Saturday, April 11, 2009

Dacer, DNA and Brady Violations

An extradition hearing is held to enable the court to decide whether the defendant is subject to surrender to the requesting government. The District Court’s function in an extradition hearing is not to act as a rubber stamp to an extradition request but to ensure that our (American) judicial standard of probable cause is met by the Requesting Nation (US v. Valentin Linson 88 F.Supp.2d 1123). The evidence must demonstrate probable cause to believe that the accused committed the crime charged. Merino v. U.S. Marshall, 326 F.2d 5, 12 (9th Cir.1963).

“The range of evidence that a defendant may introduce as to probable cause at an extradition hearing is limited. The general rule is that evidence that explains away or completely obliterates probable cause is admissible, while evidence that merely controverts the existence of probable cause is not” (Krenar Hoxha v. Troy Levi, 3rd Cir. No. 05-3149, Oct. 3, 2006).

Evidence to support probable cause is concededly of lower quantity and quality compared to evidence to support a conviction. It is for this reason that DNA evidence, if available, is material, for DNA evidence trumps all evidence in the determination of guilt or innocence.

In the case of US v. Sczubelek [402 F.3d 175, 178 (3d Cir. 2005)], the Third Circuit Court of Appeals stated that DNA is more reliable as a means of identification than fingerprints or even photographs. The Philippine Supreme Court is of the same view, holding that:

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. [People v. Joel Yatar (G.R. No. 150224, May 19, 2004)].

That DNA trumps all evidence, is proven by the cases reopened by the Innocence Project ( The Project has successfully overturned guilty verdicts in 235 cases, with the presentation of post-conviction DNA. The DNA evidence proved either that the accused was not at the scene of the crime, or that the DNA found at the scene of the crime matched the DNA of another individual.

The two cases cited below, illustrate how post-conviction DNA trumped all other evidence presented in court.

Case of Steven Barnes

In the case of Steven Barnes, the evidence for the prosecution consisted of:
  1. Microscopic analysis of hair found on Barnes’ truck, which was said to match the victim’s, and did not match the hair of Barnes;
  2. Soil samples from Barnes’ truck taken one year after the crime, was said to have “similar characteristics” with soil from the crime scene;
  3. There was testimony of a jailhouse informant, who said that Barnes confessed the crime to the informant (shades of Mancao and Aquino’s alleged statements in Las Vegas).
The victim in Barnes’ case was raped and murdered. The DNA of sperm found on the body of the victim did not match Barnes’ DNA.

Case of Ryan Matthews

In the case of Ryan Matthews, a man wearing a ski mask entered the victim’s store and demanded money. When the victim refused, the perpetrator shot him four times and fled, taking off his mask and diving into the passenger side window of an awaiting car. Two eyewitnesses identified Matthews as the man who shot the victim. One was in her car, and saw the perpetrator run from the store, and identified Matthews from a photographic array. The other saw the perpetrator from his rearview mirror while he (witness) was being shot at, and trying to block the escape of the getaway car.

Five years after conviction, DNA testing on the mask matched with another individual, not Matthews. Matthews became the 14th death row convict who was exonerated by post-conviction DNA, lending truth to the observation of Justice Brennan that: “The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification” [US v. Wade 388 U.S. 218 (1967)].

Brady Violations

The Philippine DOJ in the Mancao extradition presented to its US counterparts, the report of Dr. Raquel Fortun which stated that:

“Fragments of charred bones and other objects were obtained. “..the following conclusions were arrived at:
  1. The remains recovered from the scene are of human origin.
  2. At least two adult individuals are present.
  3. These two individuals are positively identified as MR. SALVADOR “BUBBY” DACER and MR. EMMANUEL CORBITO.”
The Philippine DOJ (PDOJ) conveniently omitted presenting evidence which stated that the bones tested negative for human DNA.

The PDOJ also failed to apprise the US DOJ of the decision of the Supreme Court in the case of Allado, which held that:
“A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust.”

"To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp” (People v. Allado G.R. No. 113630 May 5, 1994).
In Allado, the Philippine Supreme Court ruled that there was absence of probable cause, and issued a writ of prohibition on the trial court.

Brady (v. Maryland) and its progeny make it the duty of the prosecution to disclose exculpatory material to the defense. The suppression of DNA evidence, or the withholding of jurisprudence favorable to the defense, singly, constitutes a Brady violation; said violation renders the prosecutor susceptible to disciplinary action for prosecutorial misconduct [US v. Byron Mitchell 145 F.3d 572 (3rd Cir. 1998)].

There is no Brady violation here, because the US DOJ gave the defense all the material it had in its possession [In the Matter of the Extradition of Michael John Drayer 190 F.3d 410 (6th Cir. 1999)]. The Philippine DOJ is off the hook on a technicality, because it did not plead before the US Courts. But there is, at least, in this case, diplomatic discourtesy; for the Philippine DOJ has exposed the US DOJ to the embarrassing situation of being confronted with evidence and jurisprudence suppressed by its side (US and Philippine DOJ). The Philippine lawyers are also susceptible to disciplinary action for violating the provisions of the Code of Professional Ethics of the Philippines, which provides as follows:
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.
The Court was misled by the submission of Dr. Fortun’s report which positively identified the remains as those of Dacer and Corbito. That identification was proven incorrect by the DNA report, stating that the bones tested negative for human DNA.

The Code of Professional Responsibility also provides that:
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.
This was violated by the failure of the PDOJ to apprise the US DOJ and the defense, of the Philippine Supreme Court’s decision in the case of Allado.

Philippine DOJ’s lack of candor in previous cases.

The PDOJ has been less than candid, if not, in fact, misleading in two previous extradition requests.

US v. Valentin Linson

In the case of US v. Valentin Linson (88 F.Supp.2d 1123) the PDOJ did not present to the US DOJ the recantation affidavits of the witnesses who implicated Linson in the alleged crime. Those affidavits were sworn to before the very same prosecutor trying the case. The Court was moved to observe the lame excuses of the PDOJ as follows:
At the December 21, 1999 hearing the Philippines did not proffer any evidence to the Court challenging the authenticity of the recantations. Instead, the Philippines offered explanations showing why they could not proffer the recantation evidence. First, their state prosecutor who witnessed the recantations had no telephone and could not be reached. Second, the Senior prosecutor, Mr. Barrios stated that the recantations were never forwarded to him. US v. Valentin Linson 88 F.Supp.2d 1123, District Court of Guam.
The Court also diplomatically pointed to the fact that the PDOJ fabricated evidence, by forging a witness’ signature:
Third, the Philippine Government presented an affidavit in which Roberto Calingasan implicated Linson stating “I saw him (Valentin Linson) shoot Bien, the policeman once.” However, defendant has supplied the Court with an affidavit signed by Calingasan in which he denies he signed such statement for the NBI. In the affidavit presented by the defendant Calingasan states that “I did not give NBI a statement … what was written in the statement was not true” and “I did not sign a statement at NBI.” This second statement is signed in a cursive style signature whereas the first one provided by the Philippines only had Calingasan’s name printed in block letters on the signature space.
In the Matter of the Extradition of Roger Laurence Strunk (293 F. SUPP 2D 1117)

In the case of Roger Laurence Strunk (husband of Nida Blanca), the PDOJ made selective presentations of evidence. It presented evidence from Elena De La Paz, the housemate of the accused (husband) and the victim (wife), and personal assistant of the victim, to prove motive on the part of the accused (page 12). But the PDOJ did not submit Elena’s testimony, that the accused was in the house, the entire evening that the murder occurred in a neighboring city (page 14).

The PDOJ anchored its finding of probable cause on the confession of Medel, who stated that he was hired by Strunk to commit the crime. Medel confessed, then later recanted his confession in open court, alleging it had been obtained through coercion and torture (page 6).

Commenting on the credibility of Medel, the Court observed:
First, as is evident throughout most of the declarations in this case, the first statement is never good enough. There always seems to be a need to embellish what was initially said in order to make the case better (shades of the Mancao affidavits - Aquino talking of Viña's bungling the job, later, Aquino talking of "Tirahin si Bero"). This fact is not necessarily detrimental, but importantly, the embellishments contain significant inconsistencies (page 7).
The penchant to embellish the submitted evidence was further underscored by the observation that:
The court will not consider the belated evidence submitted by the Philippines filed November 3, 2003. This extradition proceeding is not some movable feast----never to be finished as long as the parties drip evidence into the undersigned, when they feel moved to do so, or after the undersigned makes a comment on the submitted evidence at hearing or in writing.
The Court further observed that Medel was paid for his confession. “Payment to a defendant to confess his and others participation in a murder will cast doubt on the validity of the statement” (page 8).

The inconsistencies moved the Court to state:
“…. the evidence submitted by the Philippines concerning Strunk's participation in the murder of Blanca is so inconsistent and conflicting that it provides little competent evidence to support the conclusion that Strunk hired Medel to murder Blanca. “… the competent, admissible evidence submitted by Strunk obliterates the case presented by the Philippines resting on the Medel confession.”
The Court concluded by stating that:
US Attorney Ken Melikian “did his customary, professional presentation of evidence, and his customary, informative legal briefing. However, as the decision makes clear, the evidence given to Mr. Melikian was not competent. Good as he is, Mr. Melikian could not perform legal alchemy.”
It may be, that Dacer is dead, and justice must be done for him. But one does not achieve justice for the victim by doing an injustice to people who are presumed innocent; that works an injustice to the system – a typical result in the Philippine system.

It is true, that Philippine jurisprudence states that flight may indicate guilt. But flight, as exemplified by Linson and Strunk may have been motivated by fear – fear that the system is not fair, and would be used as a tool for persecution.

Wednesday, March 25, 2009

Mancao, The Fixation with Affidavits, and the Lack of Physical Evidence

An affidavit is a written statement sworn to, before one who is authorized to administer an oath. Such authorized person may be a judge, a prosecutor (fiscal) or a notary public. The statement is usually a recollection of what transpired, as observed by the affiant (the person who makes the statement); or it is a statement of what the affiant did. It is, therefore, what is also termed as testimonial evidence (evidence in the form of statements of a witness). The only difference between an affidavit and oral testimony in court, is the fact that testimony in court can stand alone, while an affidavit needs to be affirmed in court.

Statements being a recollection of what transpired, or what was done, are subject to the ravages of time on memory, or the more pressing concerns of daily life. Some events are indelibly etched in our memory - a first kiss, the birth of a child, or the pain of losing a loved one; others are less permanent – a political science lecture, some passerby on the street, or what one wore nine days ago.

It is for that reason that testimonial evidence carries less weight compared to physical, or documentary evidence. By physical evidence, we mean fingerprints, DNA, bloodstains, and the like. Documentary evidence refers to contracts, birth certificates, bid documents, and other written material kept in the ordinary course of business.

Considering the diminished weight of testimonial evidence, the fixation of Philippine authorities on affidavits and other testimonial evidence is a puzzlement (apologies to author of “The King and I”).

The fixation on testimonial evidence is revealed in the Dacer-Corbito case, with regard to testimonies of Alex Dilloy et al, and the striptease affidavit of the current centerfold, Cezar Ochoco Mancao.

Forgotten in the mire of he said/they said, is the physical evidence, or the lack of it. The physical evidence consists of a few bones, which have tested negative for human DNA. Did Dacer have bulalo for dinner? Maybe, but where are his remains?

The line being peddled is that the flesh and bones have been burned beyond recognition, like ashes from a crematorium. This, the prosecution gathers, from the testimony of the Alex Dilloy y Buladas (note Buladas) that after strangulation, the bodies were placed on top of a file (sic – pile) of wood and some old tires and lit with gasoline (Direct Examination, Alex Dilloy, page 43 and 44, June 14, 2007).

The people of India, who have cremated their dead with firewood for centuries, are the experts on this matter. Their experts state that to burn an adult body completely, in open air, 400 to 600 kilos of firewood, logs, preferably, would be needed ( For the bodies of both Dacer and Corbito, then, one would need 800 to 1200 kilos. That is one two to tons of firewood (1,760 to 2,640 pounds); that is about as heavy as a Volkswagen beetle.

We need not even go very far. Anybody who has roasted a lechon on a spit will tell you that it takes a lot of wood to properly cook a lechon, so that there won’t be blood on the bones; let alone, char the pig beyond recognition. And if the fire were intense enough to grind the skull to ashes, the same heat should have melted the dental implants found by Dr. Fortun. Miraculously, however, the metal dental plates survived, which is the only means by which the victims were identified. Miraculously, too, one metal dental plate from each “victim”, survived the skull grinding heat (Letter of Raquel Fortun to Dir. Wycoco, April 11, 2001). The search by Dr. Fortun was conducted on April 7, 2001, six months after the bodies were burned on November 24, 2000.

That the firewood gathered in only a few minutes is not sufficient to char a body beyond recognition is proven in the case of People v. Alexio Lupango G.R. No. L-32633 November 12, 1981, “The evidence of the prosecution discloses that the victim, Teresa Vda, de lglesia, was burned in a fire that razed her house..” “The charred body of the victim Mrs. Teresa Vda. de Iglesia was recovered from the burned house and autopsied..”; and the remains were intact enough for the medico-legal to determine that the cause of death was fracture of the skull, prior to burning. In other words, despite the entire house having burned down, the body was not charred beyond recognition, nor were the skull and bones pulverized.

But the clincher for Senator Lacson and his men, ironically, is a case that then Senior Supt. Lacson lost in the Supreme Court.

In the case of Diosdado Jose Allado and Roberto L. Mendoza v. Hon. Roberto C. Diokno, G.R. No. 113630 May 5, 1994, Allado and Mendoza were accused of the heinous crime of kidnapping with murder, on the strength of an extrajudicial confession executed by Escolastico Umbal. Umbal claimed that the victim, Van Twest, was shot in the chest with a baby armalite, stabbed several times, and his cadaver burned into fine ashes using gasoline and rubber tires.

In its decision, the Supreme Court observed: “The Presidential Anti-Crime Commission (headed by Lacson) relies heavily on the sworn statement of Security Guard Umbal who supposedly confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is serious doubt on Van Twest's reported death since the corpus delicti has not been established, nor have his remains been recovered. Umbal claims that Van Twest was completely burned into ashes with the use of gasoline and rubber tires from around ten o'clock in the evening to six o'clock the next morning. This is highly improbable, if not ridiculous. A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust.”

The Supreme Court went further and held that: “To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp.”

It is equally a tale too tall to gulp, that with the aid of some stray firewood, old tires, and coconut leaves, the skull and bones of Dacer and Corbito were pulverized. There being no evidence of their remains, or evidence that their bodies were completely destroyed, one cannot maintain a prosecution for murder.

In the case of Allado, the Supreme Court held that the absence of Van Twest's body renders the case without probable cause. It, therefore, issued a writ of prohibition prohibiting the RTC from further proceedings in the case.

Your move, Atty. Alex Avisado. Checkmate Raul.

Friday, March 20, 2009

Did Dumlao Recant?

Glane (not Glenn) Dumlao issued three affidavits in connection with the Dacer-Corbito case. The first was on June 12, 2001, the second on May 20, 2003, and the third on March 2, 2007. Many have said that the first linked Senator Lacson to the murder, that the second recanted that allegation, and that the third reaffirmed the first, thereby putting Lacson back into the suspect category. A careful reading of the affidavits, however, reveals that all three support each other, and the only conclusion that can be derived from them is that Lacson was not implicated by Dumlao.

The first affidavit reveals the following salient facts:

1. Michael Ray Aquino gave a “tasking” to Dumlao, to sniff around, ascertain the activities of Dacer, and if ever, steal documents or destroy them. These are found in the following statements:

a. "to conduct discreet background investigation…"(bottom paragraph page 1, handwritten affidavit)

b. "to surreptitiously enter the rooms and take whatever documents I can and also to monitor personalities/visitors of our subject" (top paragraph, page 2 handwritten affidavit).

2. The sniffing around is supported by the statements in the third affidavit, where Dumlao states: “My participation to conduct tactical interrogation at that time falls on the purview of regularity in the performance of my duty having been instructed by a superior officer P/COL AQUINO for a person involved in unseating a duly elected president.”

3. Dumlao was unsuccessful, so the “tasking” was shelved for a while, as Dumlao went to training (“schooling”) and later did other tasks (first two paragraphs, page 3 handwritten affidavit);

4. The tasking regarding sniffing around for info on activities by Dacer was not made known to Lacson until after the fact. This is seen in the following exchange:

Mancao: Clear na ba ito sa boss natin, kay 71?
Aquino: Sila na daw bahala sa kanya.

5. Somebody was to notify Lacson, after the fact. Lacson did not know about the “Special Ops” (first paragraph, page 4 handwritten affidavit);

6. Neither did Mancao know, until after the fact, as revealed by the following exchange:

Mancao: Noy, Ano bang Special Operations na ito?
Aquino: Kay kuwan yan, Mr. Dacer (first paragraph, page 4 handwritten affidavit).

7. Since there was no way to link Lacson based on the first affidavit of Dumlao, then it yields the conclusion that the statements of Dumlao in the “recantation affidavit” are true, that:

a. Dumlao was pressured to execute an addendum (paragraph 15, affidavit, May 20, 2003) linking Lacson, Mancao and Aquino to illegal activities (paragraph 3), which illegal activities were to include drug-trafficking, kidnapping, robbery/hold-up (paragraph 5);

b. Dumlao was moved to say: “P/DIR GUALBERTO was the dumbest police officer I have ever encountered. He wanted me to own up every killing that has been publicized and to point at SEN LACSON as the mastermind. He threatened to link me to all these cases if I do not cooperate.

c. Dumlao resisted the pressure;

d. The carrot and stick approach was applied on Dumlao - he was offered rewards, he was also threatened [drinking session with Berroy and Gen Alqueza (paragraph 13), an offer of a higher position (paragraph 18), threats from the dumbest police officer (Gualberto) and from Victor Corpus, facing a panel of bigwigs, comprised of Ronaldo Puno, Reynaldo Wycoco, Hernando Perez, Kermogenes Ebdane, Victor Corpus, Roberto Lastimoso, and Atty. Davila;

Clearly, therefore, the “recantation affidavit” was issued, not to controvert the first affidavit, but to put on record the pressures exerted on Dumlao, and to explain why “I flee my own country” (first paragraph, page 2, handwritten affidavit submitted to NJ Federal District Court).

The third affidavit neither affirms nor denies the statements of the first affidavit. It merely states that Dumlao’s best recollection of the events are contained in his first affidavit of June 12, 2001. If at all, it is a mere implied affirmation of the first affidavit.

Mancao, in his extradition case, initially intended to fight extradition, and filed a motion for habeas corpus ad testificandum, to compel the State of New York to produce the person of Dumlao in Florida, to testify to the fact that Mancao had no knowledge about the “Special Ops” regarding Dacer. The motion of Mancao, filed on January 9, 2009, cited the first affidavit of Dumlao. It was granted on the same day.

The hearing on the request for extradition was to be held on March 3, 209. Suddenly, Mancao seemed to have had a change of heart, and on February 23, 2009, filed a motion to release witness Dumlao from the previously issued writ of habeas corpus ad testificandum. On March 3, 2009, Mancao executed an affidavit of consent to extradition, which was signed by his Public Defender, to show that Mancao was assisted by counsel. The affidavit of consent was sworn to, before the Magistrate Judge herself.

Now comes an affidavit, which on its face, says that Mancao signed on February 13, 2009, and sworn to, before the Honorary Consul in Florida, Angelo S. Macatangay, M.D. The jurat states that Mancao “personally appeared” before Macatangay. The office of the Honorary Consul is at 1900 W Commercial Blvd. Suite 29 Fort Lauderdale, 33309.

Did Mancao appear there to swear to the affidavit? How? Mancao has been detained since November 20, 2008. He is not out on bail, because the US Attorney argued that he would be a flight risk.

The affidavit also states that Mancao was assisted by his Public Defender, Lopez. But there is no signature of Lopez on the affidavit, as appears on the affidavit sworn to before the Magistrate Judge.

Did Macatangay visit Mancao in prison on February 14, 2009, a Saturday? Did Lopez visit with Macatangay? That should be easy to verify by referring to the visitor’s logbook in the prison where Mancao is detained. On its face, it looks like Dr. Macatangay doctored the affidavit.

The foregoing shows that the Mancao affidavit is a dud. The Dumlao affidavits, read together, provide the smoking gun – smoking gun about the efforts to railroad a case.

Oh and by the way, there is the alternative view by writer Herman Laurel Tiu – that the remains recovered were not those of Dacer. True, dental tests were done, but there is an even better test, to determine the truth. DNA can be extracted from teeth. In fact, a tooth was used to derive the DNA of Kaiser Wilhelm II of Germany in connection with a paternity case (

So the DNA of those teeth can be matched with the DNA of Karina Dacer.

Tuesday, January 6, 2009

Does the Constitution Allow the Two Houses of Congress to Vote Jointly?

These days, we hear the incessant chatter of the legal mercenaries (Sorry, luminaries) of the Administration stating that the Constitutional provisions on amendments are ambiguous, and therefore, require the interpretation of the Supreme Court. That is the reason, they say, for the drive to obtain a three-fourths majority to file a “test case” before the Supreme Court.

The case will test two alternative interpretations of the Constitutional provision that states that:

"Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention "[Art. XVII, Section 1.]

The first interpretation maintains that the three-fourths vote is to be derived by the two Houses of Congress voting separately. In other words, Congress may sit as a constituent assembly, if three-fourths of the Senate, AND three-fourths of the House agree.

The other interpretation states that the vote is taken jointly; that means that the three-fourths vote will be reckoned from the total number of Senators and Representatives of Congress. Because there are twenty-four Senators and 250 Congressmen, the total is 274. Three fourths of that total is 205. Even if it be presumed that all the Senators vote against the convening of a constituent assembly, a supermajority is still possible if 205 Congressmen vote in favor of a constituent assembly. They imply, therefore, that the participation of the Senators is not even necessary.

The advocacy for a joint vote stems from the fact that the Constitutional provision does not employ the phrase “voting separately”. This omission, according to Congressman Pablo Garcia (Gloria Arroyo’s John the Baptist), “was deliberate”, considering that in other provisions, the phrase “voting separately” was included. The omission, he opines, yields the interpretation that the Framers of the Constitution intended a joint vote of Congress.

The fawning Evangelist conveniently ignores the provision that states:

"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it" [Art VII Section 18.].

It is clear from the foregoing, that if the Framers intended a joint vote, they would have so stated, as they did in the above provision. How then do we interpret the seeming ambiguity of the Constitutional provision on amendments?

What is the nature of the powers exercised?

A careful reading of the several provisions that require the Congress to vote separately, and obtain a supermajority, and the sole provision that requires a joint vote, would reveal the nature of the power exercised. From that analysis, we can determine whether or not the power to amend the Constitution is more akin to the several or to the single provision. If the amendatory power is of similar nature to the several provisions, then logic requires a similar procedure – a separate vote; if the amendatory power is kin to the sole provision, then the procedure should be similar to that sole provision.

First provision – Power to declare war.

The first provision requiring a separate vote refers to the power to declare war, which is provided as follows:

The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war [Art. VI Section 23. (1)].

Second provision – Power to override a Presidential veto.

The second provision which requires a supermajority obtained by the Houses of Congress voting separately, is the provision on the overriding of a Presidential veto. That provision states:

"Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it" [Art. VI Section 27. (1)].

Third provision – Breaking a tie between or among Presidential candidates.

The third provision requiring a supermajority of the Houses of Congress voting separately is in the selection of a President, when the votes of two or more candidates are tied. That provision provides:

"The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately." [Art VII Section 4, par. 5]

Fourth provision – Filling a vacancy in the Office of the Vice President.

The fourth provision requiring a majority of the Houses of Congress voting separately is in the selection a Vice-President when there is a vacancy in that Office. The Constitution provides for the nomination by the President, to be confirmed by a majority of the Members of both Houses voting separately.

"Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately" [Art. VII Section 9].

Fifth provision – Choosing between an ailing President and the Vice President.

The fifth provision requiring a supermajority of the Houses of Congress voting separately occurs when a choice must be made as to which person shall discharge the powers and functions of the President – the President, who by the declaration of the Cabinet is incapacitated, or the Vice-President. The making of that choice is reposed in the Congress voting separately, as follows:

"If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office "[Art VII Section 11, par. 4]

Sole provision requiring a joint vote.

The sole provision that provides for a joint vote of both Houses of Congress occurs when the President proclaims martial law, or the suspension of the privilege of the writ of habeas corpus. This is the only instance when the Constitution requires a joint vote to obtain a simple majority, and is provided as follows:

"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it" [Art VII Section 18.].

Legislative power.

An observant reader would immediately see that the several provisions requiring the Houses of Congress to vote separately partake of the nature of (1) the exercise of legislative power, or (2) the delegated power of election. The first two refer to the exercise of legislative power, which has been defined as:

"The legislative power has been described generally as the power to make, alter, and repeal laws" (Yazaki Torres Manufacturing, Inc. v. Court of Appeals G.R. No. 130584 June 27, 2006).

Although the provision on war powers does not come within the “classical” definition of legislative power (the enactment of laws), it is a power reposed solely in the legislature, and therefore, part of the “legislative powers”. That is evident in the fact that the provision is located in the Article that establishes the legislature and confers its powers. Article VI starts with Section 1, which states that:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

It, thereafter, defines the structure of the legislature, its composition, the qualifications of its members, and confers its powers. The American Constitution, from which most of the provisions of the Philippine Constitution is sourced, is more precisely worded as follows:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Delegated power to elect a President or Vice-President.

The three other provisions requiring a supermajority with the Congress voting separately, refer to the power of the people to elect their leaders. That power is delegated to the Congress in these three instances:

1. In the event of a tie between two or among three or more candidates, the Constitution delegates to the Congress, the power of the people to elect which of the tied candidates shall govern;

2. In the event of a vacancy in the Office of the Vice-President, the Constitution delegates the power to elect, in the President (nominating) and the Congress (confirming); and

3. In the event of incapacity of the President, as reported by his Cabinet, the Congress may elect as between the ailing President and the Vice-President, who shall govern.

It is clear from the foregoing, that the Constitution has defined how a vote is to be obtained, when the legislative power is exercised. It has also defined how a supermajority is obtained, in the exercise of legislative power – the supermajority must be obtained from each House of Congress.

The provision we are construing is clearly the exercise of legislative power, as that phrase is defined – the making of laws. The only difference between the enactment, or amendment of statutes, and the amendment of the Constitution lies in the fact that the amendment of the Constitution requires the ratification of the People – a requirement not imposed in the enactment of statutes. That interpretation finds further support in the text of the Constitution itself, which states that:

"The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum."

The provision states that the legislative power is vested in the Congress – except to the extent reserved to the people by way of initiative. That implies that amendment of the Constitution is also a species of legislative power; but amendment by initiative is reserved to the People. Amendment by way of a constituent assembly is reposed in Congress, or may be reposed by Congress in a Constitutional Convention.

It has been held that “Congress need not repeat itself, restating in each subsequent enactment an intention Congress thought it clearly expressed once already." [US v. Eric V. Johnson (22 F.3d 106, 6th Circ., 1994)]. That doctrine, it is submitted, applies with equal force when it is the Sovereign People who have expressed their intent. Since the intent has already been expressed in earlier provisions of the Constitution, there is no need to repeat the intent in the provisions on amendment. The phrase “The Congress, upon a vote of three-fourths of all its Members”, therefore, must be interpreted to mean a three-fourths vote of each House voting separately.

It may be argued, however, that if the People need not repeat themselves in defining how legislative power is exercised, and how a supermajority is obtained, then why did it repeat itself in the several provisions we enumerated above? There is no repetition, as we detail below.

The power to declare war is not legislative power, if by that, is meant, the power to make laws. The war power is a separate power reposed in the legislature; it is for that reason that a definition of how the vote is to be taken was made.

The other instances where a supermajority is required, with the Congress voting separately, are occasions where the power exercised is not legislative; they are occasions when the power of the people to elect their President or Vice-President is delegated to the Congress.

Each of the five provisions requiring a separate vote are distinct instances of the exercise by Congress of its powers. There is no repetition at all.

Fact-finding requires a joint vote.

In stark contrast, the sole provision which requires a joint vote is not in exercise of legislative power. The Congress, in that instance is engaged in fact-finding – whether or not there is an emergency to justify the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. This is the only instance where the bar to concerted Congressional action has been lowered – the vote is taken jointly, and a mere simple majority of that joint vote is taken.

This lowering of the bar is founded on a historical basis.

When Marcos proclaimed martial law, he incarcerated most of the Senators and Congressmen. Senators Salonga, Aquino, Tañada, among others, were incarcerated, so that the Senate was practically decimated. It was, therefore, impossible to obtain a quorum in the Senate, and perhaps, even in the House of Representatives. This is the reason for the lowering of the bar in the case of the proclamation of martial law, and the power of Congress to revoke said proclamation.

The foregoing clearly shows that the amendment process, being an exercise of legislative power, requires the Congress to obtain a supermajority by voting separately. The contrary interpretation is contrived erudition.

They say that necessity is the mother of all invention. Yes; and the need to cling to power has proven to be the mother of this contorted sophistry.

The letter of the Constitution, we submit, must be interpreted guided by its spirit. That spirit, finds flesh in the structure ordained – a bicameral Congress. The spirit, therefore, is bicameralism, and every act of Congress requires the participation of both Chambers; and the reckoning of a supermajority requires that each House vote separately.

The case is not ripe for adjudication.

There may, however, be no need for the Supreme Court to decide this question, even if the contrary interpretation is upheld, and the Congressmen gather the requisite number of votes.

If the majority vote of the Congress is to be appreciated with both Houses voting jointly, then it must follow the procedure of the sole provision providing for such joint vote. That provision requires that the Congress be in joint session assembled. True, the provision does not explicitly state so, but the provision requires the President to submit his or her report on martial law to the Congress in person or in writing. Whenever the President delivers a report in person, like the State of the Nation Address, the Congress is required to assemble in joint session.

Since the Senate has not agreed to a joint session, no valid vote can, or has been taken. There is, therefore, no controversy, and the issue to be presented by Congressman Villafuerte to the Supreme Court, is premature. The issue presented being non-justiciable, the only resolution in order is a dismissal.