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Friday, August 31, 2012

Sereno’s appointment to stir more controversy

By Benjamin B. Pulta and Angie M. Rosales

New CJ shows yellow slip, says only Edsas 1, 2 are ‘democratic demos’

Chief Justice Lourdes Sereno’s appointment continues to be hounded by serious concerns with one senator sensing her assumption to the Chief Justice position may likely stir further controversy in the judicial branch, stemming from her nearly two decades of stay in her post, along with the apparent resentment being shown by her magistrate-colleagues in the Supreme Court.

A Tribune source said the senior justices have been ignoring her almost completely, despite her being their chief.

It is also to be noted that none of the more senior justices, especially the bypassed ones, attended her oath taking.

“They snubbed it. I would call it as a snub,” Sen. Miriam Santiago said yesterday, referring to the senior justices’ absence during Sereno’s oathtaking in Malacañang last Saturday as well as the reported non-attendance of the same senior group during their usual “lunch” after an en banc meeting last Tuesday, saying that these are already “subtle messages of at the very least disagreement, at most vehement opposition.”

Already, Santiago said, she has been hearing some “derogatory remarks about her official conduct which I’m sure has been sourced from her enemies within the SC.”

“So they’re preparing the minds of the public already....After the moment of victory, there’s always a moment of reality and the reality is that the SC, particularly the senior justices are extremely unhappy that she jumped the queue. There is no law that limits the power of appointment of the President. He has plenary appointive power under our tripartite system of government so he has not violated any law.

“However, the beneficiary of what he has done is going to be target of all kinds of forms of non-cooperation in the SC. Remember that the CJ has only one vote just like any other so there’s no possibility within reason that major decisions of the SC will be reversed simply because she has been appointed CJ,” she said.

“If the President appoints another justice to take over her old vacancy, that will only add one more vote.So actually, she cannot deliver on all these high expectations. “They are beyond her own functions as CJ plus she has all these animosity repressed or otherwise from the other SC justices,” she added.

Santiago said this does not augur well for the Judiciary. The message is that this is too deep a selection to be acceptable to the SC.”

Santiago explained that not only the SC justices involved but probably even the so-called insiders in the Judiciary who are considered veterans, “they look on the assumption of Sereno, who is an appointee of Aquino as a junior associate justice but who in a matter of months managed to snag the plum post (as an insult to the senior justices), saying this reaction is similar to any innovation as a serious disturbance of the present order.

“It’s not really giving opportunities to others as much as the fact that the person cannot possibly attune herself to all the judicial undercurrents within the space of 18 years. She will get set in her ways, just 10 years would be enough just like in the International (Criminal) Court (ICC) our terms of office are nine years.

“If you put that as against the 18 years of a domestic CJ, you can see that there is a disparity between what is expected from the productive years of a justice or as we call it in ICC, as a judge and what is actually taking place,” the senator pointed out.

Santiago was elected last year as one of the new judges of the ICC, an international tribunal that handles crimes against humanity and is just awaiting notice for her formal assumption to the post before tendering her resignation in the Senate.

“So I must admit that it is an anomaly because no person can be expected to be on her toes for all of 18 years. The ICC estimates it will only be nine years when a judge becomes productive. After that maybe it goes downhill,” she said.

Sereno has also shown her yellow color bias, amid her claim of independence, anewly appointed as she cited that only the first two Edsas were demonstrations of democracy.

In a speech before the Presidents of Law Associations (PoLA) in Pasay City, Sereno made a deliberate effort not to include Edsa lll, the aborted uprising by supporters of then President Joseph Estrada in her list of “democratic” outbursts.

“This pattern of our people bursting out in action when they had had enough not because they had already a developed understanding of principles of democracy was demonstrated according to scholars in 1986, Edsa people power 1, in Edsa people power 2, and according to scholars also in the various responses to the governance of former President Arroyo.” Sereno said yesterday.

Edsa ll was seen by the international media and community as a a coup d’etat against the constitutional government of Estrada, and could not possibly be democratic, as Edsa ll went against the Constitution and the Rule of Law.

But Sereno is also known for disregarding even the Supreme Court orders.

She also took a sideways reminder of the movement to end the Marcos administration.
“It has actually only been since the 70s n 80s where our people started to experience cooperation in collective action more fully.”she added.

Sereno also asked the people to help her in undertaking judicial reforms.

She added that the judiciary should take measures to protect its records from natural disasters which plague the country as well as move towards a paperless system.”

“We have to rethink our paper based system, and usher in a judicial system that is less paper dependent. We have to do our share in minimizing the amount of trees cut down with more paper demands. We have to think of about internal communication strategies and that also of our external relations,” she said.

Adding to Sereno’s dilemma is probably her own remarks made during the televised public interview where the newly-appointed CJ expressed her preference for the President to choose from among the so-called SC insiders in the Judicial and Bar Council (JBC) shortlist, the senator noted.

“I think she will have to be very careful and assuage the ruffled feathers of many in the SC. That’s a very bad beginning for a new CJ and her own words that appointing an outsider is like appointing a civilian to lead an army might apply to her as well because maybe appointing an associate justice who has served only for a few months might in effect be the same as appointing a civilian to head an army. It’s like appointing, let’s say a technical sergeant to lead an army into the battlefield where the natural expectation is it must be a general who has gone through the ranks.

“If (Sereno) encounters all these imagined horrors in her immediate future, she might be remembered as the one who met a tsunami of opposition.

“She now has to go on a campaign to garner more allies within the SC. She has virtually has no powers outside of her administrative powers as CJ for example approving certain appropriations for foreign travels of the justices and so on, mostly it has to do with their monetary compensation or their allowances.

“But since she is no less than the CJ, this power even if judiciously applied may not be enough to compensate for all these things that her appointment seems to have cost among the rest of the judiciary,” she said.

The issues against Sereno and other related concerns can only be solved by means of a constitutional amendment, the senator pointed out.

“I think that the best solution to this problem is constitutional. We have to have a separate constitutional court from a regular SC and I think we also have to examine whether it will be good for the Judiciary or for the country to appoint a person under a system under which she can serve for all of 18 years. That seems to be an open field of speculation like is she going to be stuck in her own judicial framework or she’ll be able to adjust to the changing circumstances as she serves out the 18.

“That what happens when the goal posts are not clear. I really think that there should be a constitutional provision on how the CJ should be appointed.

Santiago also proposed that there should probably a “constitutional court” as most of the cases elevated to the SC involve questions of constitutional law and “she’s not an expert there, she’s an expert in international trade law or civil law.”

“She has no expertise as far as I know in constitutional law so it will be very difficult because most of the cases that come up to the SC after all that weeding out in the Court of Appeals will involve constitutional questions and if the other justices do not adhere to her leadership, because they think they know better, then that is going to make for a divided court in most of these cases and a divided court is always just a little better than a non-existent court because it does not lay down any guidelines. A badly split decision is not considered precedent because it does not express the collective opinion of the court,” she said.

For the meantime, Santiago expressed belief that Sereno should address the issues now being thrown at her such as her compensation from the Piatco case where she stood as lawyer for the government which critics claimed have not been properly reported in her SALn.

“There’s another charge, the pschological exam test. I think all of these are very destructive of the judiciary as an institution so as much as possible I think she should make an effort to have the JBC, which she is now the chair, release the results of the psychiatric or psychological testing of the applicants plus I think, she also has to issue a statement on her compensation and, why if I am correct it is not included in her SALn so all of these can be cleared away.

“There’s already stone-throwing so early.” the senator said.

Santiago expressed pessimism on whether Sereno will be able to gain the confidence of her colleagues.

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