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Justice Azcuna’s itch to teach

(Article published in the Nov. 15, 2006 issue of Manila Standard Today)

With blood of a teacher running through my veins (the majority of my relatives within the 4th degree on both parents are teachers), I can understand how Justice Adolfo S. Azcuna would take the opportunity to do some teaching in his judicial opinions.  With due respects, however, his separate opinion concurring with the majority decision that dismissed the people’s initiative case (Lambino v. COMELEC, G.R. No. 174153, promulgated October 25, 2006)  in my view, went beyond the ordinarily recognized bounds of the Supreme Court’s teaching function.

 What we teach at the Ateneo Law School, where the good justice taught for many many years, is that courts are meant to settle disputes.  Hence, it is an essential pre-condition for going to court that there be real dispute between or among the parties.  Even in the case of an action for declaratory relief, which permits resort to the courts before the firing starts, the party seeking redress must allege and prove a imminent and threatened breach of his rights.

 Otherwise, the courts would be interminably distracted from its main function by an endless procession of legal advice seekers.  Not that we, lawyers who are in private practice do not welcome competition, but that the scarce public resources spent on maintaining  a functioning judiciary are better spent in the administration of justice than in handing out legal counsel.

 










Thus, the Supreme Court, in many instances, uniform hold that it has no jurisdiction to grant requests for an advisory opinion (Information Technology Foundation of the Phil. v. the COMELEC, 460 SCRA 291) or that its rendition is “beyond the court’s constitutional mandate and jurisdiction” (Velarde v. Social Justice Secretary, 428 SCRA 283).  In fact, it adopted the observation of a lower court that “courts in this and other jurisdictions have cast a definite  aversion” to requests for advisory opinions.

 The Court’s teaching function is thus limited to explaining what the law 13, not what specifically a person ought to do under a particular act of circumstances.  The former is teaching; the latter is advising.

 In fairness to the Lambino Group that brought the people’s initiative case adverted to above did not seek the advise of the Supreme Court.  It wanted the Supreme Court to order the COMELEC to give due course to its petition, namely, to hold a plebiscite to ratify, if the people so wills, the initiative petition that it filed under the Initiative and Referendum Act (R.A. 6735).

 But Justice Azcuna must have felt the teaching itch and so vigorously scratched.  He set the teaching tone of his opinion by quoting a line that he must have learned from his school days with the Jesuits studying Shakespeare’s Julius Caesar: “Why, friends, you go to do you know not what.”  Then, he proceeded to examine, as generations of law students do, Article XVII of the Constitution, which he helped write as a member of the Constitutional Commission of 1986, to demonstrate that R.A. No. 6735, although a law, is not a legislative measure but a “constituent measure”. Meaning, that it was passed by Congress in implementation of the people’s right to directly propose amendments to the constitution. 

 His conclusion, which in my view could worry the Senator insisting on the need for the Senate and the House of Representatives to vote separately in a Con Ass, is “that the requirements for statutory enactments, such as sufficiency of standards and the like, do not strictly apply” to R.A. No. 6735. 

 Since the entire Article XVII, as described in law school, is the “Constitution of Sovereignty” and since, as the teaching justice says, “when Congress acts under this provision, it acts not as a legislature exercising legislative powers.  It acts as a constituent body exercising constituent powers”, is he telegraphing to Supreme Court watchers how he will vote when the question of separate or joint voting of the Con Ass is raised to the highest court of the land?

 But that is a digression.  From his pronouncement that we should not be too strict on R.A. No. 6735, the good justice concludes that the said law is sufficient implementation of the right of the people to directly propose changes in the constitution.  Consequently, the next question ought to be whether the changes proposed by the Lambino Group are “amendments” which are permitted to be proposed under Section 2 or “revisions” which are allowed, by Section 1 only for Con Asses or a Con Cons.  There appears to be a constitutional statement that “asses” are of the same class as “cons”, and thus are lumped together in one section.

 At any rate, Justice Azcuna, on this issue, joins the majority in saying that, “Not only…is the proposed initiative…a prohibited revision but it also suffers from being incomplete and insufficient on its face.”  Hence, it was not compliant with both the Constitution and R.A. 6735.  The good justice could have stopped right there. 

 But the itch to teach apparently had to be scratched. The good justice proceeded to say, “This does not mean, however, that all is lost for petitioners.”  Then, like a teacher making marginal corrections on the written essays submitted by his students, he shows how the Lambino Group could recoup some of its loss.   He tells the Lambino Group that its proposal is really separable: one part is to turn the present bicameral legislature into a unicameral body and the other is to convert the present presidential form into a parliamentary form of government. 

 The first, says the good justice, is a mere amendment; the second is a revision, involving as it does “changes the nature and extent of which they [the Lambino Group] do not as yet know exactly what.”  Of course, despite the resonance of this statement with the above mentioned opening quotation of Justice Azcuna’s opinion, there is, I am sure, no subliminal admission that the Lambino Group are the good justice’s friends.

 The first, Justice Azcuna further teaches, is “sustainable”.  After all, “the text of the changes needed to carry it out are perfunctory and ministerial in nature.  Once it is limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which are practically automatic and non-discretionary.”

 Then the coup de grace that leaves no doubt that the good justice has turned to giving advice:  “As an example, I attach to this opinion a Appendix “A” showing how the Constitution would read if we were to change Congress from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives…These are mere amendments, substantial ones indeed but still only amendments, and they address only one subject matter.”

 After telling the Lambino Group what to do, the good justice ends his opinion with a maladroit disclaimer.  He concludes:

 “For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an appropriate initiative to propose amendments to the Constitution to change Congress into a unicameral body.  This is not to say that I favor such a change.  Rather, such a proposal would come within the purview of an initiative allowed under Article XVII of the Constitution and its implementing Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in their sovereign capacity. After all is said and done, that is what democracy under the rule of law is about.”

 What the good justice did not say is that on the issue of unicameral vs bicameral, he, as member of the Constitutional Commission of 1986 voted for a unicameral legislature.  So, what in effect he has done is to advise the Lambino Group that, if they could somehow, convince the COMELEC to consider their proposal as separable, drop the prayer as to the parliamentary form and adopt Appendix “A” of the Azcuna opinion, then they will surely have one favorable vote in the Supreme Court should the COMELEC refuse to submit the issue to a plebiscite.

 It’s too bad that the good teacher-justice’s itch was not there when it was needed most twenty years ago.  As a member of the Committee on Style of the Constitutional Commission of 1986, his correcting pencil failed to fine tune Section 1(1) of the same Article XVII he is now lecturing on leading to the current dispute on whether the Senate and the House, in proposing amendments under said subjection, ought to be voting together or separately.

  

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