Can SC amend, correct constitutional inadvertence?

By Ina Reformina, ABS-CBN News

Posted at Aug 02 2012 03:52 PM | Updated as of Aug 02 2012 11:52 PM

MANILA, Philippines - Can the Supreme Court (SC) correct an "inadvertent mistake" in the Constitution and effectively amend it without going through the usual processes explicitly provided for in the very same charter?

So asked the majority of magistrates who voted in favor of the July 17 decision that clipped Congress' representation in the powerful Judicial and Bar Council (JBC) in today's oral arguments on the issue.

The magistrates posed the question to Sen. Joker Arroyo who appeared before the court on behalf of the Senate, and the Office of the Solicitor General's (OSG) Asst. Solicitor General Romas Del Rosario who represented both respondents Sen. Chiz Escudero and Iloilo Rep. Niel Tupas, Jr.

Congress filed a motion for reconsideration (MR) on the July 17 decision where 7 magistrates formed part of the majority decision while two dissented.

Arguing before the high court presided by Associate Justice Diosdado Peralta, Arroyo and Del Rosario pointed out that while the wording of Sec. 8(1), Art. VIII (Judicial Department) of the 1987 Constitution mentioned "a representative of the Congress" as one of the JBC's ex-officio members, the "intent" or "spirit" of the charter was for each of the two chambers of Congress to be equally represented.

Both argued that when the 1987 Constitution was drafted by the 1986 Constitutional Commission (ConCom), the presumption was that  the legislature would be composed of only one body, or unicameral in nature. When the bicameral system was approved, as an oversight, the framers no longer "cured" the defect in the letter of the above-stated provision.

Arroyo and Del Rosario told the high court that it was "impossible" for one chamber to represent the other, and Congress, as a whole, in the JBC.

"It is an impossible situation because the Senate cannot represent the House [of Representatives] nor can the House represent the Senate. The framers of the Constitution so provided that the two, while under one roof, are no Siamese twins... Otherwise, we could might as well have a unicameral system," Arroyo said.

The OSG pointed out that had the framers intended for only a single representative from Congress in the JBC, the manner for the selection of who this representative should be would have been provided for in the Constitution itself.

"If we go by the Constitution, there's always a procedure by which the function is going to be carried over... had the intention really been to have only one [representative from Congress], then the Constitution itself should have provided the manner by which this should be made," Del Rosario said.

They added that the balance of power among the three branches of government "was not the intent" of the subject provision because four of the JBC's members are appointed by the President anyway.

Judicial activism vs Judicial amendment

Arroyo called on the high court to exercise "Judicial activism" and use its power of judicial review to address the inadvertence.

Associate Justice Jose Mendoza, author of the July 17 decision, however, stressed that allowing two representatives from Congress in the JBC was tantamount to "judicial amendment" or the Judiciary going beyond its mandate of interpreting the law to amending the law as written.

"According to the Constitution, the JBC only has 7 members, does the Supreme Court have the authority to add one more member?" he pointed out.

Associate Justice Jose Perez said that "assuming there was inadvertence," the subsequent ratification of the Constitution was a stamp of approval of all the charter's provisions.

"This Constitution was overwhelmingly ratified by the Filipino people... Whether [there was] inadvertence or not, that one provision (Sec. 8(1), Art. VIII) was ratified overwhelmingly by the Filipino people," Perez said.

"It is not interpretation you are asking for the Court to do but you are asking the Court to correct an inadvertence. Can the Court correct an inadvertence of the Constitution when amendments to the Constitution is also provided for in the Constitution?" he stressed.

Congress is one body

Mendoza pointed out that Congress, as one of the three branches of government, is one single body though it may be composed of two chambers. He stressed that in order to maintain the balance of power and preserve the equality of each branch's vote in the JBC, Congress should enjoy the same vote as that of the Executive and Judiciary.

"In enactment of laws, they (Senate and House of Representatives) cooperate with each other and in the Constitution they have a role to play. Their product in their interplay in only one law. Their interaction is also the same with the declaration of war which is not a legislation, in the canvassing [of votes] for President and Vice-president, the power of appropriation and impeachment --- [in] all of these they bring one result. In the JBC, the Constitution does not call any interruption between the two Houses," Mendoza said.

In performing official functions where a Senator or Congressman appears on behalf of Congress, he/she officially represents the entire Congress and not one chamber alone, he added.

The law is clear

Perez and Villarama raised the possibility of removing the portion of the July 17 decision directing the immediate execution of the ruling, allow the JBC composition of eight members to cast the votes on the nomination of the next Chief Justice, and, when a new chief magistrate is appointed by Pres. Aquino, let the 15-member high court to rule on the legal dispute.

While Congress was amenable to the idea, petitioner Frank Chavez disagreed.

"This Court is good enough. This Court is the Supreme Court of the Philippines. It has a quorum. Its decision is valid and binding upon everybody [even as] the Senate and the House [are] saying to the contrary. A division [of the SC] is not a full court and yet its decision is considered a decision of the full court," Chavez pointed out.

"All of us know that this is rather a simple case, as simple as ABC. In fact, it is even more simple than ABC. We just have to focus on a definite Article: Sec. 8(1), Art. VIII," he added.

The provision of the Constitution is "very clear," he said, that it needed "no interpretation, only application."

"We stick to the very basic doctribe for us, lawyers. Verba legis (letter of the law). Respondents do not even question the letter of the law becayse it is very clear. You resort to spirit (of the law) only when the letter is not clear... There remains only the mandatory duty of the Court to apply the law, not to interpret the law because the law is very clear," Chavez said.

Defiance and dereliction of duty

Should the high court refuse to reverse its decision, Congress may not be able to resolve the impasse and not participate at all in the JBC selection process for judicial and Office of the Ombudsman posts, Arroyo argued. He, however, stressed that the Senate was not willing to go into a constitutional crisis.

"If the Court deprives us of separate representation, I think it will be very difficult for us," Arroyo said.

Chavez called this a "gross defiance of a clear mandate" of the high court and "also a dereliction of duty on the part of Congress."

"They cannot hold the JBC hostage by simply not participating; the solution there is -- they are absent, you have 7 members, there is still a quorum," he pointed out.

Chavez further said that there was no inadvertence on the part of the framers of the charter about the subject provision since, two months after the completion of the draft of the Constitution, on Oct. 10, 1986, the draft was referred to the Style Committee "to look into possible inadvertence, possible errors, possible mistakes in the language of the Constitution."  He stressed that no changes were made on Sec. 8(1), Art. VIII by the committee because its intent was precisely to have only one congressional representative to the JBC.

Chavez said Congress' motion for reconsideration (MR) on the July 17 decision should be outrightly dismissed for raising "recycled" arguments already passed upon by the high court in its ruling.

The parties were not asked to submit their respective memorandum on the case. The high court said it will continue to deliberate on the case on Friday.