Friday, June 26, 2009

Where is Public Accountability?

The head of Britain's Conservative Party, David Cameron, announced last June 25 that more than 100 of its parliament members will repay the UK government a total of 250,000 pounds, or more than $400,000, representing unjustified expense claims. This came in the wake of the expense scandal in the British House of Commons where several members of parliament (MPs), both from the leading Conservative and Labour parties, charged bogus or personal expenses against the government. After UK's Daily Telegraph exposed the scandal in May this year, several MPs, including House of Commons Speaker Michael Martin, resigned in shame.

Just recently this week in the US, South Carolina Governor Mark Sanford apologized in a press conference for having an affair with a woman in Buenos Aires, Argentina. He also announced his resignation as head of the Republican Party governor's association, and it would probably be just a matter of time before he eventually resigns as governor with the mounting calls for his resignation. This came on the heels of Nevada Senator John Ensign's similar public apology last week for his extramarital affairs with a campaign staffer.

Governor Sanford is not the first governor to publicly admit to wrongdoing in recent memory involving US politics. Eliot Spitzer, a man who was touted as a possible presidential contender like Sanford, did the same last year and resigned as New York governor after an FBI investigation revealed that he patronized a prostitution service. Of course, Governor Rod Blagojevich of Illinois was an exception by adamantly denying wrongdoing even after Justice Department investigators caught him on tape attempting to sell the Illinois Senate seat vacated by President Barack Obama. He tenaciously clung to the governorship until a unanimous Illinois Senate voted him out of office in an impeachment trial. There is an interesting parallel here with President Gloria Macapagal-Arroyo.

While sex scandals or extramarital affairs involving government officials in the Philippines are not as popular - or, dare I say it, not as exposed and a cause for official resignations (heck, we even elected a known womanizer as president!) - we surely are not in shortage of corruption scandals. On the contrary we abound with them from the lowest to the highest levels of government. But do we ever see these somber press conferences where the erring public officials admit, apologize and announce their resignations from office? Well you know the answer to that. What we see are thick hide public officials who invariably blurt the trite and tested lines "prove your accusations in court," "I serve at the pleasure of the president," "I will only resign when the president tells me to," "this is politically motivated," etc.

Resignation as a face-saving measure or dictate of delicadeza - that uniquely named Filipino virtue of acting with a sense of propriety - is an unpopular concept among our public officials who have been exposed with involvement in corruption or other malfeasances. And even when a few resorts to it, it is not out of a sense of delicadeza but to take the heat away from them, while boldly claiming their innocence. When Benjamin Abalos, Sr. resigned as COMELEC Chairman amid allegations of bribery in connection with the NBN-ZTE scandal, he never admitted to any wrongdoing; on the contrary he insisted on his innocence and vowed to clear his name. The same is true with COMELEC Commissioner Virgilio Garcilliano who resigned as a result of the so-called "Hello Garci" scandal.

What is even more distressing is that scandal-besieged public officials or figures use the notoriety they have generated from these controversies in running for public office. And some of them even get elected!

When in 2005 the "Hello Garci" tapes surfaced revealing private conversations between GMA and COMELEC Commissioner Garcilliano regarding the status of the former's votes in the just then concluded 2004 presidential elections, not a few entertained the possibility of GMA tendering her resignation or being removed from office by impeachment for what was seen as evidence of vote-rigging. But many were disappointed. Instead, GMA gave a televised address and in somber tone apologized to the people. She, in skillful spinning, downplayed the gravity of what she did by claiming it was merely a lapse in judgment and was only trying to ensure the protection of her votes as an anxious candidate since it was taking long for the results to come out. And the impeachment complaint against her did not fly.

More than three decades ago US President Richard Nixon resigned as president after his tape recordings inside the White House - revealing his involvement to cover up the break-in at the Democratic Party's headquarters at Watergate - were made public. Nixon faced the certainty of impeachment and removal from office, so he decided to save face by resigning. Although equally guilty of an egregious conduct, GMA was not similarly disposed as Nixon because unlike him, she did not face the certainty of impeachment, let alone removal from office. Her supporters and allies in the House of Representatives saw to this. Never mind the public opinion - the same care-free attitude that these representatives now brazenly display as regards HR 1109.

So what accounts for this alarming and despicable lack of public accountability among our public officials? We surely are not timid people who just allow official wrongdoing to go on unchecked. Our history clearly illustrates this. The continuing public outrage against HR 1109 speaks well of this. But still the HR 1109 congressmen are adamant in pursuing Cha-cha; they are unfazed by and continue to defy public opinion. The bar of public opinion, it seems, is no longer a controlling gauge of our politicians' conduct that they have become so insensitive of the public pulse. Where has acountability gone?

Tuesday, June 16, 2009

Ignorant and Ignoble

"While the Court has taken an increasingly liberal approach to the rule of Locus Standi, it is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.” These are the harsh words of Chief Justice Reynato Puno in dismissing the consolidated petitions - filed by lawyer Oliver Lozano and his daughter Evangeline Lozano, who is also a lawyer, and one Louis "Barok" Biraogo - that seek to nullify HR 1109.

To receive such a strong rebuke, from the chief justice no less coupled by the near unanimous approval of a court of 13, is indicative not only of the brimming legal errors attending the Lozano petition, but also of something even more despicable. To be sure, the Lozano petition is not the first to land on the doorsteps of the High Court to be thrown out for lack of a justiciable controversy. The petition recently filed by the youthful Bohol Congressman Adam Relson Jala, asking a ruling on joint voting by Congress on Charter change, easily comes to mind. That petition was dismissed by the Supreme Court in a minute resolution for prematurity also.

And there are several other cases dismissed on similar grounds, or, if not dismissed, the issues of justiciable controversy and standing are contentious, which goes to show that they are not really easily grasped concepts even among some legal practitioners specializing in constitutional law litigations.

So what made the Supreme Court, Chief Justice Puno in particular, revile at the Lozanos by indirectly calling them ignorant, ignoble and suffering from cerebral deficit? What is it that previous suitors of the court, who were equally unlearned in the fine art of engaging its attention, did not do or have to incur the court's displeasure? Is it the personality of Oliver Lozano himself - a man who has long been associated with the Marcoses - that struck a discordant note in the mind of the chief? Is it because it was Oliver Lozano, the man who has filed four defective impeachment complaints in succession against President Macapagal-Arroyo, with no conceivable purpose but to get ahead of the flock in unseating an unpopular president to gain media mileage or for defeating legally sound impeachment complaints by playing around the one-year bar on impeachment?

Chief Justice Puno did not merely content himself in stating the usual, although seemingly arcane, legal principles that are too often involved in constitutional law litigations in disposing the Lozano petition. He went as far as question the fitness of father-and-daughter Lozanos as members of the legal profession. He branded them as ignorant, presumably of the law - which could be a ground for administrative discipline for lawyers and judges alike - and ignoble, which refers to baseness of character that would make one unfit as a lawyer. Now I am not suggesting that lawyers are angels, but if one is found wanting in the qualities required by the rules of professional responsibility his or her license may be taken away.

Perhaps Chief Justice Puno was also aggravated by the possibility that Lozano's petition could be trying to add a stamp of validity to the much-hated HR 1109 by forcing the Supreme Court to indirectly declare it legal, given that the Lower House has yet to encroach on the powers of the Senate. Indeed, the chief has said in his ponencia, maybe grudgingly, that no "usurpation of power or gross abuse of discretion has yet taken place.” This somehow undercuts the public outcry against the congressmen who have been called various distasteful names, chiefly flouters of the Constitution, in approving HR 1109. With Lozano's petition out and the High Court's ruling, these congressmen can now tell their detractors with even greater defiance that they did nothing illegal. What the Lozano petition purported to accomplish - to declare HR 1109 illegal - in effect made the Supreme Court give a stamp of validity to HR 1109. The quintessential Lozano at work!

Wednesday, June 10, 2009

Term Extension Scenarios

I am reproducing below an interesting article from ABS-CBN, which is a collection of scenarios it gathered in the course of reporting on the charter change issue and term extension of President Gloria Macapagal-Arroyo. The words in italics are my comments. Here it is:

Scenario 1: Shift to a parliamentary system

The House of Representatives will convene a constituent assembly and proceed to amend the Constitution without the Senate. They will approve a change in the form of government from presidential to parliamentary, and lift the restrictions on foreign capital enshrined in the charter. They will then ask the Commission on Elections to hold a plebiscite. A case will subsequently be filed before the Supreme Court.

The Supreme Court approves the actions taken by a Senate-less constituent assembly, the plebiscite proceeds, and the administration makes sure the amendments are ratified by the people. Instead of presidential elections, parliamentary elections will be held in 2010. President Arroyo runs for a parliamentary seat in Pampanga, wins, and is chosen as prime minister.

Unless Malacañang manages to fill the Supreme Court with appointees who can be persuaded to follow an absurd view of our bicameral legislative structure under the Constitution, it is highly unlikely this scenario will happen. A Senate-less constituent assembly is so patently illegal that only those willing to commit political suicide, or confident that they could get away with it (Supreme Court justices included), would take this position. Although we already have congressmen who took this path, they still have so much to hurdle, legally and politically.

Scenario 2: Senators cooperate

The House of Representatives will convene a constituent assembly with some administration senators. Although the senators who will join the constituent assembly will not be enough to meet the three-fourths vote requirement in separate voting (18 senators), their presence will somehow “legitimize the process.”

The charter amendments approved by the constituent assembly are then subjected to a plebiscite. The Comelec and the Supreme Court go along with the actions taken by the constituent assembly.

If senators join, which appears to be farfetched right now, the House will pursue joint voting to avoid the problems of separate voting. The issue then on the modality of voting will be brought to the Supreme Court.

Scenario 3: Martial Law

The House of Representatives convenes a constituent assembly without the participation of the Senate. There will be street actions, but violent incidents organized by elements against democracy take place. President Arroyo will then have a basis to declare martial law.

Commenting on scenario three, Soliman said this can happen if the protests are not organized. “It [martial law] will make us vulnerable to infiltration and manipulation. When we act, we must be organized,” she said.

It's possible that con-ass congressmen, in tandem with Malacañang, are taking this direction, given their insistence to pursue a clearly illegal act of proposing amendments to the Constitution without the Senate which, as we are seeing, is continuously galvanizing the public to pour into the streets in protest.

Scenario 4: Shift after Elections

The House of Representatives convenes as a constituent assembly, a case is filed before the Supreme Court, but the process takes so long that it is overtaken by the 2010 elections. Charter change fails. Nevertheless, Mrs. Arroyo runs for and wins a congressional seat in Pampanga. But as soon as the 15th Congress is convened in 2010, charter change is approved, and there is an immediate shift in the form of government from presidential to parliamentary.

Congresswoman Arroyo becomes Prime Minister.

This is interesting, and there are indications that it might just happen, given former DOJ Secretary Gonzalez's view that President Arroyo will run for a parliamentary seat and aspire to become Prime Minster if and when the Constitution is amended, and the president's close political allies in Pampanga are hinting or encouraging her to run for Congress.

(With a report from Carmela Fonbuena,

Monday, June 8, 2009

Hubris or Stupidity?

"It's up to the individual senators to endorse it. But we will go on to the next stage - convening a constituent assembly - with or without them." Thus, cavalierly proclaims Nueva Ecija Representative Rodolfo Antonino when asked about the next steps to be taken after the House of Representatives passed the much disdained HR 1109 - a resolution seeking to convene Congress into a constitutent assembly to propose amendments to the Constitution.

As if many have not spoken yet - expressing objections to HR 1109 from mild rebuke to raging outrage, that even led Jesus Is Lord (JIL) head Eddie Villanueva to call the legislators who approved the measure as terrorists and one blogger to compare them with the 9/11 terrorists - congressmen like Antonino, led by House Speaker Prospero Nograles, are still bent on their brazen attempt to introduce changes to our basic law by proceeding with their convoluted view that the House could do it alone.

As we have feared in previous postings, the majority in the House is now moving toward the most stupid thing to do by unilaterally acting to propose amendments to the Constitution. Congressman Mauricio Domogan of Baguio City minced no words when he said that the House will start with the charter change process before President Arroyo gives her State of the Nation address when Congress resumes session in July. The theory that Domogan and Antonino, the proponents' mouthpieces, are pursuing is that only a simple majority is needed to convene Congress into a constitutent assembly and that by the sheer number of those who approved HR 1109 - the gang of 174 - they already achieved sufficient votes for this purpose, thereby negating the need for the senators' votes. Yes, you got that right, these geniuses are actually saying that the Senate does not matter; in fact they intend to send HR 1109 to the individual senators, instead of the Senate as a body, as a token gesture to give them a chance to participate. So much for bicameralism. Even as now they have already amended the Constitution!

So now we can see a bifurcated process unfolding: (1) convening Congress into a constituent assembly, requiring only a simple majority and (2) proposing amendments to the Constitution, requiring three-fourths vote. According to the proponents, in both cases the senators' votes are inconsequential as the House membership alone can muster the needed votes. The grotesqueness of this is readily apparent. How can HR 1109 alone - a pure act of the Lower House - become the decision of Congress that is composed of not only the House but the Senate as well? As we have been repeatedly saying a two-chamber Congress, with limited exceptions, can only act with both Houses acting in concert. And sending HR 1109 to individual senators for their signatures will not satisfy this legal requirement even if majority of them were to sign it, since the acts of the senators could only constitute as an act of the Senate if they are acting as one body, in session assembled.

In addition, as pointed out by Fr. Joaquin Bernas, no further act is necessary to convene Congress into a constituent assembly as it is already constituted as such by virtue of Article XVII, Section 1 of the Constitution. Let me just add that Congress is automatically set in a constituent assembly mode from a purely legislative mode whenever it proposes amendments to the Constitution, even in accordance with the normal legislative route. A joint session is not even essential because what will characterize Congress as a constituent assembly is the act of introducing changes to the Constitution, for the word "constituent" refers to the power to frame a fundamental law or constitution and to introduce changes to it, as opposed to the exercise of mere legislative powers which refers to the enactment or amendment of statutes. What the Constitution only requires is that a three-fourths vote, compared to a simple majority in enacting laws, is necessary to approve the amendments and ratification by the people in a plebiscite to make them binding.

Be that as it may, nothing - legally, that is - will as yet prevent the House from proceeding. As soon as the House reconvenes, it can start proposing amendments. It can perfectly do this in accordance with Congress's power to propose amendments to the Constitution under Article XVII, Section 1. But there is a big "but." Such act would only be the sole act of the Lower House that will have to be transmitted to the Senate for its approval. Given Domogan and Antonino's statements, however, the House would proceed with step two of the bifurcated proceedings by sticking to its absurd logic that the convening of Congress into a constituent assembly (joint session is more like it) has already been approved and, therefore, the House members would be acting or representing Congress as a whole when they start deliberating and approving amendments to the Constitution in July. It's like telling the senators, "Congress is now convened into one and ready to amend the Constitution. It's up to you if you want to join or not," with the addendum, "either way, we have the votes to approve the amendments."

But why is this obssession and unwavering insistence despite the strong public outrage against charter change? How could these congressmen not heed the public sentiment and risk political suicide? It is obvious that these congressmen, a lot of them lawyers and veterans of Congress, know that without the Senate an act of the House alone cannot pass constitutional muster, and yet there is this sinister confidence to proceed. I would concede there can be a valid debate between joint and separate voting, but to say that a joint session - the vehicle to jumpstart the debate - of both Houses could be achieved by HR 1109 alone would be the height of stupidity that does not even merit the passing attention of the Supreme Court.

The majority in the House might have just stumbled and bared its ulterior motive in following and revealing an absurd theory. Domogan and Antonino's statements may have just revealed that all this fuzz about forcing a justiciable controversy is but a smokescreen for something bigger. The stupidity of their position with which they are so confident, coupled by their indifference to the public sentiment, are sending dangerous signals that something terrible is in the offing. Take note, this adamance - which is becoming exceedingly clear as deliberate - is stoking the fire of discontent and as I write this, preparations are underway for massive protests and rallies. The hubris is simply alarming. Nuff said.

Thursday, June 4, 2009


Congressmen who have been assiduously pushing for Charter change (Cha-cha) via Congress acting as a Constituent Assembly have firmly set their sights on forcing a joint voting by all members of Congress, thus removing the distinction between senators and representatives. This intention, which has long been made public, has finally been formalized by the majority in the House of Representatives with the haphazard adoption of House Resolution 1109 last Tuesday.

But the trigger, if you will, cannot as yet be pulled since the bullet that will hit the target is still unavailable. The mere passage of HR 1109, although feared by many as a prelude to the railroading of amendments to the Constitution, is not enough to achieve the House's objective of creating a justiciable controversy that will bring the Supreme Court in for the purpose of ruling on the methodology of voting. As everyone who understands how our system of government functions already knows, the House alone cannot convene Congress in joint session because the Senate, which is equally a part of Congress, must concur.

The issue on joint or separate voting can only arise when the Senate agrees to sit with the House in joint session. Unfortunately for the House, the majority and minority blocs in the Senate have already signified their unanimity to oppose the House's efforts; in fact, even before HR 1109 there is already that disinterest to join by the Senate in apparent awareness of the House's dark scheme to outvote the senators in a joint session. But time is running out for the ruling party since elections are just around the corner so, despite the impediments and the expected firestorm of public outrage, the House proceeded with the plan and adopted HR 1109 in the hope that someone, like lawyer Oliver Lozano, will file a petition before the Supreme Court to thresh out the voting issue. But this petition is expected to fail for prematurity.

A reading of HR 1109, particularly its whereas clauses, clearly shows that voting jointly or seprately is what the majority in the House want to be settled. And the majority's position, of course, is that voting should be done jointly, which they justify by saying that the non-inclusion in Article XVII, Section 1 of the 1987 Constitution of the phrases "in joint session assembled" and "the Senate and the House of Representatives voting separately," as found in the 1935 Constitution, conveys the intention that voting on the amendments should now be undertaken jointly. More on this in subsequent postings.

So why the obsession on this mode of voting? The number of representatives is clearly superior to that of the senators. If the numbers are correct, there are reported 275 representatives and 23 senators. Lumping them together under one roof we have a total of 298 legislators. Three-fourths vote is necessary to approve any amendment, so if the mode of voting be joint then all that is needed is 224. Since there are 275 representatives they can very well outvote all 23 senators, assuming only 51 representatives do not follow suit. Fr. Joaquin Bernas calls this drowning senators in a sea of House votes.

But what assurance does the House have in getting a favorable decision from the Supreme Court, if and when it is finally able to bring the issue to the Court? The administration hopes to fill all the vacancies in the High Court, that will be created with the retirement of a number of justices before President Arroyo's term expires, with appointees who will render a favorable decision. With the retirement of Justices Dante Tigna and Alicia Austria-Martinez, allegations are already flying high that Malacañang's unseen hand is working for the appointment of lawyer Rodolfo Robles, who is said to have close ties with the Macapagals. Another aspirant who is seen as a Malacañang favorite is Solicitor General Agnes Devanadera who, like Robles, favors joint voting.

After having said all these, House Speaker Prospero Nograles and company will still have to devise more creative ways on how to properly bring the issue of joint or separate voting before the Supreme Court. With opposition from a Senate that is afraid to ride against the storm of public criticism on Cha-cha, the vehicle - a joint session of both Houses under the nomenclature Constituent Assembly - is still elusive. We will see how Nograles convinces his colleagues in the Senate when he meets with them about HR 1109.

Wednesday, June 3, 2009


Concurrently with the con-ass controversy is the talk of how a justiciable controversy may be created to force the hands of the Supreme Court in settling the debate on voting separately or jointly. As explained by House Speaker Prospero Nograles "there is a need for a legal referee to come in to at least enlighten the legal minds on what to do."

I see two legal issues looming in this latest drama. One is whether HR 1109 - resolution convening Congress into a con-ass - by itself is sufficient to authorize proposed amendments to the Constitution. The other is the mechanics of voting to be adopted by Congress in proposing the amendments.

Every student of civics who has studied his or her homework will be able to answer the first issue. We don't need Senator Juan Ponce Enrile or Fr. Joaquin Bernas, let alone the Supreme Court, to tell us that in a bicameral Congress both Houses (Senate and House of Rep) must act favorably to carry out any legislative measure or resolution involving Congress as a whole. If the Constitution explicitly prohibits each House of Congress from adjourning for more than three days without the consent of the other, there is all the more reason that both Houses must agree in proposing amendments to the Constitution, which is undoubtedly a function of utmost importance. Unless HR 1109 is concurred in by the Senate or a similar counter-part measure is adopted by it, which does not appear to be the case considering the objections voiced by several senators already, this resolution is nothing but an expression of the sentiment or desire of the Lower House.

On the second issue, which has been the nagging question since this whole idea of a con-ass came to the fore, this will only become relevant once the Senate agrees to come into a joint session with the Lower House in proposing amendments. So let's not get ahead of ourselves folks because the way things are right now, as already observed, the Senate is not inclined to join; in fact, its members are averse to it, and for a good measure considering the growing public outrage against Cha-cha. Senator Pimentel read the political climate well when he said the Cha-cha and con-ass proponents face imminent political deaths.

So where is the justiciable controversy now? The answer appears to be in the most stupid direction that the House may take, which is to proceed with the convoluted view that, as an unthinking congressman said, the House can do it alone in proposing Charter changes. And Nograles's statement is illuminting when he said everything is possible in the Philippines when asked about the next steps to be taken after the approval of HR 1109. Accordingly, the Lower House will now proceed to adopt rules for the proceedings of its putative con-ass and start debating and proposing amendments to the Constitution and submit the same to the people for approval in a plebiscite.

If the House takes this patently and grossly illegal path (excuse the lawyer talk), a justiciable controversy will arise for then the House would be acting in excess of its constitutional powers from which it could legally be enjoined via prohibition and certiorari (available when a governmental body acts beyond its powers and abuses its discretions). The Senate would be deprived of its constitutional right to propose amendments to the Constitution, which would be an institutional harm or injury to it. Needless to say, the Constitution says it is Congress and not the Lower House alone that may propose amendments.

Until this happens, however, HR 1109 alone cannot be the basis of a suit as mistakenly thought by lawyer Oliver Lozano who jumped into the fray in haste by filing a petition before the Supreme Court. As held by the Supreme Court in Tan v. Macapagal, "it is a prerequisite that something had by then been accomplished or performed by either branch before the court may come into the picture." Only when the House proposes amendments to the exclusion of the Senate, will the House have performed acts the legality of which the court may rule upon. Thus, in Francisco v. House of Representatives the Supreme Court took cognizance of the petitions challenging the legality of the second impeachment complaint against former Chief Justice Hilario Davide, Jr. when it ruled that the filing of the complaint before the House and adoption by the latter of the rules of impeachment constituted the alleged constitutional acts that satisfied the prerequisites for ripeness of the suit.

But if the House takes this route - which I believe the Supreme Court would assuredly strike down - it would still fail in its effort to force the issue on joint or separate voting which the majority have been dying to have adjudicated. The majority's penchant for a ruling on the issue of joint or separate voting is tactical. If the Supreme Court rules in favor of joint voting, they could try to amass the three-fourths vote among its huge membership alone to carry out their pet amendments, effectively outvoting any opposition from the lesser-numbered Senate. The majority's seeming confidence in having its view prevail in the Supreme Court lies in the composition of the court. With President Arroyo having the opportunity to fill more vacancies in the court, we could almost be sure that those to be appointed are those who will possess similar views. Call it conspiracy theory, but it seems that even as now appointees are already being vetted by the JBC about their views on Charter change.

But then again, the majority in the House still needs to be more creative in bringing out the issue of voting jointly or separately. Thus far, there is no indication that they are anywhere near that position.

Tuesday, June 2, 2009


And so it finally happened. The House of Representatives on Tuesday night voted to convene Congress into a constituent assembly (Con-ass) as a vehicle for amending the Constitution. But while many express fears about what may soon happen, particularly about the possibility of term extension for President Arroyo and the calling off of the 2010 elections - which by the way Malacañang has repreatedly denied, I don't think this event is enough to pave the way for amending the Constitution as some quarters fear. To be sure, it is a step toward that direction, but one that is fraught with legal, not to mention political, obstacles as to be successful in reaching its destination.

What the House did in passing HR 1109, the resolution convening Congress into a Con-ass, is to merely express its - that of the House alone - desire or decision to amend the Constitution via Congress acting in joint session. Let us not forget that we have a bicameral legislature, which means Congress is composed of the House and the Senate. Except in very limited cases, each body cannot act without the other's concurrence. The amendment of the Constitution is certainly not one of these cases. In other words, the House by itself cannot convene Congress into a joint session, let alone amend the Constitution, unless the Senate agrees. As it now stands, majority of the members of Senate object to the convening of a Con-ass.

HR 1109 can only become an act of Congress once it is transmitted to the Senate and the latter either adopts it or proposes a counterpart resolution. Then again the measure will have to be brought to a bicameral conference committee to smooth out any differences. So, contrary to the views of others that the Cha-cha train has arrived, it still has a long way to go. Given the objection of the Senate this train, as it were, does not have enough steam to reach its final destination.

The only way that HR 1109 could stir a big controversy, which will be the most stupid thing for the House to do, is for the majority to start introducing and deliberating on amendments to the Constitution under the absurd and convoluted view that HR 1109 alone would allow proposal of amendments to or revision of the Constitution under Article 17, Section 1 thereof. This will be a blatant disregard of the bicameral nature of Congress, a principle so elementary in our system of government that for our "esteemed" legislators not to know and to even invoke the jurisdiction of the Supreme Court for guidance is an assault on our senses and constitutes intellectual dishonesty of the highest order.

Okay, let us assume the majority still has the decency to comply with established parliamentary procedures by transmitting HR 1109 to the Senate for its action. Let us assume further that the Senate agrees to it and so we now have Congress ready to amend the Constitution as a Con-ass or in joint session. The next question is, how will the three-fourths vote to approve any amendment be cast? The House Cha-cha proponents maintain that by joint voting, meaning all the 275 representatives and 23 senators (298) voting together. According to Dean Jorge Bacobo (DJB) of Philippine Commentaries and the Rizalist Press, three-fourths would be 224 rounding up the number. But would there be a difference if the voting were carried out jointly or seprately? I believe there is and a disagreement on the mode might just be a ground for a legal controversy that could bring the Supreme Court in, with due respect to DJB's view in his latest posting on the subject.

I am not certain of the numbers, but for academic purpose, if the voting is carried out jointly the House would be able to, in the words of Fr. Joaquin Bernas, drown the senators in a sea of House votes. In other words the senators would be strategically outvoted every time, assuming only 51 of the representatives will not vote in favor of the majority. Whereas if the voting is done separately the senators' votes become vital for every amendment to be carried out. There would have to be three-fourths votes cast from their ranks each time, in the same manner that the representatives will need to obtain the same number of votes among them. Here lies the crux of the controversy in the event the above-mentioned scenarios take place.

But for now, let us wait and see how our "esteemed" legislators will proceed.

Monday, June 1, 2009


There is an established precedent among Supreme Court aspirants not to discuss their positions on particular legal issues that may soon come to the court. At least this is the position taken by nominees to the Supreme Court of the United States (SCOTUS), whenever senators press them for answers on these issues during confirmation hearings. And the rule is not without reason. As future members of the SCOTUS, the nominees will be prematurely baring their decision and the vote they will cast on particular legal issues even before becoming justices and worse, even before hearing the arguments pro and con.

This, unfortunately, is not the case with the aspirants to our Supreme Court (SC). During the public interview of aspirants for the posts recently vacated by Justices Alicia Austria-Martinez and Dante Tinga, the Judicial and Bar Council (JBC) panel asked former judge and now law school dean Ed Vincent Albano, Court of Tax Appeals Justice Lovell Bautista and Court of Appeals Associate Justice Ruben Ayson about their position on the hot-button issue of Charter change (Cha-cha). Without hesitation, the three nominees volunteered similar answers by favoring a constitutional convention over a constituent assembly.

Cha-cha may soon become an issue before the SC and if these nominees were to be appointed to the court, we already know what their position is or at least we have a strong sense of where they're going. They bring with them the strong likelihood of voting down any effort to amend the Constitution via a constituent assembly. While justices are expected to be influenced by their personal opinions and beliefs in deciding cases, knowing beforehand how they will decide a particular case does not sit well with the idea of an impartial judge whose mind is supposedly not made up until the parties are heard. For a judge who has already formed an opinion, arguing your case before him or her would just be a useless exercise.