By VERA Files
(Second of three parts)
The Judicial and Bar Council represents the first and crucial step in the judicial appointment process. Ultimately, however, the person responsible for appointments of all the country's judges and justices is the President.
For every vacancy, the JBC must submit to the President a shortlist of at least three names, after it has investigated and evaluated applicants. The Constitution limits the President to the list officially transmitted to him or her.
But sending back the list if there is no name in it he or she wishes to appoint is one of the many prerogatives of the Chief Executive. The framers of the 1987 Constitution acknowledged this possibility even back then, with some expressing apprehension over the potential abuse of this power.
The President may also decide to break or uphold judicial traditions, one of these being the rule of seniority—appointing the most senior member of the Supreme Court to be Chief Justice.
There is likewise no prohibition on the President appointing a nonmember of the Supreme Court as Chief Justice, although this would again be departing from tradition. Never in the history of the JBC has an outsider been named chief magistrate. Some sectors have called on President Benigno Aquino III to pick someone outside the High Court as the next Chief Justice.
Another presidential prerogative is appointing friends and allies to the judiciary as long as they pass JBC scrutiny and requirements.
There is nothing illegal in the exercise of such prerogatives. But judicial history shows that such powers come under fire when used blatantly by presidents to protect their own interests, as in the case of Gloria Macapagal-Arroyo. Indeed, Arroyo made the most controversial judicial appointments, which were perceived to have been part of the wall she built to protect herself amid the many legal questions that plagued her presidency.
The point of submitting a shortlist is "to limit the President's discretion in exercising his or her appointing power," said the nongovernmental Transparency and Accountability Network which is part of the Supreme Court Appointments Watch (SCAW).
Yet Palace and JBC insiders say this limit can be circumvented. "You are president; there are some people you want to put in the judiciary. If you want him or her, you can ask the Secretary of Justice to nominate (the person)," said a former Palace official.
The president's congressional allies in the JBC and the regular members he or she appoints—or reappoints—can also get Malacanang's preferences into the list of nominees. In fact, the President can have as many candidates of his or her choice apply or be nominated to the JBC.
Former Palace officials interviewed for this study say it has been the practice of presidents to form their own search committees to further screen the names on the shortlist submitted by the JBC. The search committee was usually composed of the executive secretary, plus at least two other key officials from the executive branch such as the presidential adviser on political affairs, chief legal counsel or the solicitor general.
Nominees either talked directly to the members of the Malacanang committee and the JBC, or got a padrino (political leaders or Church officials) to boost their chances of getting appointed.
During the time of former presidents Fidel Ramos and Joseph Estrada, the Presidential Management Staff would draw up a matrix for the Palace search committee that included the nominees' qualifications, achievements, positions, other relevant information. The matrix included a separate column identifying the nominee's backers or endorsers.
The committee would rank the nominee and then submit their recommendees to the President, who would make the final choice.
When the nominee is appointed, said a former Palace insider, the people who endorsed him or her are the first to be notified. "O, napagbigyan na yung tao mo (We've given in to your nominee's request)." Malacanang keeps tracks of favors given out to allies, the source said.
Aquino also has a search committee for the judiciary, which includes Executive Secretary Paquito Ochoa, separate from the committee that screens candidates for positions in the executive branch.
The "midnight appointment" of fallen Chief Justice Renato Corona is not the only such appointment in recent history. On March 11, 1998, then President Ramos named eight associate justices of the Court of Appeals, and on March 30, he appointed two judges.
The election ban on appointments starts 60 days before an election and until the end of the President's term on June 30. Elections were held on May 10 in 1998.
That same year, the Supreme Court revoked Ramos' appointment of the two judges—Mateo Valenzuela of Bago City and Placido Vallarta of Cabanatuan City—saying they were nominated by the JBC during the ban on presidential appointments.
It affirmed, though, the appointment of the eight CA justices because they were found to have been appointed by Ramos "the day immediately before the commencement of the ban on appointments."
In 2010, however, in deciding whether or not to allow the JBC to nominate appointees for Chief Justice during the Constitutional ban on midnight appointments, the Supreme Court reversed the 1998 ruling. In a widely criticized decision seen to accommodate Arroyo's impending appointment of Corona, the High Tribunal decided that the Constitutional prohibition only applies to appointments in the executive department, not in the judiciary.
Lucio Tan and Hilario Davide
Businessmen were among those who sought favors in the form of judicial appointments. Estrada himself revealed that tycoon Lucio Tan lobbied for the appointment of then Associate Justice Hilario G. Davide Jr. to be named successor to Chief Justice Andres Narvasa, who retired Nov. 30, 1998.
He said Tan invited him to a dinner at Century Park Hotel where they were joined by Davide, whom Estrada eventually appointed Chief Justice.
Estrada said, however, that even without Tan's lobbying, he would have appointed Davide, who topped the list recommended by the screening committee and by Narvasa. Davide was also at the time the most senior member of the High Court.
Davide would later preside over Estrada's impeachment trial and swear into office Gloria Arroyo even without a vacancy in Malacanang. It was also the Davide court that came up with the novel idea of "constructive resignation" to justify Arroyo's installation as president.
During her presidency, Arroyo had entrusted her cousin Erlinda de Leon and her husband Carlos, a former regional state prosecutor, with the power to screen appointments to the judiciary. De Leon was given the title "special assistant to the President," and was known to call up JBC members to make Arroyo's preferences known. Many applicants sought out the power couple, a number through "brokers" that included local politicians like a Manila councilor.
Sources interviewed for this research lament that problems in judicial appointments reached their worst during the Arroyo presidency. Arroyo began her term amid questions of legitimacy following her assumption of the presidency from Estrada who was ousted in the Edsa People Power of January 2001. She faced several attempts to unseat her, including four impeachment complaints filed in the wake of damning revelations of fraud in the May 2004 elections, caught in wiretapped conversations with then Elections Commissioner Virgilio Garcillano, and other controversial decisions.
Arroyo relied heavily on the courts to defend her against the many issues and problems that plagued her presidency, and packed the Supreme Court with her former officials, friends and allies.
The last in a string of problematic judicial appointments by Arroyo is that of Corona, her former chief of staff, to the post of Chief Justice on May 17, 2010, just a week after the presidential elections and barely a month before she stepped down from office. The Constitution prohibits appointments during the 90-day election period. Law and civil society groups filed a case over Corona's midnight appointment before the Supreme Court, which was by then dominated by Arroyo appointees. The Court upheld Corona's appointment.
In appointing Corona, Arroyo bypassed associate justice Antonio Carpio who was then the most senior associate justice. Carpio and Conchita Carpio-Morales, the second most senior associate justice then and now the ombudsman, withdrew from the race when Arroyo insisted on appointing the Chief Justice during the election ban.
(As the most senior member, Carpio is now acting Chief Justice and ex officio chairman of the JBC. One of the contenders for the post of Chief Justice, he has inhibited himself from the JBC nominations. So has Justice Secretary Leila de Lima, an ex officio member and likewise a contender.)
Arroyo was one of only two presidents in the country's history who set aside the tradition of seniority in selecting the Chief Justice. The other was former President Ferdinand Marcos.
In Marcos' final year in office in 1985, he twice bypassed the independent-minded Claudio Teehankee, then the tribunal's most senior member, first in favor of Felix Makasiar and later Ramon Aquino. Teehankee would lead the High Court only after Marcos' downfall in 1986.
Twenty years later, Arroyo bypassed Reynato Puno, who was named to the Supreme Court in 1993, in favor of Artemio Panganiban, who was appointed in 1995.
Panganiban had played a controversial role in installing Arroyo as president in January 2001. Known at the time to be the bridge between Davide and the Arroyo camp, Panganiban later wrote in his book Reforming the Judiciary that he urged Davide to swear in Arroyo as president even when Joseph Estrada was still legally the president. Fearing a coup d'etat, swearing in Arroyo as president was, he said, "the only way to avert violence, chaos and bloodshed and to save our democratic system from collapse."
Besides being Davide's personal choice to be Chief Justice, Panganiban had been endorsed by the Catholic Church, particularly Cebu Archbishop Ricardo Vidal who was close to Arroyo—Puno was a freemason and past grand master of the Grand Lodge of the Philippines—and the mining sector.
Panganiban had written the decision that favored opening up the mining industry to foreign investment (La Bugal v. Ramos), said to have earned him points with Arroyo, who authored the 1995 Mining Act (Republic Act No. 7942) when she was senator. The law permits mining ventures fully operated by foreign firms, with or without Filipino capitalization.
In the shortlist sent by the JBC to the Office of the President, candidates are ranked according to the number of votes they garner. The ranking, however, is not a guarantee of the President's final blessings.
Based on the July 2010 tally sheet of votes on the nominees for the position of associate justice that Corona vacated when he was appointed Chief Justice, the top choice of the JBC was Court of Appeals Associate Justice Japar Dimaampao who got six votes. Former University of the Philippines College of Law dean Raul Pangalangan and CA Associate Justice Noel Tijam got five votes each. The last on the list with four votes each were CA Associate Justice Abdulwahid Hakim, Elections Commissioner Rene Sarmiento, and UP professor Maria Lourdes Sereno. Aquino chose to appoint Sereno.
Last year, Aquino appointed CA Justices Bienvenido Reyes and Estella Perla-Bernabe to fill the vacancies left by retiring justices Eduardo Nachura and Conchita Carpio-Morales. In the JBC's June 2011 voting, it was CA Associate Justice Jose Reyes who ranked first, with seven votes. Bienvenido Reyes got six votes and Estela Perla-Bernabe five.
"The assumption is they all went through this very tight screening process, so they are all
qualified," said a former justice secretary. "Now, all things being equal, baka pag merong nag-push na politician (if a politician pushes), it might also help."
Some lawyers and former Malacanang insiders say this was likely the case with Bievenido Reyes who served as vice president and finance manager of Best Security Agency Inc., a company whose owners included President Benigno Aquino III and his uncle, Antolin Oreta, husband of former Sen. Tessie Aquino-Oreta. In 2009, Reyes was reprimanded by the Supreme Court which found him guilty of simple misconduct for hastily signing the decision in the case involving the Manila Electric Co. and the Government Service Insurance System.
Court Administrator Jose Midas Marquez and then SC spokesman disclosed last year that Aquino attempted to return the shortlist to the JBC, supposedly because a number of nominees for Nachura's and Carpio-Morales' slots had links to Arroyo. But the JBC blocked the attempt, he said.
There were two incidents in the past when a president returned the JBC shortlist for a Supreme Court vacancy.
Arroyo returned the list when Puno was Chief Justice and ex officio chairman of the JBC because she reportedly disliked the nominees. Puno returned the same list to her.
In one instance years earlier, Arroyo also tried to send back the list to the council, then chaired by Davide. The President was said to be looking for the name of Constitutional Commission delegate Adolfo Azcuna for nomination to the High Tribuna. Azcuna had been endorsed by, among others, former President Corazon Aquino. Davide rejected the Palace's request. Azcuna was subsequently nominated by the JBC and appointed Supreme Court associate justice.
(To be concluded)
(This series is adapted from VERA Files' study on the post-Marcos judicial appointment process. VERA Files is put out by veteran journalists taking a deeper look at current issues. Vera is Latin for "true.")