The Jardeleza Appointment: A Question of Loyalty

 

IT’S like putting a mole—a spy—inside the Supreme Court.

This was how critics described President Aquino’s appointment of Solicitor General Francis Jardeleza as Associate Justice (taking the post vacated by Roberto Abad) despite the objections of Chief Justice Ma. Lourdes Sereno.
It is easy to put a finger on the reason why critics view the Jardeleza appointment as a “power play” by the Aquino administration and an attempt by the Chief Executive to undermine the independence of the Supreme Court (SC). Earlier this year, Jardeleza was staunchly defending the Disbursement Acceleration Program (DAP) before the High Tribunal. With the SC declaring the DAP virtually unconstitutional, to suddenly have Jardeleza in the benches is—at the very least—unsettling for the other justices.
And Chief Justice Sereno is probably the most distressed by the recent turn of events.

 

Judicial Independence

Kabataan party-list Representative Terry Ridon said it is impossible to expect judicial independence from Jardeleza “when he practically owes his appointment to his client, the President.”

 

 On the other hand, critics have also doubted the independence of Sereno being an Aquino appointee herself but all that’s probably changed with the SC ruling against PNoy’s so-called economic stimulus package. Actually, three other PNoy appointees to the SC also voted against the DAP: associate justices Bienvenido Reyes, Estela Perlas-Bernabe and Marivic Leonen.

 

 For Jardeleza, it was third time lucky.

 

After being dropped from the shortlist by the Judicial Bar and Council (JBC) twice, Jardeleza found himself back in the running August 19 after the JBC granted his petition to have his name reinstated in the shortlist after it was removed on the objections of Sereno as ex-officio chairman of the judicial body.

Sereno invoked Rule 10, Section 2 of the JBC rules which states that “when the challenging the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the members of the Council must be obtained for the favorable consideration of his nomination.”

 

Act of Disloyalty

 Sources inside the JBC said that during deliberations Sereno accused Jardeleza of disloyalty and of possibly committing a culpable violation of the Constitution by his act of deleting portions of a government memorandum submitted by the Philippines to a United Nations-backed tribunal.

On January 22, 2013, the Philippines formally filed a case before the UNCLOS arbitral tribunal, and on March 30 this year, the government submitted its memorandum contesting China’s controversial 9-dash line maritime claim that covers almost the entire West Philippine Sea (also known as South China Sea).

Using back channels, China sought to delay the filing of the Philippine memorandum, informing counterparts it will reciprocate by withdrawing its ships in Bajo de Masinloc or Panatag Shoal, reports said.

China has also been reported as saying it would not establish a South China Sea Air Defense Identification Zone (ADIZ), similar to the ADIZ it claimed in the East China Sea that covers the air space of Japanese-controlled Senkaku islands. Japan has protested China’s move.

Sources say Jardeleza deleted a portion of the document—totalling 14 paragraphs—but these were reinserted into the memorandum only after the intervention of Justice Secretary Leila de Lima.

Jardeleza reportedly removed the part of the document involving the Taiwan-controlled Itu Aba, the largest island in the contested Spratly Group of Islands. In excluding Itu Aba, Jardeleza reportedly argued this would “appease China and help restore normal ties.”

Sources say Jardeleza’s actions alarmed American lawyer Paul Reichler, lead counsel of the Philippines in the arbitration case filed against China. Reichler reportedly wanted to meet with the President in February to reiterate his concerns about the deletions, but failed to get an appointment. De Lima would later get wind of the issue and called on Foreign Affairs Secretary Albert Del Rosario and Jardeleza to discuss the matter.

 

Unilateral Act? 

It has not been established whether Jardeleza acted on his own in making the deletions, but Palace insiders say the former SolGen acted on the behest of a Malacanang official who, in turn, reported to a “higher principal”. The deletions were supposedly meant to favor China who is said to be “looking at the 2016 presidential elections with particular interest”.
To block Jardeleza’s appointment, Senior Associate Justice Antonio Carpio is said to have also appeared before the JBC to join Sereno in raising the same issues against Jardeleza.

When asked by the JBC to respond to the accusations, Jardeleza refused and brought his case to the SC. The JBC, thus, dropped his name from the shortlist.

Pressed for time, the SC deliberated on Jardeleza’s petition since the President only had until August 20 which is the end of 90-day-period within which he can make a new appointment to the SC.

With Jardeleza’s name back on the list it was then all up to the President to pick Jardeleza from the list of nominees that also included Court of Appeals Associate Justices Apolinario Bruselas and Jose Reyes Jr.; Commission on Audit (COA) chairperson Gracia Pulido-Tan; and, Regional Trial Court of Quezon City Judge Reynaldo Daway.

 

Last Chance 

The seat vacated by Abad was PNoy’s last chance to appoint his own choice in the High Court. The only other justice scheduled for retirement during Aquino’s term is Justice Martin Villarama, who bows out on April 14, 2016, barely a month before the May 2016 presidential elections.

Jardeleza turns 65 on September 26. He will get to stay in the SC for 5 years, until 2019, or 3 years beyond the Aquino administration with judges and justices mandatorily retiring when they reach 70.

Jardeleza was in private practice until 1996. In 1996, he was named Senior Vice-President and General Legal Counsel of San Miguel Corporation where he remained until 2010.

 

In July 2010, he was appointed Deputy Ombudsman for Luzon by President Aquino. On February 6, 2012, Jardeleza’s appointment as Solicitor General of the Philippines was announced, following the resignation of Jose Anselmo Cadiz. He took his oath of office as Solicitor General on February 20, 2012.

PNoy’s choice of Jardeleza is believed to have far-reaching effects on the judiciary, which has already been divided with the appointment of Sereno. At the very least, the leadership of PNoy’s hand-picked chief justice could be seriously destabilized.