[OPINION] De Vera's ouster from the House of Representatives is unconstitutional

My first instinct was to ask, how did it happen? Apart from death or voluntary causes like resignation, there are exclusive and very limited grounds by which a member of the House of Representatives may be removed.  

One constitutional mechanism to remove a sitting member of the House of Representatives is through the House of Representatives Electoral TribunalUnder Article VI, Section 17, of the 1987 Constitution, the HRET is the “sole judge of all contests relating to the election, returns, and qualifications of their respective Members.”

Necessarily, this power includes the authority to remove members who are found to not have legally won the elections or who suffer from an ineligibility or disqualification. 

In election law, the we can invoke this power of the HRET through either of the following:

The other constitutional mechanism is in Article VI Section 16, which provides: “Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.” 

Pursuant to this provision, the Rules of the House of Representatives was promulgated. Its Section 139 provides a long list of its Code of Conduct. Penalties for violations are provided in Section 140: either suspension or expulsion, with the concurrence of the two-thirds of all its members. 

Outside of these two constitutional mechanisms, there are no other ways to remove a House member. This exclusivity and the difficulty of these mechanisms are born out of the necessity of shielding the members from unnecessary pressures, retaliations, and threats of removal by reason of their work. 

The expulsion of De Vera by the plenary of the House of Representatives was, to say it mildly, a constitutional anomaly. 

Majority Leader Rolando Andaya gave the following reasons: 

If De Vera was no longer a member of the party-list group ABS, does this mean that he could also be forcibly removed as member of the House of Representatives?

In the earlier article I wrote about the attempt to remove Harry Roque from the House following his expulsion from the group Kabayan, I cited the case of Abayon vs. HRET (GR Number 189466, February 11, 2010). In that case, where the Supreme Court held that it is the party-list representative who is elected into office, not the party-list group or organization he represents. (READ: No, Kabayan, you can't just kick out Harry Roque)

This means that, for all legal intents and purposes, it was Harry Roque, not Kabayan, who was the member of the House of Representatives. Kabayan had no direct or any vested interest over the seat, except inchoately, as when Roque dies, withdraws in writing his nomination (resigns), or becomes incapacitated. Kabayan would then have the right to submit new nominees to Comelec. 

The same rule applies to De Vera.  

The Abayon ruling, however, while still controlling, is no longer absolute. It must be taken together with the case of Lico vs Comelec (GR Number 205505, September 29, 2015), where the Supreme Court ruled that bona fide membership in the party-list group is a “continuing qualification.”

This means a party-list representative must remain a bona fide member of his organization throughout his entire term. Those who cease to be bona fide members can be a subject of a quo warranto proceeding before the HRET. 

In this case, the logical move – in fact, the only constitutional move – by anyone who questions De Vera would have been to file a quo warranto case before the HRET. However, I do see the reason De Vera’s enemies did not avail themselves of this option:

Obviously, the House leadership chose the expulsion route, which is not only legally questionable but leaves a very bad taste in the mouth.

Process wise, under the Constitution, expulsion requires “the concurrence of two-thirds of all its Members” – one of the highest voting thresholds imposed by the 1987 Constitution. In the case of De Vera, it was swiftly done viva voce or by oral voting. How can a two-third vote be determined or ascertained – both by those for or against the expulsion – if the voting was done viva voce and without nominal voting? By who shouted louder? From this point alone, the method was already unconstitutional. 

Following the Rules of the House of Representatives, it is apparent that the ground cited by Andaya is not one of the grounds for expulsion as listed in Section 139. It must be noted the rule on expulsion of members (Section 140) is tied with the Code of Conduct in Section 139. Both sections are under Rule XIX. Now, can the House expel a member for any other ground outside of Section 139, without first amending the rules?

Based on the Lico case, it is clear that the ground raised against De Vera constituted a ground for a quo warranto, which is exclusively cognizable by the HRET. The act of the plenary was therefore in breach of the exclusive and original jurisdiction of the HRET, thus, unconstitutional.

It must be recalled that the HRET, while attached to the House of Representatives, is a constitutional office created distinct and independent from the House. Its members are not purely from the House but shared with the Supreme Court. In other words, the HRET is not the House. 

The removal of De Vera by this brazen and unconstitutional means is simply dumbfounding. The Constitution is clear and made even clearer by abundant jurisprudence, yet Congress still went the other way and chose to bend the law and resort to brute force to remove a member.

I do not know Mr De Vera personally or of his political persuasion, but I believe that I know the law enough to say that this is wrong. Indeed, we live in strange times, where everything is possible and anything can happen! – Rappler.com 

Emil Marañon III is an election lawyer specializing in automated election litigation and consulting. He is one of the election lawyers consulted by the camp of Vice President Leni Robredo, whose victory is being contested by former senator Ferdinand Marcos Jr. Marañon served in Comelec as chief of staff of retired Comelec Chairman Sixto Brillantes Jr. He is a partner at Trojillo Ansaldo and Marañon (TAM) Law Offices.