MANILA - The Supreme Court (SC) junked on Tuesday the petitions seeking to nullify House Resolution (HR) 1109 calling for a constituent assembly (Con-ass) to amend the charter even without the Senate.  

In a unanimous decision penned by Chief Justice Reynato Puno, the High Tribunal dismissed the petitions filed by lawyers Oliver Lozano and Louis Biraogo for being premature. 

Lozano had asked the SC to nullify HR 1109 because it would allegedly perpetuate President Arroyo’s stay in power, while Biraogo asked for the issuance of a temporary restraining order (TRO) against HR 1109.

SC spokesman Midas Marquez said the ruling means "it's not yet ripe because there is no actual controversy."

He added that the lower House has not yet set a date for the convening of the members of Congress, there is still no actual meeting of the assembly, no rules of procedure, and no proposals for charter change have been made.

As a result of the SC ruling, Congress may proceed to convene the constituent assembly, which some congressmen want to hold after President Arroyo's State of the Nation Address (SONA) on July 27.

However, Marquez said the decision does not mean that congressmen will be able to do pursue charter change since a new petition can still be filed before the Supreme Court after the constituent assembly is convened.

"They can do whatever they want to do unless a new petition is filed assailing whatever action they will be doing," Marquez said. He said the High Court cannot speculate on what may happen in the future.

No Con-ass yet

In a press statement, the Supreme Court said it "refused to exercise its jurisdiction over the two consolidated petitions," which sought to nullify the Con-ass resolution, "because the fitness of petitioners' case for the exercise of judicial review is grossly lacking." 

The SC said that its power of review “is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties.”

It said “the case-or-controversy requirement bans this court from deciding abstract, hypothetical or contingent questions.”

The SC added in its press statement that the petitions filed were found to be premature or unripe for review because it lacked the showing of any proven “adverse injury or hardship from the act complained of.”

The court also noted that “no actual convention has yet transpired and no rules of procedure have yet been adopted.”

In fact, the SC said “no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place.”

Thus, the SC said “the House has not yet performed a positive act that would warrant an intervention from this Court.”

No funds disbursed

The High Court said the petitioners do not have standing even as taxpayers since "there has been no allocation or disbursement of public funds yet."

The SC said the petitioners cannot claim locus standi based on “an issue of transcendental importance or [by showing that a] paramount public interest is involved,” because “the possible consequence of House Resolution No. 1109 is yet unrealized.”

It said "locus standi is a constitutional requirement," which means the Constitution mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable.”

The SC said 10 justices concurred with Puno's decision. One justice took no part, while another was on official leave. There are currently two vacancies in the High Court. 
 
Anticipated

In response to the SC ruling, House Speaker Prospero Nograles said, "the dismissal was legally anticipated."

"Personally, I believe that this is in accordance with the opinion of Fr. Joaquin Bernas that HR 1109 does  not by itself convene Congress into a Con-ass. There will be a justiciable issue only when Con-ass is actually actually convened and proposed specific amendments are made," he told reporters in a text message.

"It's like all the rallies and the lighting protests the militants, and those who want to run next year are making,  including some of the bishops. It's all just noises and it's all premature," he said.

Twist ruling?

Bayan Muna Rep. Teodoro Casiño, meanwhile, fears Malacañang and its House allies will twist the SC's decision to their advantage and convene into a Con-ass without the senators.

"Ang pangamba ko diyan, gagamitin ito ng administrasyon para sabihing wala nang legal na balakid sa pagtutuloy ng Constituent assembly (My fear is that the administration can now say that there is no legal obstacle to push through with the Constituent assembly)," Casiño told radio dzMM.

He said the SC could have unconsciously fell into the administration's trap. He added that Lozano's "weak" petition could have been deliberately filed to pave the way for a Con-ass.

In a separate radio dzMM interview, Maguindanao Rep. Didagen Dilangalen said the SC's decision was "expected" because there was still no justiciable controversy.

"There will be justiciable controversy once the House of Representatives starts deliberating on a particular proposed amendment to the Constitution without the Senate," Dilangalen said.

Akbayan Rep. Risa Hontiveros-Baraquel said the dismissal of the Lozano petition was a "very wise" step on the part of the SC.

"At least for now, the SC was able to avoid the trap set by Malacañang and the House majority to force it to rule on the political question regarding Con-ass," Baraquel said.

Not justiciable

Lozano’s taxpayer’s suit was slammed beforehand by the Senate for having no legal leg to stand on.

In a caucus held before they adjourned sine die on June 5, both minority and majority members of the upper chamber agreed that the Constituent assembly petitions were not justiciable.

Senate President Juan Ponce Enrile had said that the resolution “only called” for the convening of the Congress into a Con-ass, but with no proposed charter amendments. He added that the lower house would not be able to push for charter change without the Senate.

Bicameral Congress

Biraogo’s petition, meanwhile, sought for a TRO because HR 1109 allegedly violated  Sec. 1, Article XVII of the 1987 Constitution, which stipulates that amendments to the charter should be made by a vote of three-fourths of all the members of Congress.

Although this Constitutional provision does not specify if the lower and upper chambers should vote separately or jointly on charter changes, Biraogo said voting should be done separately in keeping with the bicameral nature of Congress.  

Sorsogon Rep. Jose Solis and Nueva Ecija Rep. Rodolfo Antonino said in earlier reports that Congress would convene as a constituent assembly after Arroyo’s State of the Nation Address (SONA) on July 27 to create a “justiciable” issue.

Sources said Justice Antonio Carpio was supposed to be the original ponente for the ruling. Carpio reportedly pushed for a minute resolution since the Supreme Court did not even require the respondents to comment.

But Chief Justice Puno then wrote a separate opinion which the Supreme Court, en banc, adopted instead of the minute resolution.