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.

IMPLICATIONS OF THE CHA-CHA RESOLUTION

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.

QUESTIONING SC ASPIRANTS ON POTENTIAL CASES

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.

PARTIES OF CONVENIENCE

In Philippine politics, political parties routinely sprout, align, merge, combine or coalesce. Really, there is nothing extraordinary or dynamic about this. It has been the norm in the current political landscape. Rather than serving as platforms for advancing a set ideas of governance political parties are nothing but mere vehicles to propel candidates to public office.

It is no wonder then that President Gloria Macapagal-Arroyo's Kampi party will seal its merger with Fidel Ramos's Lakas on Thursday in preparation for the coming 2010 presidential election. The merger will undoubtedly be seamless as, save for the choice of party standard bearers, there are no substantial differences to hammer out. Except for the personalities that constitute each party, there is really nothing that distinguishes one from the other. In fact one may even argue that the people behind these parties are the same old pols whose only interest is to perpetuate themselves in power.

Edmund Burke, the father of conservatism, defines a party as a group of men united to promote the common good in accordance with agreed principles. The Philippines, however, has evolved its own definition of a party as a political instrument to secure government positions for its members. To be sure, the varied political parties playing major roles in Philippine politics have drawn up their respective platforms of government, but these are less ideological than rhetorical. The principles to which Burke refers to are not to be found. For as soon as elections are over, politicians gravitate from one party to another - depending on which party offers the most security for reelection or one that can dispense government largesse.

Party loyalty is largely an illusory characteristic. Because of the lack of an ideological tie to their parties - which do not offer one, in the first place - party members or politicians have no qualms about jumping from one party to another or forming a party of their own to suit their personal interests under the guise of advancing the greater good. In 1991, for example, former President Fidel V. Ramos left the LDP to form his own Lakas party when he lost the presidential nomination to the late Ramon Mitra. Even as early as now, defense secretary Gilbert Teodoro's wife, Tarlac Representative Monica Louise Prieto-Teodoro, is already sending signals that in the event Gilbert Teodoro, who has just left the NPC to join the administration party, is not nominated as the presidential standard bearer of the merged Kampi-Lakas party there is a possibility that Teodoro will still pursue his presidential ambition. Her statement that there are many very powerful people who are backing the secretary's presidential bid and that if he is not anointed by the party they will go behind him are strong statements conveying this message.

It is interesting to note that as a result of the Kampi-Lakas merger former House Speaker Jose De Venecia, Jr. has tendered his resignation as Lakas's president emeritus and expressed his intention not to join the merged party. His reason is that "it is no longer of our original vision." What the erstwhile speaker is really saying is that the merged party will no longer serve his political career as did the Lakas-NUCD when he was removed as president and lost the speakership.

As the presidential election draws near we will be seeing more party switchings and realignments, all calculated to ensure the actors' success in the electoral stage. This practice will continue post elections, this time to ensure favor from the new holders of power. And the party system will be at their convenience to answer this primal need.

THE POLITICAL QUESTION DICHOTOMY

Whenever there is serious disagreement between the executive and legislative branches of our government, or among members of the latter branch, especially on political issues that are laced with legal questions, which by the way seems to be usually the case these days, the third branch - the judiciary, particularly the Supreme Court - is called upon to solve the dispute. In other words the Supreme Court has become a parent, if you will, who settles quarrels among his children.

This has not always been the case. Prior to the 1987 Constitution, the Supreme Court has taken a flip-flopping position in disputes involving the political branches by either accepting or declining jurisdiction whenever in its "supreme wisdom" it considers the issue as political rather than legal, or vice versa. The standards it used were at best murky; some decidedly political cases were taken cognizance of while some that presented clearly legal issues were denied of the court's attention.

Now that the 1987 Constitution has expanded the jurisdiction of the Supreme Court it would appear that the debate on whether political questions may be entertained has been settled. The second paragraph of Section 1, Article VIII of the Constitution now defines judicial power as including the duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This is called the court's expanded certiorari (pronounced as ser-shee-uh-rair-ree, or if you prefer the more sophisticated ser-shee-uh-rair-ahy) jurisdiction.

There is now an express directive for the Supreme Court to subject to judicial review actions of even the other branches of government, such as Congress, whenever such actions - although political in nature - constitute grave abuse of their discretions. Even more revolutionary is the fact that the Supreme Court's certiorari jurisdiction, aside from being a power, is now an express duty which, once invoked by a party to a controversy, the Supreme Court cannot shirk from. I said revolutionary because having copied our republican system of government and constitution from the United States, Section 1, Article VIII constitutes a radical departure from the American norm wherein the US Supreme Court retains wide discretion on whether to exercise its jurisdiction in cases involving the political branches under the political question doctrine.

The framers of our Constitution, however, made it clear during floor deliberations on Section 1, Article VIII that the definition of judicial power contained therein does not do away with the political question doctrine, that is . . . purely political questions that come to the court. This means the Supreme Court will have to distinguish between justiciable political questions (those which the court can rule upon because of the legal issues involved) and non-justiciable political questions or purely political questions. This is now the battleground in constitutional litigations involving the political departments of the government.

As early as now, we are already hearing the invocation of the political question doctrine in the petition filed before the Supreme Court by the senate minority, led by Sen. Aquilino Pimentel, which seeks to block the majority in the Senate from trying the ethics charges against erstwhile senate president Manny Villar. To be sure, the respondents will claim political question by saying that the issue involves matters purely internal to the Senate. Senate president Juan Ponce Enrile may say that the Constitution gave the Senate authority to determine its own rules of proceedings and to punish its members for disorderly behavior. The rules it adopts are, therefore, outside of the court's power of review.

Senators Pimentel and Allan Peter Cayetano, who are both lawyers, are of course aware of the political question doctrine or, as applied to the Philippines, the dichotomy between purely political and justiciable political questions. While concededly the issue on Manny Villar's ethics trial is internal to the Senate and therefore a political matter, they were careful to inject in their petition legal claims such as the violation of Villar's right to due process and equal protection under the law. More important, they allege violation by the majority of the constitutional rule on quorum in the conduct of the Senate's business. Senator Pimentel claims that instead of applying the quorum requirement of 13 to legitimize a senate proceeding when it transferred to the committee of the whole Villar's case, Senator Enrile used the much smaller quorum requirement of the ethics committee where Villar's case was originally pending. Corollarily, Pimentel and company are invoking the Supreme Court's constitutional duty to assume jurisdiction whenever a department of the government is guilty of grave abuse of discretion, as when a law is violated or disregarded in the exercise of its discretion.

Will the Supreme Court take cognizance of this new dispute involving a political body, as it has consistently done so in the past? Without going into the issue of standing, if Pimentel and company frame their issues well by clearly showing violations of the Constitution by the senate majority, there is a strong likelihood that the Supreme Court will step into the controversy. Francisco, Jr. v. House of Representatives - which involves the constitutionality of the second impeachment complaint against former Chief Justice Hilario Davide, Jr. - is instructive of the standards to apply in determining what is a justiciable political question. It held that where there are constitutionally imposed limits on the powers or functions to be exercised by the political bodies, the court has the power, a duty even, to determine whether or not the powers were exercised in accordance with those limits.