G.R. No. 237428, May 11, 2018 - REPUBLIC OF THE PHILIPPINES, REPRESENTED BY SOLICITOR GENERAL JOSE C. CALIDA, Petitioner, v. MARIA LOURDES P. A. SERENO, Respondent.
JARDELEZA, J.:
On some positions cowardice asks the question. is it safe? Expediency asks the question, is it politic? Vanity asks the question, is it popular? But conscience asks the question, is it right? And there comes a time when one must take a position that is neither safe, nor politic, nor popular but he must take it because conscience tells him it is right. - | |
Martin Luther King1 |
On 11 December 2017, Justice Jardeleza testified before the Committee on Justice of the House of Representatives in relation to the charge that the Chief Justice allegedly. "manipulated the shortlist of the Judicial and Bar Council (JBC) to exclude then Solicitor General Francis H. Jardeleza, for personal and political reasons, thereby disgracing then Sol. Gen. Jardeleza and curtailing the President's power to appoint him. There is reasonable basis to conclude from Justice Jardeleza's testimony, that he harboured ill feelings towards the Chief Justice as a consequence of the latter's challenge to his integrity during the nomination process for the Associate Justice position (vice Hon. Justice Roberto A. Abad) in 2014. Justice Jardeleza apparently asserted that the Chief Justice has committed "treason", to wit:The second charge involves my characterization of respondent's actions relevant to my nomination as a "personal slight,"4 "inhumane" and "not those of a normal person." As evidence, respondent quotes the following portions of my testimony before the House Committee on Justice, to wit:[JUSTICE] JARDELEZA. x x x
So, ngayon mabalik po tayo. Ano po ang paratang sa akin? Ang paratang po at dito nakasaad sa supplemental comment ng Chief Justice. Sinabi na po ni Attorney Capacite, ito pong supplemental comment and reply pirmado ni Attorney Capacite, hindi po ito verified. Subalit iyong part two po nito, naka-all caps, it's page 13, statement of the Chief Justice on the integrity objection. Ang first sentence po, basahin ko, "This portion is solely attributable to the Chief Justice." Ano pong sinasaad nito? Na iyong diskarte ko na pumanig ako na huwag isama, ako ay to quote her words, "disloyal to the republic." Iyong disloyalty to the republic, if you check the Pilipino-English dictionary ay naghudas sa ating Inang Bayan. Napakabigat po.
Direct quote again, iyong diskarte ko na iyon ay is an act of treason. Treason. Sa madaling salita po sa Tagalog ako po ay traydor sa Inang Bayan. x x xx x x x
So, sa punto na iyon ay ibabalik ko po ang tanong. Hindi ko po ikaila na may diskarte itong American lawyers, may diskarte ang Foreign Affairs, may diskarte rin kami. Eh bakit naman kung nasa kabilang panig ako disloyal sa bayan natin? This is a difference of opinion. And, in fact, on an executive matter, so iyong po ang unang tanong. Ako ay pinaratangan na disloyal o anghudas sa bayan natin, Eh sa pananaw ko po it is the Chief Justice who acted disloyally, naghudas sa bayan natin. Bakit? Eh bakit niya gagamitin itong classified, top secret or secret document? Para sa anong gamit? Hindi siya kasama sa arbitration. Ang ginamit niya du'ng [sic] dokumento ay illegally secured document. So binabalik ko po sa kanya ang paratang na disloyal to the government. At noong panahon na iyon hindi pa tapos ang kaso. That was a continuing case. Nagkadesisyon lang po kasi 2016 na. So, sino po ang disloyal sa bansa natin. Sa palagay kop o hindi ako, hindi ang Office of the President, hindi si Chief PLC.x x x x
[JUSTICE] JARDELEZA. (Continuing) ... largest island in the Spratlys." Salita niya yun, hindi ko salita yun. Ayun nga ang pinag-aawayan. Ang statement na Itu Aba is the largest island in the Spratlys ay taliwas, contradictory sa posisyon ng gobyerno na ang itu Aba ay rock lang. So ngayon, ang paratang sa akin na ang ginawa ko, ang diskarte ko ay treason, maitanong ko po sa inyo sino ngayon [sic] ang committed an act of treason sa pananalita nya na Itu Aba is an island? Bagkus, ang posisyon ng gobyerno Itu Aba is a rock. At saka sinabi niya ito na Itu Aba is an island not once but twice. Sinabi niya ulit, inulit niya pa sa paragraph 68, "It must be emphasized that the categorical legal position that characterizes Itu Aba is an island ... as an island," inulit pa. So, ngayon binabalik ko iyung paratang, sino sa amin ang nagcommit ng act of treason? Hindi po ako. Hirap na hirap iyung team na mabigyan ng pruweba na iyung Itu Aba ay rock at hindi island. Bakit po? Bagk us kasi kahit na hindi ... kahit na minensiyon (mention) natin, ang mga hukom ng tribunal ay, at a certain point, ay kusang nagbigay ng order na Pilipinas, isama mo sa diskusyon mo iyung dalawampu, 20 features kung ano ito, island or rock. Kahit hindi natin minensiyon, and arbitral tribunal mismo nagsabi isama ninyo, kasama doon ang Itu Aba. So napilitan tayo na idiscuss na itong Itu Aba up front and center. Now, itanong ninyo sa amin. itanong ninyo sa akin, hanggang sa madesisyunan ba kampante kami na mananalo tayo sa issue na ito? Hindi po. lyun ang biggest nightmare natin because kapag na-declare ang itu Aba na island, magkakaroon ng 200 miles. But, as they say, the rest is history. Mabuti na lang, mabuti na lang nanalo tayo.
Magbalik ako, habang pending pa ito, habang pending pa iyung kaso, eh, bakit naman tawagin akong traydor sa Inang Bayan? binabalik ko sa Chief Justice. Sa palagay ko you were the one who committed treason. While the case was pending, walang pakundangan na ginamit mo ang isang dokumento na top secret, classified secret, nilagay mo sa publiko ang isang pangyayari na mayroong disagreement sa legal team. At saka contrary sa pinaghihirapan ng Pilipinas na iyan ay rock, eh, dalawang beses mo sinabi in writing iyun po ay island. So sa palagay ko po, kapag kayo ang hukom dito ay kung hindi po iyun treason, hindi ko na alam. And I am not asking for anything that she did not do unto me. Alam ko po iyung treason may view na there can be no treason without war. At binabalik ko sa Punong Mahistrado. eh, wala naming digmaan noong 2014, ti nawag mo akong traydor, tinawag mo ang diskarte ko ay treason so ibabalik ko sa iyo. So, ang ibig sabihin sa mind ni Chief Justice, ang treason can be committed even kung walang digmaan.
So Honorable Members of the House, I will leave that to you, kayo po ang hukom dito. Ang sinasabi ko ay pananaw ko, iyung sinasabi ko na ang Chief Justice ang nag-commit ng acts of disloyalty and acts of treason against the Republic is not a plain opinion. Iyun po ay bati sa... batay sa facts. Number one, ginamit niya, pinalabas niya sa publiko ang classified document; number two, tinawag niya na island iyung feature na hirap na hirap ang gobyerno naming i-pruweba na rock.
Maraming salamat po.x x x x
REP. HERNANDEZ. Thank you, Mr. Chairman.
Let me just clarify it, Justice Jardeleza, are you saying that you are accusing the Chief Justice of committing treason? Can you just clarify that?
[JUSTICE] JARDELEZA. Ayaw ko po na maakusahan ni Congressman Marcoleta na ano iyun, ewan, ewan. (Laughter). So, ang straight po na sagot, iyun na po. Because sa pananaw ko, eh, bakit mo... bakit mo ilantad ang classified document? Ano ang pakialam ng hudikatura? O? Alam mo, ang pinag-aawayan ay ang kahulugan ng island. The category of Itu Aba making it an island is a conclusion based on facts. So, kung ang posisiyon ng gobyerno ay that is a rock, iyung tano na magsabi, "Ay, hindi, island yan," again, if that is not treason, I do not know what is treason.3
REP. G.F. GARCIA. And so, she did not conduct herself as would have been expected of a chief justice, head of a separate branch of government? Would that be a fair statement[?]The third charge asserts that my negative assessment of respondent's character is the very issue raised in the present petition, and that this negative characterization persists to this day. She cites a portion of my testimony before the Committee on Justice as illustrative:
[JUSTICE] JARDELEZA. I think that is a fair statement, Mr. Chairman.
REP. G.F. GARCIA. And yet as Chief Justice and assumed to be knowledgeable about the law, it would have struck her or at least, it could have crossed her mind that precisely attacking your integrity on the grounds of your legal strategy on the West Philippine Sea would not hold water if we are to question integrity per se because integrity would now delve on morality, on...what else...well, precisely morality, in this case, this purely involved a professional position or a professional judgment, do you think the Chief Justice could not have foreseen that?
[JUSTICE] JARDELEZA. Mr. Chairman, hindi ko po talaga alam. Ang katotohanan po hanggang sa ngayon...kasi wala...wala po kaming history, wala kaming...sabi ko nga tinuturing naming siya na pamilya ko, na kaibigan, wala akong maisip na away propesyunal or personal. So, hanggang ngayon hindi ko talaga po maintindihan bakit nagawa niya iyun...nagawa sa akin iyung isang bagay na napakatindi. Napakatindi po iyun, mahirap. So, I am sorry, up to now, I cannot understand why that was done to me.x x x x
REP. G.F. GARCIA. So, we are left to conclude that the Chief Justice's opposition to your good self was purely out of an...what cannot be comprehended, incomprehensible quirk of her personality?
[JUSTICE] JARDELEA. Because I cannot understand because I cannot get into her mind, as I cannot understand, I can only say. Mr. Chairman. talagang. in my view, what was done to me was inhuman.
REP. G.F. GARCIA. That no decent humane and human person much less a Chief justice of a country would do?
[JUSTICE] JARDELEZA. Mr. Chairman, that...that...you know, when dealing with a fellow human being, we should afford each other some measure of decency. Kung ayaw po sa akin, kasi alam ko nan1an may nagsasabi, "Ay, hindi ikaw ang manok ni Chief Justice." Eh, Mr. Chairman, lahat...iyung karamihan ng mga abugado dito, iyung maluklok sa Korte Suprema, siguro iyun ang isa sa mga pinaka-minimithi. Sa kadulu-dulo ng isang career ng isang tao, minsan man lang maka-apply ka. Masabi mo sa mga apo mo, Aba, nag-apply ako. na-nominate ako. Eh, iyun lang naman ako eh, bakit...and I was...I was minding my own business, I came from the private sector, akala ko tapos na iyung mga anak ko puwede na akong tumulong. So, littled did I know that I will get into all of these. As I said to the UP graduates, ito po iyung ginawa sa akin were the most difficult two months of my life. Hindi ko alam kung bakit ginawa but iyung...iyung ordeal na you would go through two months hindi moa lam kung ano mangyayari. Bagkus, Mr. Chairman, one week to go nagpaalam na ako sa Executive Secretary at saka kay CPLC then Ben, sinabi ko naintindihan ninyo ba ang ginawa ko? Kinalaban ko iyung Chief Justice. Kung hindi ako manalo sa Supreme Court, I will not be an effective SolGen. At saka hindi lang iyun, eh, wala na ho, ang term na ginamit ni Justice Brion it is a...is a career killer. Ang term na ginamit ko sa UP College of Law, it was a neardeath experience sapagkat mabuti na lang sinuportahan ako ng Supreme Court. Kung hindi po, I will live the rest of my life tagged na tao, abogadong walang integridad. Integrity is a requirement before you can become a member of the Board of Directors of a publicly-listed company. Under the fit and proper rule of the Central Bank, integrity is a requirement. So, ano po ang mangyayari kung... kung hindi ako nagdulog sa Supreme Court, ay, talagang wala na ho akong professional life, para na ring naitsupuwera. So, I can agree po with...with you.
REP. G.F. GARCIA.In other words, iyung nangyari po sa inyo, sinabi po ninyo those were the worst two months of your life kung saan kunuwestiyon (question) ang integridad ninyo on the basis of what was purely a professional legal strategy and belatedly nagdagdag pa ng dalawa na allegations which were totally unsubstantiated. Ibig sabihin po, eh, talagang the Chief Justice was out to discredit you, was out to destroy your reputation, was out to kill you career-wise, is this a normal act of a Chief Justice and would you say that the Chief Justice in this instance committed a great and grave injustice to yourself po?
MR. JARDELEZA. I believe po that that is not the act of a normal person.5
It appears that Justice Jardeleza's apparent bias or prejudice against the Chief Justice continues until present. With due respect, this is evident from the following testimony:
REP. J.C.Y. BELMONTE. (Continuing)... nag-oath taking po kayo. Sir, as justice, congratulations po and dapat lang talaga; you deserved it. Pero that's an aside, noong nagoath po kayo, kanino po kayo nag-oath?
[JUSTICE] JARDELEZA.Ganito po and kuwento, Mr. Chairman. I think I went to Malacanang almost four-five o'clock na. Noong nandoon na po ako sa Malacanang, I asked Secretary Ochoa, "Puwede mag-oath before President Aquino?" then ang sagot ay "Sige titingnan natin kung ma-schedule, kung maka-schedule pa tayo." So, nagantay po ako doon. After a while, sabi, Baka masikip. Then, one of the aides, one of the political aides of Secretary Ochoa said, "Alam mo, mabuti siguro kung doon ka mag-oath before the CJ para naman anon a, to repair things." Eh talaga pong nag-o-object ako. Sabi ko, "Puwede ba si President? Siya naman ang nagnombra sa akin eh?" Kaya lang I don't know how many minutes passed, hindi ... sabi, "Hindi ka pa rin mapagbigyan. The schedule is full."
Ang hindi alam nu'ng lahat eh mahirap na iyon masingitan, nag-oath na ako sa notary, I think mga bandang two o'clock para just in case may mangyari may oath na ako, so may hawak-hawak na akong oath. After a while, wala pa rin, hindi pa rin maano. And then, well, to my eternal regret pumayag ako. And why do I say to my eternal regret because, katulad ni Justice Brion, the next morning I think and he is here, I sought out Justice Brion to apologize because there were several people first who said, "Eh mali naman ang ginawa mo. People went out on a limb for you to help you, eh ba't doon ka naman nag-take oath?" So, iyon po ang katotohanan. I had to apologize to Justice Brion why I allowed ... I took my oath before the Cj. And again binalikan ko si Secretary Ochoa, "paki-arrange naman na mag-take oath ako kay Pangulong Aquino." Kaya pag mabisita mo ako, ang picture ko po, I'm taking my oath before President Aquino.
REP. J.C.Y. BELMONTE. I'm...thank you very much for that, Justice. I'm sorry I had to ask that question.
[JUSTICE' JARDELEZA. It's all right but what I'm trying to say is iyong ginawa po sa akin hindi makatao. Hindi po iyon nabura noong ako ay nagte-take oath and she was smiling and everything is okay. Of course, everything was not okay and up to today everything is not okay.6
x x x x
My third story is about my near death experience.
When I became Solicitor General in 2012, I thought I had reached the pinnacle of my career. Former United States Solicitor General Rex Lee described the position as "probably the creamiest lawyering job in the country." But, as former United States Supreme Court Justice Potter Stewart said. while the Solicitor General's office provides "the best lawyer's jobs," a seat on the Supreme Court may be "the best job in American law." Thus, after two and a half years as Solicitor General, I aspired for a seat in our Supreme Court.
And then, Wham! The Chief Justice and the Senior Associate Justice of the Supreme Court objected to my nomination, on grounds that I lack integrity in my handling of the West Philippine Sea arbitration. Wow. It came as a complete surprise; I did not know what hit me. This was the start of the most difficult two months of my life, and that of [my wife], and of my children.
You will read most about what happened in Jardeleza v. Sereno. What the case will not tell you, though, is how much pain the vicious untruths thrown my way caused me and my family.
You spend a whole lifetime building a reputation worthy of your parents. My father finished law in a school in Iloilo, and he passed the bar on the second try. He practiced solo until he had to take a government job for its steady income. This was when my siblings and I were entering high school. My mother was a pharmacist and a college teacher who taught piano in the evenings to supplement her income. They both worked very hard and saved. They borrowed to build a house and paid the debt in twenty years. All of one thousand pesos per year. They never owned a car in their lifetime. They only dreamt to send all of us to UP, which they did.
You also spend a whole lifetime building a reputation worthy of your family. [My wife] and I have raised our three children in the same way our own parents reared us: education is the great equalizer, work hard, and the only legacy we can bequeath them is a good name. We come from humble beginnings. and we live a modest life. Name and reputation are most important for us.
Thus, when my integrity was attacked, I knew I had to fight back, if only to clear my name.
I had a most difficult defense because, first, as a lawyer, I had to keep the confidences of my client, the Republic of the Philippines. Under our code of ethics, we carry the secrets of the client to the grave. These secrets include litigation strategy and tactics. You do not telegraph these to the adversary. That would be treason. Second, I could not even confirm or deny the existence of a leaked memorandun1 purporting to show the judgment calls being debated in the highest levels of the Executive Department of Government. As you can imagine, there are laws and administrative orders prohibiting public officers charged with the custody of confidential and secret documents from revealing their contents.12 My accusers violated these laws with impunity. Criminal wrongdoing was piled upon brazen disregard for the safekeeping of state secrets. Laws were broken when persons who had custody of official documents leaked them to persons not members of the legal team, and when the latter recklessly placed them in the public domain. Read again Jardeleza v. Sereno. Read carefully between the lines.
Fortunately for me, the Supreme Court decided to allow my name to be placed in nomination, and the President appointed me to the Court.
I was so close to professional death, an inglorious end to a career I worked so hard to nurture. It is an experience I would not wish on anybody, not even to those who made those vile accusations against me.x x x x
"Don't back down from the sharks." "Face down the bullies." These are among the life lessons given by Naval Admiral William H. McRaven to the graduates of the University of Texas, in his commencement address last May 2014. According to Admiral McRaven: "There are a lot of sharks in the world. If you hope to complete the swim, you will have to deal with them." You see, part of basic Navy SEAL training involves swimming in the shark infested waters off Clemente Island in San Diego. His advice? When a shark circles your position, you must stand your ground. Do not swim away. If it attacks, you must summon all your strength and punch that shark in the snout.
Admiral McCraven, with the bravado of a true Navy SEAL, assumes that the sharks and bullies will swim away when you punch them. I do not know about that. Sharks and bullies can be mindlessly brutal. And relentless. I cannot guarantee that you will triumph over the bullies and the sharks when they circle you. Like I told you, in my case, I almost perished. To this day, I am still searching for answers as to why that had to be done to me and to my family. I still don't have the answers, but I knew then what I had to do. I stood my ground. I pushed back.
In life, when faced with a shark or a bully, my advice to you: push back. Use all your might, use your UP Law training. Push back for your parents. For yourself. For your spouse. For your children. For your loved ones. For your class. For your block mates.
Class of 2015, as you push back the bully, as you punch the shark, use all your might and pray that you punched hard enough. It worked for me.x x x x
Sec. 5. Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide a matter impartially. Such proceedings include, but are not limited to instances where:
a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
b) The judge previously served as a lawyer or was a material witness in the matter in controversy;
c) The judge, or a member of his or her family, has an economic interest in the outcome of the matter in controversy;
d) The judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in controversy, or a former associate of the judge served as counsel during their association, or the judge or lawyer was a material witness therein;
e) The judge's ruling in a lower court is the subject of review;
f) The judge is related by consanguinity or affinity to a party litigant within the sixth civil degree or to counsel within the fourth civil degree; or
g) The judge knows that his or her spouse or child has a financial interest, as heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceedings.
2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:Rule 137 of the Rules of Court also enumerates grounds for either the disqualification or inhibition of a judge, to wit:
2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
2.5.2 the judge previously served as a lawyer or was a material witness in the matter in controversy; or
2.5.3 the judge or a member of the judge's family, has an economic interest in the outcome of the matter in controversy: Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.
Sec. 1. Disqualification of judges. - No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has been presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.Finally, Rule 8 of A.M. No. 10-4-20-SC, or the Internal Rules of the Supreme Court,18 also provides the following grounds for inhibition:
A judge may in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.17
Sec. 1. Grounds for inhibition. - A Member of the Court shall inhibit himself or herself from participating in the resolution of the case for any of these and similar reasons:In comparison, the applicable United States federal statute on the inhibition of justices and judges, which is broadly governed by Section 455 of the Ethical Standard Act of 1988, provides that:
(a) the Member of the Court was the ponente of the decision or participated in the proceedings in the appellate or trial court;
(b) the Member of the Court was counsel, partner or member of law firm that is or was the counsel in the case subject to Section 3(c) of this rule;
(c) the Member of the Court or his or her spouse, parent or child is pecuniarily interested in the case;
(d) the Member of the Court is related to either party in the case within the sixth degree of consanguinity or affinity, or to an attorney or any member of a law firm who is counsel of record in the case within the fourth degree of consanguinity or affinity;
(e) the Member of the Court was executor, administrator, guardian or trustee in the case; and
(f) the Member of the Court was an official or is the spouse of an official or former official of a government agency or private entity that is a party to the case and the Justice or his or her spouse has reviewed or acted on any matter relating to the case.
A Member of the Court may in the exercise of his or her sound discretion, inhibit himself or herself for a just or valid reason other than any of those mentioned above.
The inhibiting Member must state the precise reason for the inhibition.
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.Relatedly, and upon study of the foregoing rules, there seems to me an established dichotomy between grounds calling for mandatory disqualifications and voluntary inhibitions.
(b) He shall also disqualify himself in the following circumstances:(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:(i) Is a party to the proceeding or an officer, director or trustee of a party;(ii) Is acting as a lawyer in the proceeding;(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;(iv) Is, to the judge's knowledge, likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonabl y capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflects on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him.31In the end, the Court in Pimentel upheld the judge's refusal to inhibit, thus:
As applied here, respondent judge has not as yet crossed the line that divides partiality and impartiality. He has not thus far stepped to one side of the fulcrum. No act or conduct of his would show arbitrariness or prejudice. Therefore, we are not to assume what respondent judge, not otherwise legally disqualified, will do in a case before him.The case of Ong, on the other hand, involved the move for the disqualification of Justice Gregory S. Ong, then an associate justice and chairperson of the Fourth Division of the Sandiganbayan, from presiding over the trial and sitting in judgment in ten consolidated cases against former First Lady Imelda R. Marcos. It was alleged, as grounds for his inhibition, that he made, on separate occasions, remarks that were allegedly prejudicial and revealing of his predisposition to dismiss the cases.32 Justice Ong denied the motion to inhibit him. Upon appeal to the Court, we held that his remark as imputed should have been sufficient ground for Justice Ong to voluntarily inhibit himself, for "judges must be like Caesar's wife - above suspicion." This, despite the pronouncement by the Court in the same decision that two important requirements were not met: first, petitioner was unable to adduce clear and convincing evidence as required, and second, the potentially prejudicial remark, apart from being contested, triggered only voluntary inhibition which, pursuant to other cases that preceded and succeeded it, should have been left to the conclusive assessment of the judge concerned.
In our view, the proper (though unexpressed) rationale for Grinnell, and the basis of the modern "extrajudicial source" doctrine, is not the statutory term "personal" for several reasons. First and foremost, that explanation is simply not the semantic success it pretends tc be. Bias and prejudice seem to us not divided into the "personal" kind, which is offensive, and the official kind, which is perfectly all right. As generally used, these are pejorative terms, describing dispositions that are never appropriate. It is common to speak of "personal bias" or "personal prejudice" without meaning the adjective to do anything except emphasize the idiosyncratic nature of bias and prejudice, and certainly without implying that there is some other "non-personal," benign category of those mental states. In a similar vein, one speaks of an individual's "personal preference," without implying that he could also have a "non-personal preference." Secondly, interpreting the term "personal" to create a complete dichotomy between courtacquired and extrinsically acquired bias produces results so intolerable as to be absurd. Imagine, for example, a lengthy trial in which the presiding judge for the first time learns of an obscure religious sect and acquires a passionate hatred for all its adherents. This would be "official" rather than "personal" bias and would provide no basis for the judge's recusing himself.Stated differently, Liteky drew the narrowly sharp distinction in extrajudicial sources, discriminating against those extrajudicial sources that do not necessarily trigger a question of recusal, and those extrajudicial sources that are wholly pejorative or "wrongful or inappropriate" as to become a valid impetus for disqualification.
It seems to us that the origin of the "extrajudicial source" doctrine, and the key to understanding its flexible scope (or the so-called "exceptions" to it), is simply the pejorative connotation of the words "bias or prejudice." Not all unfavorable disposition towards an individual (or his case) is properly described by those terms. One would not say, for example, that world opinion is biased or prejudiced against Adolf Hitler. The words connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts). The "extrajudicial source" doctrine is one application of this pejorativeness requirement to the terms "bias" and "prejudice" as hey are used in §§ 144 and 455(b)(l) with specific reference to the work of judges.
The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge's task. As Judge Jerome Frank pithily put it: "Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." In re J. P. Linahan, Inc., 138 F.2d 650, 654 (CA2 1943). Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.39
First, under section 455(a), the judge must apply the "objective" standard articulated in Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194. That standard requires recusal if a reasonable third-party observer would perceive that there is a significant risk.. that the judge will be influenced by the threat and resolve the case on a basis other than the merits. The reasonable third-party observer is not a "partly informed man-in-the-street," but rather someone who "understand[s] all the relevant facts" and has examined the record and law. LoCascio v. United States. 473 F.3d 493, 496 (2d Cir.2007); see also Clemens, 428 F.3d at 1178 ("The reasonable person in this context means a wellinformed, thoughtful observer, as opposed to a hypersensitive or unduly suspicious person." (internal quotation marks and citation omitted)); but see In re Nettles, 394 F.3d 1001, 1002 (7th Cir.2005) ("We must bear in mind that these outside observers are less inclined to credit judges' impartiality and mental discipline than the judiciary itself will be." (internal quotation marks and citation omitted)). The "objective" standard is a check to avoid even the "appearance of partiality," Liljeberg, 486 U.S. at 860, 108 S.Ct. 2194, and ensure that the judge's decision is reasonable to an informed observer.44
On the motion to disqualify Justice Kapunan from participating in this case, the Court took note o( the old doctrine that when a Justice of the Court of Appeals or the Supreme Court is challenged "the magistrate sits with the court and the question is decided by it as a body." It will be observed. however, that the basis of the challenge there was that the Justice had previously acted as the fiscal in an earlier proceeding in the case, a ground for compulsory inhibition, and that the matter was dealt with under Article 8 of the Code of Civil Procedure the provisions of which differ from those under the first paragraph of Rule 137 of the Rules of Court.I have compared the above Philippine experience with the practice in the U.S. Supreme Court, which does not have formal rules governing recusal by its Members. In the US, individual Members of the Court have expressed their views on recusal as contained in extended Memoranda explaining their non-recusal in specific cases. Chief Justice John G. Roberts, Jr. has also expressed this view on recusal at the level of the Supreme Court.x x x x
In the present case. the so-called grounds relied upon for the disqualification of Justice Kapunan, i.e., his having served under Atty. Estelito Mendoza when the latter was the Solicitor General, and their having had business relations in connection with the operation of a small restaurant, even if true, could not constitute compulsory grounds for Justice Kapunan's recusation. It is for him alone, therefore, to determine his qualification.59
I think that the policy in favor of the "equal duty" concept is even stronger in the case of a Justice of the Supreme Court of the United States. There is no way of substituting Justices on this Court as on judge may be substituted for another in the district courts. There is no higher court of appeal which may review an equally divided decision of this Court and thereby establish the law for our jurisdiction.In 2000, (at the time, already Chief) Justice Rehnquist was again asked to inhibit from participating, this time in the case of Microsoft v. United States66 on the ground that Microsoft had retained the services of the law finn for which Chief Justice Rehnquist's son was a partner. In a Memorandum explaining his non-recusal, Chief Justice Renhquist said:x x x x
While it can seldom be predicted with confidence at the time that a Justice addresses himself to the issue of disqualification whether or not the Court in a particular case will be closely divided, the disqualification of one Justice of this Court raises the possibility of an affirmance of the judgment below by an equally divided Court. The consequence attending such a result is, of course, that the principle of law presented by the case is left unsettled. The undesirability of such a disposition is obviously not a reason for refusing to disqualify oneself where in fact one deems himself disqualified, but I believe it is a reason for not "bending over backwards" in order to deem one's self disqualified.65
Finally, it is important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our Court. Here-unlike the situation in a District Court or a Court of Appeals-there is no way to replace a recused Justice. Not only is the Court deprived of the participation of one of its nine members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court.In 2004, Justice Scalia refused to inhibit from the case of Cheney v. United States District Court for District of Columbia.67 One of the parties to the case sought to inhibit Justice Scalia because he previously rode on the same government aircraft and joined a duck hunting trip ith Vice President Richard Cheney, a respondent to the case. In his Memorandum explaining his non-recusal, Justice Scalia said:
Let me respond, at the outset, to Sierra Club's suggestion that I should "resolve any doubts in favor of recusal." Motion to Recuse 8. That might be sound advice if I were sitting on a Court of Appeals. But see In re Aguinda, 241 F. 3d 194, 201 (CA2 2000). There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The court proceeds with eight justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. x x x Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.68In more recent high-profile cases, issues of non-recusal were settled with the challenged Justices refusing to recuse without an extended explanation for such choice. This silent non-recusal is perhaps best illustrated by the denial of the motions to disqualify Justices Clarence Thomas and Elena Kagan from participating in the cases posing legal challenges to the constitutionality of the Patient Protection and Affordable Care Act (PPACA) of 201069 of then President Barrack Obama. Justice Thomas's impartiality was questioned by vittue of the fact that his wife, Virginia Thomas, was actively engaged with a conservative policy group that challenged the constitutionality of the Obama health care law.70 and herself a highly visible voice in a nationwide campaign against the Obama administration and its health-care reform law.71 Justice Kagan, for her part, was sought to be disqualified from participating in the case on the ground that she was Solicitor General when the Obama administration was building the defense for the health care law's legality.72 In the end, both Justices Thomas and Kagan refused to recuse from the case, and neither issued a written official explanation for the same.
Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. As in the case of financial reporting and gift requirements, the limits of Congress's power to require recusal have never been tested. The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court. The governing statute, which i s set out in Title 28, Section 455, of the United States Code, states, as a general principle, that a judge shall recuse in any case in which the judge's impartiality might reasonably be questioned. That objective standard focuses the recusal inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and fan1iliar with the relevant facts. Section 455 also identifies a number of more specific circumstances when a judge must recuse. All of the federal courts follow essentially the same process in resolving recusal questions. In the lower courts, individual judges decide for themselves whether recusal is warranted, sometimes in response to a formal written motion from a party, and sometimes at the judge's own initiative. In applying the Section 455 standard, the judge may consult precedent, consider treatises and scholarly publications, and seek advice from other sources, including judicial colleagues and the Judicial Conference's Committee on Codes of Conduct. A trial judge's decision not to recuse is reviewable by a court of appeals, and a court of appeals judge's decision not to recuse is reviewabl e by the Supreme Court. A court normally does not sit in judgment of one of its own members' recusal decision in the course of deciding a case. The process within the Supreme Court is similar. Like lower court judges, the individual Justices decide for themselves whether recusal is warranted under Section 455. They may consider recusal in response to a request from a party in a pending case, or on their own initiative. They may also examine precedent and scholarly publications, seek advice from the Court's Legal Office, consult colleagues, and even seek counsel from the Committee on Codes of Conduct. There is only one major difference in the recusal process: There is no higher court to review a Justice's decision not to recuse in a particular case. This is a consequence of the Constitution's command that there be only one supreme Court. The Justices serve on the Nation's court of last resort. As in the case of the lower courts, the Supreme Court does not sit in judgment of one of its own Members decision whether to recuse in the course of deciding a case. Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate. Although a Justice's process for considering recusal is similar to that of the lower court judges, the Justice must consider an important factor that is not present in the lower courts. Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge's place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingl y cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.73This acknowledgment of a heightened, if not heavier, sense of responsibility when it comes to recusals within its ranks echoes the sentiment earlier articulated by the Court in its 1993 Statement of Recusal Policy regarding cases when a covered relative-lawyer "has participated in the case at an earlier stage of the litigation," or when [he] is "a partner in a finn appearing before [the Court.]" There, the U.S. Supreme Court, in carefully delineating the specific instances wherein recusal by its members on the above grounds wou ld be warranted, explained:
Even one unnecessary recusal impairs the functioning of the Court. x x x In this Court, where the absence of one Justice cannot be made up by another, needless recusal deprives litigants of the nine Justices to which they are entitled, produces the possibility of an even division on the merits of the case, and has a distorting effect upon the certiorari process. requiring the petitioner to obtain (under our current practice) four votes out of eight instead of four votes out of nine. x x x
Endnotes:
1 A PROPER SENSE OF PRIORITIES, February 6, 1968, Washington, D.C. Taken from http://www.aavw.org/special_features/speeches_speech_king04.html, last accessed May 8, 2018.
2See Establishing a Legal Framework for the Development of a Mechanism for the Judicial Responsibility of an Incumbent Supreme Court Justice: Judicial Independence and Judicial Accountability in Light of Recent Jurisprudence and Legal Developments by Maria Luisa Isabel L. Rosales, Ateneo Law Journal, Vol. 56. pp.558-640.
3Ad Cautelam Respectful Motion for Inhibition (Motion), pp. 2-5; emphasis and underscoring retained.
4 Motion, p. 6.
5 Motion. pp. 6-8; emphasis and underscoring retained.
6 Motion, p. 9; emphasis and underscoring retained.
7 G.R. No. 213181, August 19, 2014, J. Leonen's dissent, citing Judicial and Bar Council Supplementary Reply, pp. 1-7, pp. 170-176 of the Records.
8Id.
9Id., more fully, the pertinent portion of the dissent read "She was asked whether the integrity objection would hold considering that there was no proof that the Petitioner obtained money for his actuation in the West Philippine Sea case. She explained her point of view that one's capacity and willingness to uphold the Constitution determines in tegrity. An objection to integrity does not necessarily require proof of unlawful receipt of money in exchange for a decision or an action. She stressed that one does not have integrity when one is not willing to protect the interest of one's client to the utmost, especially in this case when the client happens to be the Republic. She said that through his actuations, Petitioner has demonstrated weakness of character. She inferred that he may have been listening to extraneous factors or may have been promised something. She also said she had seen many instances where national interests had been compromised because of personal agendas. She cited her experiences as the Director of the Institute of International Legal Studies in the University of the Philippines, when she observed the actuations of certain government officials. She saw how the country's ability to protect Scarborough Shoal was compromised by a foreign affairs official in exchange for a possible United Nations position. She also observed how public officials were willing to see the country lose its defense in the two international arbitration cases brought against it by the companies Fraport and Philippine International Air Terminals Co., Inc., all for something other than duty to the Republic."
10 Said final award was issued by the Permanent Court of Arbitration at The Hague on July 12, 2016.
11 See Tarra Quismundo's "Jardeleza lashes out at 2 SC colleagues", Philippine Daily Inquirer, July 1, 2015; "Sereno: It's not helpful to comment on Jardeleza attack", Philippine Daily Inquirer, July 3, 2015.
12 See Memorandum Circular No. 78, Promulgating Rules Governing Security of Classified Matter in Government Offices, August 14, 1964. See also Memorandum Circular No. 196, amending MC No. 78, July 19, 1968; Letter of Inst ruction No. 1420. Prohibiting disclosure to unauthorized persons, the media or general public, top secret, secret, confidential or restricted matters; Executive Order No. 608, Establishing a National Security Clearance System for Government Personnel with Access to Classified Matters and For Other Purposes, March 30, 2007; Republic Act No. 6713, Code of Conduct and Ethical Standards for Public Officials and Employees; Civil Service Commission Resolution No. 1101502, Revised Rules on Administrative Cases in the Civil Service (RRACCS), November 18, 2011.
13 With the full transcript of the Keynote Address attached hereto as "Annex A."
14 In this Memorandum, lead counsel for the Republic, Paul Reichler, argued that ignoring the issue of Itu Aba would damage the Philippines's credibility before the Tribunal and undermine the entire case. Executive Secretary Paquito Ochoa Jr, then Chief Presidential Legal Counsel (now Associate Justice of the Court) Alfredo Benjamin Caguioa, and I, for our part, crafted our own memorandum where we argued that the legal and political risks of "mentioning" Itu Aba were no different from the risks of amending the submission to "include" Itu Aba.
15 As fate and the vagaries of litigation would have it, the Arbitral Tribunal itself later on directed the Philippines to make submissions on the status of more than twenty features in the Spratly Islands, including Itu Aba, and made the determination of their status part of the proceeding.
16 The Bangalore Draft was deliberated upon and approved at the Round Table Meeting of Chief Justices by the Judicial Group on Strengthening Judicial Integrity at the Peace Palace, The Hague, on November 25-26, 2002. For further analysis of the history of the Bangalore draft as the precursor of the Philippine New Code of Judicial Conduct, see Commentary on the Bangalore Principles of Judicial Conduct, by the United Nations Office on Drugs and Crime, September 2007.
17 Rule 137, in turn, had its origins in Section 8 of Act 190, or the 1901 Code of Civil Procedure. In People v. Lopez (G.R. No. L-1243, April 14, 1947), the Court interpreted the determination of the question of a Justice's disqualification and competency under Section 8 of said Act to lie on the Justice's power alone, with the intervention of the Court as merely advisory in nature. Later on, the Supreme Court promulgated the Rules of Court where Rule 126, covering the rule on disqualification of judges, which appears to have merely reproduced Section 8 and Section 608 of the Code of Civil Procedure (Vargas v. Rilloraza, G.R. No. L-1612, February 26, 1948; People v. Lopez, G.R. No. L-1243, April 14, 1947).
18 Published on May 7, 2010 in the Manila Bulletin; as amended in the Resolutions dated July 6, 2010, August 3, 2010, January 17, 2012, July 31, 2012, September 18, 2012, March 12, 2013, June 18, 2013 and September 10, 2013.
19Santos v. Lacurom, A.M. No. RTJ-04-1823 (Resolution), August 28, 2006, 531 PHIL 239-253; Ong v. Spouses Basco, G.R. No. 167899, August 6, 2008, 583 PHIL 248-256); Chin v. Court of Appeals, G.R. No. 144618, August 15, 2003, 409 SCRA 206, 212.
20 There have been a few cases wherein the Court has seen fit to intervene effectively reverse the Justice's offer/decision on the question of recusal (See People v. Ong, G.R. Nos. 162130-39, May 5, 2006, and Veterans Federation Party v. COMELEC, G.R. Nos. 136781, 136786 and 136795, October 6, 2000).
21 See Pimentel v. Salanga, G.R. No. 27934, September 18, 1967, 21 SCRA 160; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-160; Saylo v. Rojo, A.M. No. MTJ-99-1225, April 12, 2000, 386 PHIL 446-452; Soriano v. Angeles, G.R. No. 109920, August 31, 2000, 393 PHIL 769-784; Gohu v. Spouses Gohu, G.R. No. 128230, October 13, 2000, 397 PHIL 126-136; Gochan v. Gochan, G.R. No. 143089, February 27, 2003, 446 PHIL 433-461; Talag v. Reyes, A.M. No. RTJ-04-1852, OCA-IPI No. 03-1759-RTJ, June 3, 2004, 474 PHIL 481-491; Planas v. Reyes, A.M. No. RTJ-05-1905, OCA-IPI No. 03-1712-RTJ, February 23, 2005, 492 PHIL 288-302; Republic v. Evangelista, G.R. No. 156015, August 11, 2005, 504 PHIL 115-125.
22 See People v. Kho; Go v. Court of Appeals, G.R. No. 106087, April 7, 1993, 221 SCRA 397; Abad v. Belen, A.M. No. RTJ-92-813, January 30, 1995, 240 SCRA 733; People v. Tabarno, G.R. No. 101338, March 20, 1995, 242 SCRA 456; People v. Court of Appeals and Pacificador, G.R. No. 129120, July 2, 1999, 309 SCRA 705; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-160; Gohu v. Spouses Gohu, G.R. No. 128230, October 13, 2000, 397 PHIL 126-136; Pagoda Philippines, Inc. v. Universal Canning, Inc., G.R. No. 160966, October 11, 2005, 509 PHIL 339-347; Spouses Abrajano v. Heirs of Salas, Jr., G.R. No. 158895, February 16, 2006, 517 PHIL 663-676; Kilosbayan Foundation v. Janolo, Jr., G.R. No. 180543, July 27, 2010, 640 PHIL 33-61; Aguinaldo v. Aquino III, G.R. No. 224302, February 21, 2017.
23Supra note 20; See also Aleria v. Velez, G.R. No. 127400, November 16, 1998; Gahol v. Riodique, G.R. No. L-40415, June 27, 1975, 65 SCRA 505; Dimo Realty & Development Inc. v. Dimaculangan, G.R. No. 130991, March 11, 2004; Castillo v. Juan, G.R. Nos. 1-39516-17, January 28, 1975, 159 PHIL 143-149; Cruz v. Iturralde, A.M. No. RTJ-03-1775, April 30, 2003. 450 PHIL 77-88; Dimo Realty and Development Inc. v. Dimaculangan, G.R. No. 130991, March 11, 2004, 469 PHIL 373-385; Planas v. Reyes, A.M. No. RTJ-05-1905, OCA-IPI No. 03-1712-RTJ, February 23, 2005, 492 PHIL 288-302; Spouses Abrajano v. Heirs of Salas, Jr., G.R. No. 158895, February 16, 2006, 517 PHIL 663-676; Villamar, Jr. v. Manalastas, G.R. No. 171247, July 22, 2015; Castro v. Mangrobang, A.M. No. RTJ-16-2455, Resolution, April 11, 2016.
24Supra note 20 and 21; Webb v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243, 253-254, citing People v. Massarella, 400 N.E. 2d, 436; Aleria, Jr. v. Velez, G.R. No. 127400, November 16, 1998, 359 PHIL 141-150; People v. Court of Appeals, G.R. No. 129120, July 2, 1999, 369 PHIL 150-160; De Vera v. Dames II, A.M. No. RTJ-99-1455, July 13, 1999, 369 PHIL 470-486; Seveses v. Court of Appeals, G.R. No. 102675, October 13, 1999, 375 PHIL 64-74; Viewmaster Construction Corp. v. Roxas, G.R. No. 133576, July 13, 2000, 390 PHIL 872-884; Soriano v. Angeles, G.R. No. 109920, August 31, 2000, 393 PHIL 769-784; Estrada v. Desierto, G.R. Nos. 146710-15, 146738, March 2, 2001, 406 PHIL 1-142; Gochan v. Gochan, G.R. No. 143089, February 27, 2003, 446 PHIL 433-461; Cruz v. Iturralde, A.M. No. RTJ-03-1775, April 30, 2003, 450 PHIL 77-88; Chin v. Court of Appeals, G.R. No. 144618, August 15, 2003, 456 PHIL 440-453; Spouses Hizon v. Spouses Mangahas, G.R. No. 152328, March 23, 2004, 469 PHIL 1076-1076; Tan v. Estoconing, A.M. Nos. MTJ-04-1554 & MTJ-04-1562, June 29, 2005, 500 PHIL 392-407; Republic v. Evangelista, G.R. No. 156015, August 11, 2005, 504 PHIL 115-125; Republic v. Gingoyon, G.R. No. 166429, December 19, 2005, 514 PHIL 657-782; Spouses Duma v. Espinas, G.R. No. 141962, January 25, 2006, 515 PHIL 685-701; Deutsche Bank Manila v. Spouses Chua Yok See, G.R. No. 165606, February 6, 2006. 517 PHIL 212-235; People v. Ong, G.R. Nos. 162130-39, May 5, 2006, 523 PHIL 347-359; Pasricha v. Don Luis Dison Realty, Inc., G.R. No. 136409, March 14, 2008, 572 PHIL 52-71; Reyes v. Paderanga, A.M. No. RTJ-06-1973, March 14, 2008, 572 PHIL 27-44; Heirs of Juaban v. Bancale, G.R. No. 156011, July 3, 2008, 579 PHIL 285-297; Law Firm of Tungol & Tibayan v. Court of Appeals, G.R. No. 169298, July 9, 2008. 579 PHIL 717-730; Ong v. Spouses Basco, G.R. No. 167899, August 6, 2008, 583 PHIL 248-256; Dipatuan v. Mangotara, A.M. No. RTJ-09-2190, April 23, 2010, 633 PHIL 67-79; Kilosbayan Foundation v. Janolo, Jr., G.R. No. 180543, July 27, 2010, 640 PHIL 33-61; City Government of Butuan v. Consolidated Broadcasting System, Inc., G.R. No. 157315, December 1, 2010, 651 PHIL 37-56; Melendres v. Presidential Anti Graft Commission, G.R. No. 163859, August 15, 2012, 692 PHIL 546-565; Sison-Barias v. Rubia, A.M. No. RTJ-14-2388, June 10, 2014, 736 PHIL 81-123; Jimenez, Jr. v. People, G.R. Nos. 209195, 209215, September 17, 2014; Umali, Jr. v. Hernandez, IPI No. 15-35-SB-J, February 23, 2016; Aranjuez v. Magno, A.C. No. 10526, July 19, 2017.
25Gacayan v. Pamintuan, A.M. No. RTJ-99-1483, September 17, 1999, 314 SCRA 682; Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-59, March 31, 1973, 151-A PHIL 21-34; Bautista v. Rebueno, G.R. No. L-46117, February 22, 1978, 171 PHIL 472-480; Paderanga v. Azura, G.R. No. L-69640-45, April 30, 1985, 220 PHIL 644-647; Intestate Estate of the Late Borromeo v. Borromeo, G.R. No. L-41171, L-55000. L-62895, L-63818, L-65995, July 23, 1987, 236 PHIL 184-212; Gutang v. Court of Appeals, G.R. No. 124760, July 8, 1998, 354 PHIL 77-90; Garcia v. Burgos, G.R. No. 124130, June 29, 1998, 353 PHIL 740-775; Republic v. Gingoyon, G.R. No. 166429, December 19, 2005, 514 PHIL 657-782; Castro v. Mangrobang, A.M. No. RTJ-16-2455, April 11, 2016.
26 See People v. Ong and Webb v. People; People v. Kho, G.R. No. 139381, April 20, 2001, 409 PHIL 326-337; Chin v. Court of Appeals, G.R. No. 144618, August 15, 2003, 456 PHIL 440-453; Pagoda Philippines, Inc. v. Universal Canning, Inc., G.R. No. 160966, October 11, 2005, 509 PHIL 339-347.
27People v. Ong, supra note 19; Palang v. Zosa, G.R. No. L-38229, August 30, 1974, 157 PHIL 761-764; Villapando v. Quitain, G.R. No. L-41333, L-41738, L-41739, L-41740, L-41741, January 20, 1977, 166 PHIL 26-33; Bautista v. Rebueno, G.R. No. L-46117, February 22, 1978, 171 PHIL 472-480; Rosauro v. Villanueva, Jr., A.M. No. RTJ-99-1433, June 26, 2000, 389 PHIL 699-707.
28Supra note 20; Aguas v. Court of Appeals, G.R. No. 1 20107, January 20, 1998, 348 PHIL 417-427; People v. Ong, G.R. Nos. 162130-39, May 5, 2006, 523 PHIL 347-359; Calayag v. Sulpicio Lines, Inc., G.R. No. 221864, September 14, 2016.
29Supra note 21.
30Supra note 20.
31 Emphasis supplied.
32Supra note 20.
33 After the 1974 amendment.
34 James Sample, Supreme Court Recusal from Marbury to the Modern Day, 26 Geo. J. Legal Ethics 95 (2013); citing Debra Lyn Bassett, Judicial Disqualification in the Federal Courts, 87 Iowa L. Rev. 1213, 1225 (2002) at 603.
35 510 U.S. 540 (1994).
36Id. at 550.
37 "For example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concern ing the defendant's prior criminal activities."
38 "For example, a criminal juror who is so inflamed by properly admitted evidence of defendant's prior criminal activities that he will vote guilty regardless of the facts."
39Supra note 34, pp. 549-551. See also Shawn P. Flaherty, Liteky v. United States: The Entrenchment of an Extrajudicial Source Factor in the Recusal of federal Judges under 28 U.S.C. 455 (a). 15 N. III. U. L. Rev. 411 (1995); Jeremy S. Brumbelow, Liteky v. United States: The Extrajudicial Source Doctrine and Its Implications for Judicial Disqualification, 48 Ark. L. Rev. 1059 (1995).
40 Nos. 00-139 and 00-261. Decided September 26, 2000; In this case, Justice William Rehnquist's inhibition was being sought by virtue of the fact that Microsoft retained the services of the law firm for which Justice Rehnquist's son was a partner. In refusing to inhibit himself despite imputations of actual and apparent bias, Rehnquist opined that for a reasonable observation to be one that determines his recusal, such observation must be informed of all the facts and circumstances of the imputed bias, otherwise, such misappreciation of the facts cannot hold sway. Rehnquist additionally noted the negative impact of the unnecessary disqualification of even one irreplaceable Justice may have on the Supreme Court.
41Id.
42 No. 03-475. Decided March 18, 2004; Justice Scalia was being asked to inhibit by virtue of one duck hunting trip during which he rode the same government aircraft with then Vice Present Richard Cheney. Scalia rejected the suggestion of recusal by pounding on the misperception of the public through the pervasive inaccuracies of facts as told by the media, echoing Rehnquist in saying that a "blast of largely inaccurate and uninformed opinion cannot determine the recusal question". He cautioned against the danger of erroneously considering just any perception of bias, even an unapprised one, as reasonble perception of bias that calls for recusal.
43 519 F.3d 909, 914 (2007).
44Id. Emphasis supplied. See Joey Kavanagh, "Judicial Impartiality in Recent Civil Rights Victories: An Analysis of the Disqualification of Judge Shira Scheindlin in Floyd v. New York City," American University Journal of Gender Social Policy and Law 23, No. 1 (2014); 197-229.
45Gutierrez v. Santos, L-15824, May 30, 1961, 2 SCRA 249.
46 G.R. Nos. L-34756-59, March 31, 1973, 50 SCRA 18.
47Id. at 24.
48Id. at 28.
49 556 U.S. 886 (2009).
50 273 U.S. 510 (1927).
51 349 U.S. 133 (1955).
52Id. at 136.
53 556 U.S. 886 (2009).
54 See sharp dissent from Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, criticizing the "probability of bias" analysis used by the Court. "Until today, we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge: when the judge has a financial interest in the outcome of the case, land when the judge is trying a defendant for certain criminal contempts. Vaguer notions of bias or the appearance of bias were never a basis for disqualification, either at common law or under our constitutional precedents. Those issues were instead addressed by legislation or court rules." See also Lynne H. Rambo, High Court Pretense, Lower Court Candor: Judicial Impartiality after Caperton v. Massey Coal Co., 13 Cardozo Pub. L. Pol'y & Ethics J. 441 (2015); Raymond J. McKoski, Judicial Disqualification after Caperton v. A.T. Massey Coal Company: What's Due Process Got to Do With It, 63 Baylor L. Rev. 368 (2011).
55 G.R. No. L-146710-15; G.R. No. 146738, March 2, 2001.
56Supra note 20.
57 Chief Justice Panganiban would go on to write the opinion for the Court in this case.
58 G.R. No. 119322, February 6, 1997.
59Id.
60Memorandum of Mr. Justice Rehnquist, October 10, 1972, 409 U.S. 824-25.
61 Jeffrey W. Stempel, Rehnquist, Recusal and Reform, 53 Brook.L.Rev., 589, 602 (1987).
62 Robert Nagel, Partiality and Disclosure in the Supreme Court Opinions, 7 Nw.J.L. & Soc. Pol'y.116 (2012).
63Supra note 34; Before its amendment two years after Laird, the disqualification statute required only that a justice disqual ify himself when "he has a substa ntial interest, has been of counsel, is or has been a material witness, or is so related ... as to render it improper, in his opinion, for him to sit..."
64Supra note 60; citing Edwards v. United States, 334 F.2d 360, 362 (CA5 1964); Tynan v. United States, 1 26 U.S.App.D.C. 206, 376 F.2d. 761(1967); In re Union Leader Corporation, 292 F.2d 381 (CAl 1961); iWolfson v. Palmieri 396 F.2d 121 (CA2 1968); Simmons v. United States, 302 F 2d. 71 (CA3 1962); United States v. Hoffa, 382 F.2d 856 (CA6 1967); Tucker v. Tucker, 186 F.2d 79 (CA7 1950); Walker v. Bishop, 408 2d 1378 (CA 1969).
65Id.
66Supra note 41.
67Supra note 42.
68Id. See also Monroe H. Freedman, Duck-Blind Justice: Justice Scalia's Memorandum in the Cheney Case, 18 Geo. J. Legal Ethics 229 (2004); David Feldman, Duck Hunting, Deliberating, and Disqualification: Cheney v. U.S. District Court and the Flaws of 28 U.S.C. Sec 455(A), 15 B.U. Pub. Int. L.J. 319 (2006); Luke Mcfarland, Is Anyone Listening - The Duty to Sit Still Matters Because the Justices Say it Does, 24 Geo. J. Legal Ethics 677 (2011).
69Florida ex ref. Att'y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1241 (11th Cir. 2011), cert. granted sub nom. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 603(2011), cert. granted, 132 S. Ct. 604 (2011), and cert. granted in part, 132 S. Ct. 604 (2011).
70 Carrie Johnson, Health Care Rulings Reignite Judicial Bias Debate, NPR. December 16, 2010.
71 Jeffrey Toobin, Partners; Will Clarence and Virginia Thomas Succeed in Killing Obama's Health-Care Plan? The New Yorker, August 29, 2011, at p. 40.
72 Robert Barnes, Recusals Could Force Newest Justice to Miss Many Cases, Washington Post, October 4, 2010 at A15; further stating "Elena Kagan begins hearing cases as the Supreme Court's 112th Justice Monday morning. But anyone who wants to see her in action needs to be sharp. x x x Her chair will be empty when the Court returns next Tuesday and she'll put in a half-day the next day. Kagan's old job as solicitor general - the "tenth justice" - is initiall y making it hard to do her new job as the ninth justice"; See Suzanne Levy, Your Honor, Please Ex plain: Why Congress Can, and Should, Require Justices to Publish Reasons for Their Recusal Decisions, 16 U. Pa. J. Const. L. 1161 (2014).
73 Published on December 31, 2011; James Sample, Supreme Court Recusal from Marbury to the Modern Day, 26 Geo. 1. Legal Ethics 95 (2013).
74 As Lincoln Caplan, in "The Tenth Justice" (1987) posited, since the mea ning of the Constitution is neither fixed nor self-explanatory, it has been vital that legal reasoning be marked by its own integrity.
75 Supra note 20.
76 U.S. Supreme Court Statement of Recusal Policy. See also Jurado & Co. v. Hongkong and Shanghai Banking Corporation (G.R. No. L-1061, October 10, 1902) where the Court rejected a construction which would allow questions of inhibitions of its members to be decided by it, to the exclusion of the challenged member/s, as it would "put it in the power of a party to stop all proceedings in the cause by challenging [a sufficient number] of the justices."
77 Supra note 7, in the Judicial and Bar Council Supplementary Reply, pp. 14-17, pp. 183-186 of the Records.
78Id. at 17-18, 186-187 of the Records.
79 See Gutang v. Court Appeals, G .R. No. 124760, July 8, 1998; Orola v. Alovera, G.R. No. 111074, July 14, 2000; Luque v. Kayanan, G.R. No. L-26826, August 29, 1969.
80 Supra note 74.
81 Saint Thomas Aquinas, III Quodlibet, p. 27.
82 St. Thomas More's Letter to His Daughter Margaret, 17 April 1534. St. Thomas More: Selected Letters, Ed. Elizabeth Rogers, Yale University Press, 1961 , Letter #54, pp. 215-223. Taken from https://www.thomasmorestudies.org/docs/More%20to%20Margaret%2017%20Apr%201534.pdf, last accessed May 9, 2018.
Endnotes:
1 Former Solicitor General (2012-2014) and Agent for the Republic of the Philippines.
2 Later expanded to include Ayungin Shoal.
3 Memorandum dated November 26, 2013.
4 According to Reichler, et al., in such case, the respective entitlements of Itu Aba and Pagasa would overlap "in such a fashion that a putative median line delimiting the boundary between them would cut off the reach of Itu Aba well short of Reed Bank." (Memorandum dated November 26, 2013, p. 3.)
5 Dated March 19, 2014.
6 Dated March 24, 2014