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No, Kabayan, you can’t just kick out Harry Roque

Emil Marañon III

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No, Kabayan, you can’t just kick out Harry Roque
'For all legal intents and purposes, it's Harry Roque, not Kabayan Party List, who is the member of the House of Representatives'

On January 24 Kabayan Partylist announced the decision of its board of trustees “[immediately removing] Atty. [Harry] Roque as member of Kabayan Partylist…and consequently, from representing Kabayan Party List in the House of Representatives.”

The controversy arose from the November 24, 2016, congressional inquiry in the House of Representatives, where several lawmakers, including Roque, have asked Ronnie Dayan, Senator Leila de Lima’s former lover and alleged bagman, several questions which were strongly criticized for being lewd and inappropriate.

Roque expectedly was not happy with the party’s decision, claiming that he was not given any prior notice about the decision. He filed a petition before the Commission on Elections (Comelec) to order the party to convene its members to settle the issue legally and to nullify the board’s resolution. 

Will his expulsion from his party-list group Kabayan – assuming that it is valid – automatically remove him as member of the House of Representatives? Is Roque correct in seeking refuge before the Comelec? 

This case is definitely not new. Since the adoption of the party list system in 1995, there have been recurring cases of infighting, usually involving scuffles over the party’s slot in the House of Representatives. This usually arises from term-sharing arrangements among the nominees, which actually prohibited now by Rule 4, Section 7, of Comelec Resolution 9366).

Under term-sharing arrangements – before the practice was expressly prohibited – sitting nominees usually ended up reneging on the agreement to step down mid-term to give way to the other nominee on the list. One curious case is that of the Senior Citizen Party List, which, despite having won a seat in 2013, was not able to sit in Congress – ultimately wasting the votes cast for them – because of the intense legal battle between the group’s two factions as to the right to fill the slot won. 

Roque is like district congressman

Going back to Roque’s case, to understand the problem, we need to understand the nature of the party list seats in Congress.  

In Abayon vs. HRET (GR Number 189466, February 11, 2010), the Supreme Court clarified that it is the party-list representative who is elected into office, not the party-list group or organization he represents. This means that, for all legal intents and purposes, it’s Harry Roque, not Kabayan Party List, who is the member of the House of Representatives. Kabayan has no direct or any vested interest over the seat, except inchoately, as when Roque dies, withdraws in writing his nomination (i.e. resignation), or becomes incapacitated. Kabayan will then have the right to submit new nominees to Comelec.

The intention is to afford the representative independence, expecting him to be directly accountable to his sector and the people in general, rather than to his party. It also shields him from the internal politics of the party and the whims of the party leadership. 

Roque, being a member of the House of Representatives, enjoys the same deliberative rights, salaries, and emoluments of a district representative. He can participate in lawmaking and is equally subject to the term limitation of 3 years for a maximum of 3 consecutive terms. Like a regular district representative, he can only be removed from office through the two ways prescribed by the Constitution: 

  • By expulsion with the concurrence of two-thirds of all the members of the House of Representatives (Article VI, Section 16.1.3)
  • By the Electoral Tribunal, either through an election protest or quo warranto proceeding (Article VI, Section 17)

With these two grounds, the obvious intention of the Constitution is to vest on the House of Representatives and its electoral tribunal the exclusive jurisdiction to decide issues relating to its membership. Thus, it becomes clear that Roque cannot be ejected out of Congress by his own party by simply recalling his nomination or by cancelling his party membership. 

This, however, should not be taken to mean that the Constitution leaves no remedy to party-list groups to go after their erring members. What is being emphasized is that there is no shortcut in removing a member of the House like Roque. Kabayan has to go through the prescribed routes. 

Kabayan’s options

If it is confident that it can muster the required two-thirds vote to oust Roque, then it can argue that his “inappropriate line of questioning” constituted a punishable “disorderly behavior,” and commence an expulsion proceeding following the House’s rules of procedure. 

The less stringent way is to file instead a quo warranto case against Roque before the House of Representatives Electoral Tribunal (HRET) on the ground that he ceased to possess all the qualifications for party-list representatives. It must be noted that one of the qualifications set by Section 9 of Republic Act 7941 is that the party-list representative must be “a bona fide member of the party or organization.”

In the recent case of Lico vs. Comelec (GR Number 205505, September 29, 2015), the Supreme Court ruled that bona fide membership in the party-list group is a continuing qualification. Meaning, a party-list representative, must remain a bona fide member of his party-list group or organization throughout his entire term. Those who ceased to be bona fide members can be a subject of a quo warranto proceeding before the HRET. 

The Lico case is also important as the Supreme Court finally clarified the delineation of jurisdictions of the Comelec and the HRET regarding intra-party disputes. It explained that when the intra-party dispute affects the title of a sitting member of Congress, jurisdiction is indisputably with the HRET. Meanwhile, disputes or controversies affecting non-sitting nominees remain with the Comelec, following the earlier ruling in Lokin vs. Comelec (GR Number 193808, June 26, 2012). 

Should Kabayan choose to pursue a quo warranto case, this would mean that it has to go through the “whole nine yards” of litigation before the HRET, and possibly even a certiorari proceeding before the Supreme Court. Anyone familiar with these proceedings would know that this takes a long time. Until that time, Roque get to retain his seat. 

While this difficulty can be unreasonable under legitimate cases, this calls upon party-list groups to be more prudent and circumspect with their choice of nominees. – 

Emil Marañon III is an election lawyer who served as chief of staff of former Comelec Chairman Sixto Brillantes Jr. He is candidate for LLM in Human Rights, Conflict and Justice at SOAS, University of London, as a Chevening scholar. 

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Emil Marañon III

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.