The Judicial and Bar Council’s (JBC) public interviews of the nominees for chief justice on Friday, March 13, provided a rare opportunity for two appointees of President Rodrigo Duterte to weigh in on several issues hounding the administration.
Supreme Court associate justices Alexander Gesmundo and Ramon Paul Hernando were asked for their views on criticisms that some courts have become “search warrant factories,” which were blamed for the March 7 “Bloody Sunday” police and military operations that killed activists in Southern Luzon. They were also asked about the constitutionality of the government’s campaign against illegal drugs and about the Catholic Church's opposition to government policies.
Senior Associate Justice Estela Perlas-Bernabe, an appointee of former president Benigno Aquino III and the most senior among the nominees – was not asked these questions. But she weighed in on restrictions the high court had set for the release of their Statements of Assets Liabilities and Net Worth (SALNs), the judiciary’s backlog of cases, and corruption in courts.
Gesmundo and Hernando have consistently voted in favor of Duterte’s interests. They both concurred in decisions allowing the extension of martial law in Mindanao, dismissing a petition for the disclosure of Duterte’s health condition, and junking a petition against his additional powers under the Bayanihan to Heal as One Act, the emergency legislation passed in response to the Covid-19 pandemic.
Gesmundo, who was appointed in 2017 or a year earlier than Hernando, also concurred in the ouster of former chief justice Maria Lourdes Sereno by way of an unprecedented quo warranto ruling, in which the chief magistrate's appointment was deemed void over her failure to file a complete set of SALNs.
Killings and search warrants
Dozens of lawyers have been killed and attacked under the Duterte administration. Among them was Angelo Karlo "AK" Guillen, one of the petitioners against the Anti-Terrorism Act of 2020, who was stabbed by masked men in Iloilo City on March 3. He was previously red-tagged by the government.
What can the Supreme Court do?
Gesmundo said the most that the high court could do, having supervisory powers over the legal profession, was to “immediately talk with law enforcement authorities and perhaps require [them] to give specifics on the extent of the investigations conducted as regards the killings.”
He also pushed for a dialogue with the Integrated Bar of the Philippines to discuss “how we can possibly address these issues of killings of lawyers and even judicial officers,” he said.
On the other hand, judges who issued search warrants for the operations now dubbed “Bloody Sunday” have come under fire following the death of nine activists in separate raids conducted by police and military personnel on March 7.
Gesmundo reminded judges that they could not totally rely on the affidavits submitted by complainants and their witnesses in deciding whether or not to issue warrants of arrest and search warrants. “The rules are clear. The judge must conduct a personal searching inquiry and therefore if he decides to issue a search warrant, his primary basis should be his own determination [of probable cause], based on his examination of the application as well as his witnesses,” Gesmundo said. An examination revealed that a total of 24 search warrants were issued against activists on the same day, raising an uproar against courts becoming “search warrant factories.”
NOMINEES. Senior Associate Justice Estela Perlas-Bernabe and associate justices Alexander Gesmundo and Ramon Paul Hernando faced the Judicial and Bar Council on March 12, 2021.
Hernando, for his part, said rules needed to be reviewed often. But he said the judges could not be held responsible for the implementation of the warrants they had issued.
“With respect to the process itself, there is nothing wrong there, as long as the judge has really been convinced by the quantum of evidence needed to issue the search warrant. If he really issued it on the basis of what our rules required, the judge should not be blamed for that,” he said.
“It’s a different thing when it comes to the implementation of the search warrant,” he added.
Outgoing chief justice and ex-officio JBC chairperson Diosdado Peralta asked Gesmundo about the inconsistent rules that judges had followed in resolving motions to quash search warrants, particularly in instances where the judge who issued the search warrant was different from the judge hearing the case.
The judge in the now high-profile case of Reina Mae Nasino denied the motion to quash the search warrant that led to her arrest and refused to subpoena the records from the judge who issued the warrant. The former is facing an administrative complaint before the Supreme Court’s Judicial Integrity Board (JIB).
Peralta and Gesmundo agreed that a judge should first consolidate all the records before he or she could proceed to resolve a motion.
“The judge before whom the case was filed should secure records with the other court that issued a search warrant because… what would be your basis to quash the search warrant unless you have seen the records of proceedings in the other court,” said Gesmundo.
‘War on drugs’
It was Hernando who was asked about the government’s controversial campaign against illegal drugs. How would he act given the duty of the court to protect constitutional rights?
Hernando said he would look at two things – 1) unlawful searches and seizures and 2) respect for the rights of the accused.
“In many of the drug cases that have come up to the Supreme Court for review, a number of those cases have involved searches and seizures of drugs whether in flagrante delicto (caught in the act of committing a crime) or by virtue of buy-bust operations. That would be one matter in which the court can look into. Another would be respect for the rights of the accused who have been apprehended by the law enforcers whether they were extended the right to counsel, the right to be informed of the nature of the case against them, et cetera,” he said.
Hernando concurred in a Supreme Court ruling that said it was illegal for the police to search a moving vehicle for a person allegedly carrying marijuana.
Separation of church and state
Hernando issued a strong statement reminding the Catholic Church to step back when it came to government affairs, in answer to a question about the church position on the government’s “war on drugs,” the hero’s burial for the late dictator Ferdinand Marcos, and the passage of the controversial Anti-Terrorism Act of 2020.
“When it comes to matters that are within the concerns of the church – it would include alleviation of poverty and respect for the dignity of individuals – I think the church can speak on these matters. But insofar where their concerns would already encroach on the policies of the executive or the legislative or even the Supreme Court, I think that they would have to [step] back a little,” said Hernando.
“They would have to leave to the government the matter of how these concerns should be addressed and solved. Ultimately, I think that there would be cohesion with respect to the relations between church and state if there would be respect for the respective concerns,” he said.
“I don’t think the church can arrogate unto itself the position of being able to view with a very definite lens that the government is wrong on a particular aspect. I think it’s for the government also to impress upon the people that it is after their welfare that it is doing these actions. I think there is a need for respect for these institutions when it comes to the lives of our fellow men,” he added.
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On the matter of releasing the judiciary’s Statement of Assets, Liabilities, and Net Worth (SALN), it was Gesmundo who posed “no objections” to releasing his wealth declarations as long as the request was “legitimate.”
The Supreme Court requires people who ask for the SALNs of the members of the judiciary, including judges, to justify to the en banc or full court the basis of their requests.
“Personally, I would have no objection. But at the moment there is an existing administrative issuance of the court regarding the release of SALN,” Gesmundo said.
“Transparency is the rule. I don’t think there should be any objection on that aspect. They can possibly get the entire copy of the SALN… [if the purpose is] legitimate,” he said.
Bernabe said she would limit access to summaries of the justices’ SALNs. “I really have nothing to hide. It's just that sometimes people tend to criticize or to find ways and means to destroy the reputation of a justice so I think the summary of the SALN will just be enough, and if there are cases or there are complaints against the justice then I think the complainant should file a case in the proper forum,” she said.
Hernando was not asked specifically about the release of the SALNs of the members of the judiciary, but he agreed with Leyte representative and JBC member Vicente Veloso when the lawmaker defended the refusal of Congress to release their SALNs. Veloso said they needed to protect themselves from the “harassment maneuvering" of their opponents.
Hernando said: “In fact, that is the basis for the court’s adoption of certain measures before anyone can get a copy of the court’s SALNs.”
What are the judicial philosophies that guide them when they make their decisions?
Bernabe described herself as a textualist. "When the law is clear and the intent is clear, I interpret the law with the intent of the framers.”
She said she could be a judicial activist when the intent of the law was not clear. “I could look at the societal implications of the ruling, the impacts on society, as well as exercise reason, logic, and fairness in my decisions.”
She rejected claims that she was unpredictable. "I base my decisions on the merits of each case, so if that is my judicial philosophy, basing it on the merits of the case, and applying laws and jurisprudence to the facts of the case, I would say that I am very predictable. I think the unpredictability would relate only to the cases that are political in nature," Bernabe said.
Hernando said he also adhered to the “textual approach” with respect to the interpretation of the constitution. He called himself an “originalist” or one who adheres to how the framers of the constitution had intended the fundamental law to be.
This means, he said, that he would exercise restraint if he were to interpret statutes passed by Congress and signed by the president.
Gesmundo, for his part, rejected judicial legislation, saying it was “out of the bounds of the Supreme Court.”
He made a distinction between judicial legislation and judicial activism. “When you speak of judicial activism, the judge will put into his decision his personal political views. That’s the essence of judicial activism. Judicial legislation on the other hand is when the court interprets a law what is not in the law and interjects its own belief of what should be there in the law,” he said.
Bernabe also dismissed judicial legislation. “I will not only discourage it. I will prevent it from happening,” she said.
Backlog of cases
The JBC interviews, which lasted over eight hours, went back and forth to discuss the magistrate’s biggest administrative challenge –– the backlog of cases.
Bernabe laid down her plans to digitize court processes, including the adoption of an e-filing system, which would expedite court proceedings and make all courts fully functional.
Hernando said the eradication of the backlog of cases would be his priority if he became the next chief justice. “If we were to go by statistics of the courts from the Supreme Court down to the municipal trial courts, there is a consistent failure… to step up the number of cases to be disposed of every year. In the Supreme Court, there is only a 39% disposition rate. In the Court of Appeals, it is about 40%. In the Sandiganbayan, it’s about 40%. In the regional trial courts, they only have 43% and the municipal trial courts, 70%,” he said.
Veloso warned Hernando about the court’s backlog towards the end of his interview, saying it could be used as a ground to impeach members of the judiciary. Hernando seemed to be alluding to this exchange when he made a closing statement that didn’t respond to any question.
“If I may just give an assurance to you that in the Supreme Court, we are not being negligent with our work. We are doing the best that we can, your honor. In fact, each one of us brings our workload at home just so we can come up with decisions. I don’t think anyone can accuse us of being negligent when it comes to the kind of work we do at the Supreme Court,” Hernando said.
Corruption in the courts
The three nominees also underscored the role of the newly created Judicial Integrity Board (JIB) in addressing corruption in the judiciary.
Gesmundo said corruption allegations in the judiciary have been cropping up for as long as he could remember. “With the JIB now in place – fully complemented – these issues will be properly addressed,” he said.
Hernando said he will give the JIB the proper office, personnel, and a plantilla.
Despite his voting record, Hernando claimed he had “no qualms” voting against Duterte’s interests. “My fealty would be to the constitution and not the appointing authority,” Hernando told the JBC.
Gesmundo also dismissed criticisms against the court’s perceived deference to sitting presidents. “There are different perceptions. What matters is we do our jobs,” he said.
PCIJ is following the selection process for the next chief justice of the Supreme Court. Follow our coverage here— PCIJ, March 2021