Impeachment notes

TWO weeks ago, I received my invitation to appear as a resource person at the impeachment hearing of the House Justice Committee. This was my second invitation as I had excused myself from the first one. This invitation was more compelling because of its specific term: the Committee wanted to hear about the opinion I rendered in Jardeleza v. Sereno, one of the cases that marked my stay in the High Court.

Jardeleza is a case that is not easy to forget as it did not simply present a legal question. I agonized over the question of how I would present my opinion, a question that does not arise in the usual cases. The petitioner was our Solicitor General and the separate respondents were the Chief Justice herself and the Judicial and Bar Council that she heads. Among the latter were officials I have worked with or have known quite well in the past. The issue was the SolGen’s exclusion from the JBC shortlist that, at that point, had been sent to the President for his appointment action.

The circumstances of the case, particularly the brazen manner power had been abused, convinced me that my opinion and conclusions should truly reflect the situation as events happened according to the available evidence. I bared everything that I gathered from the evidence, and minced no words in expressing my views in my Separate Concurring Opinion. The thrust and tenor of my Opinion were apparently part of the reasons that attracted the attention of the Justice Committee when the impeachment of Chief Justice Sereno came.

News reports subsequent to the hearing dutifully recited what transpired at the hearing. I will not add or comment on the factual reports of what the resource persons said. I would draw attention though to the more notable circumstances of the hearing and to the subtle implications of what transpired. These, to my mind, are the matters that the members of the public who were not at the hearing would be interested to know.

I have seen congressional hearings in the past and am aware of how they are usually run. I can therefore compare the manner the present House Justice Committee conducted its impeachment hearing with those I have seen before. I found the present proceedings very impressive.

I came early to allow for the traffic and I expected that we might have to wait while the committee organized itself for the meeting. I was surprised to see, when I came in at 9 a.m., that some of the congressmen had arrived and were already reading their materials for the day. The television media, too, were ready; their cameras were in place and were ready to roll.

In no time at all, Chairman Reynaldo Umali came with Majority Floor Leader Rudy Farinas not far behind. They immediately made the rounds to greet the participants and resource persons before the 9.30 a.m. scheduled start of the hearing. By 9.30 a.m., everybody was seated; Chairman Umali called the meeting to order at 9.33 a.m. It was a good beginning, I immediately thought.

True enough, after some administrative housekeeping and a brief reminder to the participants of the volume of business to be tackled, the chairman forthwith went to the business of the day. He yielded the floor to the majority floor leader who expounded on the context of the day’s hearing, essentially on the basis for the committee’s hearings; the role of impeachment in the country’s constitutional processes; the role of the JBC in the day’s proceedings; the inquiry into the presence of probable cause in the impeachment of Chief Justice Sereno; and a brief introduction of the resource persons and the subjects of their testimonies. Thus, from the very beginning, everybody in the hearing room knew the parameters of the business at hand.

When the testimonies and the questions came, I was struck by the chairman’s deft handling of the proceedings. He generally allowed the resource persons to speak without interruption, with no comments from the chair except to read the cited legal provisions after the resource persons’ presentations.

He likewise allowed the congressmen the widest latitude in questioning the resource persons, diplomatically interrupting them only when the congressmen deviated from the immediate issues or had begun to argue with the resource persons. The proceedings therefore ran smoothly and true to its pre-defined course, to the apparent satisfaction of all the participants.

I followed the committee’s lead when my turn to speak came. At the outset, I outlined what the Jardeleza V. Sereno case was all about – the struggles of former SolGen Jardeleza to overcome the roadblocks that Chief Justice Sereno put up and pursued to thwart the solgen’s application for the position of associate justice of the Supreme Court. I categorically stressed that my testimony was about both the solgen and the chief justice.

I stressed, too, that the case was unique because it involved a countdown; the solgen struggled against the clock. His deadline was the constitutionally established time limit for the President’s exercise of his authority to appoint a new associate justice of the Supreme Court. The solgen’s name must be in the JBC shortlist of nominees from where the President would choose his appointee. His objector would win if she could exhaust the clock without disturbing the exclusion the JBC had decreed.

Due to my focus on the chief justice, the solgen, and facts relating to the probable cause issue, I failed to immediately grasp that the proceedings would not only touch on probable cause, but could have effects far beyond those that the committee aimed for. As Congress would soon act as a constituent assembly in amending the Constitution, the JBC’s own continued existence and role in the appointment process could as much be on the line as the continued stay of the chief justice in office. These hearings were serving as the congressmen’s advance close look at the JBC.

It would not be lost to those who closely listened to the December 11 hearing that the JBC process significantly limits the President’s appointing authority. Unlike before, the President no longer determines who to consider in making his appointive choice because the JBC now undertakes this task; the President merely chooses from among those listed by the JBC.

What the discussions did not clearly bring to light was the reason that led to the creation of the JBC: it was a deliberate move by the constitutional framers to “depoliticize” the Judiciary and the manner of nominating and appointing its members. Its purpose is to give all interested parties the opportunity to apply for judicial positions and the equal chance to prove the merits of their applications. In theory, the JBC lessens the opportunity for the intervention of partisan politics in judicial appointments and in the congressional confirmation process, problems perceived to prevail before the 1987 Constitution.

Instead of this constitutional intent, however, what the hearing strongly hinted at was the difference between the JBC process and the direct scrutiny of the judicial nominees by the Commission on Appointments (CA) whose members are directly elected representatives of the people.

While the regular JBC members may be considered indirectly chosen by the electorate because its regular members pass through the CA, the actions of the 24-member congressional committee and the JBC’s vastly differ because the JBC has far fewer members who can easily be swayed by its powerful chair.

If the congressmen did not further pursue these lines of thought, what prevented them was the intervention of Chairman Umali who cut short any attempt to discuss structural reform issues. Telling blows nevertheless landed on the JBC at the same time that they landed on the chief justice, the unelected chair and presiding officer of the JBC who will continue in these roles for the next 13 years.

These blows landed because the JBC allowed itself to be led by the chief justice to abusive action as Jardeleza had shown, and because it joined the chief justice when she denied her Supreme Court colleagues the traditional practice of making non-binding recommendations for nominees to vacant Supreme Court positions.

Only time will tell how the present impeachment hearings will affect future constitutional policies on judicial appointments and what the ultimate fate of the JBC would be. They may lead to the amendment of the JBC structure and processes to address the flaws that Jardeleza highlighted. But the JBC can also possibly be relegated to a footnote in Philippine history, a very unfortunate consequence for yielding to its ex-officio chair in her abusive use of power.