Thursday, September 28, 2006

CON-ASS and the Political Question Doctrine

Changing the Charter, i.e., CHACHA is governed by the following Article:

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.
CON-ASS or the "Constituent Assembly" is really just the Congress itself proposing amendments to OR revisions of the Constitution for ratification by the citizenry at plebiscite under Section 1(1) above. The big question is over the clause "upon a vote of three-fourths of all its Members."

Today the incumbent Members of Congress number 23 Senators (since Noli was elected Vice President, his 24th senatorial seat is vacant); 200 regular District Congressmen; and 36 Party List Representatives. Thus "three fourths of all its Members" comes to about 195. House leaders have claimed that with 196 votes (even if all are from the Lower House) the Congress may propose amendments and revisions for plebiscite as set forth in Section 1(1) of Article XVII.

The Senate, as it has in the case of People's Initiative, will of course question the matter in the Supreme Court, where many believe the bicameral structure of the Congress will force the interpretation of Section 1 to mean "upon a vote of three-fourths of both Houses of Congress voting separately"--the same formulation as in the US Constitution for example (though their threshold is only two thirds).

Let me call that future prospective landmark Supreme Court case, Senate of the Philippines Versus House of the Philippines.

Can one even begin to imagine the enormity and gravity of such a case as SENATE vs. HOUSE over an interpretation of Section 1(1) of Article XVII?

The difficulty of adjudicating the case for the Supreme Court comes from several legal, political and jurisprudential issues:

BICAMERAL VOTING: To side with "bicameralism" and the Senate, the Court would have to construe the words of the Constitution to mean something almost entirely opposite to its plain and common meaning to most reasonable persons. For there is truly nothing ambiguous or imprecise about the wording "upon a vote of three fourths of all its Members." Yet to uphold bicameralism the Court would have to decide that these words do NOT "actually" mean what they plainly say but that they "actually" mean "upon a vote of three fourths of the Senate and House voting separately." The Court would have to go into a long, involved and circuitous justification of why the provision does not mean what it plainly says. There are strong arguments on the other side. While it is true for example, that ordinary laws are passed by Congress upon a majority vote of both Houses, a PROPOSED amendment to or revision of the Constitution must still be ratified and approved upon a majority vote of the People in a plebiscite. Therefore such proposals cannot be treated like ordinary laws.

UNICAMERAL VOTING: But if the Court were to side with "unicameralism" in an actual controversy with the Lower House, the Court could be opening the door to the abolition of the Senate, since in point of fact, the proposed charter change is to shift to a Unicameral Parliamentary form of government and would have that effect upon ratification in a plebiscite.

It is entirely possible the Court will consider the matter in the context of the Political Question Doctrine. These considerations also foretell of a possible conundrum to be discovered by the Court in its future deliberations upon the future case, Senate vs. House. A conundrum in which there is that common element of a ratification in a plebiscite. Ratification and plebiscite. Those are the Abracadabra words that summon the Genie of the Political Question Doctrine

Justice Vicente V. Mendoza, in his Annotation to Javellana vs. Executive Secretary (SCRA 50 March 31, 1973) states:
"Not all constitutional questions are in the keeping of the Court. For Mr. Justice Brandeis, a liberal judge by general consensus, "the most important thing we decide is what not to decide." (P.A. Freund, On Law and Justice, 1968). His conception of the judicial office as Prof. Freund has noted, proceeded fundamentally from an awareness of the limits of human capacity, the fallibility of judgment, the need of husbanding what powers one had, of keeping within bounds if action was not to outrun wisdom. In the Ratification cases, what in the end prevailed was, I believe, a view of the judicial function that is somewhat akin to Brandeis' self-denying ordinance."
If the Supreme Court decides that there is NO NEED to decide what Section 1(1) means other than what the text plainly says, "...upon a vote of three fourths of all its Members..." then of course the common meaning will stand.

And so will CON-ASS.

1 comment:

Lark said...

CON ASS..boy, that sounds sleazy. Hah. I must admit, I hardly read and watch t.v nowadays (thanks "milenyo!") but would changing the constitution change the way government works? And even better our lives? Hmmm. Or is it the reason that ammending constitution would prolong a president's life..I mean term. I know what CON ASS means..but not what it really is and what purpose it serves. Thank you for this site, at least people are informed but the majority is still in the dark about the whole thing.