TRACKING THE VOTE. Voting history in key Supreme Court decision reveals something about the justices aspiring to be the next Philippine Chief Justice. Photos courtesy of Supreme Court PIO
MANILA, Philippines (3rd UPDATE) – The Judicial and Bar Council (JBC) will no longer be holding public interviews for the nominees to the chief justice post, reasoning that incumbent justices of the Supreme Court can be vetted based on their body of work.
Rappler reviews key political cases since 2006 – the appointment date of the most senior applicant – to the present.
The nominees are Senior Associate Justice Antonio Carpio, and Associate Justices Diosdado Peralta, Lucas Bersamin, Estela Perlas-Bernabe, and Andres Reyes Jr.
Included in the review is the voting history of the newly-retired Teresita Leonardo de Castro, the shortest-serving chief justice appointed to the top post by President Rodrigo Duterte end of August this year.
Key SC decisions from 2006 indicate that Peralta, Bersamin, and Reyes lean towards the executive or politicians, and under the Duterte administration, towards the President.
The review shows that Carpio was tougher on the executive and politicians. He also voted against former president Gloria Macapagal Arroyo – the one who appointed him – on 3 key cases: Arroyo’s bid to extend her term, attempt to travel abroad, and acquittal from plunder.
Bernabe was also a little tougher on politicians, as she penned the decision that abandoned the condonation doctrine which used to be the escape route of officials charged with corruption but who were reelected.
But Bernabe is more unpredictable than her colleagues. She voted in favor of Arroyo’s acquittal from plunder, but dissented in the bail grant of Juan Ponce Enrile.
Carpio, who has been bypassed for the chief justice post during the Corona and Sereno terms, was appointed to the Court by Arroyo in 2001.
Peralta and Bersamin were appointed by Arroyo in 2009. Bernabe was appointed by former president Benigno “Noynoy” Aquino III to the Court in 2011.
Reyes Jr was presiding justice of the appellate court before Duterte appointed him to the SC in July 2017.
Carpio was presidential legal counsel to former president Fidel Ramos; he was in private practice before that and was co-founder of the influential Carpio Villaraza, referred to in political and legal circles as ‘The Firm.’
Peralta, Bersamin, Bernabe, and Reyes are career jurists who rose through the ranks; all of them being trial court judges. Bersamin, Reyes, and Bernabe were justices of the Court of Appeals first before the SC, while Peralta was justice of the anti-graft court Sandiganbayan.
Carpio obtained his law degree from the University of the Philippines, Peralta from the University of Santo Tomas, Bersamin from the University of the East; Bernabe and Reyes from the Ateneo de Manila University.
We found that the 34 most high-profile en banc decisions in the last 12 years can be broken down into 8 categories of cases that involve the following:
the executive or politicians
powerful interests like corporations or a foreign country
accountability of erring government personnel
conservative interests, particularly religion
freedom of expression
former president Benigno “Noynoy” Aquino III
President Rodrigo Duterte
Here’s how they voted:
Carpio made his mark on the Court in 2006 when he junked the Arroyo-backed People’s Initiative that sought to change the form of government and extend the former president’s term. It was an irony for the then-president because Carpio was a close ally, and her first appointee to the Court.
But Carpio would favor the executive, along with Peralta and Bersamin, when they junked petitions of the Malaya Lolas comfort women to compel the government to demand compensation from Japan.
The Arroyo administration did not want to demand compensation, saying that the issue had been settled by diplomatic agreements and atonement money earlier paid for by the Asian Women’s Fund.
Bersamin wrote the decision to lift the ban on midnight appointments in the judiciary, which can empower Duterte to pack the Supreme Court before he steps down in 2022.
Bernabe wrote the impactful abandonment of the condonation doctrine, which meant officials can no longer be absolved of administrative liabilities if they are reelected. Carpio concurred in that decision, with Bersamin dissenting.
The interest of politicians did not prevail when the Court declared the practice of PDAF or the Priority Development Assistance Fund unconstitutional, all 4 senior justices concurring.
The PDAF amounted to millions' worth of discretionary funds available to lawmakers.
When it comes to cases involving interests of powerful entities, Carpio, Peralta, Bersamin, and Bernabe joined the majority in denying the petitions that sought to demand payment from the United States for the damages inflicted by the USS Guardian on Tubbataha Reef.
In the coco levy case, Bersamin wrote the decision that allowed Marcos crony Danding Cojuangco Jr to retain his 20%-share from San Miguel Corporation (SMC), instead of awarding it to the farmers.
Peralta inhibited because they came from the Sandiganbayan, which issued the ruling that Bersamin upheld. Peralta wrote that Sandiganbayan ruling.
Carpio also inhibited in the coco levy case because he was once part of a petition that wanted to declare those funds as public funds.
In the retrenchment case of Philippine Airlines (PAL), Carpio inhibited as the majority including Peralta, Bersamin, and Bernabe declared the retrenchment of thousands of its workers legal.
The PAL case was not only a flip-flop decision of the High Court, but also a flip-flop vote of both Bersamin and Peralta. Two Supreme Court decisions had previously declared the retrenchment invalid, but PAL managed to resurrect the case and win courtesy of a Bersamin ponencia.
Reyes dissented in the PAL case, only one of the two dissents, the other one being Justice Marvic Leonen.
In the case of Torre de Manila, Carpio, Bersamin, and Bernabe voted with the majority which allowed the construction of the high rise that was opposed for supposedly violating both zoning laws in Manila and rules that preserve culture and heritage sites. Torre de Manila obstructed the view of Jose Rizal’s monument in Luneta. Peralta dissented.
In cases that involve accountability of erring government personnel, Carpio consistently voted against Arroyo and other plunder defendants.
Peralta and Bersamin were the opposite, helping score victories for the plunder defendants. Just recently, Bersamin wanted to acquit Jinggoy Estrada of plunder but was outvoted by Carpio’s ponencia.
It was through a controversial Bersamin ponencia that Arroyo was acquitted of plunder.
When it came to plunder defendants, Bernabe had different votes; she did not want to allow Arroyo to travel in 2011 but helped acquit her in 2016.
Peralta, Bersamin, and Benrabe voted to allow a hero’s burial for the late Ferdinand Marcos, which triggered nationwide protests by Filipinos condemning human rights violations under the former dictator.
When it came to young cadet Jeff Aldrin Cudia, who lied in his explanation for why he was late for class, all 4 senior justices voted in favor of his dismissal by the Philippine Military Academy (PMA).
Carpio, Peralta, and Bersamin proved to be conservative when they all voted to strike down provisions of the Reproductive Health (RH) Law that dealt with religious convictions, such as the clause that punishes RH providers, regardless of their religious beliefs, who fail or refuse to disseminate RH information.
Bernabe dissented on striking down those provisions, but lost to the majority.
Of the 4 senior justices, only Bersamin dissented against the decision in favor of the Diocese of Bacolod, allowing the parish to display tarpaulins of candidates with labels of either Team Patay or Team Buhay (Team Death or Team Life) depending on their stance on the RH Law.
On the issue of whether Grace Poe – who once renounced Philippine citizenship – is a natural-born Filipino or not, Carpio was rigid in his interpretation of the Constitution, and said the Charter did not intend “an anomalous situation” where those who renounce citizenship can reacquire natural-born status.
Carpio again went against the executive when he concurred in the decision that declared unconstitutional the government warnings against news organizations that published contents of the Hello Garci tape.
Carpio also wanted to shift the burden of proof to public officials who file libel complaints, saying that the “presumed malice rule is clearly repugnant to the Constitution.”
Peralta and Bersamin voted to uphold the constitutionality of online libel in the Cybercrime Law.
Of the 4 senior justices, only Bernabe dissented against the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA).
When in 2009 Carpio wanted to declare the Visiting Forces Agreement (VFA) unenforceable, in 2016 he voted in favor of EDCA.
Both Peralta and Bersamin voted in favor of EDCA, and said the executive did not need the concurrence of the Senate to pass the treaty.
It is said that justices who are career government officials tend to favor the executive more, as opposed to justices who come from the academe who seem to be more critical of the government.
Despite their leniency toward the executive, Peralta and Bersamin still voted against former president Benigno “Noynoy” Aquino III. They declared unconstitutional Aquino’s truth commission and parts of the Disbursement Acceleration Program or DAP.
Bernabe, an Aquino appointee, wrote the ponencia on DAP – a big blow to the Aquino administration and part of the legal basis for charges now pending against the former president.
And finally, since 2016, all cases of interest to Duterte have won in the Supreme Court with Peralta, Bersamin, and Reyes all voting in favor of the administration.
Carpio consistently dissented against Duterte, while Bernabe had one significant concurrence, and that is for the President’s declaration of martial law in Mindanao.
Duterte, in defending his appointment of De Castro despite the short term, said his main basis for appointments is seniority. But the most senior – Carpio – has not held back in his opposition to the Duterte administration especially the President’s China policy.
The JBC is set to meet on November 9 to come up with its short list. – Rappler.com
Read other stories from past interviews: