HOUR BEFORE DAWN: THE FALL & UNCERTAIN RISE OF THE PHL SUPREME COURT

MANILA, SEPTEMBER 24, 2012
(RAPPLER.COM) 
Below are excerpts from the author's new book, Hour Before Dawn: The Fall and Uncertain Rise of the Philippine Supreme Court.


[A MIXED BAG. When President Aquino made his first appointment to the Court, he cared about issues and where the candidate stood on these. But this slipped away as political realities and personal conveniences took over. This is the front cover of Marites Dañguilan Vitug's newest book.]

[PHOTO - Marites Dañguilan Vitug]

MANILA, Philippines - In July 2010, when the Judicial and Bar Council conducted its routine public interviews for Supreme Court applicants, something in the air was different. It was not in the setting, a small session hall on the ground floor of the Supreme Court building with its dull gray carpet and deep maroon drapes.

Neither was it in the quality of questions asked by the JBC members, which, for those who regularly watched the interviews, brought no surprises.

The intangible change, a feeling actually, was that, for the first time in many years, each of the candidates vying for the highest court of the land had a fighting chance. With the old President gone, the sense was that the playing field had opened up and evened out.

President Benigno “Noynoy” S. Aquino III was brand new in office, not even a month old, and he was due to make his first appointment to the Court. He had won by an overwhelming vote, garnering the widest swath of votes in post-Marcos history.

Maria Lourdes Sereno, a former law professor who then headed the Asian Institute of Management policy think tank, was among the 28 candidates, most of whom were from the mid-level courts.

Only 8 of them were outsiders, either from the academe or private practice. It was her first time to compete for the post although she had considered applying during the latter years of President Gloria Macapagal Arroyo.

The political environment, however, was forbidding; those who usually made it to the Court had tight links to the Palace or were endorsed by power brokers.

When her turn for the interview came and she was asked, like all others, to introduce herself, she talked mainly about her pioneering work in law and economics (“economic development as it relates to Constitutional law”), her early work in the 1990s on judicial reform, and her experience in the litigation of domestic and international cases, especially on trade and investment law disputes.

The Q and A was in full swing—Sereno had answered questions on the kind of reforms the judiciary needs, including improving dispensation of justice with technology, the intersection of the judiciary and politics, and why she wanted to give up good private-sector pay for the Court’s uncompetitive rates (“A person can only live in one house”)—when the newly appointed Chief Justice, Renato Corona (photo at right), walked in.

Hardly had he warmed his seat when he threw his first question.

[PHOTO -Lawyer Maria Lourdes Sereno]

Was it true, he asked, that one of your students in UP (University of the Philippines College of Law), petitioned that you be taken out of the faculty because you were not attending classes? Calmly, Sereno said this wasn’t true. Rather, the student wanted a change of grades which she didn’t grant. The complaint was eventually dismissed.

Corona went on to ask her ideas on how to rid the judiciary of “hoodlums in robes.” Quickly and in a forthright manner, Sereno answered: “Entrapment is one method. But first, there should be a clear signal from the leadership for reform.”

The Chief Justice visibly took offense and countered that the Court’s leadership had already spoken about reforms. Sereno diplomatically replied, “Your recent pronouncements are right.”

And she explained what was on her mind: that funds would be needed for the investigation of corrupt judges and justices; entrapment could be outsourced; sophisticated bribe attempts should be cracked; a confidential map of “players” should be documented; and all these activities should be under the supervision of the Chief Justice.

“Is the Office of the Court Administrator not doing enough?” Corona followed up.

“There should be no let up in disciplining judges,” Sereno continued, like a professor talking to her peers. “The perceived lack of deterrence, the probability of being caught is low.”

Sereno was respectful but she didn’t have that submissive demeanor palpable among judges honed in the hierarchical culture of their institution.

She was not in awe of title and position and was rather unafraid in speaking out her ideas.

This may have caused unease for some on the JBC. Regino Hermosisima (photo), for one, the longest-serving member of the JBC and a former Supreme Court Justice, showed an open dislike for her, asking if she had considered joining the Court of Appeals instead.

At odds with Corona

But there was a deeper undertone in Corona’s and Hermosisima’s apparent hostility toward Sereno.

During the highly charged debate on the midnight appointment of Corona, Sereno, representing the AIM Policy Center, issued a forceful statement opposing it.

She wrote: “Whoever accepts the nomination from President Arroyo as next Chief Justice will in all likelihood be perceived as benefiting from a clearly illegal act by the most distrusted President in the Philippines; someone willing to risk throwing the country into chaos for his or her personal advantage.” Hermosisima, who was appointed thrice to the JBC by Arroyo, supported Corona’s appointment.


BACK COVER

Sereno did not know President Aquino although they were contemporaries at the Ateneo where she took up her undergraduate economics course. Aquino was a year below her but they were never introduced to each other on campus.

Decades later, however, their paths would cross. By then, Aquino was a senator after serving 3 terms in Congress, and Sereno was a lawyer known for her work in international trade law. She was actively involved in resolving trade disputes in the World Trade Organization and other international arbitration bodies.

[PHOTO - FORMER SENATOR NOYNOY AQUINO]

The Senate foreign affairs committee had invited her and retired Supreme Court Justice Florentino Feliciano to brief the senators on a proposed economic agreement with Japan known as the JPEPA or the Japan-Philippines Economic Partnership Agreement. It was up for ratification by the Senate then.

Sereno had cautioned the Philippine government about rushing into this agreement because it had “far-reaching” implications. The Philippines, for one, “essentially abdicated its legislative power to enact preferential or protective measures over Japanese investments.” It so happened that she and Senator Aquino were on the same side.

In his vote against the agreement, Aquino criticized it as being lopsided in favor of Japan: “Its disadvantages far outweigh the treaty’s projected hoped-for benefits. In fact, we gave away practically everything and instead settled for maintaining the status quo as our sole benefit.” But he lost as a majority in the Senate ratified it.

Their next encounter would be serendipitous. Aquino was already president and Sereno had just been shortlisted for the Supreme Court.

By sheer coincidence, they attended the same event, the 60th anniversary of the TV network GMA-7 which the President was to address, and there, they were reintroduced to each other. Aquino remarked to Sereno that he remembered her from the JPEPA briefing.

One other thing kept Sereno on the President’s radar screen. In July 2010, the Philippine government won its long-running arbitration case over the Ninoy Aquino International Airport Terminal 3, saving the country billions of pesos. The Singapore-based International Chamber of Commerce dismissed all claims made by the Philippine International Air Terminal Co. Inc., which constructed the new airport. Malacañang was delighted about this victory.

Sereno played a role in this as she was co-counsel, together with retired Supreme Court Justice Florentino Feliciano, of the Philippine government. They worked with a US-based law firm, White and Case, on this contentious and complex dispute, which spanned about seven years.

Aquino, who his aides say is a very consensual person, asked his legal staff as well as advisers about each of the shortlisted candidates to the Court. He had no close ties to any of them. The JBC sent his office 6 names: Court of Appeals Justices Japar Dimaampao, Noel Tijam, and Abdulwahid Hakim, UP law professor Raul Pangalangan, Commission on Elections Commissioner Rene Sarmiento, and Sereno.

Out of the 7 JBC members (one position was vacant), 4 voted for Sereno: Justice Secretary Leila de Lima, Rep. Niel Tupas, who was her student at UP, J. Conrado Castro (representing the Integrated Bar of the Philippines), and Justice Aurora Lagman (private sector).

Factions' choices

The run-up to decision day was filled with buzz about who was lobbying for whom and who was edging out whom in a list that would be pruned and sent to the President by the Executive Secretary. The Palace was split into two factions so information on who had the inside track depended on what side of the divide one spoke to.

Liberal Party elders pushed for their choice while Speaker Feliciano Belmonte reportedly endorsed a candidate as well. Nothing seemed certain. Even Sereno received a call from a friend early morning of the day that her appointment was announced, informing her that she was not on the all-male shorter list submitted to the President by Executive Secretary Paquito Ochoa Jr. This information came from a Palace insider.

However, when Aquino saw the list, he supposedly asked, “Where’s the woman?” It was only then that Sereno’s name was added.

In conversations with a close adviser, the President would say that he and Sereno had taken similar positions on key issues. This struck him.

First was JPEPA, and the second was the controversial memorandum of agreement on ancestral domain or MOA-AD, which was meant to arrive at a political settlement with the Moro Islamic Liberation Front.

During the presidential campaign, Aquino told reporters that President Arroyo should not rush into an agreement that could be rejected by the public.

[PHOTO -Moro Islamic Liberation Front]

He chided the Arroyo government for not conducting massive public consultations on the issue. He later agreed with the Supreme Court’s decision to strike down the MOA-AD for being unconstitutional.

It was Sereno who argued on the Court, in a five-hour session, on the unconstitutionality of the MOA-AD. She represented various petitioners and intervenors led by Sen Franklin Drilon. “She (Sereno) became lead counsel because of her ability to marshal the arguments,” Drilon recalls.

This fact stayed with Aquino and he held on to it until he made a decision and sent the appointment papers of Sereno to the Court on August 13, 2010, a Friday.

The next day, Sereno, while attending a family reunion in Davao, got a call from Aquino’s aide asking her to meet with the President in Malacañang.

She was prepared to take the next flight out but, instead, Aquino called her and did a fast-paced interview that lasted about 30 minutes. And then he broke the news about her appointment.

What Aquino stressed was that the job was going to be lonely. He asked, “Are you prepared to fight alone for a long time?” Sereno was 50, one of the youngest to be appointed to the Court. “You have 20 years to serve,” Aquino reminded her. (The retirement age for Supreme Court Justices is 70.)

Sereno would make an early mark on the Court through her dissents that gave the public a glimpse of the Justices’ deliberations in crucial cases. Her detailed narration of events, complete with timelines, clarified confusing decisions issued by the Court. For her, confidentiality was secondary when the truth was violated.

She spoke her mind and mildly shook an institution nestled in secrecy and steeped in hierarchy. Far from being Ms. Congeniality, she was disliked by some of her colleagues, offended that an upstart, a junior on the Court, didn’t display team spirit.

It reached a point when the Chief Justice stopped the promulgation of one of her dissents until after it was taken up in two en banc meetings and only until after some of the Justices wrote their counter-dissents to respond to her.

Sereno angered her colleagues when she discussed the exchanges between the Justices in the decision to issue a highly controversial temporary restraining order against the justice department that allowed Gloria Macapagal Arroyo (photo at right) to leave the country.

At the time, a number of complaints for plunder had been filed with the Ombudsman against the former President, apart from an electoral sabotage case with the Department of Justice.

Sereno found out that it was Justice Presbitero Velasco Jr who instructed the clerk of court to hold off her dissent, with the blessings of Chief Justice Corona.

He took issue with Sereno’s “disclosures” and said they violated the Court’s internal rule on the confidentiality of deliberations. More importantly, Velasco wrote in his counter-dissent, Sereno was “encroaching into the functions of the Chief Justice” whose duty it was to record actions taken on cases.

These notes are the bases of the minutes of the sessions, not anybody else’s. What Sereno did was to “sow doubt and suspicion on the veracity of the resolutions of the en banc” and “compromised” the stability of judicial decisions.

During an en banc meeting, a Justice pointedly asked her why she had been writing her dissenting opinions that way, “broadcasting to the whole world the Court’s internal discussions.” Didn’t she know that it created a “chilling effect” on the freedom of his opinions?

“I said I was not introducing anything new, and that since 1958 to as late as 2009, this Court has had Decisions and Opinions disclosing the process and the content of its internal discussions,” Sereno recounted in her opinion on the Arroyo TRO case.

“Those disclosures were so detailed as to state who opined what, and who changed their vote at the last minute from one position to another. In all those instances, the Court never took action against the disclosure itself by withholding promulgation, or against its author by disciplining the same.”

It was the breaching of the confidentiality rule that upset some of the Justices. But for Sereno, “When the accuracy and the content of the deliberations of the Court’s confidential session are being disputed, it is the constitutional duty of the Members of the Court, especially the minority, to speak up and put on record what actually took place.”

She was particularly incensed that the Court spokesperson Midas Marquez (photo at left) continued to misinform the public, with the imprimatur of the Chief Justice, on the TRO.

It was a clash of cultures. “Meilou (her nickname) was never subjected to a bureaucratic culture, that if you’re a junior, then you defer to the seniors,” Roan Libarios, Sereno’s close friend and former classmate at the UP College of Law, explains. “She doesn’t have that baggage. She’s used to an environment of academic freedom and has a strong streak of independence.”

What is little known is that Sereno is a devout Christian, belonging to the Higher Rock Christian Church, a Bible-based group. Her unwavering faith is also a source of her strong positions, sometimes described as “extreme” by some of the Justices.

Chief Justice Renato Corona would later publicly acknowledge his great discomfort with Sereno in a motion filed with the Court to inhibit her and Justice Antonio Carpio from his petition to nullify the impeachment complaint. Her arrival in the Court, he said, has “signaled a new period of difficulty and embarrassment” for him and she has “openly defied and challenged” his authority.

Personal relations

Aquino's next two choices were lackluster. Both came from the same judicial cloth: Court of Appeals Justices Bienvenido Reyes (photo) and Estela Perlas-Bernabe (photo below).

In the case of Reyes, the deciding factor was personal relations: Aquino and he had worked closely together in the late 1980s in a security agency, when his mother, Corazon Aquino, was president. Antolin Oreta, Aquino’s uncle, and Reyes put up Best Security Agency; Oreta tapped Reyes as finance manager while Aquino became vice-president and treasurer. The company’s acronym BSA also stood for Noynoy’s initials. (Severino is his middle name.) This minted name attracted clients to the company.

The Nacionalista Party dug this up and turned it into a campaign issue in 2010, saying Aquino had used his mother’s influence to bag a contract with a government corporation, the Philippine National Construction Corp. This conflict-of-interest issue didn’t gain much traction, however.

Reyes, who was with the Court of Appeals then, jumped to the rescue. He provided the campaign staff with the documents on BSA, showing that Aquino had divested his shares worth P50,000 in 1987. But he stayed on with the company until 1993. In the CA, it was openly known that Reyes was an Aquino supporter.

Reyes, tall and thin, has gentle manners and a quiet personality. He is easy to be with. Those who know him attest to his integrity. His record in the judiciary, however, is blotted by a reprimand from the Supreme Court.

In a high-profile intra-corporate case between Meralco and the Government Service Insurance System, Reyes promulgated a decision in favor of Meralco even before the CA presiding justice could resolve which division was in charge. (Reyes chaired one of the divisions.) Allegations of bribery and breach of ethical conduct prompted the Supreme Court to investigate some CA justices, including Reyes.

Early in his career in the judiciary, he had another brush with the Court. In 2001, when he was a Regional Trial Court judge, he received an admonition from the Court for failing to immediately resolve a case. An admonition is merely a warning while reprimand is a notch higher, the lightest of the penalties.

Reyes seemed to be affected by the Court’s reprimand such that he didn’t vie to be a Supreme Court Justice. He revealed during his first public interview with the JBC that, for sometime, he felt “unprepared” for the “privileged position.” During the first round of selection under President Aquino, “I manifested my intention to join the race but withdrew after soul-searching. Now, I feel more prepared because I took into consideration my number of years [20] in the judiciary.”

Like Sereno, Reyes was a first-time applicant. Both were fortunate to be immediately appointed. The President did not interview Reyes, however, unlike other candidates who were shortlisted.

Reyes would later disappoint President Aquino when, in a crucial case, he voted with the majority in favor of issuing a TRO to the Philippine Savings Bank so that it would not disclose Chief Justice Renato Corona’s dollar accounts during the impeachment trial. Reyes comes from a culture that doesn’t encourage dissent and an exchange of ideas and discussions on cases.

Most of the time, in the Court of Appeals, the judges strive for unanimity. Reyes admitted as much during the Supreme Court’s probe into the Meralco case. As “practiced,” Justices in the appellate court do not hold deliberations before they sign the ponencia (decision). “The ponente just gives a copy of the decision to the other members of the division. If they agree with the decision, they just sign the ponencia,” he explained. “The ponente is really the captain ball.”

Power of lobby

Estela Perlas-Bernabe, at 60, looks strikingly young. She has logged 15 years in the judiciary, rising through the ranks, from metropolitan trial court judge to Court of Appeals Justice. Before that, she was in private practice and way before that, her first job was as clerk for a Supreme Court Justice. On her third try, she finally made it, and she is one of only three women Justices on the 15-member Court.

She comes with nearly impeccable credentials: salutatorian of her law class at the Ateneo, a high affirmation rate with the Supreme Court (97 percent of cases she resolved, which reached the Court, were affirmed), and zero backlog in her cases. Her interview with the JBC, however, was forgettable. She gave broad answers that lacked authority and her tone was, at times, tentative.

The story of her appointment to the Court shows the power of lobbying coupled with the paucity of options. Given limited choices, President Aquino, his advisers say, was torn between two or three contenders. (The shortlist was composed mostly of Court of Appeals Justices.) At one point, he considered returning the shortlist to the JBC, to include other names, but was advised against it. President Arroyo did the same once and the JBC ignored her and returned the list, as is.

“The dilemma is, with all our friends, allies, partymates, people we’ve worked with, those who have stuck with us through thick and thin, you’d think there will be somebody [among them] with the necessary expertise [for various positions]. That isn’t the case,” Aquino said in an interview when asked what dilemmas he experienced in making appointments to the Court. “Sometimes we rely on the advice of the people who came from the field, who would know.

We talk to politicians, NGOs, we talk to everybody who can provide us some information. I have no personal knowledge of their [candidates’] capabilities, attitudes. So there’s a bit of prayer involved that we’ve managed to unearth the relevant facts but I would be lying if I said that I did not make mistakes [for some positions]. But fortunately, we rectified this in the selection process.”

One of the first to send word to Aquino that Bernabe should be highly considered was the Jesuit priest Joaquin Bernas (photo), former dean of the Ateneo College of Law. Bernabe was his student in constitutional law, election law, administrative law, and public corporations. “Her performance in the RTC shows that she satisfied the constitutional requirements of competence, probity, integrity, and independence,” Bernas recalls of his letter recommending Bernabe.

By accident, she was the only Ateneo graduate on the shortlist. Bernas’ word meant a lot to the president who once referred to the constitutional lawyer as his “idol” in a speech during the diamond anniversary of the Ateneo College of Law in June 2011.

“Not once did you give wrong advice,” Aquino said, addressing the prominent law professor and one of the framers of the 1987 Constitution. “And not once did you say, ‘It depends.’” The president added, “I hope you accept a post in this government.”

Senator Franklin Drilon (photo), a close ally of Aquino, weighed in and his endorsement mattered much. His ties to Bernabe are personal; they live in the same Greenhills enclave. Moreover, Bernabe gave assurances that she would support the President’s anti-corruption and anti-poverty programs.

In the end, Aquino listened to the lobby. - Rappler.com

The book launch will be on September 21, 2012, 5 p.m. at the atrium of Fully Booked on Bonifacio High Street, Global City, Taguig.

[PHNO NOTE: THE PHOTOS OF THE PERSONALITIES IN THIS REPORT ARE NOT PART OF MS. VITUG'S BOOK. THEY ARE GOOGLE IMAGES USED ONLY TO ENHANCE PAGE'S VISUAL EFFECT AND PERCHANCE ADD BREVITY TO READERS]

EXTRA

VIDEO REPORT: UPDATE ON THE 27th EXPLORATORY TALKS LAST APRIL 24, 2012 IN KUALA LUMPUR, MALAYSIA- THE PEACE NEGOTIATIONS

 

Published on Aug 29, 2012 by Bangsamoro Substate

After 22 months of negotiations between the Philippine government (GPH) and the Moro Islamic Liberation Front (MILF) under the administration of President Noynoy Aquino, a major breakthrough finally took place during their 27th exploratory talks last April 24, 2012 in Kuala Lumpur, Malaysia, where both parties signed the "10-decision points on principles as of April 2012".

The principles that the parties mutually agreed upon include recognition of the Bangsamoro identity and legitimate grievances and claims of the Bangsamoro people, creation of a new autonomous political entity in place of the ARMM which shall have a ministerial form of government, the institution of transitional mechanisms to implement agreement and the power-sharing and wealth-sharing between the National Government and the new political entity.

For the civil society organizations, the principles clearly presented the foundations and basic layout for a comprehensive peace agreement. Historians viewed the signing as a "miracle". Peace groups lauded this as a "significant breakthrough" that should pave the way for both parties to craft a peace agreement. For the GPH peace panel, they hope to sign a peace agreement with the MILF with "due and deliberate speed". For the MILF peace panel, they finally saw "light at the end of the tunnel" for the first time after years of negotiations with the government which started in 1997 - spanning four Presidential administrations, and three major wars in 2000, 2003, and 2008.

Given the encouraging developments in the GPH-MILF Peace Talks where both parties are working on a signing of a peace agreement within 2012, we deem it imperative for peace advocates and civil society leaders to also conduct the necessary ground work in order to prepare our constituents and communities and for us to generate popular support for the final outcome of this long drawn peace negotiations.

Considering the proximity of the signing of a peace agreement this year, we believe that the local government should this time take the lead in ensuring the success of the peace talks. The more dialogues and consultations that we conduct among our constituencies, the bigger will be our chance to bring about just and lasting peace in Mindanao.

Sign Petition for a Bangsamoro-Substate at www.change4peace.org


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