JBC bends

The Judicial and Bar Council has a seemingly impossible task before it: to follow its own rules, even or especially when they are clear as daylight. According to news reports, one member of the JBC wants to suspend a particular provision, self-evidently for self-serving reasons—and the result is yet another postponement of a crucial vote, the selection of the short list of nominees for the next chief justice.

Enough already. Today’s meeting must proceed with the selection, lest the Aquino administration, with the unwitting cooperation of the entire JBC, completely squanders the political capital and the unprecedented opportunity created by the impeachment and conviction of Renato Corona.

According to Iloilo Rep. Niel Tupas Jr., a member of the JBC and a close political ally of President Aquino, it was Michael Frederick Musngi, appointed by Malacañang to temporarily take the place of Justice Secretary Leila de Lima in the JBC, who sought the suspension of a key rule on disqualification—precisely to allow the JBC to consider De Lima’s nomination. “Well, probably it’s obvious because he is the representative of the executive,” Tupas told the Inquirer in Filipino. We regard Tupas’ disclosures with not a little skepticism, because he seems to be distancing himself from his own political allies, even when other news stories, such as one carried in the Philippine Star, reported that it was he who seconded Musngi’s proposal.

But regardless of the source, the reality is that there is an ongoing attempt to include in the all-important short list certain individuals who are, by the JBC’s own rules, disqualified.

Rule 4 of the Rules of the Judicial and Bar Council specifies the safeguards necessary to assure the integrity of its short-listed candidates. Section 5 of Rule 4 identifies those individuals who “are disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman”—note the phrasing, which does not use the permissive language (“shall,” “may”) of bureaucracy but the categorical language (“are”) of everyday reality.

First on the list of the disqualified: “Those with pending criminal or regular administrative cases.”

Unfortunately for De Lima, Solicitor General Francis Jardeleza and Securities and Exchange Commission chair Teresita Herbosa, they all have pending criminal or administrative cases. According to both the letter and the spirit of the JBC’s own rules, they “are” categorically disqualified. Not “must be” or “should be” disqualified, but simply, existentially, necessarily disqualified.

There should be no ifs, ands, or buts about this. The three eminent lawyers may appeal to the conveniently vague principle of equity, or argue from the unimpeachable integrity of their own personal lives, but the fact of the matter is there are actual cases pending before them. Judging by their legal reputations, it may only be a matter of time if all three eventually win their cases, but at the moment they are simply, necessarily, ineligible for any judicial appointment.

Tupas makes a distinction between immediate and prospective suspension. Those of us closely watching this sequel to the historic Corona impeachment can only ask: Why even bother? For Musngi, or Tupas, or anyone else, to bend the rules is to subvert the very spirit that drove Corona out of office.

(We must take note of a related but entirely dissimilar issue. The disbarment case filed by Lauro Vizconde against Senior Associate Justice Antonio Carpio had to be dismissed, as the Supreme Court ruled last Friday. It is a longstanding principle, and an entirely logical one, that disbarment cases against sitting members of the high court cannot prosper, because the Constitution provides only one means for unseating those members, through impeachment. If Vizconde wishes to pursue the issue, he must do the needful thing and push for impeachment.)

It is possible, of course, that all this—this continuing debate over accommodating De Lima, and De Lima’s own previous protestations that she is favored by the President—is only an elaborate production, designed to allow Mr. Aquino to appoint Carpio, the acting chief justice, with the minimum of controversy. If true, then Malacañang is playing a dangerous game.

A new civics lesson then, taught by intra-JBC maneuvering: Better to think of the JBC’s own disqualification provision as a safeguard necessary to assure the integrity, not so much of the short-listed candidates, but of the short list itself.