MANILA - By rejecting the shortlist submitted by the Judicial and Bar Council (JBC), President Arroyo has waived her right to appoint the replacements for retired Supreme Court jurists Alicia Austria-Martinez and Dante Tinga, according to Philippine legal experts.

The burden of filling the two vacancies now falls on the shoulders of the next president, they added.

One of the signatories to the letter, UP College of Law Dean Marvic Leonen, told Abs-cbnnews.com/Newsbreak the letter was sent to the JBC on Friday.

Aside from Leonen, Bantay Katarungan chair Jovito Salonga, Sen. Franciso “Kiko” Pangilinan and UP Women Lawyers Circle president Katrina Legarda also believe that by returning the shortlist to the JBC, the president has, in effect, already abandoned her prerogative to make new appointments to the SC.

“She cannot now make any appointments since she has returned the list of nominees to the Judicial and Bar Council. There is nothing in the Constitution that prevents an incumbent President from making this decision for her own political reasons. Thus, in our view, these two vacancies may therefore be filled by the next President based on a list to be transmitted by the Judicial and Bar Council after June 30, 2010,” they said.

Abs-cbnnews.com/Newsbreak reported on Monday that Executive Secretary Eduardo Ermita returned the shortlist submitted by the JBC for the posts vacated by Austria-Martinez and Tinga on April 30 and May 11, respectively.

Leonen said the letter is a first step in their attempt to discourage the JBC from modifying its nominees. If necessary, he said they would to go the courts to keep Malacañang at bay.

Unconstitutional

They also said that rebuffing the original choices of the JBC is tantamount to a violation of Article VIII, Sec. of the 1987 Constitution, which states that “the Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.”

Only the JBC has the authority to field contenders for the SC, with the president mandated to pick a magistrate from among its nominees.

“The President cannot go beyond the list. She cannot certainly request, directly or indirectly, the JBC to alter, amend, modify or expand the list of nominees,” they lawyers said.

For the two vacancies, the JBC originally vetted University of Santo Tomas (UST) law dean Roberto Abad, Court of Appeals Justices Martin Villarama, Mariano del Castillo and Hakim Abdulwahid, Sandiganbayan Justice Francisco Villaruz, and real estate businessman Rodolfo Robles for the SC seats last June 23.

Leonen and the others argued that the Office of the President overstepped its bounds when it asked the JBC to insert more nominees. Citing the SC decision in Angara v. Electoral Commission, they explained that the president and the JBC are bound to observe the doctrine of separation of powers.     

Dangerous to SC

The JBC will take up Arroyo’s request in an en banc meeting on August 3. Leonen et. al. warned that if the body caves in to the wishes of the chief executive, it will imperil the independence of the judiciary.

Aspirants to the judiciary would adopt the notion that “loyalty to the president” is more important than competence and credibility. This would, in turn, damage the credibility of the SC.

“It will impair the integrity of the judiciary,” Leonen said.

The president’s decision to return the shortlist speaks volumes of President Arroyo's transactional politics. The lawers said there can only be two reasons why she has asked for more nominees: she either disagrees with the judicial philosophy of the six nominees, or “at worse, her chosen candidate is not in the list.”

“We hope that the JBC would be able to assert their constitutionally-mandated function despite strong political pressures,” they said.

Failure of institutions

SC watchdogs Supreme Court Appointments Watch, Bantay Korte Suprema, and the Citizen’s Search Committee also prodded the JBC to stick to its mandate as an independent body.

Vacillating would send signals that the constitutional safeguards against the abuse of power have failed miserably. 

“For appointments to the judiciary, the President may appoint only from among the names submitted to the Office of the President by the JBC. Malacañang’s decision to return the JBC shortlist shamelessly undermines the evaluation and assessment process envisioned under the Constitution for the appointment of members to the judiciary,” they said.      

Returning the shortlist, they argued, was also a barefaced display of Arroyo’s intention to control the judiciary. 

“The return to the JBC of the shortlist clearly reflects that President Arroyo seeks to control the Supreme Court by making personal loyalty to her as the primary criterion in making her appointments,” they said.