Friday, December 1, 2006

Bring it on, Con-Ass!

Or, The Congress is a Democracy of Two

Can the Lower House of the Congress, using nothing more than mere Resolution of the House of Representatives, unilaterally convene the Congress into a Constituent Assembly without the concurrence of the Senate? Can the Lower House of the Congress, because it contains more than three fourths of all the Members of the Congress, then approve a second House Resolution containing the amendments or revision and submit it to Comelec for ratification in a Plebiscite?

A "Constituent Assembly" convened by the Lower House without the usual formal and substantial concurrence of the Upper House violates the principle that every official Act of the Congress must be approved by both Houses of the Congress. What appears to be another transcendental issue that can only be settled by the Supreme Court -- voting separately or voting jointly -- is actually the mere absence of a Rule that the Congress itself can adopt. Just as the ConCon is not told by the Constitution HOW to go about its work, the Congress is expected to "fill in the blanks" of the Constitution where it is explicitly and implicitly granted the power to do so, as in the Act of amending or revising the Constitution.

So Unicameral Con-Ass is surely headed for another embarrassing insufficient in form debacle at the Supreme Court for the Chacha Lemmings of JDV, with some choice Decision language like "a grand deception of the Lower House masquerading as the Congress." I hope they push through with their Final Push (off the cliff, that is!). MLQ3 has the doomed Game Plan, or at least one of its many variations.

From a booklet published by the United States Supreme Court comes a remarkable description of the Constitution as a form of "object-oriented programming"--
...It is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted ... "Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”
Among the most "important objects" in the Constitution are the Congress and the Supreme Court.

The Supreme Court, as a collegial body, operates under two axioms of Democracy:

(1) One Man, One Vote;
and
(2) Simple Majority rule.

The Supreme Court is a voting democracy of 15 Members that uses the Simple Majority Rule.

Simple Majority Rule states that any two-sided issue put to a vote is won by the side that gets more than fifty percent of all the votes. Thus, in Lambino v. Comelec, the 15-Member Supreme Court ruled 8-7 against Lambino's petition, 8 being the smallest whole number greater than 7.5 which is 50% of 15. After Chief Justice Artemio V. Panganiban retires next week, there will only be 14 Members of the Supreme Court. Until a new Justice is appointed, there will be the possibility of a 7-7 tie in any decision.

If the Supreme Court is a voting democracy of 15 Members called Judges, the Senate of the Philippines -- the Upper House of the Congress -- is a voting democracy of 24 Members called Senators. Likewise the 2006 House of Representatives -- the Lower House of the Congress is a voting democracy of 236 Members called Congressmen (200 district representatives and 36 party list representatives).

Both House and Senate each obey "One Man, One Vote" to approve all official Acts. For example, when the House and Senate each adopt their separate Rules and elect their Officers on the first session day they use the Simple Majority Rule to do so. When either the House or the Senate, or its committees approve bills to proceed to the next stage of enactment into legislation, they do so using the Simple Majority Rule.

Although there are no exceptions to One Man One Vote at all stages of legislation, the Constitution specifies several different Voting Rules for special purposes. For example:

One Third Minority Rule applies to the House when it decides to impeach a High Official and send the matter for trial in the Senate.

Two Thirds Majority Rule applies to the Senate when it decides to convict a High Official on Impeachment Trial before it.

Two Thirds Majority Rule also applies separately to House and Senate in order to overcome a Presidential veto and enact a previously approved bill into Law.

Three-Fourths Majority Rule applies to the Congress when it proposes amendments to or revision of the Constitution for ratification at Plebiscite.
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; or (2) a Constitutional Convention.
I think it is very obvious that the Constitution leaves the operational details of a Constitutional Convention completely undefined. This has not bothered anyone because it is tacitly assumed that if and when a Constitutional Convention is elected, it will pass its own Rules for the purpose of exercising the power granted to it to propose amendments to, or revision of the Constitution. Aside from electing its officers and organizing its committees, it is to be expected that a ConCon would adopt Voting Rules to govern its deliberations. It seems natural to assume that a ConCon would adopt the Simple Majority Rule for all its votes and that it would "vote jointly" upon the entire proposed new amended or revised Constitution. However, it does not seem to be unconstitutional for the ConCon to adopt some other Voting Rule for its internal deliberations. For example, a ConCon could decide that it must adopt a Three Fourths Majority Rule so that any amendment or revision it approves would have the same "democratic mandate" as when the Congress, proposes amendments or revision!

Why then do we not expect the Congress to also adopt such Rules as are necessary to flesh out and fully disambiguate the Constitutional provision that grants it the power amend or revise the Constitution?

For example, I believe the Congress can decide which mode it will use to approve amendments or revision upon three fourths of all its Members: whether by voting jointly as a Single Constituent Assembly like a ConCon, or voting separately as House and Senate in the normal configuration of the Congress. Surely, if the Congress and the ConCon have the power to make any degree of change to the Charter, they also have the power to define such Rules as they deem necessary to exercise such power without violating any provision of the Constitution.

Thus, despite some initial confusion about this matter, it now seems clear that the ambiguity in this provision's Section 1(1) regarding "voting separately" and "voting jointly" is something the Congress can settle when it adopts the Rules it will actually use to undertake something as gravely important and hugely complex as amending or revising the Constitution. A myriad of details, an empyrean of rules, policies and procedures must be enacted by the Congress for this purpose anyway.

7 comments:

Jon Mariano said...

Hi DJB, you made it quite easy to understand the issue at hand. It's just that it is "inconvenient" for JDV and his gang to follow, for if they do, they won't be able to do their charter change.

As logical and as clear as it seems to you, it is not to them.

I hope that your conclusion that this move will again be frustrated in the Supreme Court will come true.

ellen said...

I like your blog's new layout better than the previous one.

the jester-in-exile said...

djb, jon,

i agree with you both, but the timing sucks. drilon (though i don't care much for the man) drew a rather chilling scenario posted in today's paper -- about how the tongressmen might just make the push after cj panganiban resigns... to force a 7-7 vote in the SC and thus force through the con-ass.

SOBs.

Eric said...

I think members of the Lower House, particularly JDV and his gang, know that that attempting to convene as a constituent assembly on its lonesome is a fool's quest, but they've locked on its course because they've publicly stated that they'll push through with it, and their pride is too great to admit that they are in error.

However, by pushing us to the brink with their Con-Ass move, they're going to look like bigger fools when this is all over.

I second Jon's fervent hope that this move will come to an untimely end, but, for me, preferrably before it reaches the Supreme Court.

Juan said...

Dean,

1."Unicameral Conass" is not specific enough, it's vague. It's simply a "Lower House assemby which it calls a 'Constituent Assembly'"

2. The Constitution was made on the assumption that the people empowered by it have conscience and common sense -- attributes that are peculiar to human beings -- which lower annimals, like pigs or crocodiles or snakes do not have; that's where your problemizing really starts, Dean, with all due respect to these people.

3.The Rules are only as good as the people who make them. If Rules hinders they change the Rules.

4. These Pro-ConnAss People interprets the Constitution in accordance with the Law of the Jungle that ultimately prevails as their Constitution.

john marzan said...

Can the Lower House of the Congress, using nothing more than mere Resolution of the House of Representatives, unilaterally convene the Congress into a Constituent Assembly without the concurrence of the Senate? Can the Lower House of the Congress, because it contains more than three fourths of all the Members of the Congress, then approve a second House Resolution containing the amendments or revision and submit it to Comelec for ratification in a Plebiscite?

we'll soon find out, won't we?

Rizalist said...

Thanks for visiting, Ellen. He's gonna get it, y'know!

Eric it will probably die on the vine, for lack of quorum, hehe. It's Christmas time, they're all working hard...on their junkets.

Juan, there would be no need of Constitutions, if human beings weren't so ... human!

Jon, Jester, John--I think it'll be a disappointing DUD. Nada. Called off due to Santa Claus. The lemmings will see the precipice and pull back to fight another day. This is the worst thing that could happen.