleged "tampering" in the temporary restraining order on the party list issue last year. 

More recently, De Castro questioned Sereno’s move to do away with the voting by SC justices in the selection of new members, which had been common practice.

The integrity issue raised against Jardeleza provided another platform for De Castro to undermine Sereno’s leadership. Rappler learned from SC sources that it was De Castro, along with Justice Arturo Brion, who lawyered principally for Jardeleza’s inclusion in the JBC list when they deliberated Tuesday.

One of the sources said De Castro and Brion “feverishly insisted” on Jardeleza’s inclusion in the list “despite full knowledge of the serious objections” against the former chief state counsel.

In blocking Jardeleza’s third attempt to join the SC, Sereno, for the first time in JBC history, invoked Rule 10, Section 2 of the JBC rules which allows one JBC member to veto the nomination of an applicant.

Sereno would not publicly reveal what prompted her to invoke the rule, but reports said it was due to questions about Jardeleza’s integrity. Rappler learned that this was triggered by Jardeleza’s questionable handling of the government’s arbitration case against China under the United Nations Convention on the Law of the Sea or UNCLOS before the Permanent Court of  Arbitration.

The case involved the Philippine challenge of China’s maritime claim in the West Philippine Sea (South China Sea), particularly its controversial 9-dash line that also covers the country’s 200-nautical mile Exclusive Economic Zone (EEZ). (READ: The inside story: Jardeleza accused of disloyalty to PH)

3 integrity issues

Based on the supplemental comment submitted by the JBC to the SC in reply to Jardeleza’s petition for inclusion in the JBC list, 3 integrity issues were raised against him.

Of these 3 issues, it was the West Philippine Sea case that bore heavily on Jardeleza’s SC bid. Ironically, the one who provided Sereno ammunition to go against Jardeleza was senior Justice Antonio Carpio, who also vied for the chief justice post when Sereno herself was vying for it.

In the supplemental comment, the JBC said said it was forced to break the confidentiality of its proceedings and tackle sensitive national interests to prevent a potential “traitor” from becoming an SC justice. 

“Considering that the Petitioner (Jardeleza) himself challenges the JBC to a public and open discussion of the integrity issue against him, the JBC, to protect its reputation, and under the legal compulsion of candor before this Honorable Court, has no recourse but to fully discuss facts, including those involving sensitive national interest matters in this Supplemental Comment-Reply.”

As the country’s chief state lawyer, Jardeleza, supported by international lawyers, was spearheading the arbitration case at The Hague in the Netherlands.

In a strongly worded statement, Sereno accused Jardeleza of lacking integrity, and committing acts tantamount to treason by undermining Philippine interests when he “deliberately” pushed for the exclusion of Itu Aba, the largest island in the Spratly Group of Islands, for discussion in the memorandum (or memorial in international law) submitted to the United Nations-backed tribunal.

Treason

Narrating the facts that led her to raise integrity issues against Jardeleza, the Chief Justice said she learned about the Itu Aba faux pas from Carpio. “She then conducted discreet inquiries on her own. While the final Philippine Memorial included the important discussion point of Itu Aba she discovered that Petitioner insisted upon its exclusion and was only overruled through timely intervention,” the supplemental comment said.

In her probe of the case, Sereno said the exclusion of the discussion of Itu Aba in the memorandum submitted to the UN body on the West Philippine Sea case would have resulted in the Philippines losing its case and losing face in the international community. 

“Petitioner cannot be trusted to act in the best interests of his client, the Republic of the Philippines, as its agent in the UNCLOS arbitration…His disloyalty to his client is a lack of integrity. And when that client is the Republic of the Philippines, it is treason,” Sereno said.

Despite protests and warning from the international lawyers tapped by the government to help in the arbitration case, Jardeleza insisted on deleting the Itu Aba discussion. “This deliberate refusal to promote the remedies available to the Philippines, by deliberately weakening the country’s arguments, showed that the Petitioner had been disloyal to the country,” Sereno said.

Risk of embarrassment 

What’s at stake in the Itu Aba case? It could yet prove to be pivotal in the issue of jurisdiction by the UN body in the case filed by the Philippines.

The government is arguing that Itu Aba is only a rock formation “that cannot support human habitation absent external assistance.” Under the UNCLOS, an island capable of human habitation and economic life of its own generates an Exclusive Economic Zone of 200 nautical miles from its shore. The Philippines posits that Itu Aba does not enjoy an EEZ coverage and thus falls under the coverage of compulsory arbitration under the UNCLOS.

On the other hand, China has argued that the UN body has no jurisdiction over the dispute because Itu Aba generates an EEZ of 200 nautical miles and overlaps with the Philippines' own EEZ. 

The Philippine-hired international counsels, led by American lawyer Paul Reichler, appealed for the retention of the Itu Aba discussion in the memorandum, arguing that its deletion could put “the entire case at risk.” In a memo to Foreign Affairs Secretary Albert del Rosario, the foreign lawyers warned that “there is too much at stake to put everything at risk by what we would consider an extremely unwise decision.”

Sereno said the exclusion of Itu Aba from the memorial might be construed by the UN arbitral body “as bad faith” as it determines whether it has jurisdiction or not. “It  would be a monumental diplomatic embarrassment if the Philippines were seen as sabotaging its own case by failing to argue a jurisdictional point. The Philippines was the party that initiated compulsory arbitration. It is the party claiming that its right under the UNCLOS has been violated, and that it undertook the proper mechanisms under the UNCLOS to protect its right.”

The Chief Justice stressed that international law “recognizes the existence of the clean hands doctrine, which requires international litigants to come before the international courts without bad faith. If the Philippines were seen as purposefully bringing a defective case before the UNCLOS  tribunal, then its good faith would be cast in doubt.”

Unfit as SC justice

Given Jardeleza’s misjudgment, Sereno said he is “unfit” to become a member of the SC. “The non-inclusion of petitioner of Itu Aba in the Philippine claim, despite being informed of the dire consequences if this issue were ignored, was a violation of his fiduciary obligation to the Republic of the Philippines; by extension, it was a violation of his oath of office as Solicitor-General, as an attorney of law, and as citizen of the Republic of the Philippines,” Sereno said.

When confronted by the JBC about the issue, during an executive session held June 30, Jardeleza refused to explain himself, demanding that Sereno put her objection in writing and that he be given the right to cross-examine her and Carpio. He also asked the JBC to put on hold their vote pending the SC’s action on his letter-petition questioning his exclusion from the shortlist. (READ: Solicitor General out of SC justice race)

However, the JBC proceeded with the voting, with Jardeleza getting 4 votes. Court of Appeals Justices Apolinario Bruselas and Jose Reyes topped the voting with 6 votes each.

Sereno was able to sway one JBC member, Integrated Bar of the Philippines representative Milagros Fernan-Cayosa to vote against Jardeleza. Cayosa told the JBC that while she had voted for Jardeleza “she could not vote for him this time.” Based on her own study and investigation of Jardeleza’s background, she was able to validate the issues raised against him that cast serious doubt on his integrity.

Time heals 

What’s in store for the High Court, given the acrimonious relationship between Sereno and Jardeleza and other justices?

One retired justice, who refused to be identified, said the hostility in the SC appears to be more pronounced now than in the past. “During my time, we had disagreements, we had spirited debates, but those were nothing personal.”

Retired Justice Angelina Gutierrez said personal disagreement cannot be avoided in the high court, but said civility will be observed.

An appointee of Estrada, Gutierrez was closely identified with the Estrada faction in the Court during the first few years of the Arroyo administration. She, however, was able to have cordial and friendly ties with the Arroyo appointees in the end.

“Time is the best healer,” Gutierrez said. – Rappler.com