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The Judicial and Bar Council’s interview of the 20 nominees to the Chief Justice position was going so well into the fourth and last day when suddenly it hit a snag that could trigger a constitutional crisis in the Judiciary.  Indeed, in a matter of days, the orderly selection process went into a tailspin when the two leaders of Congress – Senate President Juan Ponce Enrile and Speaker Feliciano Belmonte Jr. – announced that they’re pulling their representatives out of the Judicial Bar Council (JBC) due to a Supreme Court decision, which ruled that the bicameral legislative body can only have one representative in JBC.  As a result, the JBC postponed voting for the final three nominees to August 2.

The postponement gave Justice Secretary Leila de Lima who is running against time to have three disbarment cases against her dismissed before the JBC votes on the shortlist.  But she suffered a major blow last July 28 when the Board of Directors of the Integrated Bar of the Philippines (IBP) rejected her bid to have the cases against her dismissed.  Instead the IBP board ordered a full-blown investigation into two of the three cases that were filed against her for defiance of the Supreme Court’s Temporary Restraining Order (TRO) issued on the travel ban ordered by the Department of Justice (DOJ) on ex-president Gloria Macapagal Arroyo last November.  Given the time needed to complete the investigations, it is doubtful if it could be done by August 2.

De Lima’s problem

As soon as IBP rejected De Lima’s appeal, Malacañang Palace gave her some encouraging support.  During a press briefing, presidential spokesman Edwin Lacierda said that De Lima has “right to appeal to the Judicial and Bar Council should it exclude her from the chief justice candidate shortlist.”  “She is just laying out the basis why this disbarment case should not be considered by the JBC considering that they were filed in the light of her opposition to the removed Chief Justice Corona,” Lacierda said.

According to Lacierda, De Lima also submitted a seven-page letter to the JBC in which she argued that she should not be excluded from the shortlist on account of her pending disbarment cases, which she claimed were politically motivated.  However, in an attempt to show neutrality, Lacierda said, “We will leave it with the JBC to determine in its discretion the validity and weight of the letter of Justice Secretary Leila de Lima.”  And to further distance Malacañang from the controversy, he said that the Palace was “very happy” and “very comfortable” with De Lima being the DOJ secretary.

But De Lima, 52, is driven by ambition.  If appointed, she will be the top magistrate of the land for18 years until she reaches the mandatory retirement age of 70.  She claims that as an “outsider,” she has the edge over the other nominees because of “her strong personality to institute reforms in a judiciary tarnished by the impeachment trial of Corona.”  But what makes her believe that she has the “edge” when she doesn’t have any experience as a judge or justice?

And this brings to mind what kind of reforms would she institute?  Unlike the six “insiders” who each gave a detailed description of the reforms they would pursue, De Lima did not mention a single item that needed to be reformed.  Besides, does it take 18 years to institute reforms?  If she can’t do it in five to seven years, then she’s not the right person to institute reforms.

Enrile’s dilemma

In another front, the Philippine Senate, things are different over there.  Senate President Enrile called for a caucus last July 30 to discuss their position on the JBC composition and other issues relative to the selection process.

In a resolution adopted, the Senate asked the JBC to defer deliberations on the selection and also for the Supreme Court to hold oral arguments on the issue of JBC composition.   The Court agreed and scheduled the oral arguments on August 2.

Another Senate resolution reiterated the position taken by both chambers of Congress that “representation to the JBC by Congress must be one for the House with one vote, and one for the Senate with one vote,” which is in direct contrast to the Supreme Court’s 7-2 ruling two weeks ago that Congress should only have one representative in the JBC.

But Enrile raised another issue, which could throw a monkey wrench on the whole Chief Justice selection process.  In a media interview, Enrile was quoted as saying that whoever is appointed Chief Justice by the President based on the list submitted by the JBC may still be questioned because of the status of the council’s membership.  He also pointed out that the Constitution provides that only the Chief Justice can preside as ex officio chair of the JBC; thus, an acting Chief Justice or an associate justice cannot preside over the deliberations of the council.

If Enrile’s line of thinking is pursued, it could trigger a constitutional crisis.  In essence, what Enrile was saying is that since an acting Chief Justice or an associate justice could not preside over the JBC and since the position of Chief Justice is vacant; therefore, nobody can preside over the JBC.  In that event, the JBC would be functionally incapacitated and unable to produce the mandated shortlist of the final three nominees for the position of Chief Justice.

But notwithstanding this which-comes-first-the-chicken-or-the-egg problem, the President is required by the Constitution to appoint a new Chief Justice within 90 days of a vacancy. But whom would he appoint if no shortlist were produced?

Someone suggested that perhaps P-Noy should appoint anyone of his choice in the absence of a shortlist.  But that would be dangerous and P-Noy should – nay, must! – exercise utmost restraint from doing that.  If he did that, it could trigger a constitutional crisis.  And if the person he appointed is De Lima, then the people would think that the crisis was man-made, induced to pave the way for De Lima’s ascension to the High Court.

Ghosts from the past

In the 25 years that the present Constitution has been in place, there were two major constitutional crises.  The first was in 2001 when then Vice President Gloria Macapagal Arroyo was sworn in as President by then Chief Justice Hilario Davide Jr. while Joseph Estrada was still the sitting President.  To fix the looming constitutional crisis, the Supreme Court issued its controversial “constructive resignation” ruling that deemed Estrada resigned from office.  The second was in 2010 when Gloria appointed Renato Corona as Chief Justice in defiance of the constitutional ban on “midnight” appointments during a short period of time before and after a presidential election.  The Supreme Court legitimized Corona’s illegal appointment by ruling that appointing the Chief Justice was not covered by the constitutional ban.  Both crises took a heavy toll on the government and caused political instability for more than a decade, which culminated with the impeachment of Corona last May.

Now that the government is recovering from those contentious years, it’s time for our political leaders to do what is right for the country and let the Supreme Court perform its constitutional mandate to produce the shortlist in a fashion that is fair, transparent, and objective.  The people deserve no less.

(PerryDiaz@gmail.com)

By Perry Diaz