Senate affirms authority on its members

The Senate asserts that it is the final judge on qualification of its members—not the court—as granted by the CNMI Constitution.

In a motion for leave to file amicus brief in Juan S. Demapan v. Pamela S. Brown, et al., on May 3, the Senate legal department said that the court is precluded from determining that Senators Joseph Mendiola and Paterno Hocog were in anyway improperly elected, sworn or seated for the remainder of the 13th CNMI Senate.

The CNMI Constitution, it said, “requires that the Senate be the final judge of the qualifications of its members, and does not permit the Senate to delegate that responsibility to the court.”

This after Demapan’s counsel questioned the validity of Brown’s confirmation as Attorney General during a senate session on Nov. 17, 2003, claiming that two of the five Senate votes, which belonged to Hocog and Mendiola, were invalid.

Demapan’s camp said the two senators could not vote because they could only assume office on the second Monday of January 2004.

Brown’s lawyers, however, said that the constitutional provision requiring that elected officers take office on the second Monday of January following a regular general election does not apply to the case of Hocog and Mendiola, who were both elected in special elections.

Senate legal counsel Michael Ernest, in the petition for amicus curiae (friend of the court), a motion filed by someone who is not party to the case, said the CNMI constitution provides that the Legislature “may vest in the courts the jurisdiction to determine contested election of members” but this is not the case with Demapan v. Brown.

Ernest said Demapan seems to be not challenging the conduct of election or making any complaint about the manner in which Hocog and Mendiola were elected, “but rather is challenging the Senators’ qualifications to serve at a given time.”

Further, the senate legal counsel said that as evidenced, each senator had received his election certificate and had sworn the oath of office prior to the voting on Brown’s appointment.

Likewise, Ernest said that the issue as to whether the senators improperly acted during the 2003 session “is a nonjusticiable political question.”

He said Demapan v. Brown is different from Mafnas v. Inos, which had warranted judicial review due to unique circumstances.

The latter case had to be resolved immediately or the Commonwealth government would “remain crippled”, he said.

“These cases are distinguishable, for there is no current, pressing need for this Honorable court to review the actions of a co-equal branch of government at this time,” said Ernest.

While the 7th CNMI Legislature was “crippled”, he said “there is no such problem with the 13th CNMI Senate.”

“The 13th Senate no longer exists; thus there is no pressing need for judicial intervention,” he said.

Besides, the 13th Legislature obviously allowed Hocog and Mendiola to participate as senators and that the 14th Senate, recently passed resolutions affirming that the two were duly elected and sworn when they took part in the Nov. 2003 session, Ernest said.

There are other good reasons why a court intervention should be avoided at all costs in this case, warning that such would result in embarrassing situations and lack of trust between the two branches of government.

Possibly the most embarrassing situation, he said, is that if the court were to declare Mendiola and Hocog as not senators, “they could be considered to be violators of the Constitution, irreparably damaging their reputation.”

“In short, it would be embarrassing for the entire Commonwealth, as well as for senators Hocog and Mendiola personally, were this Honorable court to intervene at this late date…” the senate counsel said.

Former Senate president Juan S. Demapan, in his lawsuit, accuses Brown of unlawfully occupying her post.

This after Brown’s office blocked the payment of some $3.45 million in land compensation claim to the Malite estate through a separate lawsuit.

Brown earlier branded Demapan’s move as a vindictive, personal attack, accusing the latter of having financial interest in the Malite estate.

Demapan has refuted this, saying that Brown had actually made a settlement offer in connection with the Malite case

Demapan’s lawyer, Antonio Atalig said that “rather than settle for peace, defendant wants protracted litigation.”

He said the “the taxpayer’s lawsuit is not vindictive litigation; it was based on good faith effort to correct what we believe to be violation.”

Atalig contends that Brown’s confirmation deadline fell on Sept. 14, 2003 following the latter’s nomination by Gov. Juan N. Babauta on June 16, 2003 as attorney general; Brown’s camp contends that the deadline had not lapsed when she was confirmed on Nov. 17, 2003.

Brown contends that the 90-day deadline did not apply to her, since she did not assume the attorney general post in an acting capacity until the Senate confirmed her.

Demapan’s case also includes Finance Secretary Fermin Atalig.

Demapan asked the court to permanently prohibit Atalig from paying Brown the salary and expenses of an attorney general.