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MARIE YUVIENCO | The choice is his: Duterte and the Supreme Court
The online news portal of TV5

Despite two vacancies in the Supreme Court, President Rodrigo Duterte has yet to appoint anyone of the candidates submitted by the Judicial Bar Council. 

The first vacancy resulted from the retirement of Associate Justice Jose Perez last December 14 upon reaching the mandatory retirement age of 70. He was followed out the door by Associate Justice Arturo Brion, who retired December 29. 

Under the law, the President has 90 days to appoint the new justices; the calendar is running, so to speak, and the President seems to be taking his sweet time in making up his mind.  No hurry, if his presidency proceeds without a hitch, he will have the chance to appoint 12 of the 15 Justices of the highest court of the land.

There is no doubt as to the nature of the power to appoint judges: it is solely executive and may not be interfered with. 

I did some reading to refresh myself on the subject and thus came across Jardeleza v. Sereno, decided in 2014, and Aguinaldo v. Aquino, decided last November. Jardeleza and Aquino are interesting because they involve acts that some readers may interpret as interference in the presidential power of appointment. 

At the center of both cases is Chief Justice Maria Lourdes Sereno, who was appointed to the Court by Noynoy Aquino, first as associate justice in 2010, and then two years later as Chief Justice, and who serves as the JBC’s ex oficio chairperson.

The cases struck me as odd because the Chief Justice seems to have tried to impose limitations on her appointer’s prerogatives to select his preferred candidate for vacancies in the Sandiganbayan and the Supreme Court. (Readers are best advised to study the cases in the original because this column lacks the space to discuss the facts and the reasoning of each decision.) 

In the eponymously-titled case of Jardeleza, Chief Justice Sereno invoked an obscure provision of the Rules of the JBC to block the candidacy of Francis Jardeleza, who was nominated for the vacancy left by the retirement of Associate Justice Roberto Abad. 

Basically, Chief Justice Sereno questioned Jardeleza’s integrity and, under the rule, when any member of the Council objects to any candidate’s integrity, a unanimous affirmative vote, instead of a simple majority, must be achieved for a candidate to be included in the short list to be submitted to the president. Essentially, the integrity challenge can amount to a veto by one member of the wishes of the majority, holding it hostage, so to speak, by a “misuse” or “abuse” of the rule.

The thing was, Jardeleza was Malacañang’s preferred candidate, as indeed later on he would be included in the short list and eventually appointed, but only after he questioned his exclusion from the list following Chief Justice Sereno’s challenge. And what a challenge it was: principally arising from a confidential document which questioned Jardeleza’s actions as Solicitor General in a certain maritime arbitration dispute between the Philippines and China. The Court ruled that the JBC denied Jardeleza his right to due process and accordingly, he should be included in the short list; it further called for a review of the JBC rules.

In Aguinaldo, the issue revolved around the short lists of the JBC to Malacañang after Congress passed a law increasing the number of divisions of the Sandiganbayan from five to seven. As each division requires three justices, six vacancies resulted. 

What the JBC did was to submit a short list pertaining to each vacancy, the idea being that President Aquino can choose only from the list of candidates pertaining to each vacancy. To illustrate, for Vacancy No. 2, he can choose only from List No. 2 even if the candidate he prefers is named in, say, List No. 3. This had not been done before. Unsurprisingly, the Court shot down this idea because the act of “clustering” candidates impinges on the president’s power to appoint. 

In both cases, Chief Justice Sereno was singled out. In Jardeleza, it was her invocation of the integrity challenge rule that itself was challenged. In Justice Arturo Brion’s separate opinion, he said that Chief Justice Sereno’s challenge against the then-Solicitor General’s integrity -- basically a charge of disloyalty to the Philippines -- is, to put it mildly, a “career-killer.”

I cannot fault this description: indeed, any Filipino so accused should be given the chance to refute such a charge.

Meanwhile, in Aguinaldo, Justice Teresita Leonardo-de Castro’s ponencia said that the change in the JBC rules “formally institutionalizes Chief Justice Sereno's unilateral decision to abandon a well-established rule, procedure, and practice observed by the Court, and completely precludes the incumbent Supreme Court Justices from expressing their views on the qualifications of the applicants to the vacancies in the Supreme Court.”

Judging from the tone of these two decisions, it should be clear to everybody that relations between the Chief Justice and her peers could be smoother, but the import of Jardeleza and Aguinaldo is that she cannot initiate the changes she wants because the majority, who are appointees of Gloria Macapagal Arroyo, are not on her side. 

Should circumstances permit, she is set to serve until 2030, yet by 2022, President Duterte will have surrounded her with 12 of his appointees; that will again place her in the minority. 

Thus far, I have not heard of any acts on her part similar to those she did in Jardeleza and Aguinaldo relative to the two vacancies in the Court. 

To do so would be unwise, because Rodrigo Duterte is not a president who will allow his prerogatives to be clipped, even by the highest-ranking magistrate of a co-equal branch of government.