Naming the ponente: Undermining the SC and elections
JEERS TO several media organizations for identifying the supposed ponente of the decision on the disqualification case against Senator Grace Poe pending before the Supreme Court (SC).
The Manila Bulletin, The Manila Times, Interaksyon.com, and GMA News Online reported that Supreme Court Associate Justice Mario Victor Leonen had been chosen as the ponente who will draft the majority ruling on the petition against Senator Poe’s presidential candidacy. Both the Bulletin and Interaksyon republished the original article from the Philippine News Agency, while GMA News Online and Manila Times said sources had disclosed this information. The case reportedly went to Leonen after a raffle last December 10.
The Bulletin and Interaksyon reports also said “Leonen, being the justice ponente, is very crucial in the case of Poe, since he will be tasked to make a study and write the recommendation and draft the majority decision in the case.”
The Manila Times report, in particular, mentioned this information: “A Times source said the naming of Justice Leonen as the ponente in Poe’s disqualification case is very crucial. The source claimed Leonen and Poe knew each other and were photographed together during a meeting of the Philippine Women Judges Association (PWJA) in Tagaytay City. The senator was the affair’s guest of honor.”
The Manila Times report also mentioned an SC source as claiming that Leonen was very vocal about his dislike for Manuel “Mar” Roxas II, the standard bearer of Liberal Party.
The term ponente can only be used when the members of the Supreme Court have voted on and promulgated the decision. Until then, a justice is assigned as “member in charge,” tasked only to study the case and draft a position. While the name of the ponente is not kept from the public, the identity of the member-in-charge remains confidential. SC spokesman Ted Te, in a personal post on Facebook, explains:
“The identity of the ponente is not secret because it is revealed when the Decision is promulgated (except if it is written per curiam according to the Court’s Internal Rules in exceedingly few instances).
The identity of the Member in Charge however is secret and for good reason. That confidentiality is the ultimate protection and insulation of the Justice designated to do a preliminary study of the case, distill the issues, prepare and submit a preliminary draft of a decision or a bare bones discussion of how to proceed from pressures that may come from: (a) very “legally interested” party litigants, (b) a curious public, or (c) a hyperactive, mega-loud but largely unregulated social media. That confidentiality is what also prevents parties from “gaming” the system, i.e., bringing out certain “issues” that may be largely irrelevant to the essential neutrality or impartiality of a Justice but perceived to be the contrary by the public, the traditional or social media, and then “forcing” a Justice or Justices to “recuse” themselves. That confidentiality allows the Court to act collegially, i.e, as an en banc, and not just one Justice; what many perhaps fail to perceive is that all 15 Justices have the same vote–one–and each vote is given the same weight as any other–it depends on how persuasive the reasoning is. The confidentiality of the identity of the Member in Charge, and with it the Agenda items and the deliberations of the Supreme Court, are necessary because this allows for greater flexibility in thinking and greater imagination in formulation of legal theory; and because, until a draft is not final until it has been voted upon, signed and promulgated, the identity of the ponente may not necessarily be the identity of the Member in Charge as this may change if the draft ponencia is not the one which wins the vote.”
As stated in Rule 2, Section 6 of the Internal Rules of the Supreme Court (Resolutions of motions for reconsideration or clarification of an unsigned resolution or a minute resolution and all other motions and incidents subsequently filed), “The ponente is the Member to whom the Court, after its deliberation on the merits of a case, assigns the writing of its decision or resolution in the case. “
The four media outlets, therefore, erred in disclosing that Leonen is the ponente. Imputing to Leonen a possible partiality to Poe, as the Manila Times did, because of his supposed dislike for Roxas is precisely the kind of predicament such disclosure creates, with or without basis. This practice is particularly insidious during elections, when vested interests are at play and when candidates seek to undermine each other. This imperils not only institutions such as the SC and the individuals within but also the election as a democratic exercise.
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