Sunday, November 5, 2006

To Be Sufficient In Form, Con-Ass Must Pass a Joint Resolution

The framers of the 1987 Constitution cannot be accused of verbosity when they crafted the following provision on Charter amendments or revisions:
ART. XVII 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; (2) or, a Constitutional Convention.
Since there are 24 Senators and 236 Congressmen, there are 260 Members of Congress. Three-fourths of all its Members equals 195. That is the plain, arithmetic sense of the provision above. But if only the framers had added the phrase "voting separately" or "voting jointly" to the above we wouldn't be having all this controversial bother. The omission is particularly strange because the 1987 Constitution contemplates situations appropriate to both types of voting on the part of the Congress, and says so explicitly in the relevant Constitutional provisions.

For example, the Congress has oversight and veto powers over a Presidential proclamation of martial law or the lifting of the Writ of Habeas Corpus, --
Article VII - Executive Department - Section 18 The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.
Suppose for example that that President declares martial law. In that case half plus one of 260 Members of Congress is 131 Members would be needed to revoke. In this case, all 131 could come from the Lower House and none from the Senate.

In contrast, a declaration of a state of war requires both Houses of Congress to vote separately on whether a state of war exists.
Article VI - Legislative Department - Section 23 (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.
Voting separately by Congress is also mandated to settle the issue in the unimaginably rare possibility that two Presidential candidates would have exactly the same number of votes in an election. There is also
Article VII - Executive Department - Section 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.
When Teofisto Guingona, Jr. was appointed by GMA to take her job as Vice President after Erap was ousted, the Congress did indeed comply with above provision.

I think there is no escaping the fact that there is a built-in ambiguity in Art XVII Sec. 1(1) that will have to be ruled upon by the Supreme Court. How will the case get there?

The anticipated sequence of events will be this:

(1) Under the Speaker-in-Hoping Butch Pichay's generalship, a House Resolution will be signed by 195 House Members proposing the replacement of the current Legislative and Executive Dept. Articles with new articles defining a Unicameral Parliamentary form of government. Rep. Pichay told Ces Drilon last Friday that this must happen by December 22, 2006 before Congress goes on recess, because "we are trying to postpone the 2007 elections."

(2) The approved House Resolution will be submitted to Comelec for it to determine sufficiency in form and substance, and to rule whether or not a plebiscite should be called to ratify the same.

(3) As in the Lambino Group's people's initiative on the Constitution, recently junked by the Supreme Court, however the Comelec rules in that case, whether favorably or not, either the House or the Senate and other concerned parties will surely petition the High Court to certify the Comelec's decision.

If the Comelec approves the Lower House's petition for plebiscite, which a plain reading of the Constitution might convince it to do, then perhaps, Senator Miriam Defensor Santiago, the foremost Constitutional law expert in the Senate today and faint-hoped by some to be appointed the next Chief Justice, will file a new case, to be called Santiago vs. Comelec and House of Representatives.

The issue will be whether a Resolution passed by the House of Representatives, and signed by three-fourths of the total number of all the Members of Congress, is sufficient in form and substance to propose a REVISION of the Constitution. (We must remember that the Supreme Court just ruled in Lambino v. Comelec that the switch to a Unicameral Parliament from a Presidential system of government with a bicameral legislature amounts to a revision of the Constitution.)

CAVEATS: Proponents of CON-ASS make the powerful argument that there is nothing ambiguous per se about the provision, and that a plain reading of it favors their interpretation of the aritmetic described. But I think the Houdini like escape for bicameralists in this provision lies in the phrase "the Congress."

It is "the Congress" which "may propose" amendents of, or revisions to the Constitution. Not the House of Representatives alone, nor the Senate alone, but "the Congress."

Acts of Congress take on two forms. The first are ordinary laws, such as the national budget which are approved by a simple majority of both Houses of Congress, voting separately. But, as proponents always stress, Congress is not passing a law in this case, such as changing the name of a street, but "merely" proposing changes for the people to ratify in a future plebiscite.

What is the form that such proposal must take? The second form that Acts of Congress come in, are Resolutions, of which there are three types: House Resolutions, Senate Resolutions, and Joint Resolutions. Resolutions are used for many purposes, even to recognize famous Filipino pugilists and pool champions. But acts of "the Congress" cannot be put in the form of a "mere" House Resolution or Senate Resolution.


In my humble opinion, in order for "the Congress" to propose changes to the Constitution under Art XVII Sec. 1(1), it must pass a Joint Resolution approving the same. A House Resolution, even if it complies with the provision requiring the vote of "three fourths of all its Members" will be ruled INSUFFICIENT IN FORM because it is not an act of "the Congress" -- which can only be clothed in the form of a Joint Resolution of "the Congress." It is not the signatories upon whose vote such resolution is approved, that are the proponents of the change, (unlike in the people's initiative mode), but "the Congress" itself. Therefore, the powerful principle of the sufficiency in form may also enforce the principle of bicameralism. The Senate of course, would not be willing to enter into a Joint Resolution without a thorough debate and examination and amendments to Mr. Pichay's ideas about parliamentary government.

Thus, like the Lambino People's Initiative, the Pichay Unicameral Con-Ass will be deemed INSUFFICIENT IN FORM, if what the Comelec approves for plebiscite is a "mere" House Resolution. An Act of "the Congress" which is not an ordinary law, must come in the form of a Joint Resolution. What other form COULD it come in?

MORE CAVEATS: In the Comment Threads of MLQ3's weblog, I have offered the following definitions of the terms "amendment" and "revision":

An AMENDMENT is any change to the Constitution.

A REVISION is any change of Constitution.

As I've already mentioned, the Supreme Court decided recently that the switch to a unicameral Parliamentary system amounts to a revision of the Constitution--a finding of INSUFFICIENCY of SUBSTANCE on the part of the Lambino initiative petition, since revisions may not be undertaken by people's initiative on the Constitution.

"The Congress" may of course propose amendments or revisions in the process that has been referred to as "Con-Ass or Constituent Assembly" while people's initiative is limited to amendments. A different but related question arises: WHY is the power to REVISE the Constitution reserved for deliberative bodies like the Congress and a Constitutional Convention? I think the answer is this. It is but reasonable to expect that an outright revision of the Constitution, or any large-scale amendment such as a complete overhaul of the "Constitution of Government," ought to be the product of a deliberate process to draft, discuss, refine, and optimize the proposal that will be put up for ratification in a plebiscite. It is inconceivable that a complete revised Constitution can be produced and then voted upon and signed by three-fourths of all its Members -- but unchanged from its authors' draft, undebated, unamended, unperfected by the manifest deliberations and debates of a body solemnly engaged in its preparation. That I think also points to th quintessential difference between the People's Initiative mode of charter change and both Con-Ass and Con-Con.

Philippine Commentary is proud to carry Alan Paguia's Legal Commentary on the suspension of Mayor Binay and the criminal culpability of Sec. Ed Ermita for illegally issuing the order.
First Daughter Luli Arroyo has stroked a chord among the vanishing breed of nationalists with her castigation of a most unfortunate civil servant at the Bureau of Immigration at the airport. It isn't even clear what actually happened but seems there is no greater crime against nationalism than for a Filipino to let a foreigner get one over other Filipinos. Really! Don't these ignorant civil servants know that such rights and privileges, such as line-jumping and the various "arts of the areglo" are strictly reserved for the Filipinos to do unto other Filipinos?

17 comments:

Edwin Lacierda said...

DJB,

Your and Puno's definition of revision and amendment, while it makes things appear to be simpler, is not necessarily true all the time.

A change of one word in the constitution can itself constitute a revision. For example, "The Philippines is a democratic and republican state" when changed to "The Philippines is a democratic and communist state" that would have been considered a major revision of the Constitution.

It is not easy to compartmentalize the definitions of amendment and revision. For that reason, the qualititaive and quantitative concepts for distinguishing amendment and revision are a far better means to adjudge what constiutes revision and amemdment because the definitions are not put in a box.

On the other hand, the Puno or traditional distinctions of amendment and revision, reduced to its simplest level, deals with quantitative changes only. But even then, as I have mentioned in Manolo's blog, even Dean Sinco qualifies his definition of revision with the words "in its strict sense" which can only mean that a revision can occur even if there is no total overhaul of the constitution.

Rizalist said...

Ed,
It is not obvious to me that the change of one word you mention is indeed a revision. I understand the point you are making, although above is certainly a bad example as the words "democratic" and "communist" are pretty much opposites.

But what you may be trying to say is that even a change of one word can create what appear to be great effects on society and government.

What I don't like about a lack of a definition we can hang our Constitution on is that it guarantees complete Judicial control over what the people, on their own initiative may propose as changes to the Constitution.

It is an arbitrary dividing line between the two categories that must be redrawn for every single case. That to me is philosophically unacceptable because it indicates a lack of regularity in what the people can expect. It makes unelected Judges higher than the people, the spring higher than the source.

If the judicial activists won't accept my definition, they must present one of their own which does not require a separate Supreme Court Decision every single time. That would be institutional casuistry.

Rizalist said...

Ed,
But what do you think of my theory that sufficiency in form requires a Joint Resolution of Congress, before the Comelec should even consider it as valid under Art XVII Sec. 1(1)? It's original as far as I know. Has anyone else voiced this notion?

Rizalist said...

Ed,
Taking Lambino v. Comelec into account, the Philippine Supreme Court's discernible position today is that a change OF any of the three component Constitutions represents a revision: a change of Constitution of Govt, Sovereignty or Liberty.

So you're example would still fit a modified definition similar to mine since the switch to a communist state overhauls the Constitution of Liberty in its entirety.

But I am curious, what are the conditions that Dean Sinco refers to where no Constitution in above sense is overhauled, yet a revision has occurred. What was HIS definition of the two terms?

Edwin Lacierda said...

DJB,

That one word change constiuting revision was in fact quoted in the majority opinion. I was there when the oral arguments were held and that question was asked by Justice Gutierrez.

I agree that the one word change effects a change in society but more than that, it does affect the constitution itself, the governmental structures and the bill of rights.

I dont think we can avoid judicial casuistry. Even if we adopt your definition of revision and amendment, it would still depend on how the Supreme Court interpret each particular initiative proposal.

Unfortunately for Puno and Lambino, the qualitative and quantive concepts is the prevailing view of the majority of the justices, thereby nixing the idea of Puno's definition of revision and amendment.

Moreover, the three sets of constitutional provisions invoked by Puno quoting Garner does not lend itself to a conclusion that if you change two out of the three sets, it is a revision and if you only change one set, it is an amendment. It is a mere classification of constitutional provisions. Otherwise, Puno would have quoted Garner. It is a leap on Puno's part to conclude thus.

Finally, your joint resolution is original. Problem is, Pichay has taken the approach of "if you are not with me, you're against me" mentality.

Rizalist said...

Ok, I'm willing to leave the discussion of revision vs amendment where it stands, i.e. judicial review of all proposed amendments for sufficiency in substance as nonrevisionary when proposed by people's initiative. But thanks for the exchange, we're not that far apart.

Regarding substance of form, I've really come to appreciate this concept a lot more because of Lambino v. Comelec. Formalities are impt when "ultimate facts" would be difficult to verify, such as whether 100% of signatories actually read and understood an initiative petition's full text.

So I asked myself what the concrete form a Con-Ass petition for plebiscite to Comelec could possibly be, analogous to the signed initiative petition of PI.

Well, since Art XVII Sec 1 says "the Congress may propose" and it is not an ordinary law, it has to be in the FORM of a Joint Resolution of the Congress.

What "Act of Congress" can assure the Comelec that it is indeed "the Congress" and not some arbitrary set of 195 members of it that are making the proposal to amend or revise? Well by the overt Act of Congress in a Joint Resolution.

If it comes in as House Resolution it will insufficient in form!

This argument is not really original. It is learned from Lambino v. Comelec where the Court found the same insufficiency of form in that that complete text of the initiative petition was not attached to the signature sheets and indicated a fatal failure to "show to the people" the full text.

Rizalist said...

Ed,
Regarding Pichay's argument that if they don't want to sign, then they voted no while 195 others voted yes, we must ask, WHAT is it that the 195 are signing?

It is a Resolution of the Lower House of Congress to REVISE the Constitution.

It cannot be a Joint Resolution because the Senate President won't sign it.

The point is not the arithmetic, but the medium by which it is being transmitted to Comelec, and the High Court for certiorari if Comelec makes the mistake of accepting a fatally insufficient instrument of Congress revision of the Constitution.

manuelbuencamino said...

Better if the House smokes a joint and forgets about con-ass.

Rizalist said...

Hmmm, the High Court eh, MB?

Actually, they should have started with Con-Ass rather than pi. at least there was no precedent.

Jego said...

Plan C, anyone?

roger n said...

the supreme court should've had displayed more courage and not bothered to nitpick on the legalities of the people's initiative...there are obviously a substantial amount of citizens who are sick and tired of erap and fpj types relying on mass appeal rather than actual qualifications and abilities in attempting to lead this country...the people's interests should always be the primary concern of any constitution and to put the issue of charter change to the people in the form of a plebecite can hardly be viewed as contrary to those interests...it is high brow intellectuals like you who need to get your head out of the sand and see the big picture and realize how we need to get the people to participate on this issue once and for all rather than preventing them from voicing their opinions with all these legalities

roger n said...

by the way..if you travel across the globe and ask citizens of other countries what is contained in their constitution most of them wouldn't have a clue just like most filipinos...for the supreme court to expect that complete knowledge and understanding for all the signers of pi is ridiculous...many may have signed because of the leadership of the local leaders whom they obviously trusted by electing them...cha cha is designed to minimize the effect of the stupid vote it is ironic that it is attacked in terms of the use of the same "stupid vote"

Rizalist said...

Roger, Thanks for your comments, they are welcome here. You are quite right of course that most people don't really "know" what is in the Constitution in any great detail. Indeed, there is no conceivable way of actually making sure that people have "read the the entire and complete text" of the initiative petition. But that is why the Supreme Court HAS to go by what appear to be "technicalities of form." I think the reasoning goes like this. If even such simple things like attaching the complete text to the initiative petition were not done by the proponents, then the Court has no way of assuming that the people have read and understood it. It is in other words, already a concession of sorts that the Court does not require PROOF that they have read it, only SIGNS that they have. But if even those SIGNS are missing, the Court cannot grant the benefit of the doubt on the large question of did they really understand the substance. I guess that is reasonable. If the form of something is absent, how can its substance be present?

BTW, if you follow the blogs you will realize I am FOR enabling the people's initiative mode of chacha. But it ought to be done right. It ought to be a people's initiative, not the government's.

Thanks again.

roger n said...

Thanks for the welcome Dean,

Don't you think it is a little naive to expect common folks with no resources to be the actual moving force in any people's initiative? Many people are distrustful of government initiatives for obvious reasons but to condemn all of them outright is a bit of a stretch, after all the people voted these government officials to office and it is only natural for many to trust them on many issues..it is interesting that even though many of those in power can be seen as benefitting from charter change, many do not look at the benefits for the nation as a whole. Besides, the point here is only to finally bring the issue before the people. Why are the anti-chacha forces so adamant in preventing this? Is it because they are afraid of the tremendous chances that they will lose in a plebicite vote? I cant understand how you cant be thankful that the government is backing a people's initiative if you truly believe in enabling the people's right to one. In reality dont you realize that if there were any chance of an initiative of this kind coming to fruition, government support would need to be a crucial part of it?
A plebecite for this would be an interesting election indeed. Finally voting will focus more on discussion of issues rather than catchy personal ads and dancing on stage. It really shouldnt be important how we get there but that we do get there.. If people like you are hoping to wait for a true people's initiative without government participation before coming on board then this could lead to the derailment of the effort by focusing on paths instead of goals...This is one case where Machiavelli's "the ends justify the means" truly applies. This movement has been frustrated since 1997 and all attempts to revive it will always be mainly attacked on the same grounds i.e. "that those in power will the most to benefit" If that is the case let us put this issue finally for the people to decide. I think many
Filipinos will see the connection between the failed 1997 attempt and the disastrous erap administration once this issue is put before them and discussed thoroughly and opnely. The chacha movement will never die and the best way for those anti-chahca forces to stop the tremendous draining of resources that this issue has entailed is the have the courage of their conviction and bring their case to the people in a plebecite rather than cowardly finding every way to stop the game from being played

Roger N

Rizalist said...

Roger,
I wholeheartedly support the idea of people's initiative. But perhaps changing the whole form of govt from bicameral presidential to unicameral parliamentary was too divisive an issue, too complex and incredible to carry out without debate and deliberate effort. Maybe the PI folks, if PI was really their goal and not a Unicameral Parliament, should have started with something more definite that there is more of a popular consensus over. Like RUN-OFF presidential elections, or foreign ownership of the media.

I for one don't like the Unicameral Parliamentary idea because it takes away our national votes. In fact, I think it would have lost at plebiscite on this account, so I could have cared less if it were put to plebiscite.

BTW, do you know of any other country that has actually gone unicameral Parliamentary after being bicameral Presidential? Any country where the citizens willingly gave up the national vote?

roger n said...

Dean,

If what you say is true and that you believe the citizens will be unwilling to give up their national vote, then why are the anti-chacha proponents so against a plebicite? It doesnt make sense to me. This issue will never die until this is resolved by presenting it to the people and yet every opportunity to do so is thwarted.
Of course chacha will be a divisive and complex issue. There is too much at stake for it not to be. What to you think the run up to a plebecite like this will entail? It would mean many debates and considerations pro and con wont it not?
The appeal of a unicameral assembly is at the heart of chacha. It would minimize the "stupid vote" that allow buffoons like showbiz types of which we are all too familiar from gaining important posts of leadership from those more deserving and less fortunate in terms of popular acceptance and financial resources. Just look at the prospects of a joker arroyo over a tito sotto in the upcoming senatorial elections and you will plainly see the problem. What is so prized about your national vote given this sad scenario? A vote for a representative in a unicameral assembly would encompass a choice of direction as well as the personality of the candidate. It would create a discussion of which party or philosophy should control the country's destiny which seems to be lost altogether in our current set up.

Please Dean, let me know what is so valuable about your national vote? Do you honestly believe that erap and fpj types deserve to be president? and that the Revillas, Ejercitos, Estradas, Sottos, and traitorous politicians like Roxas and Drilon (from erap to gma to erap) deserve a national constituency as senators?

If you are so sure that the unicameral idea is a sure loser then why dont you help put it to a plebecite so it is resolved once and for all and we can move on from this instead of expending much more resources that could be put to better use?

Perhaps no country has shifted from bicameral to unicameral. Perhaps no country has willingly given up the ability of its citizens to have a national vote. But no country has ever overthrown a dictator and a corrupt president with not a single drop of blood either. The campaign for chacha in a plebicite will undoubtedly appeal to this movement of political firsts as a way to make a mark to the rest of the world. Remember, no showbiz candidate ever has won a majority of votes in a presidential election. Do not underestimate the majority of the voters who voted against erap and fpj as potential supporters of this move.

If only you can put your money where your mouth is and help make a reality the resolution of this issue once and for all.

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.

http://bit.ly/4CiZC