MANILA - The Judicial and Bar Council (JBC) spurned Malacañang’s plea to expand its shortlist for the Supreme Court vacancies, but kept mum on the legal repercussions of President Arroyo’s failure to choose a new justice within the timeframe stipulated in the 1987 Constitution.

Article 8, Sec.4 of the Charter mandates the president to appoint members of the High Tribunal within 90 days upon the occurrence of a vacancy. The posts left by Justices Alicia Austria-Martinez and Dante Tinga, who hung their robes on April 30 and May 11, respectively, have yet to be filled.

On July 24, six days before the appointment period for the vacancy of Austria-Martinez lapsed, Executive Secretary Eduardo Ermita returned the shortlist to the JBC. (Read: GMA returns SC shortlist to JBC)

Ermita asked for additional names as the president “could not be too careful about the selection and appointment of justices to the SC.”

The six original nominees of the JBC for the SC are University of Santo Tomas law dean Roberto Abad, Court of Appeals (CA) Justices Martin Villarama, Mariano del Castillo and Hakim Abdulwahid, Sandiganbayan Justice Francisco Villaruz, and real estate businessman Rodolfo Robles. 

Sen. Francis Escudero, ex-officio member of the JBC, told Abs-cbnnews.com/Newsbreak that the body did not touch on Arroyo’s liabilities in violating the 90-day appointment period, adding “that is up for the executive to face in a proper case.”

Escudero, however, held the personal view that the president “may” have infringed the 1987 Constitution by neglecting to fulfill her duty to immediately appoint an SC justice.

Circumstances 

SC spokesman Jose Midas Marquez maintained that the JBC “is not in a position” to determine if Arroyo blatantly disregarded her constitutional mandate to appoint SC jurists within the set appointment period.   

He said there are certain “factors” to be considered, such as the submission of the JBC of its nominees only last June. “You have to consider the circumstances,” he said.

Midas stressed, however, that the constitutional provision should not be relaxed, as the charter’s language is clear that the 90-day period starts from the date of the vacancy. 

Waived? 

SC watchdog Bantay Korte Suprema (BKS) took a different view. The group believes that since Arroyo returned the shortlist to the JBC, she has effectively waived her right to appoint SC magistrates. 

“If President Gloria Macapagal-Arroyo really does not wish to act on the appointments based on this list, then she has effectively forfeited her mandate to appoint the replacements of Justices Tinga and Austria-Martinez. We have no problems with that; those two vacancies can be filled by the next President after June 30, 2010,” Sen. Franciso Pangilinan said in a press statement.
 
Pangilinan, along with UP College of Law dean Marvic Leonen, former Senate President Jovito Salonga and UP Women Lawyers Circle President Katrina Legarda sent a letter to the JBC last Friday. They asked the body to hold on to its independence amid “political pressures.” (Read: Lawyers urge JBC to stand up to Arroyo)

They also said that Arroyo already violated the constitution when she rejected the JBC shortlist.

“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,” the lawyers said.
 
Exclusive power

The JBC confirmed that the power to modify its shortlist “exclusively belongs” to the body.

In its letter to be sent on Monday to Ermita, Chief Justice Reynato Puno, ex-officio JBC chair, said that the JBC’s authority to nominate contenders to the SC “is one of the important innovations in the 1987 Constitution designed to depoliticize appointments in the judiciary and promote its independence.”

If this power is overlooked, the “check and balance” in the appointment of members to the judiciary will be destroyed, the JBC said.

The JBC attached its shortlist to the letter. The body vouched for the nominees’ competence, integrity, probity and independence as their public and private records have been assessed by the JBC.  

Seven JBC members voted not to accede to the president’s request in a meeting held on Monday. Justice Secretary Agnes Devanadera, also a nominee for the SC, was absent as she is part of the group which accompanied Arroyo in her visit to the US. 

However, Malacañang said in news reports that returning the shortlist falls within the purview of the president’s power. It explained that the executive could demand for additional nominees based on the Charter.

Azcuna’s case

It is not the first time that the JBC has had to assert its constitutional mandate under the Arroyo administration. 

In 2002, then Justice Secretary Hernando “Nani” Perez reportedly filed a motion for reconsideration asking the JBC to include Presidential Legal Counsel Adolfo Azcuna in its shortlist for the posts left by retired Justices Jose Melo and Sabino de Leon on May 28 and June 9 of the same year. 

Azcuna, along with lawyer-columnist Jose Sison did not make the initial list as they only got three votes from the seven-member JBC.

The JBC, then chaired by Chief Justice Hilario Davide, did not consider Perez’s motion.

Arroyo eventually appointed then CA Justices Romeo Callejo and Conchita Carpio Morales to replace de Leon and Melo, respectively.

Azcuna tried again for the SC seat left by Justice Santiago Kapunan on August 12, 2002. The president appointed him that time around.