Friday, December 12, 2008


In law school we were taught that before a court will entertain a case the parties must present before it a "justiciable controversy." We have heard our esteemed lawmakers use this seemingly esoteric legal concept in the ongoing debate on Charter change, particularly on the issue of whether Congress should vote jointly or separately in proposing amendments to the Constitution.

For those of you who have been closely following the Cha-cha debate, i'm sure you must have heard by now that Congressman Adam Jala of Bohol filed a petition before the Supreme Court to rule on whether Congress should vote jointly or separately. The petition was junked by the Supreme Court for being premature; in short, for lack of a justiciable controversy.

According to Camarines Sur Congessman Luis Villafuerte, the resolution he is circulating in the House to convene Congress into a constituent assembly is intended to create a justiciable controversy so that the Supreme Court may put an end to the debate on joint or separate voting.

Without going into the merits of the congressman's claim, let us try to understand what a justiciable controversy is and find out if the ongoing Cha-cha moves in the House creates such a controversy. In the words of the Supreme Court, a case is said to present a justiciable controversy if there is "a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute." This principle of justiciable controversy, which is also called the "case or controversy" requirement, is actually a limitation on the power of the courts. Courts are not allowed to give an advisory opinion; one cannot just go to the courts and ask them to give their legal opinion on a particular issue, unless there is an actual case or controversy.

Corollary to this principle are the concepts of "ripeness" and "mootness." Courts will not entertain claims before they have been developed or before they are "ripe" for adjudication. In other words while they are still premature. An example is the case of a questionable bill passed by Congress that has not yet been signed into law. No matter how legally objectionable the bill is unless it becomes a law, no one can question its legality. Likewise, courts will not try a claim if it has already been resolved or has become moot or academic. In the same example, if the objectionable bill becomes a law but is later on repealed, no case questioning it will be entertained by the courts anymore or any pending case will be dismissed.

At present, Cha-cha proponents in the House are gathering the necessary signatures - at least 196, which is three-fourths of the House and Senate membership - to support the resolution to convene Congress into a constituent assembly. In the wake of a Senate rejection of a constituent assembly approval and adoption of the resolution by the House may probably create a justiciable controversy that will warrant bringing a case before the Supreme Court. There will now be assertion of opposite legal claims, with the House saying Congress has just been transformed into a constituent assembly and that the Senate must join it to consider amendments to the Constitution. Refusal by the Senate, which is expected given its contra-resolution, would give ground for the House to bring the matter to the Supreme Court through a mandamus action (a legal remedy to compel a governmental body to perform an act - join the House in joint session in this case - which the law specifically enjoins as a duty). The House will argue that with the passage of the joint session resolution, the Senate became duty-bound to join it in considering Charter changes.

The Senate, on the other hand, may institute an action for prohibition, which is a legal remedy to prevent a governmental body or official from undertaking a particular course of action alleged to be in violation of law. It will claim that the House's resolution is unconstitutional for violating the bicameral nature of Congress (by convening a constituent assembly without the Senate's consent or participation) and should be enjoined from proceeding with its move to propose amendments to the Constitution.

The House will claim that the Senate is shirking from its constitutional duty, while the Senate will claim that the House overstepped its boundaries and arrogated unto itself the sole authority to propose amendments. This clearly presents a justiciable controversy and it becomes the duty of the Supreme Court to step in and resolve the debate once its jurisdiction is invoked by any interested party.

Right now it is still premature to file any petition before the Supreme Court because everything is still preparatory, atleast in so far as the House is concerned in terms of convening Congress into a constituent assembly. There is as yet to be any official act until the pertinent resolution is filed and adopted. The unanimous Senate resolution rejecting joint session and joint voting will neither create the justiciable controversy, because by itself there is no conflict to speak of until a contrary action is taken by the House in the sense already mentioned.

Even after the recently concluded massive rally against Charter change, it still remains to be seen if the House will dampen down its obsession with amending the constitution. In the meantime let us wait and see what happens in the days to come.

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