To disqualify or not to disqualify

That is the question that—as in “Hamlet”—haunts, complicates, befuddles and delays the selection process of the Judicial and Bar Council (JBC). Originally, the JBC planned to submit its short list to President Aquino on July 30. This timetable would have given the President about a month to study the list and to appoint the new chief justice therefrom.

JBC timetable. The top judicial post was deemed vacated on May 29, when the Senate impeachment court ousted Chief Justice Renato C. Corona. The Constitution states that the “vacancy shall be filled within 90 days from the occurrence thereof.” Hence, the constitutional deadline to fill it up is on Aug. 27, the 90th day from May 29, given that May and July have 31 days.

The Constitution gives the President the power to name all members of the judiciary, but the authority is not absolute. The President can choose the appointee only “from a list of at least three nominees prepared by” the JBC. Unlike other presidential appointments, judicial appointees need no confirmation from the Commission on Appointments.

The “council screening” of magistrates is an innovation originated by the 1987 Constitution, designed to insulate the judiciary from undue political interference and to further fortify judicial independence and integrity.

The JBC’s timetable for the current vacancy was, however, delayed. Initially, it had to wait for the Supreme Court to rule on the petition of Francisco Chavez challenging the two memberships and two votes of Congress in the council.

After the high court temporarily allowed the two Congress representatives (Sen. Francis Escudero and Rep. Niel Tupas Jr.) to continue sitting pending a final decision, the JBC rescheduled its session to choose its short list to Monday, August 6. Then, it moved the date to Aug. 8 on Escudero’s plea for time to study the interview transcripts (he did not attend the interviews). This latter date was cancelled due to the monsoon rains that flooded Metro Manila, and was reset to Aug. 10, and then again to tomorrow, August 13.

Disqualification rule. Ultimately underlying the delay is the JBC rule disqualifying candidates who are facing criminal or regular administrative (i.e., disbarment) cases. Covered by this rule are three candidates: Justice Secretary Leila de Lima, Solicitor General Francis Jardeleza, and Securities and Exchange Commission Chair Teresita Herbosa.

The Integrated Bar of the Philippines, to which the Supreme Court referred De Lima’s disbarment cases for investigation and recommendation, flatly denied the secretary’s request for their summary dismissal. However, she also repeatedly asked the JBC to amend or to suspend the disqualification rule, claiming that candidates should be chosen on the basis of their personal and professional experience, rather than on “petrified rules of selection that may be outdated, not applicable to current realities, or worse, even unconstitutional.”

However, amending or suspending the rule at this point may not benefit De Lima. Executive Order 200, issued by President Cory Aquino when she was still enjoying legislative powers, states that new laws (or amendments) “shall take effect after 15 days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines…” So, the amendment—even if approved by the JBC—would be too late to help her because it would become effective after the constitutional deadline (Aug. 27) to fill up the vacancy had lapsed.

In a long line of cases starting with Tañada vs Tubera (Dec. 29, 1986), the Supreme Court stressed the compulsory need for official publication before laws, including rules and regulations affecting the rights of the public, can become effective or be amended. This JBC rule affects the rights of the public because prospective candidates may not have applied precisely because of the disqualification rule.

Hurdling disqualification. Last year, Tupas proposed the amendment of the disqualification rule by giving the JBC the discretion to exempt deserving candidates. Ironically, however, De Lima opposed the proposal, arguing, “the best remedy is … to ensure that the resolution of the pending cases is expedited…”

To be sure, the JBC has uniformly applied—without any exception—this prohibition and disqualified all aspirants with pending criminal or regular administrative cases from the time it became effective on Dec. 1, 2000, up to the present. Notably barred were two Cabinet members of President Gloria Macapagal-Arroyo, namely, former Justice Secretary Agnes Devanadera and former Energy Secretary Rafael Perpetuo Lotilla when they applied for nomination as Supreme Court associate justice.

De Lima can, of course, challenge the disqualification rule in the Supreme Court. Like Hamlet, she can also ask “whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune” in the JBC, “or to take arms against a sea of troubles” in the Supreme Court.

All told, De Lima’s hopes are shackled by the constitutional deadline, the JBC disqualification rule and the lack of time to amend it. However, if she can somehow hurdle this bar of disqualification in the JBC and/or the Supreme Court, she stands more than an even chance of being nominated and appointed as the first woman and the first outsider (not counting former Speaker Jose Yulo who was installed as chief justice by the occupying Japanese forces during World War II) to reach the highest judicial star.

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