Santiago is apparently headed for a review by the present membership of the Supreme Court. When that happens, all the previous arguments of the majority and dissenting members of the 1997 Court will be dusted off and people like me will be engrossed with guessing how the present Court will rule. Rather than mellowing, advocates of the opposing sides have become more strident with age and the slings and arrows of outrageous fortune.
Take the resolution of the Motion for Reconsideration filed in the Santiago case. Oh, you didn’t know there was an MR? You don’t remember how it was resolved, and how the voting went? Don’t fret. Hindi ka nagiisa! Even lawyers aren’t aware of the MR because – let’s say it upfront – the motion was denied.
Resolutions denying MRs do not get printed in the Supreme Courts Reports Annotated. However, I was able to get a copy of the resolution with the separate opinions of Justices, courtesy of companero and former broadcasting colleague Romy Macalintal, who in turn got his copy from the lawyer for one of the petitioners.
The interesting thing about these papers was the separate opinions of some Justices on the MR. These opinions may well be relevant in any review of Santiago.
Let’s go to the scorecard first: It will be recalled that in the original decision of March 19, 1997, 8 Justices, namely Davide (the ponente, or writer), then Chief Justice Narvasa, Regalado, Romero, Bellosillo, Kapunan, Hermosisima and Torres were in the majority. Five Justices (current Chief Justice Panganiban, Puno, Francisco, Melo and Mendoza) dissented. Justice Padilla inhibited himself due to relationship with a party’s attorney. Justice Vitug thought the case was prematurely brought to court for adjudication. Thus, the total score was 8-5-2.
In the Motion for Reconsideration, Chief Justice Narvasa and Justices Davide, Regalado, Romero, Bellosillo and Kapunan voted for denial. On the other hand, Justices Panganiban, Puno, Francisco, Melo, Mendoza, and Hermosisima (who was originally with the majority) voted to grant the MR. Justice Torres, who had also voted with the majority in the original decision, now inhibited himself, along with Justice Padilla. Justice Vitug reiterated his view that the case was not ripe for judicial determination. The score this time: 6-6-3, a palpable draw. But, as the resolution said, "Thirteen (13) Members having taken part in the deliberations, and only six(6) having voted to grant the motions for reconsideration, said motions…are DENIED WITH FINALITY…"
As we’ve stated many times in this space, the fact that the vote was sharply divided in both the original decision and the MR, plus the circumstance that only two of the Justices in the 1997 Santiago Court still remain active, both of whom were the principal dissenters (now Chief Justice Panganiban and Senior Justice Puno) in that case, apparently give those who seek a rematch on the "adequacy" of Republic Act. No. 6735 reason for hope.
The separate opinion of Justice Puno raised a new issue which his fellow Justices found substantial. That of Justice Hermosisima, who reversed course and joined the dissenters, was interesting in its own right. The inhibition of Justice Torres which denied the majority a concurring vote it had in the original decision was, shall we say, curious.
Justice Puno put his new "overriding concern" as follows: "From time immemorial, courts have only invalidated laws that offend the Constitution…In the case at bar, R.A. No. 6735 is not assailed by the majority as unconstitutional for failure of Congress to follow the substantive requirements of lawmaking…The majority has broken all precedents when it did not find R.A. No. 6735 as unconstitutional yet refused to validate it. It relies on a reason unrecognized by existing jurisprudence, i.e. that Congress inadequately expressed its intent in drafting R.A. No. 6735."
Puno quoted, with evident approval, the observation of intervenor Raul Roco, who as a congressman was the author of the House version of the bill which later became R.A. 6735, that the Court "created a third specie of invalid laws, a mongrel type of constitutional but inadequate and, therefore, invalid law."
The dissenting Justice Puno then delivered his own big finish: "This mongrel endangers the principle of separation of powers, a touchstone of our Constitution. The power of Congress to make laws includes the power how to write laws. The Court has the power to review the constitutionality of laws, but it has no authority to act as if it is the committee on style of Congress." (Itals. ours)
This is powerful stuff, although Justice Puno had other equally vigorous language on the need to recognize the clear intent of Congress in enacting R.A. No. 6735, as well as the Court’s "traditional duty to interpret (that law) to effectuate its intent." The minority view, he said, that the law was "comprehensible enough" to be enforceable was shared by others whose "honesty or motive" could not be assailed such as the Congress that enacted R.A. No. 6735, former President Cory Aquino who signed it into law and the Comelec which promulgated, in accordance with the law and the Constitution, regulations on people’s initiative.
Justice Davide, for his part, would yield neither the conceptual nor rhetorical high ground. He insisted that the constitutionality of the law was at issue in the invalid delegation of legislative power which the majority perceived in R.A. No. 6735. He attributed the allusion to a "mongrel" (loosely translated in the vernacular as "askal," which I find infinitely more picturesque) type of constitutional but inadequate and, therefore, invalid law to "an inability to fully grasp the workings of the principle of non-delegation of legislative powers and exceptions thereto."
That inability, he fumed, coupled with the incapacity to understand the "significance and import" of the majority’s statement that R.A. 6735 was "incomplete, inadequate, or wanting in essential terms and conditions" insofar as initiative was concerned, was what "could sire what intervenor Roco baptizes" as a mongrel law.
Next time, the views of the somersaulting Justice Hermosisima, the reasons for the arguably tardy inhibition of Justice Torres, and our own take on this undeniably riveting legal conundrum which has, we believe, historic consequences for the nation.