Court of last resort flip flops once again

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Teresa S. Abesamis

Grassroots and Governance

I guess it should no longer be surprising that once again, mere letters from lawyer Estelito Mendoza to the Supreme Court, with Associate Justice Lucas Bersamin as ponente should cause still another flip flop by the Supreme Court.

In an en banc decision dated March 26, with 7 justices voting in favor of Philippine Airlines, 5 taking no part, 2 dissenting and Chief Justice Lourdes Sereno on leave, the Supreme Court set aside two earlier decisions favoring plaintiff FASAP (Flight Attendants & Stewards Association of the Philippines) which had elevated their case against illegal retrenchment following defeat in the disreputable Court of Appeals in August 2006.

The Supreme Court thus affirmed the August 2006 decision favoring PAL and ignored the Y2011 decisions favoring plaintiff FASAP following their motions for reconsideration. Those in favor of PAL’s case were Lucas Bersamin, his close friend and former Court of Appeals colleague Diosdado Peralta, Estela Perlas Bernabe (she had earlier voted in favor of FASAP), Benjamin Caguioa, Noel Tijam, Samuel Martires, and Alexander Gesmundo. Only Andres Reyes and Marvic Leonen dissented. Five other justices did not participate in the decision while Chief Justice Sereno is on leave. I guess acting Chief Justice Antonio Carpio did not vote since he can only do so to break a tie. Why such a large number did not participate raises questions. Were they absent, too lazy, or wanted to play safe? Perhaps they should not have been appointed at all.

A few years ago, the Supreme Court granted bail to former senator Juan Ponce Enrile for the non-bailable case of plunder on “humanitarian grounds,” it said.

Upon release from detention, Ponce Enrile forthwith became active, making public statements. In fact, news reports say that Enrile has recently offered to be a consultant to the Supreme Court in the impeachment case against Chief Justice Sereno. It looks like the old man is still up and about and mentally capable.

Of course, we already know that the Supreme Court, also on the basis of letters from lawyer Estelito Mendoza and supported by the usual ponente Lucas Bersamin decided in favor of Eduardo Cojuangco on the 20% shares in San Miguel Corp. which had been funded with loans from United Coconut Planters Bank of which Cojuangco had been CEO allegedly because there was not enough evidence that he was a Marcos crony. It is common knowledge that UCPB was funded with levy funds collected from coconut farmers when they sold their copra to the oil mills.

Aside from the obvious violation of the DOSRI rule (no loans to directors, officers, relatives, etc.) the magnitude of the loan was over and above allowable ceilings for one borrower. This sudden decision to award the 20% of San Miguel shares to Cojuangco, then estimated at worth almost P60B caused then associate justice Conchita Carpio Morales, now Ombudsman to state in her dissenting opinion that the rationale that there was insufficient evidence that Cojuangco was a Marcos crony was “the biggest joke of the century.” It has been reported in the news that in fact Cojuangco was on the plane with the Marcos family when they fled to Hawaii in 1986 following the EDSA Revolution.

This is the same Supreme Court, some of whose members belly-ached on television to the Justice Committee of the House of Representatives regarding administrative style and actions of now on leave Chief Justice Maria Lourdes Sereno who refused to sit in the Committee Hearings citing separation of powers. My lawyer friends tell me none of the charges raised in the House were impeachable offenses. But now, the Chief Justice on leave is about to be impeached.

Although I could not bear to watch enough of the nonsensical Justice Committee hearings, I heard enough pettiness of issues to make me switch off from the TV channel covering the hearings. Thank heavens for free movies on TV and intelligent channels like BBC and Channel News Asia, I had options.

Most of the sitting Supreme Court justices were appointed by former president Gloria M. Arroyo who was in office for a decade. The current President Rodrigo Duterte has the opportunity to appoint a majority of the members of the Supreme Court because of several SC retirements during his six-year term.

Given his choices in the justice sector, i.e., Justice Secretary Vitaliano Aguirre, Solicitor General Jose Calida, the DoJ prosecutors who dismissed the charges against known drug lords Peter Lim and Kerwin Espinosa and the fact that Ombudsman Morales retires in July, I fear for our justice system which seems to be in rapid deterioration, from bad to worse. The coconut farmers and FASAP members do not belong to the privileged class. They were defeated despite clear evidence that they had presented for their cases by powerful, vested interests who could afford expensive lawyers with apparent close ties to members of the Supreme Court.

I do not know if we can trust the Judicial and Bar Council which draws up short lists for the President’s consideration in choices for the Supreme Court. Do we have enough just and honest men in the legal profession? Are we scraping the bottom of the barrel? Why do we end up with so many sleazy jerks who have to be addressed as “honorables?”

Perhaps we need to actively advocate for a broadening of the list beyond lawyers and judges to include participation from academe, civil society and the business community in gathering nominees for both the Court of Appeals and the Supreme Court. Limiting choices to nominees among lawyers alone may tend to enable more and more of these “compañero” relationships between lawyers and members of the judiciary.

All is not yet lost. The hue and cry over the dismissal of charges against the drug lords Peter Lim and Kerwin Espinosa exposed by the media caused Secretary of Justice Aguirre to order a “review” of the quiet dismissal on the rationale that there was not enough evidence presented against the accused. We hope it is not only because President Duterte allegedly “punched the wall” when he heard the news; but because it is the right thing to do.


Teresa S. Abesamis is a former professor at the Asian Institute of Management and an independent development management consultant.