Wake Up, Philippines!

Should politicians be appointed to the judiciary?

Posted in Judiciary by Erineus on April 22, 2009

By Neal Cruz
Philippine Daily Inquirer
First Posted 04:25:00 04/22/2009

Should politicians be appointed to the judiciary? This was the topic of last Monday’s discussion at the Kapihan sa Manila with Rep. Ruffy Biazon of Muntinlupa and former Rep. Gilbert Remulla of Cavite as guests. Both of them answered in the negative. Politicians should not be appointed to the judiciary. Politicians have many debts, allegiances and vested interests; judges and justices have to be independent and totally objective and fair to be able to give true justice. The two—politicians and justices—can never mix, they said.

“Once a politician, always a politician,” Biazon emphasized.

If a political ally or protégé has a case in a judge’s sala, how would the judge decide, they asked. Objectively and fairly—that is what he should do, they answered their own question.

But it doesn’t usually happen that way, Biazon said. The judge can’t help but be biased in favor of his ally. That is human nature.

And even if the judge does decide objectively, there is always the impression in the minds of the public that he is biased if the decision favors his ally. That erodes the faith of the people in our system of justice.

This is especially serious in the Supreme Court where important legal and constitutional issues are decided, and where the justices are sometimes divided. Supreme Court justices should always be perceived as totally objective, but how can that be when some of them are former politicians with debts of gratitude and political baggage weighing them down.

Right now, there are at least two former congressmen in the Supreme Court: Associate Justices Dante Tinga and Eduardo Nachura. The two have been asked to inhibit themselves from participating in an election case because of their political background and because the sitting congressman who is the subject of the election protest is deemed their ally. Obviously, there are litigants who are not confident of the justices’ objectivity.

Former Chief Justices Hilario Davide and the late Marcelo Fernan were also politicians before they were appointed to the Supreme Court. Davide has been criticized for his handling of the impeachment case against President Joseph Estrada. When the prosecutors walked out of the Senate session hall, Davide should have dismissed the impeachment case for failure to prosecute, the critics said. Instead, he went to EDSA and administered the oath of office to then Vice President Gloria Macapagal-Arroyo. He was rewarded later by Ms Arroyo who appointed him (illegally, say critics) ambassador to the United Nations after he retired from the Supreme Court.

On the other side of the coin, former Chief Justice Andres Narvasa has also been criticized for acting as one of the counsels of Estrada in the impeachment and plunder cases against him. Although there is no prohibition against it, retired justices, and especially retired chief justices, should be barred from appearing as counsels for litigants in courts of law, observers say. Justices are viewed with such awe and respect in the courts that judges and lawyers are intimidated by their mere presence, they say. (Which is unfair to the other side.) And anyway, justices have handsome retirement pay; they do not need the additional income.

The legal community has been talking about a land case already decided with finality by the Supreme Court. Yet the Court reopened the case and later reversed the decision when a retired Supreme Court justice, working as counsel for one of the litigants, wrote a private letter (arguing his case)—not a formal petition or motion—to the Chief Justice. Another land case, involving the same claimant and also already decided by the high court, was also reopened and reversed en banc.

There is another important reason politicians should not be appointed to the Supreme Court. It robs the career judges who rose from the ranks of the chance to be appointed to the high tribunal. To become a Supreme Court justice is the ambition of all lawyers. That is the incentive for lower court judges to perform well.

Yet when a vacancy opens in the Court, who gets appointed first? The politicians, the Cabinet members, usually the secretary of justice, the solicitor general, the presidential legal adviser—the people close to the appointing power. Right now, Ombudsman Merceditas Gutierrez, Solicitor General Agnes Devanadera, a former politician, and presumably Justice Secretary Raul Gonzalez, are the frontrunners to fill up vacancies expected in the Court very soon.

This is a big blow to the morale of the judges and justices in the lower court, who are waiting in the wings for the realization of their dreams. Their disappointment sometimes forces judges to leave the straight and narrow path and “to provide for their future” instead.

But how do you ban the appointment of politicians to the judiciary? The Constitution does not include being a politician as a disqualification for appointment to the judiciary. Congress cannot pass a law superseding the Constitution.

The President chooses from a list recommended by the Judicial and Bar Council. The JBC has no rule banning politicians either. It is supposed to be independent but it is subjected to intense pressure—from Malacañang and other lobbyists. So what do we do?

Amend the Constitution. But that is dangerous. Open the Charter to amendments and the politicians may extend the terms of office of the President and themselves—for life if they can get away with it.

Amend the Constitution one provision at a time, like an ordinary bill passing through Congress, as Speaker Prospero Nograles has proposed for his economic provisions, or as the Americans have amended their own Constitution. But only after the 2010 elections.


Cleaning house

Posted in Editorial, Judiciary by Erineus on February 25, 2009

WE welcome recent moves by the Supreme Court to clean House.

Just this week, it found Associate Justice Ruben T. Reyes guilty of grave misconduct for leaking a draft decision and fined him P500,000.

In agreeing with the conclusions of the investigating panel, the Court said a “breach of duty amounts to breach of public trust.”

“If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public,” the justices said.

The Court added that any release of a draft decision infringes on the confidential internal deliberations of the Court.

Earlier this month, the Court also suspended Makati Regional Trial Court Judge Evelyn Arcaya-Chua for six months for receiving P100,000 in exchange for a favorable decision, even though she returned the money and the complaint against her was dropped.

In suspending Chua, the justices said the decision by the complainant to withdraw her complaint did not prevent the Court from conducting its own investigation and disciplining erring judges.

“The office of a judge is sacred and imbued with public interest. The need to maintain the public’s confidence in the judiciary cannot be made to depend solely on the whims and caprices of complainants who are, in a real sense, only witnesses therein,” said the Court.

The Court said “most telling of all the circumstances pointing to respondent’s guilt was the ‘unwavering stance’” of a witness that Chua solicited and received P100,000 in exchange for a favorable ruling in her cases.

With public confidence already shaken by scandals in the Court of Appeals, recent efforts to clean House can only be seen as a welcome development.

We wonder, however, if what appears to be a mild sanction in the case of the regional trial court judge might be seen as a mere slap on the wrist. After all, if the Court was convinced the judge solicited money in exchange for a favorable ruling, wouldn’t that be the ultimate betrayal of the public trust?


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Ex-Supreme Court justice fined P.5 million for leaking court decision

Posted in Judiciary, Supreme Court by Erineus on February 25, 2009

MANILA, Philippines – Retired Supreme Court Associate Justice Ruben Reyes was fined P500,000 and barred from holding public office after the High Tribunal adjudged him to have leaked the draft decision on the citizenship case of Negros Oriental Rep. Jocelyn Limkaichong.

Lawyer Jose Midas Marquez, SC spokesman, said the P500,000 fine will be deducted from Reyes’s retirement benefits, which reportedly amount to some P4.45 million.

However, Reyes told reporters he is innocent, and that he is considering filing a motion for reconsideration.

“I don’t see any reason why the blame should be put on me,” he said.

“I have the least reason to do that and the least motive (since I was retiring already).

“I’m totally innocent. I served government for almost 35 years, and I really did my best to serve so I would not want a single centavo deducted from the pay I deserve.”

He has yet to receive a copy of the decision, he added.

In the unprecedented decision, all SC justices voted to punish Reyes for gross misconduct for violating the rule on confidentiality of court documents.

Two pieces of circumstantial evidence showed that Reyes had leaked the draft decision upholding the disqualification of Limkaichong from being elected to the House of Representatives due to questions on her citizenship, according to the SC.

Based on the decision, these are:

• Reyes’s move to have the draft decision promulgated despite agreement among justices to withhold promulgation until the decision of nine justices who concurred with the ruling only “in the result” have been clarified; and

• The “evident undue interest of Justice Reyes to circulate a draft ponencia (decision) of the case soonest even before the memoranda of all the parties fell due…

Reyes had written the decision on Limkaichong’s case.

The SC decision was based on the findings of an investigating committee comprised of three senior justices.

Reyes’s judicial staff head counsel Rosendo Evangelista and his court stenographer Armando del Rosario were fined P10,000 and P5,000 for simple neglect of duty.

Limkaichong defeated the wife of former lawmaker Jacinto Paras in the 2007 elections.

In December last year, a certain Louis Biraogo circulated copies of the decision upholding the disqualification of Limkaichong. – Edu Punay

Updated February 25, 2009 12:00 AM

Restoring trust in the majesty of law

Posted in Judiciary, Laws by Erineus on February 24, 2009

Amazing! The Puno Court did it again. Access to justice by our marginalized sectors has been institutionalized in the judicial branch through the Rule on Mandatory Legal Aid Service. The Supreme Court now requires “practicing lawyers” of the country to render 60 hours of free legal aid yearly, effective July 1. Sharing five hours of service a month for the poor and the underprivileged also earns for the members of the Bar credit units under the Mandatory Continuing Legal Education Program.

The mandatory pro bono legal service program is the latest in a series of unprecedented actions by the highest court of the land that truly “bridge gaps and remove roadblocks,” as the Supreme Court’s “Access to Justice” poster points out. It is a response to a major recommendation from the participants of the “Increasing Access to Justice” forum the Supreme Court spearheaded on June 30 to July 2, 2008, simultaneously in Manila, Cebu and Cagayan de Oro.

I am sure our fisherfolk, farmers, pensioners, children, women and men who suffer from injustices due to poverty and lack of knowledge of the law are ecstatic about this development. The rule of law will hopefully be reinvigorated with this program, with more lawyers serving the downtrodden and in public interest advocacy for the environment and women’s and children’s issues.

Because the pace of delivering justice is slow, there is the consequent erosion of trust in the justice system. It is unfortunate that our Supreme Court perennially receives the lowest share of the national budget compared to the executive and legislative branches. How can it operate effectively with meager financial resources? It has been saddled with clogged dockets and enormous challenges in attracting more lawyers to join the judiciary. There are many vacant courts nationwide.

This lack of resources gave rise to legally authorizing local government units to provide for the allowances of the judges. But crafty politicians have unfortunately used this as a tool to pressure judges to “toe the line – or else…” This prevailing arrangement is a big blow to the independence of the judiciary and has to be reevaluated. Giving the Supreme Court a bigger share in the budgetary appropriations is a better solution and detaches it completely from the dirty world of politics.

It is a tribute to the collective vision of the justices that, despite the constraints, the Supreme Court is creative in harnessing its expanded power of judicial review and rule-making power to change mindsets and transform society, not just the lawyers. It has evolved to become a key decision maker on human rights, social justice and in protecting the environment, which, in Tony Oposa’s words, translate to restoring “ecological sanity.”

The rules on the writ of amparo, writ of habeas data, establishment of the green courts and small claims courts, the Justice on Wheels program, the annual forum on prevailing social issues that bring together the stakeholders of society and now the Rule on the Mandatory Legal Aid Service undeniably restore the people’s trust in the majesty of the Law.

Amid rampant corruption and anomalies, earning the shameful label as the most corrupt country in South East Asia, the Philippines is on the alarm list of the most politically unstable nations of the world, ranking No. 59 (of 177 countries) in the 2008 Failed States Index. Culling from the data of the Worldwide Governance Indicators of the World Bank (1996-2007), we are in the 10th to 25th percentile in the bottom list in political stability and in the control of corruption.

Like firemen duty-bound to stop a “conflagration,” who else but the lawyers, as stewards of the law and as officers of the court, should lead in restoring the rule of law, exact accountability from public officials and colleagues in the wrong side of the fence, and narrow the justice gap – at this crucial times?

Hopefully, the members of the Bar will voice out their ideas and be part of the process in the formulation and adoption of the implementing regulations of the program.

On February 28, lawyers will choose the officers and members of the board of directors of their respective IBP chapters. The elections for Cebu and Cebu City Chapter officers will be from 8 a.m. to noon at the lobby of the Justice Hall. We hope for a wider participation from the lawyers in this election.

By Gloria Ramos
Cebu Daily News
First Posted 14:11:00 02/23/2009


Overstepping its bounds

Posted in Complaints, Congress, Court of Appeals, Judiciary, Supreme Court by Erineus on February 20, 2009

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If there is a complaint against a court decision or the conduct of a judge or justice, the complaint should be brought to the Supreme Court, which has disciplinary powers over members of the judiciary. Summoning those members to a congressional inquiry to explain a judicial act may be entertaining to watch, especially when there are suspicions that justice might have been sold to the highest bidder, but Congress will be overstepping its bounds. This is a slippery slope that members of Congress would do well to avoid.

The issue cropped up amid reports that the House of Representatives is planning to summon Court of Appeals Justice Apolinario Bruselas and members of his division as well as Judge Nina Antonio-Valenzuela of the Manila Regional Trial Court. A year ago the judge had issued a temporary restraining order on the Bangko Sentral ng Pilipinas, which had planned to institute action that would have protected depositors from the collapse of rural banks belonging to the Legacy group of companies. As BSP officials have explained, quick intervention would have averted disaster.

When the case went up the Court of Appeals, the BSP’s hands were tied further, with the CA upholding the lower court’s TRO. Lawmakers have pointed out that this violated the New Central Bank Act of 1993, which prevents the courts from blocking BSP investigations of fraud. The law also gives the BSP a free hand to move immediately in cases where banks face insolvency.

It is not surprising to learn that there might be members of the judiciary who do not know the law, since too many people have joined this branch of government based chiefly on the right connections rather than capability. The public has long suspected that there is big money to be made in the issuance of TROs, especially in cases involving business transactions.

But if the Manila judge and CA justices have erred, a complaint must be filed against them with the Supreme Court, possibly by the BSP. The high tribunal can then determine guilt and impose the appropriate punishment. This task does not belong to the legislature, whose members might see a precedent and decide to have a say in every controversial judicial decision, the way they are already interfering in decisions on the implementation of development projects. What lawmakers can do is to strengthen the regulatory environment and prevent a repeat of the Legacy mess.

Big fish

Posted in Criminal System, Judiciary, Justice and Peace, Sandiganbayan by Erineus on February 19, 2009

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From military deputy chief for comptrollership to convict, the journey has been a long one for retired Maj. Gen. Carlos F. Garcia. The highest ranking military officer to be indicted for a criminal offense, Garcia nearly managed to retire in peace in 2004, with his colleagues in the Armed Forces of the Philippines seemingly reluctant to go after a two-star general on accusations of corruption. But the Ombudsman at the time, Simeon Marcelo, doggedly worked to pin down Garcia. In the end, Garcia was court-martialed and faced several criminal cases before the Sandiganbayan.

Yesterday, over five years after Garcia’s son was apprehended by US Customs authorities at the San Francisco airport for failure to declare $100,000 in cash, the disgraced general was convicted of perjury by the anti-graft court. Though the maximum sentence of two years was less than the time Garcia has already spent in detention, the conviction for failure to declare P7 million in his account with the AFP Savings and Loan Association Inc. could strengthen the bigger case against him for forfeiture of undeclared wealth.

Garcia was indicted over a year after junior military officers staged a curious mutiny in a posh Makati hotel to denounce, among other things, corruption in the AFP. Garcia’s court-martial was complemented by a major overhaul of the procurement process in the AFP and Department of National Defense. Under the reform program, red tape was cut and transparency in bidding and procurement promoted. The AFP and DND must not go back on those reforms and must in fact work to strengthen them.

In December 2005, a military court found Garcia guilty of undeclared wealth. He was dishonorably dismissed from the AFP and sentenced to two years of hard labor. The Sandiganbayan, for its part, must speed up its resolution of the other cases against Garcia. The two-star general found himself in trouble after his wife Clarita, coming to the defense of their son, explained in writing to US Customs authorities that the $100,000 came from her husband’s miscellaneous earnings as a comptroller. This is one of the rare cases where efficient prosecution has led to the conviction of a big fish. With more cases like this one, crooks in government may finally realize that in this country, not everyone can get away with crime.

Philippine Star

Updated February 19, 2009 12:00 AM

Settling CA mess: who broke rules?

Posted in Court of Appeals, Judiciary, Scandal/Expose/Mess by Erineus on February 18, 2009

Sans evidence of cold cash, bribery in the Court of Appeals’ Meralco vs. GSIS is unprovable. Mere say-so of contending justices cannot establish guilt. So the three investigators picked by the Supreme Court are focusing on who broke the rules. The Code of Judicial Conduct, Rules of Court, and Internal Rules of the CA were written to make fraud harder to commit. The canons also help pinpoint liability. Both professors of legal ethics, accused Justice Vicente Roxas and accuser Justice Jose Sabio know that.

Sabio twits Roxas for “unusual interest” in the case. Roxas concedes to no breaches. Still his admitted actions make the probers “suspicious”. For one, there was “unseemly haste” as ponente in issuing in June the temporary restraining order prayed for by Meralco. Roxas hand-carried the draft to the office of Justice Myrna Vidal’s and even waited for her to return from lunch — typically a task for court staff. Then, he issued a decision in July without waiting for Presiding Justice Conrado Vasquez Jr. to resolve his own plea against Sabio acting as chairman of the 8th Division. The verdict came ahead of answers to side issues, like a petition for his inhibition.

Roxas acted oddly too. He kept the rollo (case files) that normally is entrusted to the court clerk. From sheer memory he typed the transcripts of his deliberations with chairman Bienvenido Reyes and associate Apolinario Bruselas.

Accuser Sabio’s actions were odder. As he himself swore, he asked Roxas for the rollo on June 17-18, preparatory to the June 23 oral arguments. This he asserted as acting chairman of the Special 9th Division, although real chairman Reyes already had returned from vacation. Vasquez meantime reorganized the CA; ponente Roxas and chairman Reyes landed in the 8th division, with Bruselas. Seeking amity, Vasquez asked CA rules committee head Justice Edgardo Cruz to settle the Sabio-Reyes tiff. When Cruz opined in favor of Reyes, Sabio belittled him as “junior”, and sought a sympathetic view from older Justice Martin Villarama.

Under CA rules, a case moves to any new division the ponente goes — in this instance, with Roxas to the 8th, incidentally now chaired by Reyes. A case stays with the ponente and his old division-mates only when granting a writ of preliminary injunction, a new trial, or an execution pending appeal. None of the conditions existed for Sabio to stay on. In insisting on chairing the oral arguments, elbowing out Reyes, he too showed unusual interest.

Sabio swore that old pal Francis Roa de Borja had offered P10 million to swing to Meralco. Roa in turn claimed it was Sabio who mentioned P50 million as the right price to switch. He says-she says carries no weight in court. But the Code of Judicial Conduct, reiterated by the Rules of Court, states that a judge should take no part in a proceeding where his neutrality might be questioned. CA rules in turn require a justice disqualified under the foregoing canons to notify at once his division members and the raffle committee. Sabio should have reported the bribe offer to Vasquez; he did only a month later. He should have inhibited; instead he held on.

More telling was the phone call to Sabio on raffle morning from elder brother Camilo, head of Malacañang’s PCGG. Camilo disclosed something Sabio had yet to be officially told — that the case had just been raffled to him as acting chair. Camilo then unabashedly argued for Palace-backed GSIS. Sabio reported neither the leak nor the attempt to corrupt a public officer. Yet the phone call was graver reason to recuse, being a violation not just of the lawyer’s oath but the Revised Penal Code.

It’s good that everything’s out in the open. The Supreme Court now has a chance to clean up the suspicious Appellate Court.

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So you’re Chinese, pure or part, traditional or modern or somewhere in between, Christian at least in name, and conflicted with self and others. Watch Golden Child and have a good laugh or sob about yourself. David Henry Hwang’s family drama runs at the CCP Little Theater (832-3661, 832-1125 loc. 1620/1621). It’s in Filipino on the last two weekends of August; in English in extension on the first weekend of September.

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And only this Friday the 22nd at 5 p.m., till 5 in the morning, is Truthfest, a gathering because “it’s about time.” Civic, religious, political, business and environment activists join up with musicians and artists to sing, dance, paint and shout the truth. At Baywalk, Roxas Blvd., Manila, performers include Grace Nono, Noel Cabangon, Bayang Barrios, John Arcilla, May Bayot, Ballet Philippines, Tanghalan Pilipino, and various rock bands. Free, if you “will not take any more of their abuse or violence against you ever again.”

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E-mail: jariusbondoc@workmail.com

View previous articles from this author.

By Jarius Bondoc

Updated August 20, 2008 12:00 AM