The rule

Since a list of nominees for the position of Chief Justice has been submitted by the Judicial and Bar Council to the President (without my name included in it:-), I can now freely provide my four centavos on the JBC disqualification rules.

At the outset, regardless of whether one agrees with the names contained (and the number of nominees) in the list, you have to commend the JBC for: 1) its transparency in conducting the interviews and 2) going through a fairly rigid process in putting together the list of nominees. And allow me to sweet grape by saying that the eight men and women who have been nominated are all formidable legal personalities in their own right and I rest assured that whoever is chosen by the President has the requisite competence to lead the High Court.

Meanwhile, let me use this borrowed space and a few centavos to thank those who nominated me for the position — comebacking Senator Ramon Magsaysay Jr., the board of trustees of the Federation of Philippine Industries and my colleagues in the Philippine Association of Law Schools as well as the JBC members who included me in their ballot. My sincere gratitude also to those who conveyed kind words, texts and e-mails of support for my candidacy. But as I told many of them, I had small illusions about getting appointed, just big dreams for a more efficient and less corrupt justice system. The stirring close of Senator Edward Kennedy’s concession speech during the 1980 Democratic National Convention comes to mind: “the work goes on; the cause endures, the hope still lives and the dreams… shall never die.” So whoever gets chosen will need to buckle down and hopefully focus on implementing the much needed reforms.

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Let me now zero in on the controversial rule that Justice Secretary Leila de Lima and several others have been ranting about.

Rule 4, Section 5 of the JBC rules provides:

Disqualification. — The following are disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman:

1. Those with pending criminal or regular administrative cases;

2. Those with pending criminal cases in foreign courts or tribunals; and

3. Those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than P10,000, unless he has been granted judicial clemency.

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Let me join the chorus of opposition seeking an amendment to the rule. And I do support the proposition that rules should be applied equally.

Given the relative ease within which any one can file a case in our country (without any real consequential penalty for the person who files in the event the case is dismissed), the JBC should not automatically disqualify candidates with pending cases.

I was a victim of such Legal harassment. Three days before I was interviewed, a complaint was filed against me and a PCGG colleague for actions committed by our predecessors. If the case was truly meritorious, query as to the timing of the filing particularly since the alleged actions complained about happened years ago? And to think that in order to comply with one of the requirements for nomination, I had earlier obtained a clearance dated July 4, 2012 from the Office of the Ombudsman certifying that I had no pending cases therein.

Indeed, the penalty of automatic disqualification raises both due process and presumption of innocence issues. It is not only fair that nominees be given the opportunity to adequately respond to any opposition filed, but that the JBC should also conduct a preliminary proceeding that will allow it to make a prima facie determination on the gravity of the charge and weight of the evidence presented. In the same vein, former Senator Rene Saguisag’s eloquent observations on this point are instructive:

“I have kept hammering and pounding that both the Constitution (Art. III, Sec. 14[2[) and the Universal Declaration of Human Rights (Art. 11), which forms part of the law of the land, presume innocence.

If it is so concerned with charges, then the JBC may more reasonably have an aspirant sign an undertaking of automatic resignation effective when an adverse judgment may have become final, unappealable and executory. This a litigious society we live in where anyone can charge anyone. Thus a witness may not be asked whether he is facing a charge but “must answer to the fact of his previous final conviction for an offense.” Rules of Court, Rule 132, Sec. 3(5). A wise provision the JBC has turned on its head.

Ninoy Aquino faced so many spurious charges. But, even as a convict, not by final judgment, he was allowed to run. Even Romy Jalosjos (I helped handle his electoral cases on eligibility), won two reelections by ever-widening margins, and stripped of his post in Congress only by final, unappealable and executory judgment — the fairer policy the JBC incomprehensibly rejects in gross violation of a basic human and constitutional right.” 

Bottomline, the JBC rule should be amended so that a pending case would not result to an outright disqualification. Rather, a case should be independently assessed by the JBC and used as one of the criteria to decide whether a nominee should be included in the short list. This way, a person’s presumption of innocence is honored, due process rights are observed but at the same time, the integrity of the JBC’s vetting process is preserved.

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Greetings: Birth anniversary best wishes to YPO food magnate Arnold Co.

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“Some people always throw stones in your path. It depends on what you make with them. A Wall or a Bridge?”   – Anonymous

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