- Should Justice Leonen inhibit?

15 November 2020

By Artemio V. Panganiban |

Solicitor General Jose C. Calida and former senator Bongbong Marcos filed separate motions in the Supreme Court, in its capacity as the Presidential Electoral Tribunal (PET), to inhibit Justice Marvic M.V.F. Leonen from the election protest filed by Bongbong.

Citing his role as the “Tribune of the People,” Calida (and his 19 assistant solicitors general) alleged in their 34-page motion that Leonen “exhibited partiality” (1) “against the whole Marcos family in his dissent in the Marcos burial cases,” (2) “[that] led to a decision in…Chavez v. Imelda R. Marcos which exhibits [Leonen’s] lack of competence and probity,” and (3) “…in (delaying) his actions over the protest case,” thus (4) he should obey the “prevailing rules… on voluntary inhibition…”

Bongbong’s 21-page “Omnibus Motion” focused on the alleged unreasonable delay the case has suffered since Oct. 29, 2019 when it was raffled to Leonen as the “Member-in-charge.” Bongbong and his lead counsel, George Erwin M. Garcia, signed the motion, backed up by legal eagles Juan Ponce Enrile, Manuel M. Lazaro, and Estelito P. Mendoza.

However, the alleged “Reflection,” dated July 17, 2017, in which Leonen urged an outright dismissal of Bongbong’s protest, is not enough to inhibit or disqualify him. “Reflections” are normal, confidential exchanges in the Court even prior to my incumbency in 1995. They are mere loud thoughts meant to invite discussions on controversial issues. They are in no way solid, binding opinions.

The writers can modify or reverse them after hearing opposing or separate opinions. After all, justices can change or modify their opinions and votes at any time prior to the promulgation of their decisions and resolutions. And even after promulgation, justices could still reverse themselves on reconsideration. (In my case though, I have never reversed my vote.)

The law on compulsory disqualification is Sec. 1, Rule 137 of the Rules of Court barring judges from sitting “in any case in which he… is pecuniarily interested… or… is related to either party within the sixth degree…or to counsel within the fourth degree… or has been executor… or… has presided in any inferior court when his ruling or decision is the subject of the [case]…”

Clearly, under this law, Leonen is not compulsorily disqualified. Conceding this, Calida and Bongbong are citing the second paragraph of the same Rule that allows voluntary inhibition “for just and valid reasons.”

In my over 11 years in the Court, voluntary inhibition had always been addressed to the “sound discretion” of the justice concerned. I do not remember an instance in which the Court forced anyone of us to inhibit when the matter did not fall under the cited Sec. 1, Rule 137.

But in the high-profile case of Estrada v. Desierto (March 2, 2001), then CJ Hilario G. Davide Jr. and I voluntarily inhibited at the request of former senator Rene A. V. Saguisag, counsel of former president Joseph Estrada who was ousted by Edsa People Power 2.

I voluntarily inhibited “to hold myself above petitioner’s reproach and to deprive him or anyone else of any excuse to cast doubt on the integrity of these proceedings and of any decision that this Court may render…” Subsequently, Estrada lost, 13-0, with two inhibitions.

The most recent high-profile case involving inhibition is Republic v. Sereno (May 18, 2018) which justified the refusal to inhibit of six justices (De Castro, Bersamin, Peralta, Jardeleza, Martirez, and Tijam) in this wise, “…. Indeed, the best person to determine the propriety of sitting in a case rests with the magistrate sought to be disqualified. Moreover, to compel the remaining members to decide on the challenged member’s fitness to resolve the case is to give them authority to review the propriety of [the] acts of their colleagues, a scenario which can undermine the independence of each of the members of the High Court.” (Bold types supplied.)

Later on, in its June 19, 2018 resolution, the Court added that to grant respondent Sereno’s motion to inhibit the six justices “would open the floodgates to the worst kind of forum shopping, and on its face, would allow respondent to shop for a Member of the Court who she perceives to be more compassionate and friendly to her cause, and is clearly antithetical to the fair administration of justice.”

Should Justice Leonen inhibit? Per the above rulings, he is the best person to answer the question.