Monday, June 8, 2009

It takes two to Cha-cha:The stupidity of HR 1109

In bold letters, the headline of the Philippine Daily Inquirer reads: CON-ASS SPARKS OUTRAGE. The public indignation ostensibly stemmed from a hodgepodge legislative proposal coming from the House of Representatives in the form of House Resolution 1109. In the flurry of charter change, every time lawmakers call for the amendment or revision of the 1987 Constitution, the public often reacts violently. The 1987 Constitution is by no means a perfect document; and there seems to be a general agreement among the people that there is a need to change the present Constitution. But like in the past, the real problem of constitutional reform lies in the “mode” and the “timing” of change. This brings us to the thrust of HR 1109, a proposed resolution calling for both houses of Congress to convene into a “constituent assembly” and by voting ‘jointly,’ propose amendment to the 1987 Constitution.

True, the Constitution is what the Supreme Court says it is. But since this is a grey area in constitutional law, I would like to offer my view. I say, HR 1109 is unconstitutional.

In discussing the nature and function of a constituent assembly, one must first appreciate the relevant provisions dealing with amendments or revision under the 1987 Constitution. Article XVII section 1 pertinently says: “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, (2) A constitutional convention.” Section 2 of the same article however is limited to amendments, thus, “Amendments to this Constitution may likewise be proposed by the people through initiative…” Verily, there are three (3) ways on how to propose amendments or revision to the constitution: (1) Congress sitting as constituent assembly (2) A Constitutional convention and (3) the people by virtue of initiative. Let us focus on the first mode being the purported basis of the iniquitous House Resolution No. 1109.

“A constituent assembly,” said constitutionalist Fr. Joaquin Bernas, “is nothing more than a body composed of men and women either elected or appointed officially empowered by the people through the Constitution to propose amendments to or revision of the Constitution.” The Constitution by virtue of Article XVII section 1 (cited earlier) automatically converts the bicameral Congress into a constitutional assembly the moment it seeks to propose amendments or revision. But let us be clear on this owing to the ambiguity of the constitutional provision on the amendatory process. As I have observed, most opinion writers (same with my fellow bloggers) seem to construe the “three-fourths vote” requirement as a necessary condition before Congress can act as a constituent assembly. To my mind, the “three-fourths” vote requirement cited above refers to the determination of Congress on whether to approve or reject the proposal for amendments or a revision. Necessarily they cannot do this unless they already sit as a constituent assembly by operation of Article XVII section 1 of the 1987 Constitution. This is what Fr. Bernas meant when he referred to the issue of converting Congress into a constitutional assembly as “superfluous talk.”

Going back as worded, the 1987 Constitution neither requires an enabling act in the form of legislation nor a resolution before Congress can act or sit as a constituent assembly. But there seems to be no problem if Congress in the exercise of its rule-making powers decides to pass a resolution in the form of an administrative measure “setting down how each house proposes to proceed in the exercise of the constituent power.” The function of a constituent assembly, however, is not to be confused with the role of the electorate in the process of amendments and revision.

A constituent assembly merely proposes or formulates amendments or revision; it does not amend or revise the Constitution. In essence, the proposal made by the constituent assembly partakes to the nature of a “recommendation” subject to the approval or ratification by the sovereign people through a plebiscite. It should be noted that the 1987 Constitution provides for a bicameral legislature composed of two houses, the House of Representatives and the Senate. The records of the 1986 Constitutional Commission show that it was an uphill battle for those who supported a bicameral legislature over a unicameral system. The debates between the opposing sides were both intense and sometimes even comical, but nonetheless extensive with their respective arguments. At the end of the day, the votes were 22-23 in favor of a bicameral system.

The rationale for a bicameral body is obvious as the sun; simply put,two heads are better than one. Legislative decisions, whether Congress acting as a constituent assembly or performing a legislative function, require far-reaching deliberations and debate, thus the need for collective wisdom. This is logical because the Senate tends to view transcendental issues from the national perspective while the House of Representatives favor the parochial approach in resolving problems confronting the nation. In other words, there is the built-in system of checks and balances which is the essence of a bicameral system. Clearly then, the framers of the 1987 Constitution deliberately manifest their intention to establish a legislative body with a bicameral structure and obviously, the people overwhelmingly approved their handiwork as the supreme law of the land.

Bicameralism necessarily entails the idea of dual decision. As such, the same applies even when Congress proposes amendments or revision in the exercise of its constituent powers. Since Congress is composed of two Houses, how then can it propose amendments or revision to the Constitution when it sits as a constituent assembly? Basically, when Congress enacts ordinary legislation both Houses have separate deliberations and voting separately. But proposing amendments or revision is not a legislative function as enshrined in Article VI, what we have here is a constituent function pursuant to Article XVII. To reiterate, the Constitution simply says, ““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…” But again, how can we determine the “three-fourths vote” of all its members when what we have is a bicameral Congress, each with its respective number of members. Can both Houses propose amendments to the Constitution in a joint session? If so, how about the manner of voting? Must they vote separately or not?

It appears however that majority of the Congressmen who sponsored House Resolution No.1109 have a distorted interpretation of Article XVII section 1 of the Constitution. The gist of the resolution clearly excludes the participation of the Senate in the process of proposing amendments. For obvious reason, HR 1109 openly enunciates the “joint voting” formula as the correct interpretation in determining the three-fourths vote requirement. Under this view, the phrase, “three-fourths of all its members” should mean three-fourths of all the members of the House of Representatives and the Senate taken together as one legislative body. To illustrate, let us suppose that at present we have a total of 293 members, 269 of them belong to the House while 24 to the Senate. Following the joint voting formula under HR 1109, three fourths of 293 would be 219. Thus, even assuming all the 24 Senators voted against the proposed amendments still it would not be enough to overturn the decision of the majority in the House. This of course is an outrageous interpretation of the 1987 Constitution. “Under this view,” wrote Justice Vicente Mendoza, “it does not matter if the three-fourths vote casts in favour of a proposed amendment or revision come from the House nor if all the members of the Senate object.” The joint-voting formula not only distorts the text of the Constitution, but it also destroys the very intent of the framers when it opted to go for a bicameral legislature.

To support this analogy, a perusal of the 1987 Constitution provides for the instances when the two Houses must convene together in joint session but vote separately: (1) When Congress declares the existence of war, (2) When it confirms the president’s nomination of a member of the Senate or of the House to be Vice President in the event of a vacancy in that office, and (3) the canvassing of votes for president and vice-president. Note that in these three instances, like proposing amendments or revision under Article XVII, Congress is performing a non-legislative function.

Corollary, 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 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. Albeit 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.

The notorious House Resolution 1109 is nothing more but an utter display of hubris by the majority of the members of the House. While admittedly the constitutional provision on the amendatory process is badly worded, the same should not be utilized as an avenue for vain political motives. I have always maintained (see: Charter Change Revisited article) that if we venture to change our Constitution it has to be done under a less politicized environment. But be that as it may; if the House so decides to push through with the amendatory process by deliberately excluding the Senate, then this will be the proper time to bring the case to the Supreme Court for adjudication.



wawam said...

A call to pinoy blogs and bloggers to link blogs on HR 1109

We are issuing this call to all pinoy blogs and bloggers to link to other blogs discussing or posting on the issue of the House Of Representatives passing HR 1109 in congress. Link to these blogs even if your blog's topic is not on anything related to HR 1109.

HR 1109 is one the most important actions of the current congress that will affect the whole country and our lives.

Let us link together to give pinoys the opportunity to be properly informed on the issue so that they can intelligently decide on their own or join a group to take action.

clicke here:

Nick said...

You have a profound legal analysis...Im also anti con-ass. Keep on writing!

wawam said...

this post published here:

please let us know if you wish it to be removed from there.

HOMER said...

Your post is really enlightening. I guess you're right with the 3/4 votes, it's a little bit of a grey area for me, but since you've cited Bernas already who's the authority in Consti Law, I'll consider your point.

Thanks for visiting my blog. Re adding your link to my blog, dont worry I dont charge any fee for that! :)

Christopher Diaz Bonoan said...

to hOmer-Yes most of my views are in line with that of Fr.Bernas but he never said that the three-fourts vote refers to the proposal. I took the liberty to expound his position owing to the vagueness of the provision on the amendatory process...we really need to educate the people on this issue.

to wawam- yes please do advocacy is to educate the Filipino people. You have my permission to post my article.

cyber said...

You have a very incisive constitutional analysis on this one...and if im not mistaken your only 28 right? and not yet a lawyer? Just keep on pursuing your ambition you have the gift Mr.Christopher Bonoan! (by the way i read the road to success under repair)

Christopher Diaz Bonoan said...

Thank you for the kind words, this is all i have right now, my passion for the law...and yes Im 28 thank you for reminding me...:)

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