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Not a “just-tiisable” issue

(Article published in the Jun  24, 2009 issue of Manila Standard Today) 

No way could we just grin and bear it. Certainly we cannot “just-tiis” and suffer in silent indifference.  When the House of Representatives passed its Resolution No. 1109 calling upon the members of Congress to convene for the purpose of considering proposal to amend or revise the Constitution upon three-fourths vote of all the members of Congress, it admittedly wanted to provoke a response.

 Supposedly what the lower house (“lower” in many ways than the Senate except in numbers) aimed to do was solely to set the stage for someone (whether preordained or not) to go to the Supreme Court to seek a ruling that would end all debate on how Congress could constitute and conduct itself as a constituent assembly to amend the Constitution.

 Since incredulity was, since birth, written in my DNA, I do not buy that pretense.  My take is that House Resolution No. 1109 was intended to test the waters preparatory to the launch of something grander and more sinister, to get an indication of how fatigued people already are by the incessant attempts of the still president to stay in power, if not in the same position perhaps in another with similar authority, and to find out just how much opposition there was to a Con-Ass, convened before the elections to be held in 2010, to pave the way for such design.



That is why I read with no small measure of disappointment the Supreme Court’s en banc resolution of the cases of Atty. Oliver O. Lozano et al v. Speaker Prospero Nograles, et al, G.R. No. 187883 and Louis “Barok” C. Biraogo, v. Speaker Prospero Nograles, G.R. No. 187910, both promulgated 16 June 2009.  I had hoped for a mighty Zeus hurling his thunderbolts against those impudent underlings; instead I saw Apollo strumming his lyre to the tune of a pacific lullaby.

 The Supreme Court’s resolution, in fairness, was not lacking in the expression of resolve.  At the very start, it affirmed the intention of the court to do its duty. “This Court,” the first sentence read, “so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to wield its judicial power to settle 'actual controversies…”  And, using the envelop style found in biblical texts, the final sentence reiterated, “When warranted by the presence of indispensable minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it.”

 But in between the initial statement and the final flourish, the court resolution moved like a tinikling dancer, with feet stepping on what seems perilous earth but only where the clashing bamboo poles are not, and with hands waving cups that bore light so feeble, unable to dispel more than a few inches of darkness on stage.

 The court resolution started by claiming for the Court the exclusive power of judicial review, asserting that it was the Court’s prerogative to set the limits of the jurisdiction of the other branches of government. However, it at the same time confessed that such prerogative could be exercised only in instances of “actual cases and controversies dealing with parties having adversely legal claims…”  Accordingly, the Court, said the court resolution, is incapable of “deciding on ‘abstract, hypothetical or contingent questions’ lest the Court give opinions in the nature of advice concerning legislative or executive action.”

 That summary of the power of judicial review is undoubtedly hornbook law. But to a people nervously looking to the Court as the defender of their rights, it sounded too apologetic, if not weakly defensive.  Similar to the protestations of a suitor who avows his willingness to climb the highest peak but in the same breath complains of being bothered by an ingrown toe nail.

 Unabashed by its opening confession of vulnerability, the court resolution then proceeded to further lay the basis for its refusal to take a stand on Resolution No. 1109. It observed that the question posed by Lozano et al was not yet “ripe.” In the Philippines, said the resolution, “a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.”

 Lozano et al, according to the court resolution, have not yet suffered any adverse injury or hardship from Resolution No. 1109.  All that Resolution No. 1109 is said to have done, so far, was to express an intention to “convene at a future time for the purpose of proposing amendments or revisions to the Constitution.” Such expression of intention harmed no one, the court resolution seemed to say.

 With due respects, I am not convinced that Congressional adoption of Resolution 1109 did not cause any injury.  Did not the so-called Honorables spend, in my view rather dishonorably, government funds on that fateful night when the Batasan’s lights were kept alit until the congressmen consummated their deed? Were not the House’s employees paid overtime who worked beyond regular hours that night just to make sure that the Honorables’ exercise did not turn out to be in futility? Was not the mere use of government property to just get the Supreme Court to make a ruling in itself an injury to the government store of goods?

 Be that as it might, the court resolution, as its final salvo, resorted to Latin to give its timidity the cloak of ancient respectability.  Lozano et al, said the resolution, did not have “locus standi”.

 For a brief moment I was tempted to concur.  But that temptation to agree I quickly ordered to get behind me.  Surely, Lozano et al must be considered payers of tax; if not of the income tax, at least of the value-added tax which falls on most things consumable, except on the commodity called patience.  And, even if the disbursement of funds is considered, as it should be, a condition for the rule of taxpayer’s suit to apply, it is clear that the mere use of public property to pass Resolution No. 1109 complies with that requirement. 

With due respects, once more, I beg to take the position that Lozada et al did have locus standi. As the court resolution itself pointed out, the rule of locus standi specifically required of the plaintiff “a personal stake in the outcome of a controversy…” Besides, one of the two words in “locus standi” is, in my view, a fairly accurate description of Lozano et al.