Council claims De Lima’s substitution not a violation

One more so-called independent constitutional body has again succumbed to presidential wishes.
And the Constitution is violated while rules are quickly bent just to please the President.
Malacañang in a virtual order to the Judicial and Bar Council asked for, and quickly got the council to allow a substitute for Justice Secretary Leila de Lima to sit in the collegial body’s proceedings to screen applicants and vote in the matter of filling up the chief justice post vacated by Renato Corona following the latter’s removal from office.
De Lima inhibited herself from the JBC’s selection process, as she was nominated for the highest judicial post, but apparently, President Aquino wanted to ensure that despite her inhibition, the vote will not be lost. A member of the JBC, lawyer Jose Mejia said they agreed in principle to allow a “substitue” for De Lima who has chosen to inhibit herself from the proceedings after she had expressed interest in joining the race to become chief justice herself.
Mejia said the JBC received a letter from Executive Secretary Paquito Ochoa Jr. invoking the President’s right to be represented in the JBC proceedings.
“The executive does not want to be deprived of that representation and we agreed to grant the request, although we have yet to discuss the issue of who can substitute for the secretary of Justice as a member. We haven’t decided on that yet,” he explained.
Under the Constitution,  the Secretary of Justice is an ex-officio member of the JBC. Mejia insists a person other than the Secretary of Justice may sit as a substitute and said they  were initially looking at “an undersecretary who is a lawyer” or “someone also from the department of Justice” as minimum qualification for De Lima’s substitute.
Yet the JBC insists that there is no violation of the rules binding the JBC nor even the Constitution, despite the fact that the Charter clearly states that the members of the JBC are the Chief Justice of the Philippines—not an acting Chief Justice, nor his substitute; the Justice Secretary, not her substitute  nor an undersecretary of Justice can take the Justice chief’s place as a voting member of the JBC.
But the Palace letter claimed that the executive loses its vote in the JBC, on account of the inhibition of a member.
What is not stated in the same letter, however, is the fact that the Palace shouldn’t have it two ways. It could have let the Justice Secretary choose between keeping her post and her membership in the council or choosing to resign and take her chances as a candidate fo the high judicial post.
But Aquino apparently wants both and he gets both, despite the clear constitutional proviso on the JBC membership.
Mejia said there is no precedent where the JBC which had been formed to insulate the process of selecting appointees to the judiciary  from partisan politics allowed a substitute representative of the executive department.
“The one who will stand in substitution or in representation of the Secretary of Justice should also meet the minimum requirements of membership in the JBC,” he stressed.
The number of votes garnered by a candidate determines his or her inclusion in the shortlist from among whom the president makes his choice. The chief executive is not bound by the JBC shortlist and may opt to return the list for another round of screening—if the JBC allows this too, as it has seemingly gone under the control of Aquino.
The development comes after the body agreed to allow senior associate  Justice Diosdado Peralta to sit as the Supreme Court’s representative following the nomination of Acting Chief Justice Antonio Carpio and his inhibition as chairman of the council.
The JBC has started screening the 22 official candidates for chief justice through mandatory psychological tests including dismissed Malabon regional trial court Judge Florentino Floro Jr.,who  was earlier disqualified by the council after failing mandatory psychological exam in his previous application for SC posts. He was dismissed by the SC as judge in 2006 .
The aspirants have until today to submit all their documentary requirements, including statement of assets, liabilities and net worth for current officials and waiver on secrecy on bank deposits.
Apart from Carpio, also vying for the top SC post are five other justices of the high court: Presbitero Velasco Jr., Teresita Leonardo– de Castro, Arturo Brion, Roberto Abad and Ma. Lourdes Sereno. Two members of President Aquino’s Cabinet, Secretary De Lima and Solicitor General Francis Jardeleza, were included after they accepted their nomination.
Some saw this as a glaring display of outstretched extended hands of the executive department in a legal process that should not be tainted by politics, in Aquino’s call for the JBC  to allow the executive branch of the government to appoint a replacement for De Lima.
But presidential spokesman Edwin Lacierda does not see the request as interference in an independent procedure embarking on acceptance, screening, validation, assessment and short-listing of five nominees from which the president picks his choice of the new Chief Justice of the Supreme Court.
In warding off accusations portraying the President as directing traffic of what should be an independent JBC, Lacierda explained that the request should be seen as an effort of the government to be accorded the same courtesy extended to the Supreme Court.
Lacierda added that JBC has in fact given the green light that allowed Associate Justice Diosdado Peralta to sit as ex-officio member, in lieu of acting Chief Justice Carpio.
Ochoa’s letter dated July 13 said: “The essence of the membership of the Secretary of Justice in the Council is not because she is the Secretary of Justice but because she is the alter-ego of the President in the Council,” Ochoa said in his three-page letter.
“While it may be true that the President appoints the other members of the Council (like the representatives of the academic community, the Integrated Bar of the Philippines, the retired Justices and the private sector) these appointees are not alter-egos of the President and do not represent the executive branch,” Ochoa added.
Iloilo Rep Niel Tupas, an ex-officio member of JBC in his capacity as chairman of the House committee on justice, announced that the panel has allowed Malacañang to name someone to assume the post left behind by De Lima due to her inhibition from the selection panel.
Tupas explained that the  JBC made the decision since they permitted also Supreme Court Justice Peralta to be the presiding officer in lieu of the Acting Chief who also had inhibited because he is one of the contenders of the CJ post.
“Yes we allowed the President to name the replacement for Secretary De Lima,” said Tupas. “It should be a top-level official... at least an undersecretary position.”
Sen. Francis Escudero also confirmed this, saying this decision approving a Palace substitute for De Lima was arrived at through consensus.
“There is already a representative of the Supreme Court which is why it is just right for the Chief Executive to also have his representative,” he said, echoing the Palace line.
“The Constitution favor a wider representation,” Escudero stressed, adding that Ochoa’s letter to the JBC made it clear that  Malacañang wants to appoint De Lima’s replacement in the name of “equal representation, effective participation of the Executive in the selection process of the members of the judiciary.”
After De Lima  and Carpio’s  inhibition, only six remained at the JBC. They are: Tupas, Sen. Francis Escudero, retired Court of AppealsJustice Aurora Lagman, retired SC Justice Regino Hermosisima, lawyer Mejia and Integrated Bar of the Philippines officer Milagros Fernan-Cayosa.
Tupas and Escudero’s membership in the JBC is also under question, as the Constitution is clear that there can only be a representative from Congress, not two but one.
Currently, Tupas and Escudero are the representatives of the two houses of Congress, and enjoy a full vote each.
This anomaly is ben questioned before the high court. With Fernan J. Angeles and Gerry Baldo