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!

TO VOTE JOINTLY, OR SEPARATELY, THAT IS THE QUESTION

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.

LAYING THE BASIS FOR A JUSTICIABLE CONTROVERSY

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.