Can the mindset of a solicitor general, who defends government, change once he or she gets to the Supreme Court where independence is a prized value?

In the public interview with the Judicial and Bar Council, which vets nominees to the judiciary, Devanadera was asked this by someone who also came from the Office of the Solicitor General—Chief Justice Reynato Puno.

Devanadera was quick to respond that in one of the major cases she handled as a solicitor general, she has taken a position against one of the groups she was affiliated with as a public official. She argued against the League of Cities of the Philippines in a lawsuit questioning the constitutionality of cityhood laws in 2008.

As solicitor general, Devanadera “is very strict,” assistant solicitor general Rolando Faller told us. “She is strict in the sense that she will stick to a decision concerning a policy decision no matter what,” he explained.

A good example of this is the petition questioning the constitutionality of the Memorandum of Agreement on Ancestral Domain, he said. Local officials plus Senators Franklin Drilon and Manuel ‘Mar’ Roxas asked the Court to nullify the MOA, which would have led to the creation of the Bangsamoro Juridical Entity (BJE).

The BJE, which will cover the original territory of the Autonomous Region of Muslim Mindanao, will also include at least 8 barangays in Zamboanga City—Zone III, Zone IV, Busay, Landang Gua, Landang Laum, Manalipa, Pasilmanta and Tigtabon—and around 700 more other barangays from North Cotabato, Basilan and Palawan. It will have its own judiciary and police force and can also establish trade relations with other countries.

The position of Malacañang was not to sign the peace accord amid threats of violent retaliation from so-called MILF renegades.

Devanadera defended this stance in a grueling court battle, faced with the equally unwavering sentiment from the Office of the Presidential Adviser on the Peace Process (OPAP) that the deal was legal and should be finalized.

“The president’s position is that she will not sign it in any form. This was articulated by the OSG even if the OPAP wanted to have it signed,” Faller pointed out.

The SC, in a vote of 8-7, later declared the MOA-AD unconstitutional.

Pres. Arroyo praised Devanadera for her work on the MOA-AD. In the 107th  celebration anniversary of the OSG last year, Arroyo said that the government counsel  “contributed to delivering an environment of peace by her clarification of the MOA-AD in Mindanao.”

Aside from MOA-AD, one of the most important victories which Devanadera clinched  for the government spelt out the future of its stake in the operation of the $350-million  Ninoy Aquino International Airport Terminal III.

Important cases

In 2007, the International Centre for Settlement of Investment Disputes ruled that German airlines Fraport AG violated Philippine laws. Fraport AG’s consortium with the Philippine International Airport Terminals Corp.  allowed foreign ownership beyond 40 percent.

PIATCO and Fraport formed the consortium to operate NAIA terminal III.

Devanadera described ICSID’s decision as “not just a victory of an airport. It is a victory of a sovereign state, of a Philippine government, a Philippine institution that was maligned, accused of being corrupt."

The Philippines was then reeling from accusations that Department of Transportation and Communications Sec. Pantaleon Alvarez accepted kickbacks from PIATCO in exchange for additional concessions in the NAIA Terminal III contract.

After the PIATCO fiasco, Devanadera would again help the government have its graceful exit from another contentious project, its $329-million National Broadband Network deal with Chinese corporation Zhong Xing Telecommunication Equipment Company Limited.

The project was alleged to be overpriced by $130 million because of commissions supposedly to be given to then Comelec chair Benjamin Abalos and First Gentleman Miguel ‘Mike’ Arroyo.

Devanadera asked the SC to dismiss the petition filed by Iloilo Rep. Rolex Suplico, which sought to have the contract nullified. In the motion, Devanadera argued that Pres. Arroyo has already cancelled the project, rendering Suplico’s motion moot and academic.

The SC, in a vote of 9-6, threw out the petition.

Arroyo also lauded the OSG’s victory in the writ of amparo cases. The OSG defended the military against allegations of abducting suspected members of the New People’s Army (NPA).

Facing insurgency is not new for Devanadera, because Sampaloc, Quezon, which she headed as a mayor in the ‘90s, is an “NPA’s lair.”  As a mayor then, however, Devanadera said that she would troop to the mountains and reach out to the NPA members. This time around, her office defends the forces who hunt them down.

One of the writ of amparo cases that the OSG won was an offshoot of the anomalous NBN-ZTE deal. Rodolfo ‘Jun’ Lozada, who blew the whistle on the project’s padded price, lost in his petition for the writ of amparo after he failed to prove that he was kidnapped by state agents.

While she pushed for the president’s position, Devanadera however deviated from the government’s call to have the three big oil companies Petron, Shell and Caltex audited.

She argued before a regional trial court that neither one of the Commission on Audit, Bureau of Customs and Bureau of Internal Revenue has the authority to review the books of the private companies.

This caught the ire of Palace Press Secretary Cerge Remonde, who asked her to explain. But the Palace later changed its mind. Deputy presidential spokesperson on economic affairs Gary Olivar said that they “accept” Devanadera’s stand.

Conflict of interest?

Devanadera’s scope of power extended to appointments when she was delegated as acting justice secretary last year. She appointed people to the board of the Philippine Communication Satellite Corporation.

This got her in hot water, though because she allegedly replaced Pres. Arroyo’s appointees with Lakas allies such as Ramon “RJ” Jacinto.

Now that she has officially taken over the post left by Gonzalez, she sits as a JBC member – while she herself is an aspirant to High Tribunal. While she could not place people in the SC, she could recommend them to Arroyo.

Hence, the one being judged is also the judge.

Devanadera does not see any conflict of interest with this, however. The solution for her was pretty simple: if the SC deliberations concern her contention for the SC, she would inhibit from them.

True enough, she was not around during the public interview with the other contenders for the seat vacated by Justice Consuelo Ynares-Santiago on October 5. “Out of delicadeza,” Justice Regino Hermosisima, executive chair of the JBC, told us.

“In fairness to her, she did not vote the last time,” Sen. Francis Escudero said, pertaining to the JBC’s nomination for the replacement of Justices Alicia Austria-Martinez and Dante Tinga, who hung their robes on April 30 and May 11, respectively. She did vote, however for the contenders to be included in the shortlist for the position vacated by Justice Consuelo Ynares-Santiago.

Escudero was vocal that Devanadera has to choose between the two positions – stay as DOJ chief but drop her bid for the SC or the other way around – but the body on its own seemed to have no stand on the issue.

This is not the first time that the JBC had failed to clear the air on an issue pivotal to the selection of nominees, however.

Pending cases

Like clockwork, the JBC again included Devanadera in the list of contenders for the Supreme Court after disqualifying her for the second time in a row this year.

She was first dropped from the list for the first SC vacancy in 2009, a post left open by the retirement of Justice Ruben Reyes on January 2, because she has pending cases at the Office of the Ombudsman.

Then from out of the blue, she received two votes for the replacement of Justice Adolfo Azcuna, who hung his robe on February 16.

She was, however, disqualified for the race to fill up the two seats vacated by Austria-Martinez and Tinga. But she was again considered for the position of Justice Ynares-Santiago, who retired on October 5.

She withdrew her application for the replacement of Ynares-Santiago, however, following the non-resolution of these cases.

The JBC  has a rule addressing this matter: Rule 4 Sec. 5 of the JBC rules specifies that those with pending criminal or regular administrative cases are “disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman.”

But Escudero admitted that the rule is replete with loopholes. He said that the JBC should define what stage in the “pendency” of cases should the candidate be disqualified.

“Is it after he [candidate] was asked to file a reply on the charges, or right after the case was filed?” he told Newsbreak in an earlier interview.

The stance of the JBC on the matter has left SC observers scratching their heads. “The rule is fair,” Lazatin said, “because everybody is innocent until proven guilty. But they should at least clarify what status of the case should merit a disqualification.”

But Hermosisima, in a prior interview, said that the rule’s language is clear. “If you have pending cases, you are disqualified immediately,” he asserted.

The JBC’s recent actions showed otherwise, however.

Devanadera’s last removal from the contenders’ list was cloaked in controversy. The JBC deferred their voting for a week to give the Office of the Ombudsman more time to act on the cases – 17 in all – against her.  

One of these cases is a plunder suit filed by Ilocos Gov. Luis “Chavit” Singson. Singson cited Devanadera in his complaint for her failure to nullify the Poro Point development contract between Bases Conversion Development Authority, Bulk Handlers Inc. and Poro Poro Point Industrial Corp.

She was eventually dropped from the list of respondents, but there were the 16 other complaints filed against her.

Devanadera told the Asian Journal that being disqualified due to pending cases is to a point, unfair; after all, public officials are slapped with lawsuits all the time.

Faller agreed. He said that cases, in general, could be used to harass people in power.

But Lazatin maintained that the JBC needs to put its foot down on this issue. Aside from Devanadera, other high-profile contenders to the High Court have also been eliminated from the race – but were reconsidered again – even if they face formal charges. These include former BIR Commissioner Jose Mario Buñag and former Energy Secretary Raphael ‘Popo’ Lotilla.

While the JBC has yet to clarify its stand on the matter, it was able to act immediately on a similar concern, however. Early this year, it relaxed its age requirement so that candidates older than 65 could be considered for the judiciary, paving the way for real estate businessman Rodolfo Robles – who was 65 years and 4 months old when he applied for the SC – to be accepted as an aspirant. Robles is a family friend of the Arroyos.

GMA defender

Whether she makes it or not, however, Devanadera’s application to the SC has mirrored the interplay of power and politics between two otherwise independent institutions.

The recent controversy which rocked the JBC further illustrates this.

Executive Secretary Eduardo Ermita returned the JBC shortlist on July 27, and requested for more nominees, saying that “The president cannot be too careful about the selection and appointment of justices to the SC.”

Out of eight members, seven signed the JBC resolution which nixed Malacanang’s demand; Devanadera was not one of them.

Devanadera was not able to meet with JBC then; she was part of Arroyo’s entourage to the US who had the controversial P1 million-dinner in Le Cirque in New York.

When she returned, she defended Arroyo from the criticisms over the dinner, and said that spending such amount of possible public funds is not an impeachable offense.