Looming showdown

A tenuous one-vote majority in a divided Court can trump a 3,000-plus lead in congressional elections? Why not indeed if the Court’s decision is based on well-settled constitutional principles? But, the dissenting justices strongly argued, the Court was actually flouting time-honored doctrine, an “unusual approach and strained ruling,” said dissenting Justice Arturo Brion, via a summary decision that would benefit the son of one of its members. The Court, Brion said, “out of [a] sense of delicadeza …  should at least hear and consider both sides before making a ruling that would favor the son of a Member of the Court.”

In this year’s election for the congressional seat in Marinduque, Regina Ongsiako Reyes won 52,209 votes against her opponent’s, Lord Allan Jay Velasco’s, 48,396. Reyes was proclaimed winner, has assumed office and has been discharging her duties at the Batasang Pambansa.

In the meantime, the Commission on Elections  sided with the younger Velasco, and said Reyes hadn’t been qualified to run. Reyes then went to the Supreme Court to nullify the Comelec ruling, but the Court dismissed her case outright, citing jurisdictional grounds but actually addressing the merits of the case. She lost 5-4 before the Court, with five justices voting against her, four in her favor, and six not taking part (including Lord Velasco’s father, Justice Presbitero Velasco Jr.). The House refuses to honor that decision, however, since it wasn’t a party to that case in the first place.

The heart of Velasco’s challenge is that Reyes was an American citizen, and the key evidence, believe it or not, was a mere blog that hadn’t been offered and admitted in evidence and which, in the words of Justice Brion, was “double hearsay.”

Reyes went to the Supreme Court, invoking the well-settled rule that the “proclamation of the winning candidate is the operative fact that triggers the jurisdiction” of the House of Representatives Electoral Tribunal (HRET). In what Justice Antonio Carpio later called a “double flip-flop,” the Court questioned the validity of Reyes’ proclamation, a “self-raised argument [by] the Court on an issue that had not been raised” by the parties. (In another strange twist, the Supreme Court had earlier wondered: So why hadn’t Reyes filed a case before the electoral tribunal? But why would a winner file an election protest?)

Finally, the Court actually revised the Constitution by requiring Reyes to have taken her oath of office while Congress was “in open session” in order that the HRET can enter the picture. There is no such rule in the Charter. Indeed, it says that congressmen begin in office “on the 30th day of June,” while the Supreme Court now delays that to “the 4th Monday of July” when Congress begins its session. Given the strict filing periods, that delay will make it almost impossible for the electoral tribunal to receive such cases.

The real puzzle is: Why did the Court dissipate its reservoir of legitimacy this way? Even if it wanted to save the hide of the younger Velasco, surely it could have gone through a proper exchange of pleadings before it issued its first ruling. Why the “rush to judgment,” since after all, reports say that the younger Velasco has now challenged Reyes before the HRET?

The reason is that the younger Velasco wouldn’t be guaranteed his seat via the electoral tribunal which, if it unseats Reyes, can declare the post vacant and call for fresh elections. In contrast, via the Comelec-Supreme Court route, Velasco is assured that, as second-placer, he automatically fills the seat because all the Reyes votes will be declared “stray” and not be counted.

But at what price? The risk that its decision is all for naught, since the House is not bound by that decision? The risk that its legitimacy is beclouded by procedural shortcuts, doctrinal flip-flopping, and lawyers’ sleight of hand?

Last week, the brazenness of it all provoked the House of Representatives to circle the wagons around Reyes, with some 160 signing a petition in her support. Some House members have threatened to impeach at least one Supreme Court justice and curtail the Court’s own discretionary fund from which it sources its bonuses and perks. Worst of all, while the debate is cast as a fight over turf, it is emerging as a proxy arena for the larger fight over pork barrel that the congressmen covet and which the Court has struck down. That would be most unfortunate because the Reyes vs. Velasco tiff shows how rules and judicial reasoning are manipulated for partisan politics among the justices themselves, and which ought to be confronted as such without the emotional baggage of pork barrel.