Senior Associate Justice Estela Perlas-Bernabe has been in the Supreme Court for almost a decade. She’s seen too many crucial disputes and legal questions reach the high tribunal, as too often they do, for them “gods of Padre Faura” to decide.
Bernabe wrote the 2013 ruling that declared lawmakers’ pork barrel unconstitutional. She concurred with the 2015 majority decision allowing former president Joseph Estrada to run again for his old post, but dissented in the same year to a decision letting Sen. Grace Poe run for president, too. She didn’t think that Poe, a foundling, met the constitutional requirement of being a natural-born Filipino to run for the highest post in the land.
She concurred in a 2016 ruling acquitting former president Gloria Macapagal Arroyo of plunder and in a 2017 ruling granting former president Ferdinand Marcos a hero’s burial. In 2021, she junked the election protest of Marcos’s son and namesake, Ferdinand “Bongbong” Marcos Jr., against Vice President Maria Leonor “Leni” Robredo.
She’s made her mark in jurisprudence. She was ponente of the 2015 landmark ruling that junked the condonation doctrine, for one. Never again could elected officials claim before the courts that their past administrative offenses should be forgiven because they had been condoned by the public by virtue of their re-election to office.
Appointed in 2011, Bernabe is the most senior among the nominees to succeed Chief Justice Diosdado Peralta. Her two rivals — Associate Justices Alexander Gesmundo and Ramon Paul Hernando — were appointed only in 2017 and 2018, respectively, although both had served the judiciary for most of their careers.
Gesmundo was an associate justice at the Sandiganbayan anti-graft court while Hernando served at the Court of Appeals.
In 2018, President Rodrigo Duterte declared that he would honor seniority in Supreme Court appointments. “Train ‘yan (It’s like a train). Kung sino ‘yung unang pumasok, siya ‘yung unang ma-promote (The first one to board will be the first to be promoted) and that would go for everybody,” he said in defending his appointment of Teresita de Castro, who served as chief justice for less than two months.
The most senior justice then was Antonio Carpio, but he declined the nomination because he didn’t want to benefit from the controversial ouster, by way of a quo warranto decision, of Chief Justice Maria Lourdes Sereno.
“The most senior justice, traditionally, is appointed chief justice. But it is tradition, not law, and presidents have never bound themselves by this tradition,” said University of the Philippines constitutional law professor Dan Gatmaytan, a convenor of the Courts Appointments Watch (CAW), the judiciary watchdog group.
“They choose instead to appoint a chief justice they believe will remain friendly towards his or her policies,” he told the Philippine Center for Investigative Journalism (PCIJ).
After De Castro, Duterte bypassed Carpio and Peralta and appointed Lucas Bersamin, who had less than a year left in the court. All four magistrates were appointed by ex-President Arroyo in December 2007, October 2001, January 2009, and April 2009 respectively.
Malacañang said that while Carpio was appointed to the Supreme Court first, Bersamin had served the judiciary longer. Unlike Carpio, who spent most of his earlier career in private practice, Bersamin served as justice of the Court of Appeals. Peralta succeeded him as chief justice in October 2019.
Peralta was not supposed to step down until March 2022, but opted for early retirement. The next chief justice will be Duterte’s fourth appointee to the post.
Bernabe is scheduled to retire on May 15, 2022 or six days after the national elections. If she becomes chief justice, Duterte may still appoint her successor.
But Duterte might be criticized for making a “midnight appointment” even if there is no ban on appointing members of the judiciary during an election period, said former Ateneo School of Government dean Antonio La Viña.
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Bernabe’s decisions have earned her mixed reviews from court observers.
Bernabe was an appointee of former President Benigno Aquino III, but she was the decision writer in the pork barrel case wherein the government lost. She also concurred in the ruling that declared parts of his administration's Disbursement Acceleration Program unconstitutional.
She has voted in favor of and against Duterte’s interests, too. Her son worked at the Office of the Executive Secretary in Malacañang, it was revealed during her public interview with the Judicial and Bar Council (JBC) in October 2019. She said their relationship is “governed by the separation of powers doctrine.”
She dissented in the majority decision that allowed Sen. Leila de Lima’s arrest in 2016 and the quo warranto ouster of Sereno in 2018. Aside from allowing Marcos’s burial at the Libingan ng mga Bayani, she also voted with the majority in blocking access to Duterte’s health records.
“Her body of work tells you she is independent,” said La Viña. “She doesn’t follow a political line, or is influenced by someone here and there. That is why it is not predictable,” he said.
“It’s hard to read her.... Those who know her say she is very nuanced. You have to read through her decisions. But as an outsider, where is her anchor?” said journalist Marites Vitug, author of three books on the Supreme Court.
Bernabe explained her judicial philosophy during her 2019 JBC interview.
“My judicial philosophy depends upon the requirements of each case,” she said. “When the statute is clear and the intent is in consonance with the intent of lawmakers, then I interpret the law in accordance with what the statute says in line with the separation of powers doctrine and in deference to the legislative process.”
This was why she decided against Poe. “For me the constitution does not include foundlings in the list of enumerations and that it is also consistent with the principle of jus sanguinis where you have to establish blood relations to your parents,” she said.
Bernabe said she is a textualist when the law is not clear.. “When the law is not clear and I have to uncover its intent, then the task of determining the intent would be based on reason, logic, its impact on society, and sometimes even the practicality of the times,” she said.
This explains her ruling in the pork barrel and condonation doctrine cases. These two cases, she said, also showed her intellectual leadership.
Chief justices are measured by their decisions, but the post also comes with the burden of administrative work. “If you look at what’s important [on the administrative side], it’s still the speedy resolution of cases. They have a lot of backlog,” said Vitug.
Gatmaytan said it’s also important to scrutinize the administrative record of the nominees for chief justice. “Unfortunately, there is no sufficient public information available to evaluate the credibility and ability of the justices to take on the role of chief justice, which brings the point of the need for greater transparency and accountability in the court system,” Gatmaytan said.
Gesmundo and Hernando have fewer decisions in the Supreme Court to go by, but they have been in the Sandiganbayan and Court of Appeals, respectively.
“You have to look at their earlier records. Ang maganda lang kasi (The good thing about them coming) from the ranks is you know right away what their reputations are. They have solid reputations,” said La Viña.
Unlike Bernabe’s, early Supreme Court voting records of Gesmundo and Hernando show how they have consistently favored the appointing power –– Duterte. They concurred in dismissing petitions to disclose Duterte’s health records and the constitutionality of martial law in Mindanao.
Gesmundo was the ponente of a decision junking a petition against the constitutionality of the Bayanihan to Heal as One Act, which gave Duterte expanded powers to respond to the coronavirus pandemic. He also voted to declare De Lima’s arrest as valid and uphold Sereno’s quo warranto ouster.
La Viña said there’s a notion that most justices vote in favor of the appointing power in their early years in the court. “Our experience is if a chief justice stays a long time, it doesn’t matter who appointed them. Eventually, they will be able to stand their ground and be independent,” he said.
Gesmundo is more senior than Hernando, but Court observers are not dismissing the latter’s chances of being appointed. Hernando earned his law degree from the San Beda Law School, where Duterte also studied law, and talk is the president wants someone from his alma mater to become chief justice.
Hernando earned praise for his ponencia against water firms Maynilad and Manila Water, imposing a fine of about P2 billion for their failure to put up sewage lines, a violation of the Clean Water Act. He also wrote the unanimous decision granting the plea of ousted chief justice Renato Corona’s wife to claim the late magistrate’s retirement benefits.
But Sereno is a cautionary tale for Hernando. If he gets the appointment, he will be chief justice until 2036 and deprive two presidents after Duterte from appointing the top magistrate.
This was supposed to be Duterte’s fate when Aquino appointed Sereno, who was gearing up to serve at the Supreme Court until 2030, only to be ousted unceremoniously by her colleagues in 2018.
Duterte will have 90 days upon Peralta’s retirement to appoint his successor.
PCIJ is following the selection process for the next chief justice of the Supreme Court. Follow our coverage here.— PCIJ, March 2021