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!

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.

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.