CJ Sereno’s two serious problems
It looks like Supreme Court Chief Justice Maria Lourdes Sereno’s problems concerning the impeachment complaint against her are mounting. Three of her colleagues in the high tribunal have already testified against her before the justice committee of the House of Representatives, which is investigating the impeachment complaint. According to news reports, around five more of her colleagues will also testify against her.
One of the issues so far raised against Chief Justice Sereno concerns the Judicial and Bar Council and the manner by which Sereno presides over it as its ex officio chairman. The other members of the JBC include the Secretary of Justice, a member of Congress, a representative of the integrated bar, a professor of law, a retired justice of the Supreme Court, and a representative of the private sector.
Although the Constitution vests in the President of the Philippines the exclusive power to appoint judges and justices, the appointee must be among those recommended by the JBC, which is mandated by the charter to screen nominees for all judicial posts.
In other words, the president cannot appoint anyone to any judicial vacancy unless that person is in the list of nominees submitted to the president by the JBC. Therefore, anyone interested in becoming a judge or a justice will have to, as a first step, file his application with the JBC.
Under the rules of the JBC, if a member of the JBC questions the integrity of an applicant, the application is held in abeyance and the matter must be deliberated upon by the JBC. The candidate must obtain the unanimous approval of the JBC to continue the application process.
Although the rules of the JBC do not explicitly provide it, the JBC member who raised the integrity issue is expected to inhibit himself or herself from the deliberation. That’s because if the JBC member who triggered the integrity issue were to participate in the deliberation, that member is certain to insist on his position and, as a consequence, the applicant whose integrity is questioned will never be able to obtain the unanimous approval of the JBC. That will make the proceedings an exercise in futility.
To insist otherwise will be to countenance an absurdity, and it is a fundamental rule in Law that rules promulgated by state authorities cannot be construed so as to lead to an absurdity.
Back in 2014, then Solicitor General Francis Jardeleza filed with the JBC his application for possible appointment to the Supreme Court. From all indications, Jardeleza was undoubtedly qualified for the post.
It was revealed that when Jardeleza’s application was being processed, Sereno raised an integrity question against him. Sereno also insisted on participating in the JBC deliberation on the integrity issue, and in opposing Jardeleza’s application.
When Jardeleza learned of Sereno’s intentions, Jardeleza sued Sereno in the Supreme Court on the ground that Sereno denied him due process. Ultimately, the Supreme Court ruled in favor of Jardeleza and held that Sereno violated Jardeleza’s right to due process.
Incidentally, that was the second time a sitting chief justice was sued in his own court. The first one was in 1983 when the appointment of then Chief Justice Enrique Fernando as head of the commission to investigate the assassination of ex-Senator Benigno “Ninoy” Aquino, Jr. was challenged by certain political personalities before the Supreme Court.
Since due process is a constitutional right, and the Supreme Court categorically ruled that Sereno, as chairman of the JBC, violated Jardeleza’s constitutional right to due process, political analysts believe that the Jardeleza versus Sereno case indicates that Sereno committed a culpable violation of the Constitution—which is a ground for impeachment under the Constitution. Legal experts add that as chief justice, Sereno must have been aware of the constitutional right of due process.
The other issue against Sereno concerns appointments to the Sandiganbayan.
It will be recalled that in 2016, the JBC was tasked to submit to then-President Benigno Aquino III the corresponding nominees for six vacancies in the Sandiganbayan. In due time, the Sereno-led JBC submitted to Aquino III six separate lists of nominees, with one list of nominees for each of the six vacancies. This clustering arrangement was to compel the president to choose one name from each list, instead of choosing any six names from the entire group of nominees.
Despite the clustering, President Aquino III disregarded the listings and appointed six nominees, two of whom came from one list.
A number of trial court judges who made it to the six lists, but were not appointed, brought the issue to the Supreme Court on the argument that the appointments made by President Aquino were illegal because the president should have appointed one and only one nominee from each of the six lists of nominees submitted by the JBC. However, in a decision rendered in November 2016, the Supreme Court dismissed their petition and declared that the clustering of nominees done by the JBC is unconstitutional for being an encroachment on the executive power to appoint members of the judiciary.
Legal experts opine that as the chairman of the JBC, Chief Justice Sereno should have known that the clustering of nominees has no support in the Constitution, and that to require the president to limit his preferred judicial appointee to specific names in separate clusters is unconstitutional. For the JBC to do that is tantamount to it telling the president whom he may not appoint, even if the person concerned is qualified and has already been nominated by the JBC.
Being the chairman of the JBC, Chief Justice Sereno cannot deny her participation in the unconstitutional clustering of nominees done by the JBC. Since what was done was in violation of the Constitution, Sereno’s critics believe that they have one more reason to accuse her of culpable violation of the Constitution.