Top Sandigan nominee son of justice who handled Ninoy’s case

MANILA, Philippines - The top nominee for the vacant post in the Sandiganbayan is reportedly the son of the former justice who acquitted the late Gen. Fabian Ver, a trusted military officer of former dictator Ferdinand Marcos, of murder charges in connection with the Aug. 21, 1983 assassination of President Aquino’s father, former senator Benigno “Ninoy” Aquino.

The STAR has learned that Quezon City Presiding Judge Bernelito Fernandez is the son of former Sandiganbayan presiding justice Bernardo Fernandez, who also served as Tanodbayan (Ombudsman) during the Marcos regime.

The younger Fernandez topped the six names the Judicial and Bar Council (JBC) included in its shortlist that was submitted to the President, who will choose a replacement for former Sandiganbayan justice Amparo Cabotaje-Tang who was promoted as presiding justice.

The elder Fernandez, now in his 80s and who recently stopped teaching in law school, was among the magistrates who absolved Ver and many others in the 1983 double murder case of Ninoy Aquino and Rolando Galman, the alleged assassin of the former senator.

In 1986, when Aquino’s mother Corazon was president, the Supreme Court under then Chief Justice Claudio Teehankee declared the proceedings a “mistrial.” The soldiers were eventually convicted, but set an exception to the principle of double jeopardy.

Malacañang, however, is blaming Aquino’s failure to appoint – within the 90-day constitutionally prescribed deadline – a new justice of the anti-graft court on JBC’s providing “insufficient background,” using an endorsement of opposition Senator Juan Ponce Enrile.

Enrile’s endorsement was dated June 5, 2012, a year before the pork barrel scandal broke out and he was still the Senate president.

Enrile, along with fellow opposition Senators Ramon Revilla Jr. and Jinggoy Estrada and 34 others, was among the high-profile government officials charged with graft and plunder before the Sandiganbayan in connection with the pork barrel scam.

“The nominee to be appointed has to be like Caesar’s wife, completely above suspicion. So we wanted more information on one of the appointees,” deputy presidential spokesperson Abigail Valte said, justifying a purported review of the nominees’ credentials.

Being the appointing authority, Aquino does not have to appoint the JBC’s top choice.

The Chief Executive in many instances had appointed the most junior of the nominees in the shortlist, as in the case of Chief Justice Ma. Lourdes Sereno and Sandiganbayan Justice Tang.

“We feel that because of the extraordinary circumstances that are attendant in this particular case, we recognize the urgency. And that’s why we wanted also further assistance from the JBC,” Valte told a news briefing.

Under the law, Aquino has a non-extendible period of 90 days within which to choose from among a shortlist provided by the JBC for any vacancy that may occur in the judiciary or at the Office of the Ombudsman.

The three-month deadline, specifically set in the charter, lapsed last May 26.

A violation of the Constitution, more so from a sitting president, has serious legal repercussions and can even be used as a ground for impeachment.

The appointing authority has the option to return the list if he wanted to, but will still be bound by it should the JBC stand by its decision, as in the case of former chief justices Hilario Davide Jr. and Reynato Puno during the time of former President Gloria Macapagal-Arroyo.

But the fixed period will still remain – the appointment has to be made within 90 days.

For several times in her nine-year administration until mid-2010, Arroyo returned the JBC shortlist which it usually stands pat on, but her appointment always fell within the 90-day prescribed period.

This is the first time that a President missed the deadline of appointing a magistrate.

The STAR learned from unimpeachable sources that Aquino had been informed way ahead of the May 26 JBC deadline.

JBC returns shortlist to Palace

The JBC has returned to Malacañang its shortlist for the lone vacancy in the Sandiganbayan for associate justice, rejecting a request from the Office of the President for a re-evaluation.

Last Thursday, Malacañang returned to the JBC the shortlist it submitted last Feb. 28.

The Palace, in a letter, asked the JBC to further review and evaluate the candidates for the Sandiganbayan vacancy.

But the JBC rejected the request on the same day and returned the shortlist with eight nominees back to the Office of the President.

In a one-page letter signed by its ex-officio chair Supreme Court Chief Justice Sereno, the council told the Palace it could review or revise the list.

“We do not read anything from the Constitution that authorizes the JBC, once it submits a list of recommendees, to revisit the same even under changed circumstances,” stressed Sereno.

“We also see no process for confirmation by the JBC of any list of recommendees, if the list has been transmitted officially through the appropriate channels,” she added.

The JBC, however, did not tackle the issue involving the expiration of the 90-day period prescribed in the Constitution for President Aquino to choose from its shortlist.

The position in the fifth division of Sandiganbayan, where some of the plunder and graft cases involving the pork barrel fund anomaly have been assigned, has been vacant since October last year or over eight months.

In the shortlist were five court judges, two Department of Justice (DOJ) officials and an assistant solicitor general: Judges Maryann Corpus-Manalac of Makati regional trial court, Bernelito Fernandez of Quezon City RTC, Ronaldo Martin of Antipolo RTC, Andres Soriano of Makati RTC and Ma. Theresa Dolores Gomez-Estoesta of Manila RTC; DOJ Undersecretary Leah Tanodra-Armamento and Chief State Counsel Ricardo Paras III; and Assistant Solicitor General Marissa Macaraig Guillen.

The vacancy is in the fifth division of the anti-graft court, which will hear the plunder and graft cases against Estrada and 13 others charged in the pork barrel fund scam.

Lawyer Jose Mejia, JBC member representing academe, explained that the date of the appointment paper from the Palace would determine whether or not the Palace violated the constitutional provision.

“If the date is within the 90-day deadline, then there’s no violation. But if the date of appointment is not within this period, there is violation of the constitutional provision,” he told reporters.

Mejia, however, stressed that there is nothing wrong with antedating of appointment papers as it has been practiced by previous presidents.

But a member of the Supreme Court Appointment Watch also believes that holding the President liable for culpable violation of the Constitution over the delayed appointment would be far-fetched.

Lawyer and law professor Marlon Manuel, of Alternative Law Group, explained that missing a deadline set by the Constitution is not exactly the culpable violation that an impeachment proceeding would require.

“Culpable violation is when the official deliberately violates the Constitution through actions contrary to provisions in the charter. Missing a deadline may not be considered as such because there could be a valid justification for that,” he pointed out in a separate interview, also citing the practice of antedating appointment papers. – With Edu Punay