They could only wish

With all the legal minds working at Malacañang Palace, there is no reason why President Benigno “Noy” Aquino III failed to realize the import of meeting a constitutionally imposed deadline. President Aquino missed the deadline to fill the lone vacancy in the Sandiganbayan last May 26.

Deputy presidential spokesperson Abigail Valte admitted the discovery of Sen. Juan Ponce Enrile’s endorsement letter for one nominee prompted Malacañang to ask the Judicial and Bar Council (JBC) to review the shortlist that it submitted to the Office of the President last February.

The complication, as Valte pointed out, Enrile is among the three senators now facing plunder and graft charges at the Sandiganbayan.

The anti-graft court has five divisions, each composed of three justices. The lone vacancy is in the fifth division of the Sandiganbayan.

The vacancy arose after Associate Justice Amparo Cabotaje-Tang was promoted to head the Sandiganbayan. Although a much junior justice, P-Noy appointed Tang in October last year as Sandiganbayan presiding justice. She now chairs the third division of the anti-graft court.

  Last June 13, the Sandiganbayan raffled off the consolidated cases of plunder and graft against Senators Enrile, Jinggoy Estrada, and Ramon “Bong” Revilla Jr. along with their co-accused, businesswoman Janet Lim-Napoles, et.al., for their supposed involvement in the Priority Development Assistance Fund (PDAF) scam.

Enrile’s 16 consolidated plunder and graft cases went to Tang’s third division. Sandiganbayan’s fifth division – chaired by Associate Justice Roland Jurado – that will handle the 12 plunder and graft cases of Estrada is still short of one justice after the failure of P-Noy to fill this vacancy.

 Under the 1987 Constitution, the Chief Executive has a period of 90 days within which to choose from among the nominees for any vacancy that may occur in the judiciary as submitted to the appointing authority by the JBC. The three-month deadline, specifically set in the Constitution, lapsed last May 26.

The JBC is the seven-member constitutional body tasked to vet nominees to the judiciary. The Supreme Court (SC) chief justice, Maria Lourdes Sereno, is the ex-officio chairperson of the JBC. After the vetting process, the JBC submits a shortlist of nominees ranked according to the highest to lowest votes.

As it turned out, the top JBC nominee for the vacant post in the Sandiganbayan is Quezon City Presiding Judge Bernelito Fernandez. He is the son of former Sandiganbayan associate justice Bernardo Fernandez who also served as Tanodbayan (Ombudsman) during the reign of the late strongman Marcos. Now here comes the rub.

 Valte revealed a letter by Enrile to President Aquino, dated June 5, 2012, endorsing Fernandez for an earlier vacancy in the Sandiganbayan. She disclosed the President was given information not previously known to him and thus sought to return the JBC shortlist last week. However, it was obviously an afterthought after the deadline had lapsed.

In a letter to the editor that came out at The STAR yesterday, the former Tanodbayan confirmed he was the prosecutor in the assassination case of P-Noy’s slain father, former Senator Benigno “Ninoy” Aquino Jr. The elder Fernandez said it was his preliminary investigation that established probable cause for the filing of the double murder charges against then Armed Forces chief of staff, the late general Fabian Ver, and several others. However, as history has it, Ver and his co-accused were later acquitted by the Sandiganbayan division presided over by then presiding justice Manuel Pamaran.

More than Enrile’s endorsement, P-Noy apparently does not relish the idea of appointing the younger Fernandez to the Sandiganbayan. Is this a case of a “failure” of the father being taken against the son?  

 Last Friday, the JBC rejected Malacañang’s request for it to review and re-evaluate the shortlist. Writing in behalf of the JBC, the Chief Justice instead returned the same shortlist to the Palace. However, it made no mention of the lapsed 90-day period within which the President must issue the appointment.

 As clearly stated in this constitutional provision, this period is non-extendible and not a guide or an advisory contrary to the earlier claim of another presidential spokesman.

 Yes, the President has the option to return to the JBC the shortlist if the appointing authority does not agree with the menu of nominees. The President, however, is still bound by it supposing the JBC stands by the shortlist it submitted. The period though remains fixed – the appointment has to be made within 90 days.

 It happened several times during the nine-year administration of former President Gloria Macapagal-Arroyo who returned to the JBC its submitted shortlist. But her appointment always fell within the 90-day prescribed period.

Lawyer Jose Mejia, who represents the academe at the JBC, opined there is nothing wrong with antedating the appointment paper as has been done by previous presidents. But that avenue was closed down when the Palace sent back the shortlist to the JBC only last week.

 Even if Fernandez topped the six names in the JBC shortlist, it does not prevent President Aquino from choosing from the rest of the nominees. Aside from Fernandez, four other regional trial court judges were in the JBC list, namely Maryann Corpus-Manalac of Makati, Ronaldo Martin of Antipolo, Andres Soriano of Makati and Ma. Theresa Dolores Gomez-Estoesta of Manila; as well as two Department of Justice officials – Undersecretary Leah Tanodra-Armamento and Chief State Counsel Ricardo Paras III; and an assistant solicitor general, Marissa Macaraig Guillen.

If I’m not mistaken, this is the first time that a sitting president missed the Constitution-imposed deadline of appointing a magistrate.

 P-Noy’s foes and critics as well could go to town to press for his impeachment for blatant culpable violation of the Constitution – a legacy of his late mother, former President Corazon Aquino.

Impeachment is the least of the worries of P-Noy, who is still enjoying much popularity. After all, P-Noy’s Liberal Party and its allies have the numbers to control the 16th Congress to thrash any impeachment initiative. Impeach P-Noy? They wish.