Wake Up, Philippines!

Useless one without the other

Posted in Charter Change by Erineus on June 14, 2009

By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 05:10:00 06/14/2009

I BLAME the current controversy on the planned constitutional assembly (con-ass) to an ambiguous provision in the Constitution of 1987 that the Constitutional Commission of 1986 drafted with all supposed care and erudition. That questionable rule is found, incredibly, in Art. XVII on Amendments and Revisions of the great document reading partly as follows:

“Section 1. 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.” (Emphasis supplied).

The body that approved it consisted of an impressive membership headed by a former justice of the Supreme Court, Cecilia Muñoz Palma, as president, and veteran legislator and law practitioner, Ambrosio Padilla, as vice president. It included a former and future chief justice, Roberto Concepcion and Hilario G. Davide Jr., two future justices of the Supreme Court, Florenz D. Regalado and Adolfo S. Azcuna, three-time Speaker Jose B. Laurel Jr., the estimable Blas F. Ople, Lorenzo Sumulong, and Francisco Rodrigo from the Senate, respected civic leaders like Christian Monsod and Jose Nolledo, and Joaquin G. Bernas from the Catholic Church, among many other public figures.

Any one of them could have easily recognized the obvious weakness of the above-cited provision that is now invoked as the basis of the independent action being plotted in the lower House against the Senate.

Speaker Prospero Nograles and his conspirators are arguing that pursuant to the Constitution itself, any change in this fundamental law may be proposed by the House of Representatives despite the non-participation of the Senate. Even if the senators were to join their colleagues in the lower House, they would be outvoted with the required three-fourths vote coming exclusively from the lower House, where the required concurrence could easily be exacted from the mostly obedient cohorts of Malacañang.

True, if we go by the clear wording of the constitutional provision now invoked by Speaker Nograles and his flunkies. The required three-fourths concurrence does not distinguish between the members of the lower House and the members of the Senate, but can simply come from the lower House as “Members of Congress” who alone can propose to change the Constitution. This interpretation conforms to the accepted norm that the clear meaning of a provision must be found in the document itself, in its language that best indicates the intendment of the framers when they adopted the rule in question.

According to Father Bernas, however, that distinction must be inferred from the fact that Congress is a bicameral body consisting of two separate chambers that must act together unless the contrary is indicated. This is exemplified by the approval of bills where the two chambers act in tandem as equal partners in a dual legislature, without the necessity of the Constitution indicating their togetherness in the performance of their common acts. That is the reason, he says, why it was not necessary to clarify in Art. XVII, Sec. 1(1) that the required 3/4 concurrence of the members of Congress meant the separate participation of both Houses of Congress, to give validity to their common decisions. Otherwise, the action alone of the House of Representatives to propose the Con-ass without the Senate would be like a wedding with the bride but not the groom.

That is a plausible theory, except that Art. VI, Sec. 23 (1) cautiously says that “The Congress by a vote of 2/3 of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” Art. VII, Sec. 9, carefully provides that, in case of a vacancy in the Office of the Vice President, the President shall nominate a member of Congress who shall assume office “upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.” Upon the proclamation of martial law or the suspension of the privilege of habeas corpus under Sec. 18, “the Congress, voting jointly, by vote of at least a majority of all its Members in regular or special session” may revoke the presidential acts.

Is the proposal to amend or revise the Constitution less important than the above situations where the reaction of the members of the Congress voting jointly or separately by majority or two-thirds vote is specifically indicated? It is true that a bill granting a tax exemption under Art. VI, Sec. 28(4), and the declaration of amnesty under Art. VII, Sec. 19 are subject to the concurrence of all the members of the Congress, without more from the fussy Commission. I do not believe, however, that such simple process can be expected on such an epochal question as the amendment or revision of the Constitution.

The inadequacy of Art. XVII, Sec 1(1) would have been obvious to a law freshman but did not bother the experts in the Constitutional Commission of 1986 who should have known that one of the qualities of a good written constitution is clarity. They probably simply copied the Constitution of 1973 that established a unicameral legislature and thought they had done a great job.