Disqualifying De Lima

Justice Secretary Leila de Lima was not included in the Judicial and Bar Council’s short list of nominees for chief justice—and she wants you to know she feels bad about it.

De Lima did not go out of her way to unburden herself in public, but when she was asked by reporters how she felt about being disqualified by the JBC, she did not hold back.  “Why was I singled out for disqualification? That’s what I want to ask,” she said the day the short list was announced. The following day, she again responded to reporters’ questions by alleging that the Supreme Court, the Integrated Bar of the Philippines and the JBC had together conspired against her. “Anybody but De Lima, that’s my feeling,” she said.

She was referring to the series of decisions that led to her disqualification: the Supreme Court acting on her disbarment cases only after she had been nominated, the IBP resolving to proceed with the cases despite her protestations, the JBC finally, belatedly, agreeing to disqualify her according to its rules, after repeated attempts by a Malacañang lawyer in the JBC to suspend the provision on disqualification.

It was those disbarment cases that disqualified her but, in an important sense, her own legal career may itself have been a disqualification. Firstly, the justice secretary did nothing to disguise the common perception that she was President Aquino’s preferred choice—in her own words, “the belief that I am the favored candidate of the Palace”—even though it cast an unfortunate shadow over the entire selection process.

This may have simply been a lawyer’s trick, part of the standard technique to get a judge’s attention (with the JBC serving as judge in this case), but coming right after the first successful impeachment and conviction of a chief justice in our history, the trick served only to focus more attention on the lawyer herself.

It is altogether possible that De Lima would have displayed the same feistiness of spirit, the same independence of judgment, that have marked her career, if she had been appointed to head the judiciary, but who wants to risk that bet?

Secondly, De Lima is perhaps vocationally ill-suited for the post of chief justice. She was—is—a natural prosecutor, someone any client would want arguing his or her case, someone who takes the (legal) fight to the other party. Indeed, she rose to national prominence because of her work as a scrappy election lawyer, one of the three or four best in that narrow but high-profile specialty. She reinforced that reputation as a fighter who did not shrink from confrontation—palaban, in the choice language of the street—when she was appointed chair of the Commission on Human Rights by President Gloria Macapagal-Arroyo.

None of this is to say that prosecutors are out of place in the Supreme Court. Many lawyers who ascend to the high court have spent considerable time in litigation; some outstanding prosecutors have even become chief justice—with the national hero Jose Abad Santos, whom Japanese occupation forces executed during World War II, at the top of that list. (Some of the best-known justices of the US Supreme Court, too, established their legal reputation as prominent prosecutors, a long line that includes Louis Brandeis, Robert Jackson and Thurgood Marshall.)

But De Lima in the high court would have had to temper her scrappiness; De Lima as chief justice would have had to moderate her prosecutorial instincts. One of the vital responsibilities of a primus inter pares in a collegial body, after all, is to constantly forge a consensus.

Which brings us back to De Lima’s “natural” reaction to the disappointing news. It was precisely that—a natural tendency to show that one is upset, to cry out in anguish, to shift the blame.

But it is the lot of a jurist to accept limits on his or her conduct, because of the longstanding tradition that judges must not only be impartial; they must also appear to be impartial. So to accept an appointment to the Supreme Court is to immediately curtail one’s scope of activities: to avoid many social gatherings, to rise above politics, to stop from indulging one’s fears and suspicions in public. In this stark light, De Lima’s outburst was unbecoming.