Is getting De Lima short-listed worth the cost?

As I write this column, the Judicial and Bar Council is scheduled to decide whether to relax its disqualification rules, as proposed by Rep. Niel Tupas, before it decides on the short list of candidates for chief justice to be submitted to P-Noy.

One thing is sure. If it does amend—or whatever other description will be used, like “suspend”—those rules, the JBC’s name will be mud, having lost its credibility and showed itself to be a politicized, rather than independent, constitutional body; P-Noy will be perceived to be at least as guilty as his predecessor in interfering with and distorting the selection process for the judiciary; and the Philippines will suffer another blow to its governance rankings insofar as the international community is concerned.

Is getting Leila de Lima’s name on the short list really worth all that cost? Because that’s what it seems to be all about, Alfie.

Let’s look at the situation. The present JBC rules on disqualification, as approved by the council way back in 2000 under the chairmanship of Chief Justice Hilario Davide, are:

“SECTION 5. 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.”

The JBC has, to my knowledge, been very strict in implementing those rules, under its Rule IV, dealing with Integrity. The Reader is reminded that Agnes Devanadera, then President Gloria Macapagal-Arroyo’s justice secretary (or solicitor general, as she was both), and a candidate for the Supreme Court was disqualified by the JBC despite pressures supposedly applied by Malacañang and all kinds of pleas from Devanadera. Because there was at least one case pending against her.

Now, the shoe is on the other foot.  The general belief is that P-Noy wants Justice Secretary De Lima to be chief justice, but first he has to get her name on the JBC short list. Which, given the rules, is an impossibility because De Lima has a couple of disbarment cases against her. But he (or his lieutenants) is trying to make the impossible possible.

First, by exerting pressure on the Integrated Bar of the Philippines to get the disbarment case dismissed (I am told by unimpeachable sources that the members of the IBP board of governors were approached by various parties supposedly close to Malacañang, and asked to cooperate). It is to their everlasting credit that the vote was unanimous that the disbarment cases be fully investigated (I am also apprised that the vote in the Supreme Court to refer the disbarment cases to the IBP was also unanimous, so it wasn’t an Arroyo-justices-versus-Aquino-justices situation).

And second, by trying to get the JBC to amend the Section 5 rules. At first glance, it seemed that fortune was on Malacañang’s side because last year, Tupas, a member of the JBC (until further notice because, alas, the high court blinked in an eyeball-to-eyeball confrontation with the legislature), proposed a “relaxing” of the Section 5 rules. Because of unforeseen circumstances (e.g., the impeachment case), this has not yet been resolved by the JBC.

How did Tupas want to relax the rules? By adding to the first two items on the list the phrase “if, in the determination of the Council, the charges are serious or grave as to affect the fitness of the applicant for nomination.” In other words, the JBC would be given discretion to include for consideration candidates with pending criminal cases here or abroad, or candidates with regular administrative cases here, so long as the JBC thinks the charges against them are not “serious or grave.” Tupas also proposed to raise the disqualification bar for those convicted of administrative charges from a P10,000 penalty to a P20,000 penalty.

But that would be at first glance.  Because a second glance would show that Tupas’ proposal was met with a storm of objections from practically all the so-called judiciary stakeholders. In the “consultations” conducted by the JBC in September 2011 on the matter, there was not a single stakeholder (at least as far as the news reports were concerned) who declared support for the proposal. Retired Chief Justices Davide and Reynato Puno shot it down; former Sen. Aquilino Pimentel Jr. (who was a member of the JBC in his time) also shot it down. Associations of law deans and judges shot it down. Various nongovernment organizations involved in law and justice shot it down. If anything, they wanted stricter rules.

What is even more noteworthy, Reader, is that Justice Secretary De Lima herself, sitting as ex officio member of the JBC, also shot it down. You can google the reports quoting from her three-page formal comment, as well as from interviews with her: “Ako nga apat na kaagad ang kaso ko sa Ombudsman. Even if ganoon, though, I realize that, sa tingin ko, hindi maganda i-relax because practically, [the] JBC is preempting the appropriate body na mag-decide sa case.”

Which puts her in a dilemma. The charges against her have not been dismissed. But she knows that Malacañang wants the JBC rules to be amended to accommodate her. Should she stick to principle and withdraw her candidacy, or should she cheer Malacañang on? Principle or position?