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An obit, not quite an obituary, but not only an obiter

(Article published in the Nov. 29, 2006 issue of Manila Standard Today)

The diametrically opposed interpretations elicited by the resolution of the Supreme Court, en banc, issued on 21 November 2006 on the motion for reconsideration of its decision dated 25 October 2006 in  Lambino v. COMELEC highlight a characteristic of our national psyche: the only certainty we accept is death, and even that we try to prolong, if not deny, to the death.  The rest we do not want to be entirely here nor entirely there.

 Stylistically, the fact that the said resolution is a “minute” one gives the signal that the matter needed no further argumentation and debate and thus the resolution ought to be taken as the last word. The word “minute” which is commonly mispronounced as in “minutes and hours” ought to be really pronounced with both the “i” and the “u” long, to reflect is true meaning, namely,  exceptionally small or insignificant.

 But somehow, the medium of being in a minute resolution did not adequately deliver the message of an issue that is finally resolved; debate as to the resolution’s true significance currently rages. In fact, instead of the quietus of the settled, what we hear are claims of vibrant victory from the two opposing sides.

 Opponents of the so-called people’s initiative petition claim that, with the Nov. 21 minute resolution, the matter had been laid to rest, an anachronistic expression that is a legacy of polite days long gone by for the more direct, “dead and buried”.  They have text in the resolution to support them, to wit:

“Acting on the following motions for reconsideration of the decision of October 25, 2006, the Court Resolved, by the same vote of 8-7, to DENY WITH FINALITY the said motions for reconsideration, as the basic issues raised therein have been duly passed upon by this Court and no substantial arguments were presented to warrant the reversal of the questioned decision.” (CAPS in the original.)

 Sigaw ng Bayan and its allies, however, maintain that in fact they got what they really wanted.  They insist that they went to the Supreme Court to contest the COMELEC’s adherence to the Supreme Court’s ruling in Santiago v. COMELEC (336 Phil 848) that R.A. No. 6735 was inadequate to implement the initiative clause on proposals to amend the Constitution.  They too have text in the resolution to support their claims; the last paragraph reads as follows, to wit:

 “Ten (10) Members of the Court reiterate their position, as shown by their various opinions already given when the Decision herein was promulgated, that Republic Act No. 6735 is sufficient and adequate to amend the Constitution thru a people’s initiative.” Ergo, Sigaw et al. shout that it is they who won. 

 What is a layman, seeking to understand, to make of the Supreme Court’s Nov. 21 resolution?

 It is clear that the portion of the resolution first abovequoted, which is invoked by opponents of Sigaw is an essential part of the court’s action on the case.  Without the categorical denial of the motions for reconsideration, the case could go on and on.  Such denial, with finality, had to be supported with a statement of the Court’s reasons for it (which are that basic issues have already been passed upon and there was absence of new substantial arguments presented in the  motion warranting reconsideration) because the Constitution provides that no “motion for reconsideration of a decision of the court shall be…denied without stating the legal basis therefor” (2nd par. Sec. 14, Art. VIII, Const.).

 In effect, what the Supreme Court said on Nov. 21 is that what it said on Oct. 25 stays.  And what the decision of Oct. 25 said was that for a petition for an amendment of the Constitution through a people’s initiative to comply with the requirements of Section 2, Article XVII of the Constitution, the people must sign on a petition that contains the full text of the proposed amendments.  In the language of the corporate world, the proposed amendments must be fully disclosed to the people, as evidenced by its incorporation or affixture in the petition itself, and the people themselves, as shown by their signatures on the petition, must be the ones making the proposal.

 In contrast, it is just as clear that the portion on which Sigaw founds its claims of victory is not essential to the resolution of the motions for reconsideration. The resolution could stand even without it. 

 In fact, with the finding that nothing new was presented during the consideration of the motion for reconsideration, the comment on the position of ten (10) justices on the question of the sufficiency of R.A. No. 6735 seems like a dangling, if not totally irrelevant, phrase.  Indeed, what appeared stressed was the fact that what the ten (10) justices did was merely to “reiterate their positions.”  These positions are the exact same ones as those “as shown by their various opinions already given when the Decision herein was promulgated.”  

 Since the lack of new matter needed to overturn the Oct. 25 Decision is matched by the absence of change in the position of the ten (10) justices, then it is instructive to recall what the majority opinion of Oct. 25 said on the need to review the question of R.A. NO. 6735’s sufficiency. The majority decision written by Justice Carpio stated:

 “The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people’s initiative to amend the Constitution. There is no need to revisit this Court’s ruling in Santiago….An affirmation or reversal of Santiago will not change the outcome of the present petition.”

 In the parlance of lawyers, the text invoked by the Sigaw’s opponents is the “ratio decidendi” and that paragraph that was pleasing to Sigaw is “obiter dictum”.  Both are found in the judicial decision, but only the first forms part of the legal system of the Philippines as provided in Art. 8 of the Civil Code of the Philippines.

 The ratio decidendi (roughly translated, the legal rule as enunciated by the decision) undoubtedly is authoritative, i.e. controlling.  Lower courts are bound to rule in the same way in future cases.  Even the Supreme Court itself, should it be confronted by substantially similar facts, is expected to rule in the same way. 

 The obiter (short for the longer obiter dictum, meaning something said by the way), in contrast with ratio decidendi, is not authoritative.  However, it is not always easy to spot an obiter.  Sometimes, a lower court falls into the error of mistaking a remark made by the way as authoritative.  An example of this misake is how the Court of Appeals understood a remark in Tapiador v. Office of the Ombudsman, 429 Phil 47.

 In Tapiador, the Supreme Court ponencia that went against the Ombudsman contained the statement that the Ombudsman had no authority to directly punish an erring public official or employee.  The remark, however, was not necessary since the operative reason for the acquittal of the government official was the failure of the complainant to present substantial evidence to prove the charges in the administrative case. 

 The Court of Appeals, however, failed to correctly assess the legal import of the Supreme Court’s remarks in Tapiador as obiter and thus ruled, in CA-G.R. SP No. 69313, that the Ombudsman could not impose, but could merely recommend, the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at faulty.

 On appeal, the Supreme Court, in Office of the Ombudsman v. Court of Appeals, G.R. No. 16075, June 16, 2006, reversed the Court of Appeals and pointed out, as it had done earlier in the case of Ledesma v. Court of Appeals, 465 SCRA 437, that the statement in Tapiador that the latter had relied on was merely an obiter dictum and “ cannot be cited as a doctrinal declaration of the  Supreme Court.”  This rejection of Tapiador was reiterated in Barillo et al v. Gervacio, G.R. No. 155088, August 31, 2006).

 If then, the summation in the Nov. 21 resolution of the justice’s stand on the issue of R.A. No. 6735’s sufficiency as well as the various positions themselves as expressed in the separate opinions to the Oct 25 Decision are obiter dictum, what was the reason for its presence, in fact prominence, in the said resolution?  Only the justices themselves could answer that definitively.  But, I would like to hazard a guess.

 It seems to me that the Supreme Court is pro-actively sending out the signal that Sigaw’s present attempt for an initiative, on account of the way it was conducted, is dead. But, a more carefully crafted and better executed initiative petition by the people sometime in the future has a good chance of finding an sympathetic ear in the Court.  After all, the people’s initiative clause in the Constitution, namely, Section 2 of Art. XVII, is precisely a venue for breaking the politicians’ stranglehold on the future the nation and its exercise cannot be frustrated by the inadequacies of the politician’s themselves who crafted R.A. No. 6735.  The people’s initiative, though not alive and kicking like a mule, could be as hard headed and is welcome to try again sometime in the near future.