The politics of two justices

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The search is on for the next Chief Justice of the Supreme Court. Many have expressed interest in the office, but only one will be appointed by President Rodrigo Duterte from a list of nominees to be submitted to the President by the Judicial and Bar Council, the agency created by the Constitution to recommend appointments to the judiciary.

Among the candidates are Senior Associate Justice Antonio Carpio and Associate Justices Lucas Bersamin, Diosdado Peralta and Mariano del Castillo.

Three months ago, the position of chief justice was vacated after the Supreme Court unseated Maria Lourdes Sereno in a quo warranto case filed by Solicitor General Jose Calida.

After Sereno’s ouster, all eyes were on Justice Carpio, being the most senior of the justices.

Former Chief Justice Hilario Davide Jr., a political disciple of ex-President Benigno Aquino III, publicly endorsed Carpio as chief justice. Davide’s unsolicited move came as a surprise to many because he had earlier criticized Sereno’s ouster as unconstitutional.

In the end, Carpio declined the nomination for chief justice. Carpio explained that in the quo warranto case against Sereno, he said that removing Sereno by quo warranto is illegal and being illegal, he did not want to benefit from Sereno’s ouster by succeeding her as chief justice.

With Carpio out of contention, President Duterte appointed the next most senior justice, Teresita Leonardo-de Castro who is seen by many as the arch-nemesis of Sereno. De Castro’s term as chief justice, however, lasted only for less than three months, because she had reached the mandatory retirement age of 70 years last month.

The new vacancy created by the mandatory retirement of Chief Justice De Castro elicited a different reaction from Justice Carpio. This time, Carpio declared that he was open to appointment as the next chief justice.

It seems that Carpio is now willing to go for the highest judicial post because the vacancy left by De Castro was not created by a ruling of the Supreme Court.

Is there really a distinction between the vacancy created after Sereno was unseated and the one created by the retirement of De Castro? Analysts believe there is none and Carpio is engaging in political double talk.

If Sereno’s removal from office is, as Carpio views it, patently illegal, then it follows that De Castro’s appointment as chief justice, to succeed Sereno, must be patently illegal just the same. Following that line of reasoning, then the vacancy resulting from the retirement of De Castro is a derivative of the illegal removal of Sereno and of the illegal appointment of De Castro. In turn, a derivative from an illegal act, must also be illegal.

Therefore, how Carpio is able to make a distinction between the vacancy created by Sereno’s ouster and the one resulting from De Castro’s vacancy is baffling.

Political observers believe that Carpio’s refusal to succeed Sereno is a campaign gimmick, calculated to give the voters a good impression of him, should he run for high public office after his own mandatory retirement from the Supreme Court in 2020.

Carpio has been criticized for making speeches about the dispute between the Philippines and China over islets in the South China Sea. Justices of the Supreme Court are expected to resolve cases, and not make public speeches about foreign policy, which is the job of the executive department of the government.

Justice Mariano del Castillo has withdrawn from the competition despite his status as one of the senior members of the Supreme Court. He said he will be busy as the chairman of the next Bar examinations.

Justice Del Castillo is obviously talking through his hat.

The chairmanship of the Bar examinations can be reassigned to another justice. A panel of eight examiners assists the chairman. Clearly, there is no substance in Del Castillo’s excuse.

Apparently, the real reason for Del Castillo’s withdrawal is his past involvement in the infamous plagiarism case pursued against him by Harry Roque, then a human rights lawyer.

The case arose from a decision written by Del Castillo in a case involving “comfort women” or victims of sexual slavery during the Japanese Occupation. Roque accused Del Castillo of copying the essays written by three foreign experts in International Law without the proper attribution required under the law on intellectual property.

Roque further said Del Castillo not only plagiarized the work of the three authors but arrived at a conclusion directly opposed to what the authors made.

Roque filed a complaint against Del Castillo before the Supreme Court. Faculty members of the University of the Philippines College of Law also criticized Del Castillo.

The Supreme Court eventually exonerated Del Castillo, declaring that the justice had no intention to plagiarize because his assistant overlooked the error. Also, the Court told the UP Law faculty to explain why they should not be held in contempt.

Many see the decision exonerating Del Castillo as a hometown decision and one that amends the law on plagiarism because it suggests that a defendant in a plagiarism case can now invoke good faith, a defense not allowed in the law itself, in order to escape prosecution.

In all likelihood, Justice Del Castillo withdrew in order to avoid inviting public attention to the plagiarism case.

Del Castillo also probably suspected that Roque will use whatever residual influence he may have over President Duterte to oppose Del Castillo’s bid for the top judicial position in the land.

That’s politics for Justice Del Castillo.

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