Jardeleza's SC entry and Sereno's eroding clout
Serenos hold on the SC has been tenuous and shaky since her appointment as
chief justice, bypassing the more senior justices in the high court
By Aries Rufo
Published 8:35 PM, August 20, 2014; updated 4:05 PM, August 21, 2014
MANILA, Philippines The Supreme Court may have a new member but Chief
Justice (CJ) Maria Lourdes Sereno may not be exactly thrilled about it.
Already at odds with President Benigno Aquino III over the high court's decision
to declare unconstitutional specific acts under a special government spending
program, Sereno suffered a double setback in a span of less than 24 hours.
First, her own colleagues in the tribunal rebuffed her Tuesday, August 19, when
they decided to include Solicitor-General Francis Jardeleza in the short list
submitted by the Judicial and Bar Council to the President. Sereno chairs the
JBC which vets nominees to the judiciary and the Ombudsman. Voting 7-4, the
majority ruled that Jardeleza was denied due process when his name was
stricken from the original shortlist.
The President delivered the second blow when he appointed Jardeleza the
following day, despite her vigorous opposition to the former Solicitor General.
(READ: Jardeleza appointed as Supreme Court justice)
How can you call the SC a Sereno Court when her own members are repulsing
her? asked University of the Philippines professor and expert on international
law Harry Roque.
Roque pointed out that Sereno has been relegated to the minority in some of
the major cases before the SC. These include the Reproductive Health Law
issue and the Cyber Crime Law.
Shes supposed to be the first among equals. Youre the Chief Justice but you
are always with the minority, Roque pointed out.
Nemesis
Serenos hold on the SC has been tenuous and shaky since her appointment as
chief justice, bypassing the more senior justices in the high court.
Her foremost nemesis is Justice Teresita Leonardo-de Castro, an appointee of
former President Arroyo. She and De Castro had clashed several times first on
the reopening of the Regional Court Administration Office, followed by Serenos
alleged "tampering" in the temporary restraining order on the party list issue
last year.
More recently, De Castro questioned Serenos move to do away with the voting
by SC justices in the selection of new members, which had been common
practice.
The integrity issue raised against Jardeleza provided another platform for De
Castro to undermine Serenos leadership. Rappler learned from SC sources that
it was De Castro, along with Justice Arturo Brion, who lawyered principally for
Jardelezas inclusion in the JBC list when they deliberated Tuesday.
One of the sources said De Castro and Brion feverishly insisted on Jardelezas
inclusion in the list despite full knowledge of the serious objections against
the former chief state counsel.
In blocking Jardelezas third attempt to join the SC, Sereno, for the first time in
JBC history, invoked Rule 10, Section 2 of the JBC rules which allows one JBC
member to veto the nomination of an applicant.
Sereno would not publicly reveal what prompted her to invoke the rule, but
reports said it was due to questions about Jardelezas integrity. Rappler learned
that this was triggered by Jardelezas questionable handling of the
governments arbitration case against China under the United Nations
Convention on the Law of the Sea or UNCLOS before the Permanent Court of
Arbitration.
The case involved the Philippine challenge of Chinas maritime claim in the
West Philippine Sea (South China Sea), particularly its controversial 9-dash line
that also covers the countrys 200-nautical mile Exclusive Economic Zone
(EEZ). (READ: The inside story: Jardeleza accused of disloyalty to PH)
3 integrity issues
Based on the supplemental comment submitted by the JBC to the SC in reply to
Jardelezas petition for inclusion in the JBC list, 3 integrity issues were raised
against him.
*His actuations in handling the West Philippine Sea case
*Reports on his extra-marital affair when he was counsel for San Miguel
Corporation
*Allegations of insider trading that led to a show-cause order from the
Philippine Stock Exchange"
Of these 3 issues, it was the West Philippine Sea case that bore heavily on
Jardelezas SC bid. Ironically, the one who provided Sereno ammunition to go
against Jardeleza was senior Justice Antonio Carpio, who also vied for the chief
justice post when Sereno herself was vying for it.
In the supplemental comment, the JBC said said it was forced to break the
confidentiality of its proceedings and tackle sensitive national interests to
prevent a potential traitor from becoming an SC justice.
Considering that the Petitioner (Jardeleza) himself challenges the JBC to a
public and open discussion of the integrity issue against him, the JBC, to protect
its reputation, and under the legal compulsion of candor before this Honorable
Court, has no recourse but to fully discuss facts, including those involving
sensitive national interest matters in this Supplemental Comment-Reply.
As the countrys chief state lawyer, Jardeleza, supported by international
lawyers, was spearheading the arbitration case at The Hague in the
Netherlands.
In a strongly worded statement, Sereno accused Jardeleza of lacking integrity,
and committing acts tantamount to treason by undermining Philippine interests
when he deliberately pushed for the exclusion of Itu Aba, the largest island in
the Spratly Group of Islands, for discussion in the memorandum (or memorial in
international law) submitted to the United Nations-backed tribunal.
Treason
Narrating the facts that led her to raise integrity issues against Jardeleza, the
Chief Justice said she learned about the Itu Aba faux pas from Carpio. She then
conducted discreet inquiries on her own. While the final Philippine Memorial
included the important discussion point of Itu Aba she discovered that
Petitioner insisted upon its exclusion and was only overruled through timely
intervention, the supplemental comment said.
In her probe of the case, Sereno said the exclusion of the discussion of Itu Aba
in the memorandum submitted to the UN body on the West Philippine Sea case
would have resulted in the Philippines losing its case and losing face in the
international community.
Petitioner cannot be trusted to act in the best interests of his client, the
Republic of the Philippines, as its agent in the UNCLOS arbitrationHis
disloyalty to his client is a lack of integrity. And when that client is the Republic
of the Philippines, it is treason, Sereno said.
Despite protests and warning from the international lawyers tapped by the
government to help in the arbitration case, Jardeleza insisted on deleting the
Itu Aba discussion. This deliberate refusal to promote the remedies available
to the Philippines, by deliberately weakening the countrys arguments, showed
that the Petitioner had been disloyal to the country, Sereno said.
Risk of embarrassment
Whats at stake in the Itu Aba case? It could yet prove to be pivotal in the issue
of jurisdiction by the UN body in the case filed by the Philippines.
The government is arguing that Itu Aba is only a rock formation that cannot
support human habitation absent external assistance. Under the UNCLOS, an
island capable of human habitation and economic life of its own generates an
Exclusive Economic Zone of 200 nautical miles from its shore. The Philippines
posits that Itu Aba does not enjoy an EEZ coverage and thus falls under the
coverage of compulsory arbitration under the UNCLOS.
On the other hand, China has argued that the UN body has no jurisdiction over
the dispute because Itu Aba generates an EEZ of 200 nautical miles and
overlaps with the Philippines' own EEZ.
The Philippine-hired international counsels, led by American lawyer Paul
Reichler, appealed for the retention of the Itu Aba discussion in the
memorandum, arguing that its deletion could put the entire case at risk. In a
memo to Foreign Affairs Secretary Albert del Rosario, the foreign lawyers
warned that there is too much at stake to put everything at risk by what we
would consider an extremely unwise decision.
Sereno said the exclusion of Itu Aba from the memorial might be construed by
the UN arbitral body as bad faith as it determines whether it has jurisdiction
or not. It would be a monumental diplomatic embarrassment if the Philippines
were seen as sabotaging its own case by failing to argue a jurisdictional point.
The Philippines was the party that initiated compulsory arbitration. It is the
party claiming that its right under the UNCLOS has been violated, and that it
undertook the proper mechanisms under the UNCLOS to protect its right.
The Chief Justice stressed that international law recognizes the existence of
the clean hands doctrine, which requires international litigants to come before
the international courts without bad faith. If the Philippines were seen as
purposefully bringing a defective case before the UNCLOS tribunal, then its
good faith would be cast in doubt.
Unfit as SC justice
Given Jardelezas misjudgment, Sereno said he is unfit to become a member
of the SC. The non-inclusion of petitioner of Itu Aba in the Philippine claim,
despite being informed of the dire consequences if this issue were ignored, was
a violation of his fiduciary obligation to the Republic of the Philippines; by
extension, it was a violation of his oath of office as Solicitor-General, as an
attorney of law, and as citizen of the Republic of the Philippines, Sereno said.
When confronted by the JBC about the issue, during an executive session held
June 30, Jardeleza refused to explain himself, demanding that Sereno put her
objection in writing and that he be given the right to cross-examine her and
Carpio. He also asked the JBC to put on hold their vote pending the SCs action
on his letter-petition questioning his exclusion from the shortlist. (READ:
Solicitor General out of SC justice race)
However, the JBC proceeded with the voting, with Jardeleza getting 4 votes.
Court of Appeals Justices Apolinario Bruselas and Jose Reyes topped the voting
with 6 votes each.
Sereno was able to sway one JBC member, Integrated Bar of the Philippines
representative Milagros Fernan-Cayosa to vote against Jardeleza. Cayosa told
the JBC that while she had voted for Jardeleza she could not vote for him this
time. Based on her own study and investigation of Jardelezas background, she
was able to validate the issues raised against him that cast serious doubt on his
integrity.
Time heals
Whats in store for the High Court, given the acrimonious relationship between
Sereno and Jardeleza and other justices?
One retired justice, who refused to be identified, said the hostility in the SC
appears to be more pronounced now than in the past. During my time, we had
disagreements, we had spirited debates, but those were nothing personal.
Retired Justice Angelina Gutierrez said personal disagreement cannot be
avoided in the high court, but said civility will be observed.
An appointee of Estrada, Gutierrez was closely identified with the Estrada
faction in the Court during the first few years of the Arroyo administration. She,
however, was able to have cordial and friendly ties with the Arroyo appointees
in the end.
Time is the best healer, Gutierrez said. Rappler.com
Santiago v. Fojas
TOPIC: Legal Ethics, Canon 14 CPR
FACTS:
An expulsion case was faced by the complainants contending that they
have illegally removed from the union (FEUFA) membership Mr. Paulino
Salvador. The lower court resolved in favor of Salvador and ordered the
complainants to pay, jointly and severally, Mr. Salvador. The case was
then elevated to the Court of Appeals. The complainants lost in their
petition at the Court of Appeals due to abandonment, failure to act
accordingly, or serious neglect of their counsel, Atty. Fojas to answer the
civil complaint on an expulsion case. Atty. Fojas assured them that
everything was in order and he had already answered the complaint.
However, the appellants soon discovered that he never answered it after
all because, according to him, he was a very busy man. Atty. Fojas
admitted his mistake in failing to file an answer for the expulsion case,
but he alleges that it was cured by his filing of a motion for
reconsideration. However, such motion for reconsideration was denied.
Atty. Fojas defended his negligence with the reason that the case was a
losing cause after all. Atty. Fojas also asserts that he was about to appeal
the said decision to this Court, but his services as counsel for the
complainants and for the union were illegally and unilaterally terminated
by complainant. Complainants then filed for a disbarment case.
ISSUE:
Whether the respondent committed culpable negligence, as would
warrant disciplinary action, in failing to file for the complainants an
answer
HELD:
Yes. The Supreme Court upheld Canon 14 of the Code of Professional
Responsibility. Once he agrees to take up the cause of a client, the lawyer
owes fidelity to such cause and must always be mindful of the trust and
confidence reposed in him. This means that his client is entitled to the
benefit of any and every remedy and defense that is authorized by the
law of the land and he may expect his lawyer to assert every such
remedy or defense. In his motion for reconsideration of the default order,
the respondent explained his non-filing of the required answer by
impliedly invoking forgetfulness occasioned by a large volume and
pressure of legal work, while in his Comment in this case he attributes it
to honest mistake and excusable neglect due to his overzealousness to
question the denial order of the trial court. Whether it be the first or the
second ground, the fact remains that the respondent did not comply with
his duty to file an answer.
Pressure and large volume of legal work provide no excuse for the
respondents inability to exercise due diligence in the performance of his
duty to file an answer. Every case a lawyer accepts deserves his full
attention, diligence, skill, and competence, regardless of its importance
and whether he accepts it for a fee or for free. Furthermore, a breach of
Canon 18 of the Code of Professional Responsibility which requires him to
serve his clients, the complainants herein, with diligence and, more
specifically, Rule 18.03 thereof which provides: A lawyer shall not
neglect a legal matter entrusted to him, and his negligence in connection
therewith shall render him liable.
Atty. Fojass negligence is not excused by his claim that Civil Case No.
3526-V-91 was in fact a losing cause. The Supreme Court held that he
should have seasonably informed the complainants thereof. Rule 15.05,
Canon 15 of the Code of Professional Responsibility expressly provides: A
lawyer, when advising his client, shall give a candid and honest opinion
on the merits and probable results of the clients case, neither
overstating nor understanding the prospects of the case.
REPRIMANDED AND ADMONISHED
G.R. No. L-961 September 21, 1949
BLANDINA GAMBOA HILADO, petitioner,
vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM JACOB ASSAD,
respondents.
Petitioner alleged that she and the counsel for the defendant had an attorney-client relationship
with her when, before the trial of the case, she went to defendants counsel, gave him the papers of
the case and other information relevant thereto, although she was not able to pay him legal fees.
That respondents law firm mailed to the plaintiff a written opinion over his signature on the
merits of her case; that this opinion was reached on the basis of papers she had submitted at his
office; that Mrs. Hilado's purpose in submitting those papers was to secure Attorney Francisco's
professional services. Atty. Francisco appeared as counsel for defendant and plaintiff did not
object to it until (4) months after. Then, plaintiff moved to dismiss the case between her and
defendant.
Issue: Was there an attorney-client relationship between plaintiff and Atty. Francisco?
Held: YES. In order to constitute the relation a professional one and not merely one of principal
and agent, the attorneys must be employed either to give advice upon a legal point, to prosecute or
defend an action in court of justice, or to prepare and draft, in legal form such papers as deeds,
bills, contracts and the like.
To constitute professional employment it is not essential that the client should have employed the
attorney professionally on any previous occasion. It is not necessary that any retainer should have
been paid, promised, or charged for; neither is it material that the attorney consulted did not
afterward undertake the case about which the consultation was had. If a person, in respect to his
business affairs or troubles of any kind, consults with his attorney in his professional capacity with
the view to obtaining professional advice or assistance, and the attorney voluntarily permits or
acquiesces in such consultation, then the professional employment must be regarded as
established.
An attorney is employed-that is, he is engaged in his professional capacity as a lawyer or
counselor-when he is listening to his client's preliminary statement of his case, or when he is giving
advice thereon, just as truly as when he is drawing his client's pleadings, or advocating his client's
cause in open court. An acceptance of the relation is implied on the part of the attorney from his
acting in behalf of his client in pursuance of a request by the latter.
That only copies of pleadings already filed in court were furnished to Attorney Agrava and that, this
being so, no secret communication was transmitted to him by the plaintiff, would not vary the
situation even if we should discard Mrs. Hilado's statement that other papers, personal and private
in character, were turned in by her. Precedents are at hand to support the doctrine that the mere
relation of attorney and client ought to preclude the attorney from accepting the opposite party's
retainer in the same litigation regardless of what information was received by him from his first
client.
An attorney, on terminating his employment, cannot thereafter act as counsel against his client in
the same general matter, even though, while acting for his former client, he acquired no knowledge
which could operate to his client's disadvantage in the subsequent adverse employment
"A retaining fee is a preliminary fee given to an attorney or counsel to insure and secure his future
services, and induce him to act for the client. It is intended to remunerate counsel for being
deprived, by being retained by one party, of the opportunity of rendering services to the other and
of receiving pay from him, and the payment of such fee, in the absence of an express understanding
to the contrary, is neither made nor received in payment of the services contemplated; its payment
has no relation to the obligation of the client to pay his attorney for the services which he has
retained him to perform."
