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?