Thursday, September 7, 2006

The Babies Are Lining Up At King Solomon's Court

CONSTANTINO JARAULLA, the Majority whip on Constitutional issues in the Lower House, was trying to convince an incredulous Eli Saludar, (a popular radio talk show host at 558 AM Radio in Manila), that BICAMERALISM does not apply when Congress proposes amendments or revisions to the 1987 Constitution -- even though the approval of both House and Senate, voting separately, is required for every other law passed by the Legislature -- for example, even the most common Congressional preoccupation of modern times--official changes to street names in the Archipelago's various municipalities and local fiefdoms!

PROSPERO NOGRALES, breathlessly told Pinky Webb on the ABSCBN's Dateline News at noon, that he had just attended a hearing the House Charter Change Committee headed by Rep. Jaraulla at which House Resolution No. 1230 calling for amendments to the the 1987 Constitution was apparently approved by a vote of 30 to 7. Nograles vows to bring the Resoolution to Plenary one week after the Jaraulla Committee submits its committee report. Minority stalwart ROILO GOLEZ contested the claim that the committee had thoroughly discussed the now pending CON-ASS Resolution 1230.

Here is the entire relevant Article in the 1987 Constitution, and the flawed Section 1 thereof which some still-living forefathers clearly rue. The words could have been more precise and explicit, but unfortunately they are not.

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.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.
NOTA BENE: Section 1 is ambiguous on the seminal issues of "voting separately". Into that breach, or hiatus in Section 1, chacha advocates, namely JDV and FVR, would drive their unicameral parliamentary system by producing 195 or 196 votes, constituting THREE-FOURTHS of all the 259 Members of Congress (presently 236 congressmen plus 23 senators).

With the House Majority still picking its teeth after devouring the Opposition's second impeachment bid, CHACHA is off to a double barrelled start with the related question of the PEOPLE'S INITIATIVE (a matter of addressed in Section 2) already lodged in the Supreme Court after the Commission on Elections, as expected, denied the Sigaw ng Bayan petition for a plebiscite to be scheduled. Now, as Deputy Majority Leader Nograles proclaims, they will muster the 195 or 196 votes needed to fulfill Section 1.

But though the Lower House has proved the point that "having the numbers" matters in a democratic society, there are limits to "Majority rules!" for otherwise there is the possibility of "the tyranny of the Majority." We call those limits "checks and balances" -- most relevant being BICAMERALISM. There is a built in wisdom to bicameralism, learned from bitter experience by many other societies. "Parliaments" composed of local war lords and political bosses have in history sometimes turned into Mafia-like associations, respectable and lawful on the outside, but corrupt and conniving on the inside. Nations and societies would collapse under such governance, which is why an Upper House of elected representatives with national constituencies have evolved to check such unhealthy developments. Bicameralism is like having two halves of one brain.

I expect a case will be decided by the Supreme Court on Section 1 and the issue of how Congress proposes changes to the Constitution with a title like Senate vs. House of Representatives, the so-called constituent assembly route. Likewise the Supreme Court must decide a case based on Section 2 and the previous Santiago vs. Comelec ruling on the matter of the people's initiative route to charter change, entitled Sigaw ng Bayan vs. Comelec.

I guess the babies and their putative mothers are lining up at King Solomon's Court.

10 comments:

john marzan said...

"I expect a case will be decided by the Supreme Court on Section 1 and the issue of how Congress proposes changes to the Constitution with a title like Senate vs. House of Representatives, the so-called constituent assembly route. Likewise the Supreme Court must decide a case based on Section 2 and the previous Santiago vs. Comelec ruling on the matter of the people's initiative route to charter change, entitled Sigaw ng Bayan vs. Comelec."

I predict Arroyo's Supreme Court will rule against one of the two proposed changes (which one, I don't know), and approve of the other.

Which means, another "win-win" decision by the SC! Something for everybody, LMAO!

HILLBLOGGER said...

why not just hack the two babies?

HILLBLOGGER said...

Hi Dean,

I would like to post the following, if you don’t mind (re Gloria's Euro road show):

For those of you who may want to write to Mr Jose Manuel Barroso, President of the European Union, with whom Gloria is slated to meet (and to discuss, I suspect the gruelling question of graft, corruption, human rights abuse committed in Philippines), so that Mr Barroso could be apprised of the grievances of Filipinos and may take this up during the meeting, you may do so:

- By e-mail: sg-web-president @ ec.europa.eu
- or By post: President José Manuel Barroso,
European Union
1049, Brussels
Belgium

A letter to President Barroso may not cure what ails our nation today but we need allies to put the Arroyos in their place - in the dustbin!

Moreover, a letter from Filipinos to President Barroso would help Europe get acquainted with the Philippines because to most Europeans, the Philippines is still very much an unknown quantity.

Thank you very much.

schumey said...

DJB,

Can you elaborate more on the difference/similarity of amendment and revision as stated in the constitution? I think this will be the bone of contention should it reach the SC.

Rizalist said...

hb,
hope you had a nice vacation. good to see you back!

Rizalist said...

Schumey, John,

In some sense, it is the difference between half a dozen of one and six of the same.

Ultimately, that difference has to be gleaned from the Constitution, itself not a model of precision and succinctness, as the void -- the stunning and unexplainable silence-- in Section 1. Why didn't the charter say "voting separately" or "voting jointly" in an explicit manner. The explanation from the living forefathers is that they simply neglected to do so! It was an oversight.

The philosophical distinction between "revision" and "amendment" moreover, does not seem to exist in the US jurisdiction(?). We have plenty of Amendments to the US Constitution, but not "Revisions." Maybe because there is NO philosophical distinction possible. Certainly not in the gray areas of either. In other words, we can certainly come up with examples that most reasonable people will agree with about what we might call a "revision" and what an "amendment" -- but there will also always be examples of "amendments" that border on being "revisions". For example, suppose a valid people's initiative is launched in which the proposal is to amend the single provision on religious freedom such that a religious test of some kind is now required for let us say the holding of political office. This essentially revises the form of govt from a democracy into a theocracy, does it not? Yet it is a simple amendment.

I think the Singaw ng Bayan P.I. is invalid for other reasons than any philosophical distinction that could be made in these terms.

However, the Supreme Court may wish to attempt the feat later...

Rizalist said...

John, You may be right. Consider too that chief justice panganiban DISSENTED against the majority in the Santiago vs. Comelec case. So did Puno. Both are the only remaining justices on the bench left over from the Court that decided Santiago vs. Comelec.

On the other hand, CON-ASS voting jointly -- the interpretation of Section 1 that JDV wants -- is probably dead meat in the Supreme Court because it is simply too alien to the concept of a BICAMERAL legislature. As pointed out by Frank Drilon, even changing a street name requires a separate vote by both Houses of Congress!

So if I were to hazard a guess, the Sigaw ng Bayan people's initiative has the edge in the Supreme Court.

Juan said...

John, Dean,
Win-win you mean:

The Admin flips the PI-ConAss Coin,

"Heads, I win; tails, you loose"??

My bet, we loose via ConAss.

The term 'Constituent Assembly' is a misnomer. It's not found in the Constitution. It's simply 'a vote of 3/4 all of the members of Congress'to change the Constitution. No need for any consent, action nor response from the upper house; no need for the Senate to agree to convene jointly with the lower house as a body before the voting jointly. The Lower House reigns supreme even over the Supreme Court which it can abolish just as easily as it can obliterate the Senate and take-over the Executive via a shift to a unicameral parliamentary system.
It's a 'constitutional coup' in more ways than one:1) it is 'constitutional' 2) it's power-grab via charter change.

I can only call this GMA-FVR-JdV-Jaraula-Pichay Constitution a TRAPO CONSTITUTION done the TRAPO way, all the way.

john marzan said...

Sassy Lawyer did some research on the 1935 and 1973 Consti:

Let’s compare the above provision with its equivalent in the 1935 and 1973 Constitutions.

[1935 Constitution] ARTICLE XV
Amendments

Section 1. 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. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

[1973 Constitution] ARTICLE XVI
Amendments

Section 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.

In the 1935 Constitution, the meaning is so clear there is no room for doubt–the Houses voted separately. Ergo, the 3/4 requirement must be satisfied twice–3/4 vote among the Senators and 3/4 vote among the members of the Lower House.

Why was the separate voting deleted in the 1973 Constitution? Simple. Because under the 1973 Constitution, we had a unicameral legislature–the National Assembly or the Batasang Pambansa. There were no two chambers to vote separately because there was only one chamber.

Rizalist said...

A small footnote: During Korina Sanchez's show last Friday, ULAP legal counsel Alberto Agra insisted that the Comelec had in effect already verified the signatures gathered by the People's Initiative and that is why they said in their statement that it appeared that the PI had complied with the Cosntitutional requirements.

If you look at the last sentence of Article XVII however, this appears to force a plebiscite in less than 90 days from now.

Blunder?