Malacañang bows to JBC, will review Supreme Court shortlist

MANILA, Philippines - Now that the Judicial and Bar Council (JBC) has refused the request of President Arroyo to expand the list of nominees to the Supreme Court (SC), Malacañang assured that the President would go over the list.

Secretary to the Cabinet Silvestre Bello III reiterated that Mrs. Arroyo only wanted to expand the list so that she could have a wider choice for two important appointments.

The request was unanimously denied by the JBC and sent back its original list of six nominees for the two vacant positions in the High Court.

SC spokesman lawyer Jose Midas Marquez said the JBC would remain firm in keeping its shortlist of six final nominees for the two vacancies in the High Court and is unlikely to reconsider its decision rejecting the Palace’s request for additional names.

“I think what will happen is to go over the list again and review the qualifications and the President will make a decision,” Bello said.

He said that although he could not say what the President would do next, he emphasized that the decision of the JBC would be respected.

“We recognize the authority of the JBC to make recommendations,” he said.

However, Bello noted that only the President has the power to appoint in the end.

Constitutional crisis

But the burden of avoiding a constitutional crisis in the appointment of new justices to fill in two current vacant posts left by the retirement of Associated Justices Alicia Austria-Martinez and Dante Tinga earlier this year is now in the hands of President Arroyo, according to Marquez.

“The ball is in Malacanang’s hand already. The JBC is hoping that President Arroyo would just accept the shortlist,” he said.

And if Mrs. Arroyo still refuses to choose from the list of nominees, Marquez affirmed the reported fear of Palace officials that there might be a constitutional crisis.

He cited the possibility of the issue reaching the High Court for resolution should the Palace choose not to act and name new justices within the next days considering that the prescribed period had already lapsed last July 31.

“But we are hoping that this issue won’t reach that point anymore,” the SC spokesman said.

He explained that there were instances in the past where the 90-day period prescribed in Sec. 4 (1) of Article VIII of the Constitution was not followed because of “acceptable circumstances.”

Marquez believes that the Palace thought that the prescribed period would stop when it returned to the JBC the shortlist for additional nominees.

The JBC submitted the shortlist to the Palace last June 26 and the period for appointment for replacement of Justice Martinez had lapsed last July 31, which means President Arroyo had over one month to choose in the list.

Still, Marquez stressed that the immediate appointment to the two vacant posts is “really important for the Court because having 15 justices is really how the High Court should decide on cases – especially on important ones.”

The SC spokesman admitted that there had been cases in the past where the Palace requested for more names in the shortlist and the JBC had acceded to the request.

“But at those times, the JBC felt there was need to add names. In this case, as clearly stated in the reply to the letter – request of (Executive) Sec. (Eduardo) Ermita, all six names are qualified,” he clarified.

No way, Madam

The JBC on Monday rejected a request from President Arroyo for additional names in the shortlist.

“The JBC cannot acquiesce to your request to expand the shortlist of nominees submitted to your office. The decision whether to include three or more than three names in the shortlist of nominees exclusively belongs to the JBC,” stated the letter of Chief Justice Puno sent to the Palace yesterday.

“It is one of the important innovations in the 1987 Constitution designed to depoliticize appointments in the judiciary and promote its independence. This discretion given to the JBC is the lynchpin of its autonomy and it cannot be compromised in the tiniest degree without impairing the delicate check and balance in the appointment of members of the judiciary installed in our Constitution,” added the JBC.

The JBC told the Palace that the shortlist was not only within the constitutional rules on choosing an SC justice but had also undergone “a long and thorough selection process,” Marquez told reporters.

“Actually, the list submitted was already beyond what was required in the Constitution and provides a wide array of choices. From the six, a justice would be chosen. And the second justice would be chosen from the remaining five,” he explained, adding that there is no JBC rule that requires a separate list for the selection of a second justice.

Infringement on independence

The Integrated Bar of the Philippines supported JBC’s position.

In a statement issued yesterday, IBP officer-in-charge retired Justice Santiago Kapunan even criticized the Palace for returning the list to the JBC – a move he described as an attempt to “infringe on independence” of the constitutional body.

“By returning the list of nominees to the JBC, the clear implication is that the President does not want to appoint any of those nominated in the list. Unless the President states in categorical terms that she does not want to appoint any of the nominees in the list submitted by the JBC, she has hardly any legal justification or authority to require the JBC to submit additional names,” the IBP stressed.

Constitutional mandate

Marquez also stressed that the JBC opted to send back to the Palace the shortlist of six final nominees for the vacant posts it had submitted last month as it was “pursuant to Constitutional mandate of the body.”

In the letter signed by Executive Sec. Eduardo Ermita received by members of the JBC last July 27, the Palace has requested for additional nominees since “the President cannot be too careful about the selection and appointment of associate justices of the SC” considering the “importance and far-reaching consequences of the appointments.”

“It is respectfully submitted that the two position deserve a wider array of nominees to be submitted for the President’s consideration,” the letter stated.

In reaction, the Supreme Court Appointments Watch (SCAW) welcomed the decision of the JBC.

“We commend them for asserting their independence. We hope that the JBC takes such a position as a matter of course in the exercise if their independence and won’t treat such instances on a case-to-case basis,” said SCAW member Vincent Lazatin, of Transparency and Accountability Network.

Marquez also said that the constitutional period within which President Arroyo should appoint replacements of Justices Martinez had already lapsed.

He explained that under the rules the Palace should name a new justice within 90 days after the retirement of a justice. The replacement of Justice Martinez should have been appointed last July 30.

Asked if the failure to comply with this rule would constitute culpable violation of the Constitution, the SC spokesman said the JBC would not be in the position to say so.

“But we have to consider circumstances (for the delay). The shortlist was only submitted to the Palace last June 26 because the JBC had to screen many applicants and there were two successive vacancies being considered,” he explained.

The six names submitted by JBC to the Palace last month included Court of Appeals Associate Justice Martin Villarama, Sandiganbayan Associate Justice Francisco Villaruz Jr. and University of Santo Tomas law school dean and lawyer Robert Abad, who were unanimously picked by all seven members of the JBC during final deliberations last June 22.

The three others were CA Associate Justices Hakim Abdulwahid and Mariano del Castillo and lawyer-businessman Rodolfo Robles, who each got five votes.

The top choice of SC justices, CA Associate Justice Josefina Guevara-Salonga, was not able to make it to the final list as she only had three votes at the JBC voting.

Justice Sec. Agnes Devanadera and former Energy Raphael Lotilla did not make it to the JBC list because of their respective pending cases at the Office of the Ombudsman.

An insider said President Arroyo is likely to appoint an outsider to the judiciary to one of the two vacant SC seats. 

Standing its ground

Meanwhile, Sen. Chiz Escudero said the Palace should not interfere in the nomination process.

“She (President Arroyo) is the appointing power but she should not interfere in the nomination process. She has the right not to accept the list but the JBC also has the right and power to send it back. That is what the JBC has done,” he said.

Escudero, who is a lawyer by profession and the Senate representative to the JBC, also said he does not think that the President violated any laws by sending the list back to the JBC.

But she might have violated the constitution by not appointing the replacement of Associate Justice Austria-Martinez within the 90-day period, he said.

Fr. Joaquin Bernas, Dean Emeritus of the Ateneo School of Law, and member of the 1986 Constitutional Convention that drafted the current Charter, has argued that discretion as to the number of nominees to be submitted for consideration belongs to the JBC, not the President.

Bernas emphasized that “the law gives to the JBC the right to prepare the list, and the choice of the President is limited to what the JBC has prepared.”

–With Christina Mendez, Edu Punay