Unfair

Happily, the Judicial and Bar Council decided to revisit its earlier decision to exclude from the list of potential Supreme Court justices three distinguished lawyers for reasons that may not only be unfair but also unconstitutional.

Earlier dropped from the list were Atty. Adolfo D. Robles, Solicitor General Agnes Devanadera and former BIR Commissioner Jose Bunag. Their exclusion was based on internal rules that have, on closer scrutiny proven questionable.

Robles was excluded because of his age. The JBC’s internal rules provided that a candidate for a seat in the highest court ought to be young enough so that he or she could serve for five years. Robles barely misses that mark.

But then, the Constitution provides only a mandatory retirement age for justices and not the additional requirement imposed by the JBC’s internal rules. Constitutionalist Fr. Joaquin Bernas observes in a recent commentary that the JBC may be effectively amending the Constitution by adopting its internal rules qualifying appointment to the post. An arbitrarily set age cannot be used as an argument diminishing the requirement of “proven competence”.

Both Devanadera and Bunag, for their part, face tenuous cases filed against them arising out of the performance of their duties. These cases, on closer examination, are clearly harassment cases, the sort every public official occupying a sensitive post is heir to.

In the case of Bunag, the suit was filed by a whistleblower who demanded his reward money immediately. The BIR’s procedure provides that the reward money be paid out after revenues were collected from the errant taxpayer that the whistleblower unmasked.

In a word, Bunag was scrupulously following the rules and was sued for doing so. That case, which has not prospered, cannot be cited as an argument diminishing the candidate’s score for integrity.

The suit filed against Bunag should have been resolved and the respondent cleared much earlier save for the legendary slow pace by which things get done in our process. The forgettable case, unfortunately for him, resurfaces at the most inopportune time.

The reason for the exclusion of Devanadera is even more tenuous.

Devanadera, as government corporate counsel, was included in a case filed against other agencies by then Ilocos Sur governor Luis Singson. She was routinely included in the case because of the post she occupied.

Singson, as confirmed by his lawyer Bonifacio Lentajan, has since moved for the exclusion of Devanadera from the list of respondents. The Office of the Ombudsman, over several years, has failed to act on the rather routine Motion for Exclusion. The delay caused Devanadera to file another motion for partial resolution with the Ombudsman on August 29, 2007. That second motion still awaits action by the Ombudsman.

At any rate, the case that routinely included Devanadera, is still in its very preliminary stages. The JBC, on closer scrutiny, had retained in its list of applicants for submission to the Office of the President, three other candidates with cases undergoing preliminary consideration by the courts. Citing similarity to the situation of these three other candidates, Devanadera has asked the JBC to apply consistency in its decisions and appealed her case using the equal protection clause guaranteed by the Constitution.

There is an even more fundamental constitutional protection both Devanadera and Bunag could appeal to. This is the presumption of one’s innocence until proven guilty. That is a basic right, an essential ingredient of due process.

The mere filing of an administrative case should not, therefore, be sufficient reason for excluding a candidate from the list of potential Supreme Court justices. Until, with sufficient evidence, has a case matured in the judicial process can this be considered a point against the qualification of integrity demanded of applicants for the Supreme Court.

The JBC was being rash in excluding from the roll of applicants two distinguished lawyers who happen to be respondents in cases that are clearly without merit. These cases are, in addition, in the preliminary investigation stage with little prospects for maturing into a full-blown suit.

If the decision to exclude is not revisited, this could become an unhealthy precedent. It will militate against distinguished lawyers who take on sensitive and potentially controversial posts in the public service. Taking such posts require much courage, a certain degree of decisiveness and an unquestionable patriotism.

In which case, such a precedent will limit aspirants to the Supreme Court to the timid, the dull and the reticent. In a culture where filing a suit against anyone is as easy as frying an egg, we might run out of candidates to the High Court who qualify under the JBC’s rather unrealistic rules.

The cases of Devanadera and Bunag are particularly illustrative. Here we have two individuals with careers that gave them profound insight into the issues that inflict on government corporations and taxation policy. These are issues that will be significant in many potential cases the High Court will have to deal with in the coming years.

If there has been some weakness in the composition of the Supreme Court lately, it has been in the lack of people familiar with economic policy issues as they arise from the real world of governance. Yet more and more cases submitted to the Court for resolution involve economic policy questions and corporate issues.

There are, to be sure, enough justices emanating from the ivory tower: theoreticians who never had to deal with real questions that might invite harassment suits. We need more justices who come up from the trenches and have dealt with real policy questions. There are insights that only the battle-scarred could possibly possess.