Nepotism

Dear Mr. Bondoc,

I write in response to your column “Gotcha” which appeared in The Philippine STAR today. I regret that my answer to one of the questions propounded by a member of the Judicial and Bar Council (JBC) during my public interview had been erroneously summarized in a news report and, apparently, had been also grossly misunderstood.

To clarify, I never said that the 1987 Constitution did not ban nepotism. The gist of my statement to the JBC was that the Constitution did not ban nepotism with respect to presidential appointments to the Judiciary.

Please note that the Judiciary is not at all mentioned in the last paragraph of Section 13, Article VII of the 1987 Constitution which you yourself quoted in your column. I reproduce the said paragraph here:

“The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecre-taries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.”

The unmistakable import of the foregoing provision is that the President is not prohibited from appointing his spouse or close relatives by consanguinity or affinity to positions in the Judiciary during his tenure.

The exclusion of the Judiciary from the nepotism provision found in Section 13, Article VII was intentional on the part of the members of the Constitutional Commission (ConCom). This can be verified from the very portions of the deliberations of the ConCom quoted by the dissenting opinion in Arturo De Castro v. Judicial and Bar Council (G.R. No. 191002, March 17, 2010).

The general misimpression propagated in the media that the ConCom deliberations referenced in the dissenting opinion referred to Section 15, Article VII on midnight appointments should be dispelled. In truth, the dissenting opinion quoted deliberations that referred to Section 13, Article VII on nepotism. This much was already out in the Court’s Resolution dated April 20, 2010, denying the motions for reconsideration in the De Castro case.

For your convenience, I enclose a photocopy of pages 542-544, Volume 2, Record of the 1986 Constitutional Commission and the original text of Section 13, Article VII found at the back of the said volume.

The original text of the nepotism provision (Section 19 in the copy I have enclosed) simply states: “The spouse and relatives by consanguinity or affinity within the third civil degree of the President shall not be appointed as minister, deputy minister or head of bureau or office.”

You can read yourself from the deliberations cited that the proposed amendment of former Chief Justice (CJ) Davide was to include the words “Members of the Constitutional Commissions, the Ombudsman, or the Judiciary” before the phrase “minister, deputy minister or head of bureau or office.”

However, the other commissioners were of the opinion that (1) the nepotism provision, as originally conceptualized, intended to cover officials who were “under the control of the President” and (2) that with respect to presidential appointments to the Judiciary, the JBC would be a check to ensure the qualifications of the appointees. In the end, former CJ Davide himself agreed to delete the words “the Judiciary” from his proposed amendment “to avoid further complication.”

In other words, in exempting the Judiciary from the nepotism provision, the ConCom relied on the independence of the Judiciary from executive control and the existence of the JBC as a constitutional safeguard against abuse of the executive power to appoint. In the De Castro case, these were precisely the legal grounds used by the majority in ruling the appointments to the Judiciary (or the Supreme Court, as some of our colleagues opined) was not covered by Section 15, Article VII. I stand by my vote in the De Castro case for I honestly believe that the position taken by the majority therein is in fact the one that is consistent with the intent of the framers of our Constitution.

I trust that in the interest of fair, accurate and responsible reporting you and your newspaper would see fit to print this letter in its entirety. — TERESITA LEONARDO DE CASTRO, Associate Justice, Supreme Court