More on the stupidity of HR 1109

In my recent article entitled “It takes two to Cha-cha: The stupidity of HR 1109,” I must say that I ventured into the realm of the unusual. And why is that? For one, I am elated because I got favorable reviews from conscientious citizens who are too passionate in expressing their disgust against the notorious HR 1109. However, like any other masterpiece, we cannot but avoid dissenting views from the cynics and also from legal minded critics. For this, I am constrained to respond by expounding a little more on my arguments and theories surrounding the constitutional implications of HR 1109. To be clear, the arguments are “anticipatory” in nature because a case has yet to be filed in the Supreme Court to clarify the various interpretations on the pertinent constitutional provisions on amendments and revision. To be sure this is not a futile academic exercise. In fact, by discussing the constitutional aspects of HR 1109, we will in effect expose the stupidity of those Congressmen who voted to adopt this worthless piece of trash.

To begin, I must admit that there is no such thing as a watertight interpretation to the 1987 Constitution, the provision on the amendatory process in particular. More often than not, owing to the fact that most of its provisions are ambiguous, we are inclined to poke holes in every provision of the constitution to suit our current disposition. This is what the proponents have in mind when they ventured to propose amendments to the 1987 Constitution via HR 1109 calling for a unicameral constituent assembly.

Again, in my recent article I echoed initially the position taken by the esteemed Fr. Joaquin G. Bernas of the Ateneo Law School. And to make it more staid and understandable, I expounded and stretched the arguments a little more.

In that article, I took the position that the “three-fourths” vote requirement under Article XVII section 1 pertains to the proposal for amendments or revision made by Congress when acting as a constituent assembly. The Constitution but sets an explicit limitation when it comes to the manner of approving the proposal on constitutional amendments, this is where the three-fourths vote comes into play. This is contrary to the view that the three-fourths vote refers to the manner of convening the constituent assembly. Unlike the present Constitution, a different rule is required under the 1935 Constitution before Congress can act as a constituent assembly. The 1935 Constitution says,”The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately may propose amendments to this Constitution or call a convention for that purpose.” Under said provision, a congressional resolution passed by both houses calling for a joint session is necessary before Congress can act as a constituent assembly. But this was before of course. As presently worded, the 1987 Constitution is explicit when it enunciates that, “Any amendment to or revision of, this Constitution may be proposed by: (1) The Congress, upon the vote of three-fourths of all its members…” Believe it or not, the Congress as it now sits is already a constituent assembly.

On personal note, my brother (who by the way is a lawyer and a staunch advocate of the Constitution) corrected me when I said that by virtue of Article XVII Congress automatically converts itself into a constitutional assembly. To him, the House and the Senate is a perpetual constitutional assembly. I shall grant him that because actually there is no conflict with regard to our respective positions. I totally agree with him but I used the automatic conversion theory merely to distinguish constituent functions under Article XVII (Amendments and Revision) from legislative functions under Article VI (The Legislative Department). For non lawyers, these dual functions of Congress can be confusing because by way of a general rule Congress is tasked mainly to enact laws, thus the need for a distinction.

Nonetheless, let us be clear on this matter. It is my position that until and unless Congress decides to act pursuant to Article XVII, the functions of a constituent assembly remains completely dormant. Article XVII is the constitutional provision which activates the functions and powers attached to a constituent assembly. And so, when the House unilaterally adopted HR 1109 seeking to convene Congress as a constituent assembly, that to me is a useless and futile exercise. (At least in the constitutional sense) What may be unconstitutional is the fact that said resolution allows both Houses to vote jointly in the manner of proposing amendments. Here, we will now be talking about the function of Congress when acting as a constituent assembly. As Fr. Bernas opined, “The question that must be asked is not how Congress becomes a constituent assembly, but rather how Congress must function when acting as a constituent assembly.” In other words, when Congress functions as a constituent assembly, must they convene in joint or separate session? In addition, must they vote separately or jointly?

As I have said in my previous article, it would be more consistent with the bicameral structure of Congress that both Houses must convene in a joint session but voting separately. Thus; “In view of all this, I therefore subscribe to the view of Fr. Bernas that to be consistent with the bicameral structure of Congress, the “three-fourths vote of all its members” must be interpreted to mean three-fourths of all members of each house voting separately…As to the question whether the House and the Senate should convene jointly or in separate sessions, I think it is best that both Houses must cross swords with each other face to face. Take note that what is at stake here is not ordinary legislation but amendments to the Constitution. Although the Constitution does not command a joint session in the manner of proposing amendments, neither is there a prohibition for them to do otherwise. In any case Congress certainly has the discretionary power to set its own internal rules as an independent branch of the government”

Admittedly, the separate voting formula is in line with the position taken by Fr. Bernas which to me is the more practical and logical solution to the present controversy.

I am not unaware of the generally valid argument that if we follow the position of Fr. Bernas in the procedure of proposing amendments (separate session and voting separately), in effect we will be reducing the amendatory process into an ordinary legislation. Obviously, the amendatory process is far more delicate and momentous endeavor because we are dealing here with the very source of governmental authority, the Constitution. Logically we can never equate the value of the Constitution with an ordinary legislation. For one, unlike ordinary legislation which requires the only the approval of the President, amendments to the Constitution requires the participation of the electorate for ratification in a plebiscite. Again, the question ultimately boils down to the purposes for having a bicameral legislative body in the 1987 Constitution. Among the traditional arguments for bicameralism is the fact that it allows for a more cautious or careful study of legislation. Thus, as I said before, “two heads are better than one.” Indeed bicameralism means two houses, the House and the Senate, acting independently and occasionally checking each other. Theoretically, the purpose behind all of this is for them to craft quality legislation.

By espousing a joint session but voting separately in the amendatory process, the purpose is ultimately the same, the quality of the proposed amendments to the Constitution. If it works with ordinary legislation, what could be the possible reason for it not to apply to the amendatory process? To my mind there is none. As I said before, a proposal partakes to the nature of a “recommendation.” It is the sovereign people who will have their last say on whether to approve or reject the proposed amendments. Moreover, if we put a premium to ordinary legislation by having separate session and separate voting, the more reason it should apply to proposed amendments because of its significant impact in the lives of our people and to the stability of the nation as a whole.

As I mentioned in my recent article, the theory behind HR 1109 is a result of a distorted interpretation on the amendatory process as envisioned in the 1987 Constitution. I was kind enough to categorize it as an “outrageous” interpretation. On second thought however, I will now call it as an “out of this world” constitutional construction both in essence and in substance. If these recalcitrant Congressmen of ours refuse to heed to the clamor of the street parliament, it is best to arm the public with adequate knowledge so that they may have a solid fulcrum to express their opposition. I just wish that these issues will be settled once and for all by the Supreme Court and let the record reflect for posterity how stupid HR 1109 is. Nuff said for now.