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Chief Justice on Trial

Inside the JBC: The appointment of the Chief Justice in 2010

September 17, 2012 5:29pm

The following is an excerpt from Hour Before Dawn: The Fall and Uncertain Rise of the Philippine Supreme Court and tells the back story of Renato Corona's "midnight appointment" by ex-President Arroyo. The book will be launched on Sept. 21, 2012 in Manila.
Two men and a plan
Days before Christmas of 2009, Matias Defensor, a congressman with close ties to President Gloria Macapagal Arroyo, was preoccupied with a looming national issue. Elections were about five months away but he seemed to be in a hurry. Amid the Christmas rush, he dashed off a letter to Supreme Court Chief Justice Reynato Puno and the members of the Judicial and Bar Council (JBC) asking them to start selecting candidates for Chief Justice and “immediately submit” a short list to the President.
By his recollection, that was the day after he and Puno spoke about it over lunch with other JBC members in a Supreme Court dining room, after their regular weekly meeting. Defensor and Puno had a shared history; both graduated from the University of the Philippines College of Law. They renewed their ties in the JBC, which Puno chaired, and of which Defensor was a member, representing Congress.
The lunch conversation turned to Puno’s retirement in May 2010. With a tinge of nostalgia, Defensor told Puno, “You’ve had many struggles in life.” Puno could look back to a long life in government, almost forty years of which were spent in the judiciary and the last three as leader of the highest court in the land.
Defensor, an affable politician who valued friendships, had been with President Arroyo’s political party, Lakas, since 2007. In Congress, dominated by the ruling coalition, he was on the frontlines doing battle with the opposition, staunchly defending the President. He was chair of the justice committee, which junked four impeachment complaints against Arroyo; two of these were under his watch. It was a politically heated time as corruption scandals hounded the government and Arroyo’s ratings plunged to -38, making her the most unpopular post-Marcos Philippine president.
But during that pre-Christmas lunch, both men talked about the future. Defensor himself was nearing an important juncture in his life as he was preparing to run for his last term in Congress, after having served six years. (He lost as the political landscape changed after the death of democracy icon Corazon Aquino in August 2009, leading to an opposition victory, led by presidential candidate Benigno “Noynoy” Aquino III.)
Part of the two men’s exchange went this way:
Defensor: “We are not prohibited from nominating anybody [for Supreme Court Chief Justice] during the campaign season, when appointments are banned.” (The Constitution prohibits appointments two months before the elections and until the President’s term ends.)
Puno: “We’re not only not prohibited. We’re mandated to nominate.”
“I remember CJ’s [the Chief Justice’s] words clearly,” Defensor recalled as he sipped coffee and warmed up to the subject. “I can always quote them from memory.”
This conversation turned out to be pivotal in the country’s judicial history. Armed with no less than the Chief Justice’s approval, Defensor wrote to the JBC:
 In anticipation of a vacancy in the position of Chief Justice, I respectfully request
 the Judicial and Bar Council to commence the procedure in nominating the
 applicants and immediately submit to the President the list of at least three (3)
 nominees for the position of Chief Justice.
 The incumbent Chief Justice Reynato S. Puno shall retire on May 17, 2010. The
 most commanding and sensitive of our functions is to select and nominate the
 three candidates, one of whom shall succeed the incumbent Chief Justice.
 In the same vein, the position of Chief Justice is the most important appointment
 vested by the Constitution in the President. To avoid a vacancy of even a single day
 in the position, it is imperative that we give the President ample time before May
 17, 2010 to scrutinize and critically consider our three nominees to this highest of
 judicial positions.
 Since there is but a single Chief Justice, without whom the Supreme Court, as
 contemplated by the Constitution, cannot exist, the prompt filling up of the position
 is paramount.
Defensor noted that since the retirement in April 1988 of Chief Justice Claudio Teehankee till the appointment in December 2006 of Chief Justice Puno, “there never was a vacuum, not for a day, in the position of Chief Justice.” He argued that, “at all times,” there should be a “functioning Supreme Court.” By this, he meant a full Court, with a Chief Justice and 14 Associate Justices.
That same afternoon after the JBC meeting, Defensor met with President Arroyo but he said he never discussed his proposal with her. They merely talked about the government’s outreach program in his district in Quezon City.
Eduardo Ermita would recall that, in Malacañang, President Arroyo anticipated controversy over Defensor’s proposal. Ermita, a former general who became Arroyo’s longest-serving executive secretary during her nine-year term, was an ultimate soldier. His was not to question the President but to do her bidding. “She was ready to defend her position,” Ermita says with a smile. But what mattered most to Malacañang was that there was “no opposition” from outgoing Chief Justice Puno. “It could have made a difference if he opposed it,” explains Ermita, who was tasked with briefing the press weekly and, in the process, dampening and even skirting controversies. His 16 years of experience with the Civil Relations office of the Armed Forces had honed him for this job.
When it came to issues that had to do with the judiciary, Arroyo consulted Estelito Mendoza, a topnotch lawyer adept at working the system, having been Ferdinand Marcos’s justice secretary and solicitor general; former Supreme Court Justices; and the Secretary of Justice. Ermita was not in this loop but the President gave him guidelines if he needed to explain issues to the media or to fight fire.
Al Agra, who succeeded Agnes Devanadera as justice secretary, was a latecomer to the JBC. (Devanadera resigned from her post in February 2010 to run for Congress.) Agra, who had co-founded a nonprofit alternative law group, surprised his colleagues when he joined the government and took up the cudgels for President Arroyo. He rose from the Office of the Government Corporate Counsel to Solicitor General and then to Secretary of Justice.
“GMA (Gloria Macapagal Arroyo) is very detailed but, in this case, she left it to me,” says Agra, a hefty man with cropped hair like that of a military academy student. But he would report developments in the JBC to the President. “Everybody knew that this could be settled by the Supreme Court. So we deferred to the Court.”
AS EXPECTED, Defensor’s proposal unleashed a stormy debate that occupied the airwaves, and print and online media. Members of both houses of Congress joined the uproar against what became popularly called a “midnight appointment” while their leaders supported it. Lawyers’ groups were divided but civil society watchdogs strongly protested the rush to appoint a Chief Justice.
Arroyo allies Senate President Juan Ponce Enrile and House Speaker Prospero Nograles agreed that the President should make the appointment.
Those who opposed the midnight appointment had the Constitution on their side. It was easy enough to understand this provision (Article 7, Section 15), stated in plain language: “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”
The Philippine Bar Association (PBA), a 121-year old voluntary organization of lawyers, was among the first to make its voice heard. In its first letter to the JBC, it refuted Defensor’s claims, then followed this up with two more letters, each growing stronger in tone as the group lost ground in stopping the questionable appointment. The PBA also went to the Supreme Court as an intervener when various parties petitioned the Court to resolve the conflict.
Simeon Marcelo, PBA president at the time, was one of President Arroyo’s early appointees, first as Solicitor General, then as Ombudsman. He and Arroyo had a falling out and he quit the government. Bright, hardworking, and tenacious, Marcelo brought the PBA, a conservative group, to the forefront of the debate on this important issue. He must have rankled Justice Renato Corona who, in his public interview with the JBC as a frontrunner for Chief Justice, accused Marcelo of being a ringleader in an “insidious” campaign to ruin him and the image of the Supreme Court.
The Integrated Bar of the Philippines (IBP), the largest organization of lawyers in the country, was embroiled in a leadership dispute at the time and thus did not take a unified stand. (Since the IBP is supervised by the Court, internal wranglings such as this had to be resolved by the Court.) Various chapters, however, openly opposed Defensor’s proposal.
In the academe, the University of the Philippines College of Law faculty, led by Dean Marvic Leonen, was the first to speak up. They called on Arroyo to leave the appointment of the next Chief Justice to the incoming president. Leonen, an activist who was on his first term as dean, would later be admonished by the Court in another incident, when he led some of the faculty members in urging a Justice who had committed plagiarism to resign.
The business community did not leave itself out of this raging debate. The Makati Business Club urged the JBC not to submit any short list to the President and asked Arroyo for a “categorical” statement that she would not appoint a successor to Chief Justice Puno.
This camp lost despite the emaciated arguments of the other side. Those who rallied for the appointment of a Chief Justice despite the ban during the election period stood on shaky ground. Their main argument hinged on an imagined scenario that revolved on a forthcoming novel experience. With the country’s first-ever automated polls, they foresaw confusion and a deluge of election protests that would eventually reach the Supreme Court. It was important, therefore, to have a Chief Justice to preside over the resolution of these contentious cases.
Former Justice Secretary Artemio Tuquero opined that President Arroyo’s appointment of a Chief Justice would be considered “valid.” “Only the Supreme Court, in an appropriate case that may be lodged with it, can declare the same null and void,” he said. Tuquero was a prominent member of the Iglesia ni Cristo which supported President Arroyo during the 2004 elections.
The JBC did not need to elevate this highly charged issue to the Court. A number of personalities who belonged to this school of thought would do this—and get a stunning decision that would reverse a ruling that had stood for more than a decade, sending shivers of instability and eroding confidence in the highest court in the land.
INSIDE THE JBC, some of Defensor’s colleagues were surprised by his letter. Regino Hermosisima, the most senior member, and who had been appointed three times to the JBC by President Arroyo, readily agreed with Defensor’s proposal. In his eighties, Hermosisima, a retired Supreme Court Justice, had served a dozen years on the JBC. Short, accessible, and friendly to a fault, Hermosisima would openly meet with applicants to the judiciary in his office as well as in public places like restaurants.
At first, Puno, with his inscrutable face, remained enigmatic and did not take a position. Three of his colleagues—Aurora Lagman, a retired Court of Appeals Justice, Amado Dimayuga, former dean of the University of Sto. Tomas College of Law, and J. Conrado Castro, who represented the Integrated Bar of the Philippines—thought and hoped that he could be the swing vote, the person they needed to stop Malacañang’s onslaught.
As the Court’s leader, Puno was expected to use his persuasive power to argue against the rushed appointment. Instead, in one public statement, Puno said that having a Chief Justice was crucial once election cases started to come in, supporting Defensor’s argument. Many were disappointed when Puno inhibited himself from participating in the crucial deliberations of the JBC. On the Court, he also recused himself saying, “I cannot, as chairman of the JBC, participate in the proceedings of the High Court nor can I do anything which would in any way show that I am biased.”
He did not take a leaf from history. More than a decade earlier, Chief Justice Andres Narvasa refused to convene the JBC to fill up a vacancy on the Court because it fell during the appointments ban. He fiercely stood his ground despite pressure from Malacañang.
At about the same time that the country was caught in the tug of war over the midnight appointment, a similar turmoil was simmering in Pakistan. But it showed vastly contrasting positions taken by Pakistan’s top judge and the Philippines’ own Chief Justice. Pakistan’s Supreme Court Chief Justice, Iftikhar Muhammad Chaudhry, openly defied President Asif Ali Zardari over an appointment to the Court. Zardari named a senior judge to fill an opening on the Supreme Court but Chaudhry rejected this, suspending the president’s order. Chaudhry had gained popularity when he was sacked from his post as Chief Justice by President Pervez Musharaf. Lawyers took to the streets and staged massive protests. Zardari, who took over, reinstated him.
Three members of the JBC hoped that Puno would do a Chaudhry. In their years in the JBC, Lagman, Dimayuga, and Castro (who died in a car accident in March 2011) were drawn to each other as they found themselves advocating similar causes to make the selection process more transparent and rigorous. Each supported Dimayuga’s initiative, patterned after the practice in California, to conduct a survey among peers of candidates. When Castro pushed for the JBC to be transparent in its voting, Dimayuga and Lagman joined him. They also found themselves making similar choices among the candidates for the judiciary.
Castro, the youngest among the three, would tell Lagman and Dimayuga about losing sleep over the persistent lobby of some powerful people on behalf of certain candidates. “We would remind each other, we’re here for God and country,” Dimayuga, whose term in the JBC ended in July 2010, would fondly recall. In his eighties, he was often a gracious host to his two colleagues in his modern home in a gated village. His den, where he usually met with guests, had both a library and a bar. With Lagman and Castro, meetings were held over breakfast where they talked about work and exchanged notes. Sometimes, the conversation spilled over to their families, sealing their friendship.
As 2010 opened, the spotlight was on the JBC as it had to decide on Defensor’s proposal. In their meeting on January 18, Dimayuga, in his deliberate manner, suggested that they split the process: first, they open the nomination for Chief Justice and conduct the public interviews, and second, they decide much later on when to submit the short list. Dimayuga was buying time. The nomination consisted of several steps and he, Lagman, and Castro had hoped that it would delay Malacañang’s timetable.
The JBC agreed with him. It was a unanimous vote.
The process consisted of these steps:
  • The JBC would announce that the position of Chief Justice, which was to be vacated on May 17, 2010, was open for application. This would be published in major newspapers, with 15 days’ notice given for those interested in filing their applications.
  • The JBC would deliberate on these applications.
  • After assessing who were qualified, the list would be published in major newspapers and the public given 15 days to comment or file their opposition.
  • The names of the applicants would be finalized and published, along with the interview schedule.
  • The JBC would hold the public interview.
  • The JBC would prepare the shortlist.
Only when these six steps were completed would JBC discuss the proper time to submit the shortlist to the president because of the Constitution’s provision banning appointments 60 days before elections and 30 days after. The Supreme Court, in 1998, had ruled that the ban covered the judiciary. Moreover, the Constitution also stated that the President should fill up the vacancy within 90 days, which meant that the appointment could be made until August 17, 2010.
“It was a happy compromise,” Dimayuga would say. “If we didn’t do this, others could have rammed it through.” But the “happy compromise” to delay the submission of the shortlist was a short-lived victory for the three.
In March, as the JBC was going over the applications, the Supreme Court beat them to the draw. In a 9-1 vote, the Court decided to exempt itself and the rest of the judiciary from the appointments ban. President Arroyo could appoint the next Chief Justice.
Lagman kept vivid memories of this historic episode, which she would describe as the “biggest battle” they ever faced in the JBC. Having been with the judiciary for 14 years, she was deeply disturbed by the fact that the Constitution was being violated. Her emotions ranged from shock to sadness and frustration. In their May 3 meeting, when the majority voted to send the shortlist immediately to the President, she felt defeat crashing down on them: “The three of us were just downcast, dejected.”
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