THE return of Court of Appeals (CA) Associate Justices Isaias Dicdican and Pampio Abarintos to Cebu was aborted by a technicality – new court rules need to be published before they can take effect.

CA Acting Presiding Justice Portia Horma-chuelos explained this in a statement to Sun.Star Cebu yesterday, adding that the transfer was “lifted pending NIRCA (New Internal Rules of the Court of Appeals) publication and re-evaluation.”

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However, Horma-chuelos, who hails from Cebu, clarified that returning Dicdican and Abarintos to Cebu was “a decision of the CA en banc based on seniority and pursuant to the NIRCA.”

But court observers say the issue on the return and the subsequent recall of the two associate justices might be deeper, adding that the appellate court’s NIRCA actually violates two earlier Supreme Court (SC) resolutions.

That same resolution, dated Feb. 22, 2008 and made final in a separate ruling on March 19 of the same year, caused Dicdican and Abarintos’ transfer out of Cebu sometime in April 2008.

The resolution came out in response to separate letters the Crusade Against Violence (CAV), a trial court judge and a litigant sent to the SC to report “justice for sale” at

the appellate court’s division in Cebu.

Among the allegations raised is the ease with which temporary restraining orders could be obtained from the appellate court. This was supposedly because long-time Cebu lawyers could easily approach the justices, being long-time fixtures in Cebu’s legal circles.

The NIRCA, which was drafted last year, covers the assignment and reassignment of associate justices within the 23 divisions of the appellate court.

Each division has three justices. The most senior becomes the chairman, the second higher-ranking justice becomes “senior member” and the lowest ranking justice becomes “junior member.”

One of the provisions of the 2009 IRCA allows justices to avert being reassigned by issuing a “statement of preference.”

According to court observers, this provision in the 2009 Internal Rules of the Court of Appeals actually institutionalizes the old practice of associate justices issuing “waivers” against getting transferred.

This is the very thing the SC wanted to end in its Feb. 22, 2008 en banc resolution and the March ruling that made it final.

“No waiver of the assignment of any member of the court to a particular station pursuant to the rule on reorganization of the divisions, which is based on seniority, shall be allowed unless approved by the Supreme Court,” the February ruling read.

The SC stressed the importance following the procedures on assignments, saying it is to the appellate court what raffling of cases is to lower courts.

“Akin to the raffle of cases, it is imperative to keep the image of an impartial and independent judiciary, that application of the rule on the assignment of justices be consistent, uniform, transparent and objective,” the en banc ruling read.

“Compliance with the said rule should not depend solely on the personal interest or preference of the Justice concerned nor should it be left to the latter’s absolute discretion,” it added.

Following the February and March SC rulings, justices of the appellate court could still refuse getting transferred but the office order that made them stay put always had the addendum “subject to the approval of the SC.”

The SC sometimes allowed the waivers because not all divisions are filled up.

Moreover, following the rule of distributing chairmanships of the 23 divisions to the first 23 most senior-ranking members, the second set of 23 ranking members as “senior members”, and the last set of 23 justices becoming the “junior member” leaves some courts without people.

In the Jan. 7, 2010 office order reassigning Dicdican and Abarintos back to Cebu, there was no longer any reference to their transfer being “subject to the approval of the SC.”

It was signed by Hormachuelos and received by the CA Cebu Station last Jan. 8, making it immediately executory.

The order assigned Dicdican and Abarintos as chairmen of the 18th and 19th divisions respectively.

It was taken over by another office order, which took effect last Jan. 13 or two days after they were supposedly called back to Manila.

In this new order, both were assigned as senior members of the 1st and the 5th divisions, respectively. (KNR)