Among Ed and the State

Alas, the messiah has spoken! Last Tuesday Pampanga Gov. Eddie “Among Ed” Panlilio has declared his intention to join the 2010 presidential race after hearing God’s voice. To begin with, as fellow believer in Christ I will not question the validity of his claim nor question the authenticity of the “voice” as one coming from heaven. But let me separate my ecclesiastical thoughts for the moment and offer a few secular observations concerning Among Ed’s controversial statement. Reading between the lines, what I’m trying to say is this; a mixture of politics and religion is a dangerous precedent in any body politic. At least that is what my history book says. In the realm of politics even the most despicable aspirant for power can recite scriptures or can freely claim that he is the duly anointed one much less a statement coming from a saintly character like Among Ed. Even the “little girl” from Malacanang claimed, to a certain extent, that her presidency is but a product of divine intervention. Yes, like Among Ed she also received divine instructions and no one dared to challenge her to prove the veracity of his statement. Nonetheless, I will dispense my political analysis on this issue. My utmost concern has something to do with the legal separation of two major institutions in our society, the Church and State, as commanded by no less than the Constitution.

While I highly welcome Among Ed’s decision to run for the presidency for the May 2010election, there is however one thing I would like to clarify with his upcoming presidential bid. For all intents and purposes, Among Ed has not technically abandoned priesthood even while serving as governor of Pampanga. In fact, he can regain his stint as a priest had he lost the local election. I’m not quite sure this time what will be the position of Among Ed owing to the fact that he will be eyeing for the highest position of the land. In an interview, Among Ed said that he would formally request for dispensation from the Church upon filing his certificate of candidacy. Nonetheless, he was quick to reiterate that he would want to go back to priesthood should he lose in his presidential bid. Seen on its face, the statement of Among Ed can be confusing if not deceiving. Priest-on-leave or not, he is still a priest. The Church on the other hand seems to play the political cards too close to its chest. In refusing to endorse the candidacy of Among Ed it does not however give a clear and decisive statement on his membership on the clergy. I may be wrong in all this, but if Among Ed wins the presidency, it will also mean one thing-a silent victory for the Catholic Church. I urge the Church to do something about this to erase any doubts concerning Among Ed’s candidacy.

Under Canon Law, priests are not generally allowed to participate in partisan politics or hold public offices involving the exercise of civil powers. But from the looks of it, this prohibition is more of an exception rather than the rule. To be clear, the soundness of this rule is not entirely our concern, let the politically potent CBCP or the feisty Archbishop Oscar Cruz handle this problem. My pressing question however is this: If there is indeed a Canon law violation when clerics hold public offices, does it necessarily follow that there is a constitutional breach? In other words, will there be a violation of the separation of Church and State principle if Among Ed will eventually become the next president of the Republic? I will try to answer this question to the best of my knowledge on the rudiments of constitutional law.

The Constitution by way of a general principle says that, “The separation of Church and State shall be inviolable.” Furthermore Article III, Section 5 enunciates that, “No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof.” (Also known as the "non-establishment clause.") The idea behind this principle is best explained by Justice Isagani A. Cruz in this wise, “The rationale of the rule is summed up in the familiar saying, “Strong fences make good neighbors.” The idea is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective jurisdictions. The demarcation line calls on the entities to render therefore unto Caesar the things that are Caesar’s and unto God the things that are God’s.” The rationale behind this principle is too obvious, a merger between the church and state tends to destroy government and degrade religion. This does not mean however that both institutions must treat each other with hostility. In fact, the Constitution itself recognizes the beneficial aspects of religion to promote the well-being of its citizens and the nation as a whole. Unlike our preceding constitutions, the Preamble of the 1987 Constitution uses the phrase, “imploring the aid of the almighty God,” to be more consistent with Filipino religiosity. Tax exemptions are also given on properties used directly and exclusively for religious purposes. The Church on the other hand, openly participates on various political and civil issues affecting the government. The Church, especially in our country, has always been on the frontline of our political history and has somehow directed the course of the ship of state.

But then again the Constitution marks the thin line between these two key institutions. If you will examine the wordings of the constitutional provisions, the thrust of the principle is strictly geared towards the State and not the Church. Conversely, the provision on the separation of Church and State is a limitation directed upon the State and it’s institutions-primarily the government. The provision on the Bill of Rights for instance, cautions the State not to pass laws which will otherwise favor one religion over the other. Certainly, who has the power to pass laws, the Church or the State? Obviously, it is the State as represented by its legislative organs mainly, Congress and to a certain extent, the local legislative bodies. On historical angle, under the Spanish regime, the Church was clearly empowered to perform acts or issue directives which have the force of law. Now, the civil powers have been reverted back to the state. At any rate, the rule under constitutional law is clear; the state must always remain neutral in its dealings with various religions. Moreover, the inclusion of the “non-establishment clause” in the Bill of Rights elevates the principle of separation of Church and State in the same category with other constitutional precepts such as the due process clause, the rights of the accused, freedom of expression and many more. What then is this the clear import of this analysis? Apparently, in one sense these constitutional rights protect individuals against the vast and intrusive powers of the State. In another sense, the constitution strictly limits the awesome powers of the state in relation with individuals. Thus, while the State can legislate anything and everything under the sun, it cannot however pass laws which run contrary to the limitations set forth in the Bill of Rights like the “non-establishment clause.”

In view of this staid disquisition, the desire of the venerable Among Ed to run for the presidency while ethically challenged (as explained above), the same may be constitutionally defensible. It has always been my burden to offer a sensible explanation whenever friends raise the billion dollar constitutional question on church and politics. Can the church endorse the candidacy of Among Ed or perhaps Bro. Eddie Villanueva? To this, my usual answer would be a resounding yes. Certainly, the Church just like any secular organization can freely participate in the “marketplace of ideas” especially on matters of public concern like presidential election. The wall of separation does not preclude the church to exercise constitutional guarantee of free speech and expression and the right to petition the government for the redress of grievances. The more difficult question though is when a churchman decides to run for public office. Worse, what if he wins the election and thereby assumes the public position? In the 2004 presidential election, Bro. Eddie Villanueva of the Jesus Is Lord church joined the presidential race but miserably failed. In my hometown Zamboanga, an amiable priest tried his luck for the mayoralty post against a more experienced and prominent candidate in the parochial political arena. Like Among Ed, he too heard the voice from heaven. Unfortunately, the churchman failed to muster enough votes and lost his mayoralty bid fair and square. The candidacy of Among Ed as governor of Pampanga in the 2007 local election relatively changed the face of Philippine politics. Consequently, he became the first ever Filipino priest to sit in public office. And because of this major turning point, no one dared to lift a finger questioning the legality of Among Ed’s assumption as governor of Pampanga. But still, the billion dollar question remains unsettled. Nonetheless, the participation of "churchmen-politicians" in the political arena indicates the need for alternative “apolitical” candidates other than the traditional players during elections. And in doing so, the supposed high wall which separates the church and the state remain intact, at least in the constitutional sense.

As mentioned earlier, my concern is not focused on Among Ed’s preoccupation to aspire and perhaps even to lead the nation as the highest official of the land. But here’s a thought, what is constitutional is not necessarily moral. Personally, I have nothing against Among Ed if he really wishes to introduce genuine political reforms in our country, we should all be grateful about that. But that is not the issue here. With this piece, I challenge the Catholic Church to strip naked Among Ed’s sotana the moment he files his certificate of candidacy for the presidency. The Catholic Church certainly has the sole authority, whether on the basis of Canon law or any religious dogma to rule on Among Ed’s case. Frankly, I know nothing about church discipline or church tribunal procedures applicable to churchman like Among Ed. I trust that the Church will exercise prudential judgment on this matter. As for Among Ed, will it be priesthood or politics? Either way, it’s all or nothing. Take your pick father!

REFERENCES:
The 1987 Constitution: A Commentary by Fr. Joaquin G. Bernas
Constitutional Law by Justice Isagani A. Cruz
The 1987 Constitution

THE POWER THAT LIES IN THE LITTLE GIRL'S HANDS

There is a talk going around recently that because of several bombing incidents in some parts of Mindanao the “little girl” (If I may use the phrase of my constitutional law professor.) from Malacanang might impose martial law in no time. The charge, according to news reports is that the President is out to use the bombing incidents in Mindanao and the heightened alert in the metropolis to declare a state of national emergency. From there, it will eventually lead to the declaration of martial law. What is the catch then? Well, I think what the opposition is trying to say is that by declaring martial law the President can stay in power beyond her term. Surely if this will happen, we will be facing a “No-El” scenario come May 2010. The administration however strongly denied this speculation claiming that this is just another propaganda spearheaded by the opposition to cast the President once more in a bad light. In a press interview, Secretary Remonde assured the public that the government can solve the bombings without declaring martial law. I’m sure they can, but are we suppose to trust Arroyo administration nowadays following the Conass fiasco? I think not. Call me a pessimist, but this administration has an unusual hobby of tinkering with the constitution not only once but many times! Personally, like my conviction against the notorious HR 1109, I am not inclined to give this administration the benefit of the doubt on this issue as well.

Propaganda or not, the clear import of all this is for us to examine the constitutional safeguards in place whenever the “Commander-in-chief” so decides to declare martial law under the auspices of the 1987 Constitution.

History tells us that our country had such a tragic experience with martial law. In fact, the mere mentioning of the term alone may be enough to cause alarm and fear to the sensibilities of every Filipino. Like the name “Voldermort” in the Harry Potter series, martial law also has its share of evil and horrible connotations in our country. But one may ask, if martial law is such an evil concept in Philippine history, why did the framers of the 1987 Constitution sought to retain this power in the hands of a robust “Commander-in-chief”? Why not scrap it altogether and bury it for good? To these questions, a sneak glimpse on the essentials of martial law in the context of American constitutionalism is fitting

Martial law is essentially founded upon the police power of the state. Joking aside, what is being referred to here is not the power vested with the police force or the PNP. Obviously, this has something to do with one of the inherent powers of the state. To be clear, the textual definition of police power is that, “power vested in the legislature by the constitution to make and establish all manner of wholesome and reasonable laws…as they shall be the judge to be for the good and welfare of the state and of the subjects of the same.” The idea of martial law is to protect “public safety” against invasion or rebellion which in essence, is one of the concerns of police power. The difference however is that while police power is ordinarily lodged with the legislature (meaning the law making bodies of the state), martial law powers had been placed in the hands of the President as the Commander-in-chief of the armed forces. In his recent Philippine Daily Inquirer column entitled “What is martial law?”, Fr. Joaquin G. Bernas has this observation, “What is peculiar about martial law as police power, however, is that, whereas police power is normally a function of the legislature executed by the civilian executive arm, under martial law, police power is exercised by the executive with the aid of the military and in place of “certain governmental agencies which for the time being are unable to cope with existing conditions in a locality which remains subject to the sovereignty.”

The September 21, 1972 declaration via Proclamation 1081 issued by then President Ferdinand Marcos was “technically” based on the 1935 Constitution. Back then, there was no specific jurisprudence (decided cases by the Supreme Court) on martial law. Thus, the martial law provision in the 1935 document was to be commonly understood in line with the American concept as to what martial law is in the strictest sense. According to a noted American law professor, martial law was an instrument for insuring public safety in times of emergency and for protecting the continuance of normal civil government. The clear implications from this traditional view would have to be first, martial law was not meant to be a substitute for civil government. Second, it was never meant to supersede law. And lastly, it neither calls for the suspension of constitutional rights. These were the inherent restrictions directed upon the administrator of martial law as commonly understood at least in the context of American constitutionalism. Significantly, this concept had been impliedly incorporated in the martial law provision under the 1935 Constitution.

What happened under the Marcos regime was a total deviation from the normal route to attain the martial law objective-“public safety” whenever the state is threatened by invasion or rebellion. To accomplish the purported “objectives” of the Sept. 21 declaration, President Marcos as the martial law administrator, armed himself with extensive powers by exercising legislative powers as well. In a blink of an eye, the theory behind the vitality of martial law as “state self-protection measure” had been put to a stringent test like never before. The draconian decrees issued by the President were later affirmed (in short, the court legitimized the actions of President Marcos.) by the Supreme Court as necessary measures to attain the objectives of the Sept. 21 declaration.

For these reasons, though martial law is often viewed as a monstrous power to be avoided, it likewise has its noble and necessary objectives to preserve law and order. Having learned from the lessons of history, the framers thought it wise to retain this power under the 1987 Constitution, but not without expressed restrictions and safeguards unlike the previous constitutions.

The salient provision on the “Commander-chief-powers” of the President is excessively long. Without a doubt, the new commander-in-chief provision is one of the outstanding features of the 1987 Constitution. Under said provision, while the original authority to declare martial law rest on the Executive branch, there is however an explicit command for checks and balances to achieve the desired result. As will be seen later, the Congress and the Supreme Court have significant roles to play when the nation is under the clutches of martial rule.

The power to declare martial law flows from the “Commander-in-chief” powers of the president. By virtue of Section 18 of Article VII of the 1987 Constitution, the president is bestowed with a sequence of graduated powers from the most to the least benign. The most benign power refers to the “Calling-out power” of the President. Thus, “whenever it becomes necessary” he (President) may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. But what will happen if in the exercise of the “Calling-out power” the President fails to suppress the existence of lawless violence or prevent an impending invasion or rebellion? Faced with this kind of situation, the President can now resort to the least benign powers in his commander-in-chief arsenal to quell any actual invasion or rebellion against the state.

These two extraordinary powers are; (1) the power to suspend the privilege of the writ of habeas corpus or (2) place the entire country or any part thereof under martial law. Unlike the “calling-out power,” the grounds for the proclamation of martial law are at best limited. Thus, the constitution is unequivocal when it states that, there must be an actual invasion or rebellion and “when the public safety requires it.” The initial determination whether there is an actual invasion or rebellion will have to be decided by the President as the Commander-in-chief. But the story does not end there. After the proclamation, the President will now have to persuade Congress on the soundness of his actions. At this point, the 1987 Constitution clearly delineates the participation of Congress to check on the possible abuses of power by the chief executive when acting as Commander-in-chief.

As mentioned earlier, the new commander-in-chief provision under the 1987 Constitution is quite long. Nonetheless let us capture the gist on the extent of the President’s military powers, the martial law provision in particular.

After the initial determination on the existence of an actual invasion or rebellion, when the public safety requires it, the President can now place the country or any part thereof under martial law. The duration of such proclamation shall not exceed sixty (60) days otherwise it shall be automatically lifted. Within forty-eight (48) hours following said proclamation, the President is obligated to submit a report, whether in person or in writing, to the Congress. If not in session, owing to the urgency of the situation, Congress must convene within 24 hours without need of a call. And in that regular or special session, Congress by a majority vote of all its members and voting jointly, may either revoke said proclamation or upon the initiative of the President, extend the period of the proclamation. By this time, it is Congress who will determine the duration of the proclamation depending on the persistence of the invasion or rebellion and when public safety calls for such extension.

From the wordings of the 1987 Constitution you can easily discern the intent of the framers when they drafted the Commander-in-chief provision-a recognition of the separation of powers principle. Both the President and Congress must agree to a certain extent that there is indeed a factual basis for the declaration of martial law. To which, as may be seen later, the Supreme Court in the exercise of judicial review can validly inquire and if found wanting, it will not hesitate to make the hammer fall and heavily! If you will observe, although the President has the sole power to declare martial law under the constitution, Congress may revoke said proclamation and it cannot be set aside by the President. In the same manner, Congress cannot extend the period of martial law motu propio, the initiative must always come from the President as the Commander-in-chief. In simple parlance, there is an inherent “give and take” relationship between the two co-equal departments of government in order to safeguard the power structure envisioned in the constitution.

Given the above discussion, in the end the buck stops with the Judicial branch mainly, the Supreme Court. Let us examine then the function of the Supreme Court under the new rule.

On historical note, Marcos Supreme Court in the case of Aquino v. Enrile had put an imprimatur on the legitimacy of the Sept. 21 proclamation. That infamous case drastically modified the original scope and effects of martial law as embodied in the 1935 Constitution. Now, all of these are purely of historical and academic value because of the new provisions in the 1987 Constitution abandoning the doctrine laid down in the Aquino case

As the bastion of the rights and liberties of the people, the Supreme Court also has an indispensable role especially in times of national crisis. Par. 3 of Section 18 Article 7 of the 1987 Constitution says, “The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty (30) days from its filing.” Before the birth of the 1987 Constitution, the power of the court to review the “determination” or “judgment” of the President as Commander-in-chief was a constitutional “no-no”-a clear violation of the time-honored principle of separation of powers. It is often viewed as a forbidden territory of the courts. Now this is no longer the rule. Although traditionally a “political question,” the 1987 Constitution has clearly abandoned this rule in favor of a much libertarian approach by making it a justiciable controversy. Hence, any citizen can now question the sufficiency of the factual basis of the martial law proclamation.

It should be borne in mind that mere proclamation of martial law does not automatically suspend the privilege of the writ of habeas corpus much less the operation of the constitution. During the state of martial law, civil courts and legislative bodies shall remain open. In line with this, military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning. The suspension of the privilege of the writ of habeas corpus shall only apply to persons facing charges of rebellion or offenses inherent in or directly connected with invasion. Remarkably, any person arrested for such offenses must be judicially charged within three (3) days otherwise he shall be released.

I will not consider myself as a feisty critic of Gloria Arroyo’s administration. I prefer to deal with the legal or constitutional issues surrounding her stint as the President of the Republic. Time and again, I deplore whenever this administration preach “good governance” or “public welfare” at the expense of the fundamental law. That “unusual hobby” or “baka kc makalusot” mentality shows how public servants visualize the rule of law to suit their preoccupation. If you will observe, both the Conass issues and the martial law “speculation” have a common denominator-perpetuation of political power. Indeed, absolute power corrupts absolutely! In any case, we should be sensitive and vigilant enough to protect our fundamental law against those who wishes to hold power in perpetuity.

I just hope that the awesome power that lies in the little girl's hand will be utilized under highly extreme situations as envisioned in the constitution. Given her fetish for power, I wonder if she will ever make the coup de grace on this issue. Abangan!

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.

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.

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