G.R. No. 213181

Francis H. Jardeleza v. Chief Justice Maria Lourdes P. A. Sereno, G.R. No. 213181, August 19, 2014
♦ Decision, Mendoza [J]
♦ Concurring Opinion, Leonardo-de Castro [J]
♦ Separate and Concurring Opinion, Brion [J]
♦ Separate Opinion, Peralta [J]
♦ Dissenting Opinion, Leonen [J]

FRANCIS H. JARDELEZA Petitioner,
vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

Once again, the Couii is faced with a controversy involving the acts of an independent body, which is considered as a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time that the Court is called upon to settle legal questions surrounding the JBC's exercise of its constitutional mandate. In De Castro v. JBC,1 the Court laid to rest issues such as the duty of the JBC to recommend prospective nominees for the position of Chief Justice vis-à-vis the appointing power of the President, the period within which the same may be exercised, and the ban on midnight appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court provided an extensive discourse on constitutional intent as to the JBC’s composition and membership.

This time, however, the selection and nomination process actually undertaken by the JBC is being challenged for being constitutionally infirm. The heart of the debate lies not only on the very soundness and validity of the application of JBC rules but also the extent of its discretionary power. More significantly, this case of first impression impugns the end-result of its acts - the shortlistfrom which the President appoints a deserving addition to the Highest Tribunal of the land.

To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief Justice herself, was being impleaded as party respondent.

The present case finds its genesis from the compulsory retirement of Associate Justice Roberto Abad (Associate Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in accordance with its rules,3 the JBC announced the opening for application or recommendation for the said vacated position.

On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the Philippines nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of the Republic, for the said position. Upon acceptance of the nomination, Jardeleza was included in the names of candidates, as well as in the schedule of public interviews. On May 29, 2014, Jardeleza was interviewed by the JBC.

It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received telephone callsfrom former Court of Appeals Associate Justice and incumbent JBC member, Aurora Santiago Lagman (Justice Lagman), who informed him that during the meetings held on June 5 and 16, 2014, Chief Justice and JBC ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice Sereno),manifested that she would be invoking Section 2, Rule 10 of JBC-0094 against him. Jardeleza was then directed to "make himself available" before the JBC on June 30, 2014, during which he would be informed of the objections to his integrity.

Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise of itsconstitutional power of supervision over the JBC, issue an order: 1) directing the JBC to give him at least five (5) working days written notice of any hearing of the JBC to which he would be summoned; and the said notice to contain the sworn specifications of the charges against him by his oppositors, the sworn statements of supporting witnesses, if any, and copies of documents in support of the charges; and notice and sworn statements shall be made part of the public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting witnesses, if any, and the cross-examination to be conducted in public, under the same conditions that attend the publicinterviews held for all applicants; 3) directing the JBC to reset the hearing scheduled on June 30, 2014 to another date; and 4) directing the JBC to disallow Chief Justice Sereno from participating in the voting on June 30,2014 or at any adjournment thereof where such vote would be taken for the nominees for the position vacated by Associate Justice Abad.

During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio T. Carpio (Associate Justice Carpio) appeared as a resource person to shed light on a classified legal memorandum (legal memorandum) that would clarify the objection to Jardeleza’s integrity as posed by Chief Justice Sereno. According to the JBC, Chief Justice Sereno questioned Jardeleza’s ability to discharge the duties of his office as shown in a confidential legal memorandum over his handling of an international arbitration case for the government.

Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice Secretary Leila M. De Lima (Secretary De Lima) informed him that Associate Justice Carpio appeared before the JBC and disclosed confidential information which, to Chief Justice Sereno, characterized his integrity as dubious. After the briefing, Jardeleza was summoned by the JBC at around 2:00o’clock in the afternoon.

Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against the integrity issues raised against him. He answered that he would defend himself provided that due process would be observed. Jardeleza specifically demanded that Chief Justice Sereno execute a sworn statement specifying her objectionsand that he be afforded the right to cross-examine her in a public hearing. He requested that the same directive should also be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G. Tupas Jr. also manifested that he wanted to hear for himself Jardeleza’s explanation on the matter. Jardeleza, however, refused as he would not be lulled intowaiving his rights. Jardeleza then put into record a written statement6 expressing his views on the situation and requested the JBC to defer its meeting considering that the Court en banc would meet the next day to act on his pending letter-petition. At this juncture, Jardeleza was excused.

Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of the proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to be included in the shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which included: Apolinario D. Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria Gracia M. Pulido Tan with five (5) votes, and Reynaldo B. Daway with four (4) votes.7

As mentioned in the petition, a newspaper article was later published in the online portal of the Philippine Daily Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that there were actually five (5) nominees who made it to the JBC shortlist, but one (1) nominee could not be included because of the invocation of Rule 10, Section 2 of the JBC rules.

In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of the JBC list of nominees to the Office of the President, "without prejudice to any remedy available in law and the rules that petitioner may still wish to pursue."8 The said resolution was accompanied by an extensive Dissenting Opinion penned by Associate Justice Arturo D. Brion,9 expressing his respectful disagreement as to the position taken by the majority.

Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in law, Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the Rules of Court with prayer for the issuance of a Temporary Restraining Order (TRO), seeking to compel the JBC to include him in the list ofnominees for Supreme Court Associate Justice viceAssociate Justice Abad, on the grounds that the JBC and Chief Justice Sereno acted in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding him, despite having garnered a sufficient number of votes to qualify for the position.

Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and its concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after the controversial JBC meeting. By the time that his letter-petition was scheduled for deliberation by the Court en bancon July 8, 2014, the disputedshortlist had already been transmitted to the Office of the President. He attributedthis belated action on his letter-petition to Chief Justice Sereno, whose action on such matters, especially those impressed withurgency, was discretionary.

An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges on the alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his constitutional right to due process; and 2) the JBC’s erroneous application, if not direct violation, of its own rules. Suffice it to say, Jardelezadirectly ascribes the supposed violation of his constitutional rights tothe acts of Chief Justice Sereno in raising objections against his integrity and the manner by which the JBC addressed this challenge to his application, resulting in his arbitrary exclusion from the list of nominees.

For a better understanding of the above postulates proffered in the petition, the Court hereunder succinctlysummarizes Jardeleza’s arguments, as follows:

A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading up to and during the vote on the shortlist last June 30, 2014. When accusations against his integrity were made twice, ex parte, by Chief Justice Sereno, without informing him of the nature and cause thereof and without affording him an opportunity to be heard, Jardeleza was deprived of his right to due process. In turn, the JBC violated his right to due process when he was simply ordered to make himself available on the June 30, 2014 meeting and was told that the objections to his integrity would be made known to him on the same day. Apart from mere verbal notice (by way of a telephone call) of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on the accusations against him per se, he was deprived of an opportunity to mount a proper defense against it. Not only did the JBC fail to ventilate questions on his integrity during his public interview, he was also divested of his rights as an applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:

Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the ground of his moral fitness and, at its discretion, the Council may receive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer countervailing evidence.

Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given due course, unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In the latter case, the Council may direct a discreet investigation or require the applicant to comment thereon in writing or during the interview.

His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation conveyed to him that Associate Justice Carpio testified against him) and as to the nature of the very accusations against him caused him to suffer from the arbitrary action by the JBC and Chief Justice Sereno. The latter gravely abused her discretion when she acted as prosecutor, witness and judge,thereby violating the very essence of fair play and the Constitution itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief Justice to assume these roles, nor does it dispense with the need to honor petitioner’s right to due process."10

B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of nominees, in violation of its own rules. The "unanimity requirement" provided under Section 2, Rule10 of JBC-009 does not find application when a member of the JBC raises an objection to an applicant’s integrity. Here, the lone objector constituted a part of the membership of the body set to vote. The lone objector could be completely capable oftaking hostage the entire voting process by the mere expediency of raising an objection. Chief Justice Sereno’s interpretation of the rule would allow a situation where all thata member has to do to veto other votes, including majority votes, would be to object to the qualification of a candidate, without need for factual basis.

C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include Jardeleza in the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for appointment to a judicial position requires the affirmative vote of at least a majority of all members of the JBC. The JBC cannot disregard its own rules. Considering that Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is that a majority of the members of the JBC found him to be qualified for the position of Associate Justice.

D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s constitutional power to appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed the President’s choices. Simply put, the President would be constrained to choose from among four (4) nominees, when five (5) applicants rightfully qualified for the position. This limits the President to appoint a member of the Court from a list generated through a process tainted with patent constitutional violations and disregard for rules of justice and fair play. Until these constitutional infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate Justice viceAssociate Justice Abad.

On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked proceduraland substantive bases that would warrant favorable action by the Court. For the JBC, certiorariis only available against a tribunal, a board or an officer exercising judicial or quasijudicial functions.11 The JBC, in its exercise of its mandate to recommend appointees to the Judiciary, does not exercise any of these functions. In a pending case,12 Jardeleza himself, as one of the lawyers for the government, argued in this wise: Certioraricannot issue against the JBC in the implementation of its policies.

In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a discretionary act. For it to prosper, a petition for mandamus must, among other things, show that the petitioner has a clear legal right to the act demanded. In Jardeleza’s case, there is no legal right to be included in the list of nominees for judicial vacancies. Possession of the constitutional and statutory qualifications for appointment to the Judiciary may not be used to legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s inclusion in the shortlist is strictly within the discretion of the JBC.

Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process. The JBC reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and informed him that Chief Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a question on his integrity based on the way he handled a very important case for the government. Jardeleza and Justice Lagman spoke briefly about the case and his general explanation on how he handled the same. Secretary De Lima likewise informed him about the content of the impending objection against his application. On these occasions, Jardeleza agreed to explain himself. Come the June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against him,as he chose to deliver a statement, which, in essence, requested that his accuser and her witnesses file sworn statements so that he would know of the allegations against him, that he be allowed to cross-examine the witnesses;and that the procedure be done on record and in public.

In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of the JBC on the issues raised against him prior to the voting process. His request for a sworn statement and opportunity to cross-examine is not supported by a demandable right. The JBC is not a fact-finding body. Neitheris it a court nor a quasi-judicial agency. The members are notconcerned with the determination of his guilt or innocence of the accusations against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use of the word "may." Even the conduct of a hearing to determine the veracity of an opposition is discretionary on the JBC. Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition, the JBC would not call a hearing in order to avoid undue delay of the selection process. Each member of the JBC relies on his or her own appreciation of the circumstances and qualifications of applicants.

The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is included in the shortlist when he or she obtains an affirmative vote of at least a majority of all the members of the JBC. When Section 2, Rule 10 of JBC-009,however, is invoked because an applicant’s integrity is challenged, a unanimous vote is required. Thus, when Chief Justice Sereno invoked the saidprovision, Jardeleza needed the affirmative vote of all the JBC members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against Jardeleza was not counted. Even then, he needed the votes of the five(5) remaining members. He only got four (4) affirmative votes. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who gotfour (4) affirmative votes, was included in the shortlist because his integrity was not challenged. As to him, the "majority rule" was considered applicable.

Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General. Despiteclaiming a prefatory appearance in propria persona, all pleadings filed with the Court were signed in his official capacity. In effect, he sued the respondents to pursue a purely private interest while retaining the office of the Solicitor General. By suing the very parties he was tasked by law to defend, Jardeleza knowingly placed himself in a situation where his personal interests collided against his public duties, in clear violation of the Code of Professional Responsibility and Code of Professional Ethics. Moreover, the respondents are all public officials being sued in their official capacity. By retaining his title as Solicitor General, and suing in the said capacity, Jardeleza filed a suit against his own clients, being the legal defender of the government and its officers. This runs contrary to the fiduciary relationship sharedby a lawyer and his client.

In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the constitutional period within which a vacancy in the Court must be filled. As things now stand, the President has until August 20, 2014 to exercise his appointment power which cannot be restrained by a TRO or an injunctive suit.

In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting threshold in cases where the integrity of an applicant is challenged. It is his position that the subject JBC rule impairs the body’s collegial character, which essentially operates on the basis of majority rule. The application of Section 2, Rule 10 of JBC-009 gives rise to a situation where all that a member needs to do, in order to disqualify an applicant who may well have already obtained a majority vote, is to object to his integrity. In effect, a member who invokes the said provision is given a veto powerthat undermines the equal and full participation of the other members in the nomination process. A lone objector may then override the will ofthe majority, rendering illusory, the collegial nature of the JBC and the very purpose for which it was created— to shield the appointment process from political maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not allow an applicant any meaningful opportunity to refute the challenges to his integrity. While other provisions of the JBC rules provide mechanisms enabling an applicant to comment on an opposition filed against him, the subject rule does not afford the same opportunity. In this case, Jardeleza’s allegations as to the events which transpired on June 30, 2014 obviously show that he was neither informed ofthe accusations against him nor given the chance to muster a defense thereto.

The Executive Secretary then offered a supposition: granting that the subject provision is held to be constitutional, the "unanimity rule" would only be operative when the objector is not a member of the JBC. It is only in this scenario where the voting ofthe body would not be rendered inconsequential. In the event that a JBC member raised the objection, what should have been applied is the general rule of a majority vote, where any JBC member retains their respective reservations to an application with a negative vote. Corollary thereto, the unconstitutionality of the said rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the President.

On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its Comment. He submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten minutes prior to the closing of business, the Court received the Supplemental Comment-Reply of the JBC, this time with the attached minutes of the proceedings that led to the filing of the petition,and a detailed "Statementof the Chief Justice on the Integrity Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s original Comment, as it was filed prior to the filing of the Supplemental Comment-Reply.

At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-intervention were filed. One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the President of the Integrated Bar of the Philippines-Bulacan Chapter. This pleading echoed the position of the JBC.14

The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP Baguio-Benguet Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a complaint for disbarment against Jardeleza primarily for violations of the Code of Professional Responsibility for representing conflicting interests.15

Both motions for intervention weredenied considering that time was of the essence and their motions were merely reiterative of the positions of the JBC and were perceived to be dilatory. The complaint for disbarment, however, was re-docketed as a separate administrative case.

Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the resolution of one issue would necessarily affect the conclusion as to the others, the Court opts to narrow down the questions to the very source of the discord - the correct application of Section 2, Rule 10 JBC-009 and its effects, if any, on the substantive rights of applicants.

The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its application. It is only from the comment of the Executive Secretary where the possible unconstitutionality of the rulewas brought to the fore. Despite this milieu, a practical approach dictatesthat the Court must confront the source of the bleeding from which the gaping wound presented to the Court suffers.

I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case

Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was given supervisory authority over it. Section 8 reads:

A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. [Emphasis supplied]

As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the power of oversight, or the authority to see that subordinate officers perform their duties.It ensures that the laws and the rules governing the conduct of a government entity are observed and complied with. Supervising officials see to it that rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules are followed.16

Based on this, the supervisory authority of the Court over the JBC covers the overseeing of compliance with its rules. In this case, Jardeleza’s principal allegations in his petition merit the exercise of this supervisory authority.

The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel the performance, when refused, of a ministerial duty, but not to compel the performance of a discretionary duty. Mandamuswill not issue to control or review the exercise of discretion of a public officer where the law imposes upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is required to act. It is his judgment that is to be exercised and not that of the court.17 There is no question that the JBC’s duty to nominate is discretionary and it may not becompelled to do something.

Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or quasi-judicial functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a tribunal exercising judicial or quasi-judicial function. "Judicial functions are exercised by a body or officer clothed with authority to determine what the law is and what the legal rights of the parties are with respect to the matter in controversy. Quasijudicial function is a term that applies to the action or discretion of public administrative officers or bodies given the authority to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action using discretion of a judicial nature."18 It asserts that in the performance of its function of recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial functions. Hence, the resort tosuch remedy to question its actions is improper.

In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was negated by the invocation of the "unanimity rule" on integrity in violation of his right to due process guaranteed not only by the Constitution but by the Council’s own rules. For said reason, the Court is of the position that it can exercise the expanded judicial power of review vestedupon it by the 1987 Constitution. Thus:

Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any branch or instrumentality of the government on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch orinstrumentality of the government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.19

In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find passivity as an alternative. The impassemust be overcome.

Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged

The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration that"[a] member of the judiciary must be a person of proven competence, integrity, probity, and independence." To ensure the fulfillment of these standards in every member of the Judiciary, the JBC has been tasked toscreen aspiring judges and justices, among others, making certain that the nominees submitted to the President are all qualified and suitably best for appointment. In this way, the appointing process itself is shieldedfrom the possibility of extending judicial appointment to the undeserving and mediocre and, more importantly, to the ineligible or disqualified.

In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of JBC-009, that qualifications such as "competence, integrity, probity and independence are not easily determinable as they are developed and nurtured through the years." Additionally, "it is not possible or advisable to lay down iron-clad rules to determine the fitness of those who aspire to become a Justice, Judge, Ombudsman or Deputy Ombudsman." Given this realistic situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and principles." A set of uniform criteria had to be established in the ascertainment of "whether one meets the minimum constitutional qualifications and possesses qualities of mind and heart expected of him" and his office. Likewise for the sake oftransparency of its proceedings, the JBC had put these criteria in writing, now in the form of JBC-009. True enough, guidelines have been set inthe determination of competence,"20 "probity and independence,"21 "soundness of physical and mental condition,22 and "integrity."23

As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-009, "integrity" is closely related to, or if not, approximately equated to an applicant’s good reputation for honesty, incorruptibility, irreproachableconduct, and fidelity to sound moral and ethical standards. That is why proof of an applicant’s reputation may be shown in certifications or testimonials from reputable government officials and non-governmental organizations and clearances from the courts, National Bureau of Investigation, and the police, among others. In fact, the JBC may even conduct a discreet background check and receive feedback from the public on the integrity, reputation and character of the applicant, the merits of which shall be verifiedand checked. As a qualification, the term is taken to refer to a virtue, such that, "integrity is the quality of person’s character."24

The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing the "unanimity rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10 of JBC-009 provides:

SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where the integrity of an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the Members of the Council must be obtained for the favorable consideration of his nomination.

A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement is absolute in cases where the integrity of an applicant is questioned. Simply put, when an integrity question arises, the voting requirement for his or her inclusion as a nominee to a judicial post becomes "unanimous" instead of the "majority vote" required in the preceding section.25 Considering that JBC-009 employs the term "integrity" as an essential qualification for appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the unanimous vote of all the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009 envisions only a situation where an applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into operation when the moral character of a person is put in issue. It finds no application where the question is essentially unrelated to an applicant’s moral uprightness.

The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s case.

The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during the June 30, 2014 meeting, not only the question on his actuations in the handling of a case was called for explanation by the Chief Justice, but two other grounds as well tending to show his lack of integrity: a supposed extra-marital affair in the past and alleged acts of insider trading.26

Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule 10 of JBC-009 was grounded on Jardeleza’s "inability to discharge the duties of his office" as shown in a legal memorandum related to Jardeleza’s manner of representing the government in a legal dispute. The records bear that the "unanimity rule" was initially invoked by Chief Justice Sereno during the JBC meeting held on June 5, 2014, where she expressed her position that Jardeleza did not possess the integrity required tobe a member of the Court.27 In the same meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen manner of framing the government’s position in a case and how this could have been detrimental to the national interest.

In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity were couched in general terms. The particulars thereof were only supplied to the Court in the JBC’s Supplemental Comment-Reply. Apparently, the JBC acceded to Jardeleza’s demand to make the accusations against him public. At the outset, the JBC declined to raise the fine points of the integrity question in its original Comment due to its significant bearing on the country’s foreign relations and national security. At any rate, the Court restrains itself from delving into the details thereof in this disposition. The confidential nature of the document cited therein, which requires the observance of utmost prudence, preclude a discussion that may possibly affect the country’s position in a pending dispute.

Be that as it may, the Court has to resolve the standing questions: Does the original invocation of Section 2, Rule 10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a specific legal strategy in the handling of a case bring forth a relevant and logical challenge against his moral character? Does the "unanimity rule" apply in cases where the main point of contention is the professional judgment sans charges or implications of immoral or corrupt behavior?

While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not borne out ofa mere variance of legal opinion but by an "act of disloyalty" committed by Jardeleza in the handling of a case, the fact remains that the basis for her invocation of the rule was the "disagreement" in legal strategy as expressed by a group of international lawyers. The approach taken by Jardeleza in that case was opposed to that preferred by the legal team. For said reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule" on integrity traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was established linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or to betray the Constitution.

Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the legal community. A lawyer has complete discretion on whatlegal strategy to employ in a case entrusted to him28 provided that he lives up tohis duty to serve his client with competence and diligence, and that he exert his best efforts to protect the interests of his client within the bounds of the law. Consonantly, a lawyer is not an insurer of victory for clients he represents. An infallible grasp of legal principles and technique by a lawyer is a utopian ideal. Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal mind remains a legal tactic acceptable to some and deplorable to others. It has no direct bearing on his moral choices.

As shown in the minutes, the other JBC members expressed their reservations on whether the ground invoked by Chief Justice Sereno could be classified as a "question of integrity" under Section 2, Rule 10 of JBC-009.29 These reservations were evidently sourced from the factthat there was no clear indication that the tactic was a "brainchild" of Jardeleza, as it might have been a collective idea by the legal team which initially sought a different manner of presenting the country’s arguments, and there was no showing either of a corrupt purpose on his part.30 Even Chief Justice Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by extraneous promises.31 Besides, the President, who has the final say on the conduct of the country’s advocacy in the case, has given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the country’s trust and interest. While this point does notentail that only the President may challenge Jardeleza’s doubtful integrity, itis commonsensical to assume that he is in the best position to suspect a treacherous agenda. The records are bereft of any information that indicatesthis suspicion. In fact, the Comment of the Executive Secretary expressly prayed for Jardeleza’s inclusion in the disputed shortlist.

The Court notes the zeal shown by the Chief Justice regarding international cases, given her participation in the PIATCO case and the Belgian Dredging case. Her efforts inthe determination of Jardeleza’s professional background, while commendable, have not produced a patent demonstration of a connection betweenthe act complained of and his integrity as a person. Nonetheless, the Court cannot consider her invocation of Section 2, Rule 10 of JBC-009 as conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-009, there must be a showing that the act complained of is, at the least, linked to the moral character of the person and not to his judgment as a professional. What this disposition perceives, therefore, is the inapplicability of Section 2, Rule 10 of JBC-009 to the original ground of its invocation.

As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital affair and acts of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC. As can be gleaned from the minutes of the June 30, 2014 meeting, the inclusion of these issues had its origin from newspaper reports that the Chief Justice might raise issues of "immorality" against Jardeleza.32 The Chief Justice then deduced that the "immorality" issue referred to by the media might have been the incidents that could have transpired when Jardeleza was still the General Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the duty to "take every possible step to verify the qualification of the applicants," it might as well be clarified.33

Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-009? The Court nods in assent. These are valid issues.

This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which centered onJardeleza’s stance on the tactical approach in pursuing the case for the government, the claims of an illicit relationship and acts of insider trading bear a candid relation to his moral character. Jurisprudence34 is replete with cases where a lawyer’s deliberate participation in extra-marital affairs was considered as a disgraceful stain on one’s ethical and moral principles. The bottom line is that a lawyer who engages in extra-marital affairs is deemed to have failed to adhere to the exacting standards of morality and decency which every member of the Judiciary is expected to observe. In fact, even relationships which have never gone physical or intimate could still be subject to charges of immorality, when a lawyer, who is married, admits to having a relationship which was more than professional, more than acquaintanceship, more than friendly.35 As the Court has held: Immorality has not been confined to sexual matters, but includes conduct inconsistentwith rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to opinions of respectable members of the communityand an inconsiderate attitude toward good order and public welfare.36 Moral character is not a subjective term but one that corresponds to objective reality.37 To have a good moral character, a person must have the personal characteristic ofbeing good. It is not enough that he or she has a good reputation, that is, the opinion generally entertained about a person or the estimate in which he or she is held by the public in the place where she is known.38 Hence, lawyers are at all times subject to the watchful public eye and community approbation.39

The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values, self-control and on the whole, sense of honor, not only because it is a bold disregard of the sanctity of marriage and of the law, but because it erodes the public’s confidence in the Judiciary. This is no longer a matter of an honest lapse in judgment but a dissolute exhibition of disrespect toward sacredvows taken before God and the law.

On the other hand, insider trading is an offense that assaults the integrity of our vital securities market.40 Manipulative devices and deceptive practices, including insider trading, throw a monkey wrench right into the heart of the securities industry. Whensomeone trades inthe market with unfair advantage in the form of highly valuable secret inside information, all other participants are defrauded. All of the mechanisms become worthless. Given enough of stock marketscandals coupled with the related loss of faith in the market, such abuses could presage a severe drain of capital. And investors would eventuallyfeel more secure with their money invested elsewhere.41 In its barest essence, insider trading involves the trading of securities based on knowledge of material information not disclosed to the public at the time. Clearly, an allegation of insider trading involves the propensity of a person toengage in fraudulent activities that may speak of his moral character.

These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of JBC-009. They fall within the ambit of "questions on integrity." Hence, the "unanimity rule" may come into operation as the subject provision is worded.

In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the accusations against him in writing; 2] he was not furnished the basis of the accusations, that is, "a very confidential legal memorandum that clarifies the integrityobjection"; 3] instead of heeding his request for an opportunity to defend himself, the JBC considered his refusal to explain, during the June 30, 2014 meeting, as a waiver of his right to answer the unspecified allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of Sections 3 and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides for a 10-day period from the publication of the list of candidates within which any complaint or opposition against a candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and oppositions to be in writing and under oath, copies of which shall be furnished the candidate in order for him to file his comment within five (5) days from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and sequential series of steps in securing a candidate’s right to due process.

The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in the fulfillment of its duty to recommend. The JBC, as a body, is not required by law to hold hearings on the qualifications of the nominees. The process by which an objection is made based on Section 2, Rule 10 of JBC-009 is not judicial, quasi-judicial, or fact-finding, for it does not aim to determine guilt or innocence akin to a criminal or administrative offense but toascertain the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the application of rules of procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light on the objections against him. During the June 30, 2014 meeting, he did not address the issues, but instead chose totread on his view that the Chief Justice had unjustifiably become his accuser, prosecutor and judge.

The crux of the issue is on the availability of the right to due process in JBC proceedings. After a tedious review of the parties’ respective arguments, the Court concludes that the right to due process is available and thereby demandable asa matter of right.

The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are distinct from criminal proceedings where the finding of guilt or innocence of the accused is sine qua non. The JBC’s constitutional duty to recommend qualified nominees to the President cannot be compared to the duty of the courts of law to determine the commission of an offense and ascribe the same to an accused, consistent with established rules on evidence. Even the quantum ofevidence required in criminal cases is far from the discretion accorded to the JBC.

The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s access tothe rights afforded under the due process clause is discretionary on the part of the JBC. While the facets of criminal42 and administrative43 due process are not strictly applicable to JBC proceedings, their peculiarity is insufficient to justify the conclusion that due process is not demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he presents proof of his scholastic records, work experience and laudable citations. His goal is to establish that he is qualified for the office applied for. The JBC then takes every possible step to verify an applicant's trackrecord for the purpose ofdetermining whether or not he is qualified for nomination. It ascertains the factors which entitle an applicant to become a part of the roster from which the President appoints.

The fact that a proceeding is sui generisand is impressed with discretion, however, does not automatically denigrate an applicant’s entitlement to due process. It is well-established in jurisprudence that disciplinary proceedings against lawyers are sui generisin that they are neither purely civil nor purely criminal; they involve investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit.44 Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to accountfor his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who, by their misconduct, have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can be no occasion to speak of a complainant or a prosecutor.45 On the whole, disciplinary proceedings are actually aimed to verifyand finally determine, if a lawyer charged is still qualifiedto benefit from the rights and privileges that membership in the legal profession evoke.

Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing. The Court subscribes to the view that in cases where an objection to an applicant’s qualifications is raised, the observance of due process neither negates nor renders illusory the fulfillment of the duty of JBC torecommend. This holding is not an encroachment on its discretion in the nomination process. Actually, its adherence to the precepts of due process supports and enriches the exercise of its discretion. When an applicant, who vehemently denies the truth of the objections, is afforded the chance to protest, the JBC is presented with a clearer understanding of the situation it faces, thereby guarding the body from making an unsound and capriciousassessment of information brought before it. The JBC is not expected to strictly apply the rules of evidence in its assessment of an objection against an applicant. Just the same, to hear the side of the person challenged complies with the dictates of fairness for the only test that an exercise of discretion must surmount is that of soundness.

A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to examine its current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010. The former provides the following provisions pertinent to this case:

SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the applicant's record of and reputation for honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards. For this purpose, the applicant shall submit to the Council certifications or testimonials thereof from reputable government officials and non-governmental organizations, and clearances from the courts, National Bureau of Investigation, police, and from such other agencies as the Council may require.

SECTION 2. Background check. - The Council mayorder a discreet background check on the integrity, reputation and character of the applicant, and receive feedback thereon from the public, which it shall check or verify to validate the merits thereof.

SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on groundof his moral fitness and, at its discretion, the Council mayreceive the testimony of the oppositor at a hearing conducted for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer countervailing evidence.

SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not begiven due course, unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In the latter case, the Council may either direct a discreet investigation or require the applicant to comment thereon in writing or during the interview. [Emphases Supplied]

While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to hold that the subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further Promote Public Awareness of and Accessibility to the Proceedings of the Judicial and Bar Council," JBC-010 recognizes the needfor transparency and public awareness of JBC proceedings. In pursuance thereof, JBC-010 was crafted in this wise:

SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet prima facie the qualifications for the positionunder consideration. For this purpose, it shall prepare a long list of candidates who prima facieappear to have all the qualifications.

The Secretary of the Council shall then cause to be published in two (2) newspapers of general circulation a notice of the long list of candidates in alphabetical order.

The notice shall inform the public that any complaint or opposition against a candidate may be filed with the Secretary within ten (10) days thereof.

SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies, together with its supporting annexes. It shall strictly relate to the qualifications of the candidate or lack thereof, as provided for in the Constitution, statutes, and the Rules of the Judicial and Bar Council, as well as resolutions or regulations promulgated by it.

The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against him. The candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or opposition, if he so desires.

SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to consider the qualification of the long list of candidates and the complaint or opposition against them, if any. The Council may, on its own, conduct a discreet investigation of the background of the candidates.

On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the shorter list of candidates whom it desires to interview for its further consideration.

SECTION 4.The Secretary of the Council shall again cause to be published the dates of the interview of candidates in the shorter list in two (2) newspapers of general circulation. It shall likewise be posted in the websites of the Supreme Court and the Judicial and Bar Council.

The candidates, as well as their oppositors, shall be separately notified of the dateand place of the interview.

SECTION 5.The interviews shall be conducted in public. During the interview, only the members ofthe Council can ask questions to the candidate. Among other things, the candidate can be made to explain the complaint or opposition against him.

SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session for the final deliberation on the short list of candidates which shall be sent to the Office of the President as a basis for the exercise of the Presidential power of appointment. [Emphases supplied]

Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of JBC-009 are merely directory in nature as can be gleaned from the use of the word "may." Thus, the conduct of a hearing under Rule 4 of JBC-009 is permissive and/or discretionary on the part of the JBC. Even the conduct of a hearing to determine the veracity of an opposition is discretionary for there are ways, besides a hearing, to ascertain the truth or falsity of allegations. Succinctly, this argument suggests that the JBC has the discretion to hold or not to hold a hearing when an objection to an applicant’s integrity is raised and that it may resort to other means to accomplish its objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion, receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that shall be allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC of its discretion to recommend nominees nor proposes thatthe JBC conduct a full-blown trial when objections to an application are submitted. Still, it is unsound to say that, all together, the observance of due process is a part of JBC’s discretion when an opposition to an application is made of record. While it may so rely on "other means" such as character clearances, testimonials, and discreet investigation to aid it in forming a judgment of an applicant’s qualifications, the Court cannot accept a situation where JBC is given a full rein on the application of a fundamental right whenever a person’s integrity is put to question. In such cases, an attack on the person of the applicant necessitates his right to explain himself.

The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of JBC-010 unmistakably projects the JBC’s deference to the grave import of the right of the applicant to be informed and corollary thereto, the right to be heard. The provisions of JBC-010, per se, provide that: any complaint or opposition against a candidate may be filed with the Secretary within ten (10) days thereof; the complaint or opposition shall be in writing, under oath and in ten (10) legible copies; the Secretary of the Council shall furnish the candidate a copy of the complaint or opposition against him; the candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or opposition, if he so desires; and the candidate can be made to explain the complaint or opposition against him.

The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the mandatory term, "shall"; and 3] most importantly, it speaks of the very essence of due process. While JBC-010 does not articulate a procedure that entails a trialtype hearing, it affords an applicant, who faces "any complaint or opposition," the right to answer the accusations against him. This constitutes the minimum requirements of due process.

Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza was deprived of his right to due process in the events leading up to, and during, the vote on the shortlist last June 30, 2014.

The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to answer the allegations against him. It underscores the fact that Jardeleza was asked to attend the June 30, 2014 meeting so that he could shed light on the issues thrown at him. During the said meeting, Chief Justice Sereno informed him that in connection with his candidacy for the position of Associate Justice of the Supreme Court, the Council would like to propound questions on the following issues raised against him: 1] his actuations in handling an international arbitration case not compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged insider trading which led to the "show cause" order from the Philippine Stock Exchange.49

As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to be "lulled into waiving his rights." Instead, he manifested that his statement be put on record and informed the Council of the then pendency of his letter-petition with the Court en banc. When Chief Justice Sereno informed Jardeleza that the Council would want to hear from him on the three (3) issues against him,Jardeleza reasoned out that this was precisely the issue. He found it irregular that he was not being given the opportunity to be heard per the JBC rules.He asserted that a candidate must be given the opportunity to respond to the charges against him. He urged the Chief Justice to step down from her pedestal and translate the objections in writing. Towards the end of the meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be made part of the record. After Jardeleza was excused from the conference, Justice Lagman suggested that the voting be deferred, but the Chief Justice ruled that the Council had already completed the process required for the voting to proceed.

After careful calibration of the case, the Court has reached the determination that the application of the "unanimity rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.

As threshed out beforehand, due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself.50 Even as Jardeleza was verbally informed of the invocation of Section 2, Rule 10 of JBC-009 against him and was later asked to explain himself during the meeting, these circumstances still cannot expunge an immense perplexity that lingers in the mind of the Court. What is to become of the procedure laid down in JBC-010 if the same would be treated with indifference and disregard? To repeat, as its wording provides, any complaint or opposition against a candidate may be filed with the Secretary withinten (10) days from the publication of the notice and a list of candidates. Surely, this notice is all the more conspicuous to JBC members. Granting ex argumenti, that the 10-day period51 is only applicable to the public, excluding the JBC members themselves, this does not discount the fact that the invocation of the first ground in the June 5, 2014 meeting would have raised procedural issues. To be fair, several members of the Council expressed their concern and desire to hear out Jardeleza but the application of JBC-010 did not form part of the agenda then. It was only during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting that would be held on the same day when a resource person would shed light on the matter.

Assuming again that the classified nature of the ground impelled the Council to resort to oral notice instead of furnishing Jardeleza a written opposition, why did the JBC not take into account its authority to summon Jardeleza in confidence at an earlier time? Is not the Council empowered to "take every possible step to verify the qualification of the applicants?" It would not be amiss to state, at this point, that the confidential legal memorandum used in the invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as Solicitor General. Safe to assume is his knowledge of the privileged nature thereof and the consequences of its indiscriminate release to the public. Had he been privately informed of the allegations against him based on the document and had he been ordered to respond thereto in the same manner, Jardeleza’s right to be informed and to explain himself would have been satisfied.

What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza to appear before the Council and to instantaneously provide those who are willing to listen an intelligent defense. Was he given the opportunity to do so? The answer is yes, in the context of his physical presence during the meeting. Was he given a reasonable chance to muster a defense? No, because he was merely asked to appear in a meeting where he would be, right then and there, subjected to an inquiry. It would all be too well to remember that the allegations of his extra-marital affair and acts of insider trading sprung up only during the June 30, 2014 meeting. While the said issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not given the idea that he should prepare to affirm or deny his past behavior. These circumstances preclude the very idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but toprovide the person a reasonable opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion becomes anidle and futile exercise.

Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be informed of the charges against him and his right to answer the same with vigorouscontention and active participation in the proceedings which would ultimately decide his aspiration to become a magistrate of this Court.

To write finisto this controversy and in view of the realistic and practical fruition of the Court’s findings, the Court now declares its position on whether or not Jardeleza may be included in the shortlist, just in time when the period to appoint a member of the Court is about to end.

With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the shortlist submitted to the President for the vacated position of Associate Justice Abad. This consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but from the violation by the JBC of its own rules of procedure and the basic tenets of due process. By no means does the Court intend to strike down the "unanimity rule" as it reflects the JBC’s policy and, therefore, wisdom in its selection of nominees. Even so, the Court refuses to turn a blind eye on the palpable defects in its implementation and the ensuing treatment that Jardeleza received before the Council. True, Jardeleza has no vested right to a nomination, but this does not prescind from the fact that the JBC failed to observe the minimum requirements of due process.

In criminal and administrative cases, the violation of a party’s right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.52 This rule may well be applied to the current situation for an opposing view submits to an undue relaxation of the Bill of Rights. To this, the Court shall not concede. Asthe branch of government tasked to guarantee that the protection of due process is available to an individual in proper cases, the Court finds the subject shortlist as tainted with a vice that it is assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed to have never come into operation in light of its erroneous application on the original ground against Jardeleza’s integrity. At the risk of being repetitive, the Court upholds the JBC’s discretion in the selection of nominees, but its application of the "unanimity rule" must be applied in conjunction with Section 2, Rule 10 of JBC-010 being invoked by Jardeleza. Having been able to secure four (4) out of six (6) votes, the only conclusion left to propound is that a majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for the position of Associate Justice and this grants him a rightful spot in the shortlist submitted to the President. Need to Revisit JBC’s

In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of the view that the rules leave much to be desired and should be reviewed and revised. It appears that the provision on the "unanimity rule" is vagueand unfair and, therefore, can be misused or abused resulting in the deprivation of an applicant’s right to due process.

Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the collective will of a majority. This should be clarified. Any assertion by a member aftervoting seems to be unfair because it effectively gives him or her a veto power over the collective votes of the other members in view of the unanimous requirement. While an oppositor-member can recuse himself orherself, still the probability of annulling the majority vote ofthe Council is quite high.

Second, integrity as a ground has not been defined. While the initial impression is that it refers to the moral fiber of a candidate, it can be, as it has been, used to mean other things. Infact, the minutes of the JBC meetings n this case reflect the lack of consensus among the members as to its precise definition. Not having been defined or described, it is vague, nebulous and confusing. It must be distinctly specified and delineated.

Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be invoked only by an outsider as construed by the respondent Executive Secretary or also by a member?

Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they must meet the minimum requirements of due process. As always, an applicant should be given a reasonable opportunity and time to be heard on the charges against him or her, if there are any.

At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It need not be stressed that the rules to be adopted should be fair, reasonable, unambiguous and consistent with the minimum requirements of due process.

The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment as a member of the Court.1âwphi1 In deference to the Constitution and his wisdom in the exercise of his appointing power, the President remains the ultimate judge of a candidate's worthiness.

WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General Francis I-I. Jardeleza is deemed INCLUDED in the shortlist submitted to the President for consideration as an Associate Justice of the Supreme Court vice Associate Justice Roberto A. Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant to the observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to the approval of the Court.

This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this Decision.

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the ooinion of the Court.