Disqualification, recusation and inhibition: Joker, HB!

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MANONG Emil Jurado wondered in his Standard column the other day “where Hilbay finished his law.”

The SolGen attended UP and co-topped the bar exams in 1999. From the Internet: “Florin Ternal Hilbay (born March 19, 1974) . . . In 2005, [he]obtained his Masters of Law degree from Yale. He was a Fulbright Visiting Scholar at Boston College in 2001 [Grace Poe also attended BC, my wife’s Jesuit alma mater]. He has also held fellowships at the Max Planck Institute for Comparative Public Law & International Law in Heidelberg, Germany, and the Asian Law Institute for Comparative Public Law in the National University of Singapore.” These institutions are not department stores.

I am glad he, as the People’s Tribune, took Grace’s side. It is not the wrong thing. I, as a member of the human rights community, biased in favor of the handicapped, see it as only right. He did not see her as a Martian or Manchurian who should be unfairly burdened with proving how she came to this litigious society.

To me, Disqualification, Recusation and Inhibition are interchangeable. (I once used “recuse” in a subversion case trial; not “inhibit,” the term lawyers are familiar with. A fellow defense lawyer stood up to say, “Your Honor, I adopt Atty. Saguisag’s petition to rescue.” I gently whispered, “recuse, not rescue.”) May the three Supreme Court (SC) Justices who voted against Grace in the Senate Electoral Tribunal (SET) have chosen to take part in her SC appeal? I doubt it. They had no choice, I think.


1. The system, as I understand it, won’t allow them to review her case as elevated. Anyone looking at a mirror may say “not bad at all.” No one should be judge of his own cause, a maxim from time out of mind. Even the appearance of it in inextricably intertwined cases, as here, should prudently be avoided.

1.1. A promoted Trial Judge who convicted X would have to recuse himself were X’s appeal to go to his appellate Division.

1.2. Again, common sense and a sporting sense of fair play.

2. Sec. 1 of Rule 137 of the Rules of Court: “No judge or judicial officer shall sit in any case . . . in which he has presided in any inferior court when his ruling or decision is the subject of review, . . .”

2.1. I expected knowledgeable and seasoned Justices TonyCarp, Tessie Leonardo-De Castro and Art Brion, without being asked to inhibit, not to be tempted to say “ang galing naman natin.” They know that “[a]judge should take no part in a proceeding where [his]impartiality might reasonably be questioned,” including a situation where his “ruling in a lower court is the subject of review.” Code of Judicial Conduct, Rule 3.12(c).

3. No Justice would risk impeachment for violating the Code, the Rules of Court and common sense. But, why did Justice TonyCarp stay on in the case even in the SET? As early as September last, I said:

“I don’t think [he]should continue on the SET, having sadly and openly prejudged the case. He should have waited until all the arguments were in before concluding that Grace is naturalized, not natural-born, which Chief Justice Roberto Concepcion defined as ‘one born a citizen.’ Naturalized? From what nationality? Naturalization implies a change in nationality. Or assumes two citizenships. Maybe J. TonyCarp is right as he often is. But, it seems to me his startling imprudent and egregious prejudgment allows him no wiggle room.

“Under the UN Universal Declaration of Human Rights a foundling may be the weakest of minorities, deserving of `special care and assistance’ (Art. 25) unable to lobby and vote.”
“ `Special assistance’, not `special discrimination. Being a “pulot’ or `ampon’ used to be a traditional vilification modern thought now looks askance at. The UDHR’s Art. 15 says:
`Everyone has the right to a nationality.’ She should not be denied that right. And nationality attaches at birth, not a day, week, month, year later, an unmanageable standard. When was she naturalized, assuming she needed to be?”

When will we stop vilifying foundlings? They have parents, if unknown. It seems to me to put the burden on David in this seeming case of first impression is legally tenable, intellectually respectable and psychologically satisfying.”

To me the inhibition was routine; not page one headline stuff. The Justices are expected not to act with impropriety, even the semblance of it. By judging their own cause, they could be impeached. If a trial judge who convicts X gets to the SC and takes part in an appeal, he’d invite censure or even be rendered jobless.

Nope, Justices TonyCarp, et al. could not very well have stayed on and say “and galing naman natin.” Hair-splitting would not help in the public perception.

It should have been Sen. Nancy Binay who, in my view, should have stayed away and abstained; her own father was to benefit from her vote ousting Grace. “Ang galing ng Tatay ko,” is assumed; I wonder why no one has made an issue of it in the manner it has been as to Grace; Jojobama, my good friend, and his daughter, are in the same boat. She calls me Tito. Our families have been that close for longer than I care to remember.

Jojobama and Nancy, do not forget us when you get to paradise in May. But, it should be by beating Grace, Mar, Digong, Miriam, Roy Seneres, Mil Sabio, et al.. Even Buboy Syjuco, Elly Pamatong, and the rest, household words only in their own households, should be allowed to fantasize in a democracy. It seems there is no such animal as a nuisance bet in the US. Indeed, one may write in any candidate. Automated, thru Smartmatic, guarantees no delay.

I may draw the line in the case of the Manuel Antonio Roxas who could unfairly harm Mar and obviously, was mocking democracy. The Comelec has ousted the former correctly I think.

Anyway, to do its high function in the best way, “justice must satisfy the appearance of justice.” We hold J. TonyCarp in high regard but he compromised himself by indications that he may have thrown his weight on one side right off. Important judicial norms: “[a]judge’s official conduct should be free from the appearance of impropriety.” “Justice must satisfy the appearance of justice,” for legitimacy and acceptability, a given in any system that must be credible, stable and predictable, a mature institutional arrangement.

I cannot possible close without saying, Happy Birthday, Joker! He would have been 89 this week, but looked like he was in his Second Adolescence last we met in June. Boyish-
looking, Kamandag pa rin marahil po, gaya ni Jojobama at Erap.

I note how PNoy very publicly condoled with the kin of ex-LTO chief Virginia Torres, a kabarilan.

Then, iconic Letty JM.

Also, Malacanang issued a statement on the passage of Ambassador Steve Bosworth, whose help in restoring democracy in 1986 it recalled. The PDI yesterday had the Palace calling him our “true friend.” What about Joker on whose passage PNoy has been silent? The PDI also recalled Philip Habib, who advised Prez-elect Cory on possible power-sharing with Macoy. She said, “I won, and I will take power.” To me, it sounded like Joker speaking.

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14 Comments

  1. Phoenix Galileo on

    Member of Human Rights Community pala kayo. Baka gusto mong magbigay ng konting pananaw sa mga magsasaka sa Hacienda Luisita at sa mga kawawang mananakay sa MRT at LRT (3 years nang kinawawa ng gobyerno)

  2. Mariano Patalinjug on

    Yonkers, New York
    08 Jan. 2016

    The dissenting Minority opinion of the three Supreme Court Justices sitting in the Senate Electoral Tribunal should have been the Majority decision because they proved conclusively that Grade Poe Llamanzares is not a “natural-born Filipino citizen” and has not conformed to the 10-year constitutional residency requirement.

    It is clear that the Majority ruling of the SET in that case was in the nature of “camaraderie” or “pakikisama” with a fellow Senator. If not, then those Senators have no business being “Senators” because they can only be described as ignorant of the Constitution–or, if not ignorant, chose to ignore or even do violence to it.

    Now Grace Poe Llamanzares hopes that the Supreme Court will overturn the ruling of the COMELEC en banc disqualifying her from being a candidate for President because 1] she is not a natural-born Filipino citizen, and 2] she is short of the 10-year residency requirement of the Constitution.

    I suggest that she had better brace herself for a Supreme Court ruling affirming the ruling of the COMELEC.

    I do not know how a Supreme Court–if it is indeed “supreme”–can rule otherwise.

    MARIANO PATALINJUG
    patalinjugmar@gmail.com

  3. 1. Now we know why you are such an avid supporter of Grace Poe Llamanzares:”college mate pala siya ng asawa mo sa Boston”. Just another case of KKK!

    2. No point in making a big production about the recusal or inhibition of the three SET judges. You clearly did not read their opinions (especially those of Justices Carpio and Brion) wherein they made it clear that they will inhibit from reviewing their own decisions should the quo warranto case of David against Grace Poe end up before the Supreme Court.

    3. Associate Justice A. Carpio had the right to ask questions and make comments during the SET hearing. He was the Chairman, after all. If you think he tipped his hand early on early on during the SET hearing, that should not have been a surprise to you (you being an experienced lawyer), since he probably read and perused the opposing parties’ submissions beforehand. In fact, this sort of “tipping” has been observed very often in the USA Supreme Court hearings. From their questions and comments during the hearings, one can anticipate the way the justices will make their decisions.

    4. It is weird that you think Senator Nancy Binay should have abstained from the SET voting, yet did not suggest the same for Senators Sotto, Cayetano, Villar, and Legarda – all easily identifiable as being biased in favor of Mrs. Lllamanzares even before the hearing due to their previous association with her or her late adoptive father FPJ. Nancy can always say that she followed the Constitution – a document which is a reflection of the people’s will, and which you now want to trash and ignore for the sake of your preferred candidate Mrs. Llamanzares. Where have you been?

  4. Where is the government lawyer who will decide on his own without any consultation with the appointing power a highly charged political case? Would Bam Aquino have sided with Grace Poe if Boy Sayad was totally against it? These Aquinos are playing their usual con game, the kind they played on Doy Laurel and Mitra and they are now doing it to Mar Roxas. They junked Mar in 2010 when Smartmatic decided the elections for the first time, they are junking him again today in favor of Grace Poe or Binay, whoever of the two survives the last mile. Ang laro nila, manang-mana sa laro nung mastermind ng Plaza Mianda bombing.

  5. Right at the start, nag recuse na nga yun tatlo so no point spending so much legal posturing and lectures on the propriety of the act. By the way, right to nationality is very much different from “natural born”. Since it is a right, the State has to prescribe the norms on how such right can be exercised. Not because it is a right, it automatically makes a “foundling” a natural born citizen. Just as one has the right to free speech, there are legal and moral norms on how someone can exercise such right. Kaya nga may laws on perjury, unjust vexation, bearing false witness or slander. Similarly, there are procedures to acquire citizenship. Just because you are a “foundling” does not automatically bestow you a citizenship of the place where you were found. By the way, the girl was not even registered as a “founding” so the more reason we can doubt everything she claims she is.

  6. The SET is a political body, vs. the COMELEC, a constitutional body.
    Delicadeza dictates that the SolGen should have recused or inhibited from
    taking sides or better resigned with dignity.

    • i think foundlings are allowed to vote but not allowed to run in any public office. thats unfair….

  7. Carlos de Castro on

    Comelec,should know all about this. Willie and Me not being a lawyer was so saddened by the solgen stand.chairman Bautista is de kampanilya too having been a former law dean. What we should IS allow everybody to run and then bahala na lang si BATMAN, senador, ganyan naman tayo mga FILIPINO.

  8. suggestion for you to consult an immigration lawyer , especially from the USA .so you have a better understanding what a naturalized citizen is.

  9. SolGen did the right thing in taking the side of the foundlings. They deserve to be treated fairly just like us who know our biological parents. The burden to prove they are not natural-born is on the accuser. They remain to be presumed as natural-born until someone can locate their foreign parents.

  10. It is always enjoyable and relaxing – because I find truth, balance, and humor – to read and savor every piece of Mr. Senator Rene. Mabuhay ka , Senator! May you live longer and have the chance to write some more for us read and learn from your wisdom. God Bless…