Thursday, November 30, 2006

A New Solution to the Conundrum of Voting Separately or Voting Jointly

Update: ABSCBN ANC reports that former President Fidel V. Ramos has just called upon backers of Charter Change should "MOVE ON" because the elections must now go on as scheduled by law in May, 2007. (Oh to be fly on the wall right now within the bickering Inner Circle!)

The silence of the Constitution is for the Congress to fill.

I'm having a nice lil laugh with myself now that I think I've found a really powerful way to think of the "voting separately" or "voting jointly" conundrum allegedly posed by the ambiguities in Article XVII Section 1 of the 1987 Philippine Constitution:
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.
It's very simple really.

The ambiguity is for the Congress to resolve by adopting its "Implementing Rules and Regulations" for whenever the Congress works on amendments to, or revision of the Constitution. I think it is beyond the ability, the power and the jurisdiction of the Supreme Court to decide for the Congress in an "advisory opinion" which rule is "Constitutional" because either rule could be constitutional. It is to the Congress, not the Supreme Court, that the Constitution gives the power to propose changes to the Constitution. "Voting separately" or "voting jointly" are merely two different modes of implementing the required three fourths majority rule.

When the Congress, acting as a Constituent Assembly, adopts its Rules for the purpose of creating, deliberating, refining and proposing amendments to or revision of the Constitution, both Houses of the Congress must concur in what those Rules are, even if one of those Rules is that they will vote jointly when it comes to debating and approving proposed amendments and revisions. But metaphysically speaking, there is no way, for the Congress to adopt the Rules by which they will operate as a Constituent Assembly other than with the concurrence of both Houses voting separately to adopt such Rules.

Just as any Constitutional Convention would be expected to remedy the obvious and complete silence of the Constitution on its operations by adopting its Rules for the purpose of deliberating and voting upon proposed amendments or revision, so too, the Congress can and should remedy the silence and ambiguity of the Constitution on the matter of voting separately or voting jointly.

The matter of "voting separately" or "voting jointly" does not have to be settled by the Supreme Court. In fact, it should NOT be settled by the Supreme Court, but by the Congress. Since the Constitution indubitably endows the Congress with the power to propose amendments to or revision of the Constitution, it also empowers the Congress to do all things necessary and sufficient in the exercise of this power, including the adoption of the Rules that govern the Congress when it does exercise this power. Notice that even the Supreme Court does not have this power!

I assert that the Congress can decide, as a matter of its Rules, HOW the Congress shall exercise this power which is explicitly granted to it by the Constitution, including whether both Houses of the Congress should vote separately or jointly when approving the same, as long as the Congress complies with the three-fourths majority rule.

To prove this assertion, merely consider two questions:

Q1: Would it be unconstitutional if both the House and the Senate passed Joint and Concurrent Resolutions adopting the rule "voting jointly" when it proposed amendment or revision?

Q2: Would it be unconstitutional if both the House and the Senate passed Joint and Concurrent Resolutions adopting the rule "voting separately" when it proposed amendment or revision?

The answer to both Questions is indubitably NO since the Constitution is completely silent on which way the Congress should vote, separately or jointly. Even if the Constitution requires that the arithmetic requirement of three-fourths majority rule must apply, the Congress can comply with this numerical requirement of the Constitution whether it votes separately OR jointly.

ERGO, it would be a grave abuse of the Supreme Court's discretion, amounting to an unconstitutional excess and/or lack of jurisdiction, for it to dictate to the Congress a priori whether it is jointly or separately. That choice, in my opinion, is purely the prerogative of the Congress. The most I think that the Supreme Court can do, if and when a real case and controversy should arise, is to decide whether or not the Congress has complied with the Constitution.

For example, if a mere House Resolution is submitted to the Comelec for plebiscite, such a Resolution is obviously and trivially insufficient in form to qualify as an Act of the Congress proposing amendments to or revision of the Constitution. Even if a House Resolution is signed unanimously by all the Members of the Lower House, it will only ever be an ACT of the Lower House and not an ACT of the Congress.

The ACT of proposing amendments to or revision of the Constitution for ratification at plebiscite is granted to only two very specific entities whose Members or Delegates are all democratically elected representatives of the people --- the Congress or a Constitutional Convention.

It is not for the Supreme Court to tell the Congress what Rules it must adopt since the Constitution actually allows either voting rule -- voting jointly or separately, to be adopted by the Congress.

Now it may not seem equally remarkable, but there is an even muter Constitutional silence and ambiguity in the matter of how a Constitutional Convention is supposed to approve proposed amendments or revision. But no one worries about this other ambiguity because we assume, if a ConCon is ever elected and convened, that the elected Delegates of the Convention will organize themselves as a collegial body and adopt RULES by which they agree to operate. Since all the Delegates are equal upon election to the ConCon, the principle of "One Delegate, One Vote" means that the Rules of the Convention will themselves first be approved by a simple majority rule of 50% plus one Delegate. Note that the contents of the Rules themselves are entirely up to the Convention. It can adopt a rule which says that the Convention will approve amendments or revisions only upon a simple majority vote, or two-thirds majority, or three-fourths, or four-fifths of all its Delegates. Or the Convention can decide that all votes must be unanimous. Since the Constitution empowers ConCon to amend or revise the Constitution, it certainly also grants the ConCon the power to adopt such Rules and operating policies and procedures as are necessary for it to exercise such power.

In other words, the Constitution expects a Constitutional Convention to resolve the total ambiguity which exists in the Constitution itself as regards to the ConCon's workings.

I think the same principle applies exactly to the controversial ambiguity over voting separately or jointly in Section 1(1) when the Congress proposes amendments or revisions. It is the Congress itself, acting as a Constituent Assembly (ConAss), which can swiftly, easily and completely resolve and remove the AMBIGUITY in the provision, simply by adopting the Rules to be enforced when the Congress proposes amendments to or revision of the Constitution.

It is entirely conceivable and permissible that the Senate and the House would both CONCUR on "voting jointly" as the rule to approve amendments or revisions. It is equally conceivable and permissible that they would adopt the very different rule of "voting separately."

But it is inconceivable and impermissible that EITHER rule could be adopted by the Congress for the exercise of its right to amend or revise the Constitution, without both Houses of the Congress concurring to adopt such Rule.

In other words, there is no possible exception to "voting separately" when the Congress, acting as a Constituent Assembly, adopts its Rules for the purpose, even if one of those Rules is that they will vote jointly when it comes to approving proposed amendments and revisions!

5 comments:

domingo said...

I don’t think there is what you call a "conundrum" here.

The provision is clear: "Congress, upon a vote of three-fourths of all its members."

The phrase "all its members," of course, is intended to mean that "all" the members of both Houses of Congress are to be counted as members composing the one Legislative branch of government, "jointly," one member (a Senator or a Representative), one vote.

In fact, the bicameral Congress is not even required under the provision to be convened in "joint session" which may be interpreted to mean that once the desired favorable "vote of three-fourths of all its members" (Senator or Representative) is reached, in whatever manner the "vote" is taken, the COMELEC is required to call and hold a plebiscite for the people to ratify or reject the proposal.

The perceived omission of either words "jointly" or "separately" does not mean that anybody or any of the three branches of government, the Judiciary in particular, even the COMELEC for that matter, can just as easily supply the word or phrase to fill what you refer to as "the silence of the Constitution" on the matter.

An amendment must first be proposed and then ratified by the people to authorize either of the two words to be inserted in the provision. For each time the Framers wanted Congress to vote either "jointly" or "separately," they said so. And there are several provisions, in fact, where the Framers require Congress to either vote "jointly" or "separately."

But, in this particular instance (and there are others under the same Article and in another), the Framers obviously felt that there was no need, nor were they obligated, to add more words to the mode they regarded as already appropriate. Indeed, how can there be the possibility of any ambiguity in the simple phrase they employed, "three-fourths of all its members"?

Although I am not supportive of any effort to amend the Constitution without a detailed dynasty prohibition included, this issue nonetheless involves a constitutional provision, one that is plainly-worded, easily understood; hence, no law or House rule to the contrary would be of any force or effect.

Rizalist said...

Domingo,
Are you of the opinion that the Congress cannot pass its own Rules, or decide how it is to propose amendments and revisions? Surely the Constitution does not contain all the required details. What do you say the Constitution allows a ConCon to do? And how? Who decides its Rules? Does it vote by simple majority? 2/3? 3/4? Or are you saying the Supreme Court has to tell the Concon all these things by "construing" the utter silence of the Constitution?

domingo said...

Rizalist,

“Each House,” of Congress is, of course, authorized to “determine the rules of its proceedings.”

Sitting as what is popularly known as a “Constituent Assembly,” the Congress, is similarly authorized to promulgate such rules, even a “Constitutional Convention.”

But my contention in the earlier post is that, no rule may be adopted by a “Constituent Assembly” contrary to the constitutional mandate in Section 1 of Article XVII, which commands that: “Any amendment to, or revision of, this Constitution may be proposed by (1) Congress, upon a vote of three-fourths of all its Members.”

I think the resolution of the confusion brought about by the perceived omission of either the words “jointly” or “separately” lies in the definition of the term “MEMBER” as used in the provision cited. To justify the phraseology of this provision (or of the oversight?), the Framers can still persuasively argue that--

A Senator is a “MEMBER” of the “Senate”; a Representative, a “MEMBER” of “the House of Representatives”; and both are “MEMBERS” of the bicameral Legislative body, “the Congress of the Philippines which shall consist of a Senate and a House of Representatives.”

But whenever the Congress opts to sit as ANOTHER body, as a “Constituent Assembly” under XVII, the Congress is, technically, not to be deemed anymore as the same entity wielding the Legislative Power it is clothed with under Article VI.

Thus, the Framer’s justification continues, the term “MEMBER” of the bicameral Congress--whenever it is convened as a “Constituent Assembly”--does not anymore refer to, nor does the term distinguish strictly between, a Senator and a Representative during official sessions of the “Assembly”; for all Senators along with all Representatives are now to be regarded simply as “MEMBERS” of ONE “Constituent Assembly.”

This, of course, means that, as a separate and distinct “Assembly,” every “MEMBER”--a Senator or a Representative--is entitled to cast only ONE vote each.

The rationale behind this, the Framer’s justification might add, is that, if the voting is done “separately,” the Senate would certainly have an “unfair advantage” over the House of Representatives, since a mere 7 Senators (one-fourth plus one of 24 Senators) voting to reject the proposal would require a much higher equivalent of 63 Representatives (one-fourth plus one of, say, the maximum 250 Representatives) voting to secure the same rejection.

Note it well that the Senate vote of “rejection” highlighted in the example above--in which a “super minority” of merely 7 Senators can thwart the proposal of a “majority” of Representatives--is basically what the doctrine of “Concurrent Majority” espoused by John. C. Calhoun of South Carolina was all about (which eventually led to the bloody American Civil War). The idea behind the doctrine of “Concurrent Majority,” of course, constitutes the basis for the justification of the “bicameralism” in the U.S. Congress and its clone in the Philippine congressional setting (see Wikipedia and the related links there for a thorough discussion).

Whatever the reasons, the grim fact (or oversight?) remains to haunt: “Congress, upon a vote of three-fourths of all its members” may propose …

Rizalist said...

Domingo,
Who does the Constitution say may propose amendments or revisions? The Congress or a ConCon. Not a "Constituent Assembly" or "another body" but the Congress.

The Congress is not a single collegial body like the Supreme Court, but TWO collegial bodies. The Congress itself is actually a Democracy of Two. That is why none of its ACTS are undertaken unless BOTH concur.

No Senator is a Member of the House, nor is any Member of the House a Senator. They are not members of any fictional assembly you've imagined or concocted. They are always just members of the House or Senate. A typical senator gets millions of votes, a Congressman just thousands.

They are NOT equivalent. That is why there are TWO Houses of Congress and not one.

Voting separately or voting jointly is constitutional because EITHER one satisfies the three fourths rule.

But it is not for the Supreme Court to say, but the Congress, in the normal manner that it adopts its Rules.

domingo said...

Rizalist, sorry for failing to finely clarify the point I was raising in my post earlier; I was actually merely trying (ever as “devil’s advocate”) to divine or second-guess the reason behind why the Framers (Fr. Bernas, among them) could have made such a monumental “mistake” or “oversight” in wording the Amendment Article.

And, without intending disrespect, the only acceptable way the Framers could explain this “mistake” (glaring as it is, yet if they insist that it is not), would be, to my mind (or to use your words, “I imagined and concocted”), their assumption that the “members” of the “constituent assembly” (you now refer to as a “fictional assembly”)--composed of Senators and Representatives who are members of “the Congress,” a bicameral body at that--are now to be regarded (unbelievably, to many legal scholars around) without any distinction at all, “jointly” or “separately,” during the voting.

And this is what I merely supposed in my earlier post would have been their assumption (not mine) to justify what is clearly an awkward manner, comparatively speaking that is, in which they worded the Amendment Article--“all its members.”

Having clarified that, allow me please to add why I say the “mistake” is “monumental.”

The grim irony here is that the Framers could have simply copied their own wording used in the Declaration of War Clause, or that phrased in several other similar provisions, in the same 1987 Constitution: “The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately …” Or they could have borrowed the same Declaration of War phrasing used in the 1935 version of the Amendment Article: “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 …” (Note: the phrases “in joint session assembled” and “voting separately.”)

What is disconcerting is that the Framer’s “mistake” or “oversight” in the Amendment Article is repeated (with impunity?) in at least three other provisions: First, Article VI, Section 28, par. (4) regarding “tax exemption: “… the concurrence of a majority of all the Members of the Congress”; Second, the second paragraph of Article VII, Section 19 regarding “grant [of] amnesty”: “... the concurrence of a majority of all the Members of the Congress”; and Third, Article VII, Section 18 regarding Martial Law: “The Congress, voting jointly, by a vote of at least a majority of all its Members ...” (Note: Inexplicably, the Framers suddenly become more specific here by inserting the words “voting jointly,” which appear only in this, and in no other, provision.)

I fully agree with you that the votes cast by each House should not be “equivalent”; the concept of bicameralism alone does not allow that to occur. But, sadly, it is the words the Framers phrased the Amendment Article with that transform the vote cast by a Senator into a vote “equal” to that of a Representative. In fact, under the same “checks and balances” principle for that matter, the VETO of even just a single President is authority enough to kill a bill enacted by a majority of both Houses of the Congress, voting separately, and would thereafter require a super-majority of each House to re-enact it.

I, of course, agree too with your concluding statement (which I think touches on the “separation of powers” doctrine) that “it is not for the Supreme Court to say, but the Congress, in the normal manner that it adopts its Rules.” But this will not stop the Court from invoking the same “separation” theory and entertaining challenges that may later on be hurled against such rules, and make a ruling on it, which always turns out to be unpleasant to many--nor, insofar as rule-making is concerned, will any rule adopted prevent the rule-maker from amending any rule anytime it wants to once the majority says so.

What is really unfortunate is that the current members of the House of Representatives, gloating, have seized upon the Framer’s “mistake” or “oversight,” using it unfairly, unjustly as the excuse upon which to act unilaterally, by interpreting the words in the Amendment Article to mean “jointly.”

More disturbing, they are now reading into certain “omissions” in the provision as implying the authority that the House of Representatives can “propose”--without even the need of the Congress convening “in joint session.” To the current majority in the House of Representatives, “inviting” the Senate to “join us” is already compliance to a rule that the Framers “omitted” or neglected to specify what ought to have been included in the first place.

So how will majority in the House of Representatives justify this? By simply claiming that the Framers did not say so (another “oversight”?) and would have said so, explicitly, if they wanted Congress to--again conveniently citing what the same Framers expressly wrote in several similar provisions whenever they wanted the Congress to--for instance, in the Declaration of War Clause: “in joint session assembled.”

By the way, I always look forward to reading your commentary.