Vivisecting Villafuerte

The Supreme Court (in a Minute Resolution) recently dismissed Kampi Rep. Adam Relson Jala's petition to have the present House Rule on charter change proposals declared unconstitutional, which Rule upholds the 1935 concept of Congress proposing charter changes with House and Senate voting separately. But Kampi President and Camarines Sur Rep. Luis Villafuerte is leading one last desperate chacha attempt on Gloria's behalf based on certain quaint and curious notions about bicameral legislatures and constitutional arithmetic that are here examined and vivisected. He explained his views to Pia Hontiveros on ABSCBN's Strictly Politics program last Tuesday. (MP3)

Manuel L. Quezon III mentions 1935 Constitution with some nostalgia on his blog this week, noting how well it served the Second Republic. Unlike the present charter, 1935 was certainly unambiguous on Charter amendments:

Art. 15 Section 1. 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, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

The 1987 charter in stark contrast, too tersely states:

Art 17 AMENDMENTS OR REVISIONS
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.

There is an obvious ambiguity in Art. 17 Sec. 1 because it does not specify "voting separately" as in 1935, or "voting jointly" as in the Martial Law provision. But this ambiguity is not some kind of show-stopping flaw that now requires Supreme Court action. All it means is that the Congress can and must exercise its discretion in HOW it will comply with the Constitution whenever it exercises this power to propose amendments or revisions.

In fact as reflected in the Rules that the House and Senate have adopted since 1987, the Congress has already decided that "upon a vote of three fourths of all its Members" means with House and Senate voting separately under three fourths majority rule to propose charter changes, just as with ordinary legislation.

Alternatively, the Congress could decide to comply with the 1987's three fourths majority rule by having House and Senate Members voting jointly and requiring a three fourths majority rule regardless of which chamber they belong too, as the unicameral Con-Ass artisans like Rep. Luis Villafuerte (Kampi, Camarines Sur) would like the Supreme Court to force it to do.

Rep. Luis Villafuerte, head of the President's party Kampi, is leading the latest chacha attempt on her behalf. He asserts that when the Members of Congress are proposing charter changes they are not acting as legislators but are exercising something he calls "constituent power" -- the power to propose changes -- and that therefore they must convene in a special joint session -- a Constituent Assembly -- for the purpose of debating and approving proposed charter changes. Moreover, he would like the SCoRP to rule that the Congress vote jointly, please. He told Pia Hontiveros of ABSCBN News Tuesday that he was trying to "trigger a justiciable case" to force the Supreme Court to decide upon what the 1987 provision means: voting jointly or voting separately on proposed charter changes.

Here is a subtle point that is however devastating to Villafuerte, and the Unicameralists. Regardless of whether the Congress decides to use "voting separately as House and Senate" or "voting jointly as a Constituent Assembly" when approving proposed charter changes, the Congress can only come to that decision itself of what chacha voting mode it will use, by an unavoidable process in which the House and Senate first separately vote to adopt such a mode or convene such a joint constituent assembly! It is the "default mode" of operation of a bicameral Congress, to which, and not to its individual Members, the thing Villafuerte calls "constituent power" is actually vested.

Recently, the good Rep. Villafuerte has been circulating a Resolution that he claims will have the "necessary number of signatures" (198, or three fourths of (238 + 24) to convene Congress into a Constituent Assembly without a separate Senate approval as well as trigger a challenge in the Supreme Court.

The ineluctable fact of course is that even if every single Member of the Lower House were to sign the Villafuerte Resolution, it would remain a Resolution of the Lower House, nothing more, nothing less. As such, it cannot compel the Senate, nor therefore the Congress itself, to convene such a Con-Ass. Ironically, I believe that the House and Senate can separately, by simple majorities vote to convene such a Constituent Assembly without need of Supreme Court orders. Being within Congress' discretion, it would be an abuse of its own jurisdiction for the Supreme Court to be ordering the Congress to adopt a voting mode one way or the other.

SCoRP will probably need nothing more than a Minute Resolution to despatch Villafuerte's Resolution to the dustbin of Failed Petitions for Advisory Opinions from the Supreme Court. I predict the same ignominious end for the Villafuerte Resolution as met Adam Relson Jala's own attempt to elicit a favorable Supreme Court ruling for "unicameral con-ass".

WHY IS THE 1987 PROVISION AMBIGUOUS?

It will be recalled that it was only by a single slim vote that the 1986 Constitutional Commission which drafted the present charter stayed with the same basic form of government that existed before Marcos and his 1972 Martial Law constitution, which supplanted the 1935 charter. The Philippines almost became a unicameral Parliamentary form of government. Thus Fr. Joaquin Bernas has explained that it was an oversight that Art. 17 was not fleshed out for the eventual choice of a Presidential system with a bicameral legislature.

Nonetheless, the so-called ambiguity that exists in 1987 Art. 17 Sec. 1 is not such that the Supreme Court has to resolve the matter.

From the start, both the House and Senate understood that they could comply with the Constitution in one of two very different ways. First they could've decided to propose amendments or revisions while VOTING JOINTLY and ignoring the difference between membership in the Senate and membership in the House. But they did not do that. Instead they chose to adopt the same procedure they use in enacting laws in a bicameral legislature, i.e. with House and Senate VOTING SEPARATELY. Thus both House and Senate have consistently adopted Rules that obey the Constitution's three fourths majority requirement--even if that is done by voting separately.

The present attempt to bring about Charter Change before 2010, led by Rep. Luis Villafuerte (Kampi, Camarines Sur), is premised upon the assertion that because it would ALSO be Constitutional for the House and Senate to adopt Rules which would allow them to vote jointly on such proposals, he now intends to "trigger a justiciable controversy" for the Supreme Court to settle the issue and possibly wangle an interpretation that would require the Congress to vote jointly as desired by Villafuerte and company. There is a legitimate expectation that by late 2009, ALL the members of SCoRP will have been appointed by President Arroyo and handpicked for just this decision.

But there are several flies in this conceptual ointment.

In the first place, there can be no question that for the Congress to adopt the mode of voting jointly, the House and the Senate would have to vote separately to adopt that mode by repealing their present House and Senate Rules which prescribe voting separately!

Next, the Supreme Court might find it perverse to be asked to rule upon a matter that the Congress appears perfectly competent and entitled by the Constitution to decide entirely on its own, in the full and free exercise of its discretion, powers and duties. Indeed, the Congress, both House and Senate separately, have consistently adopted Rules that are natural and appropriate to a bicameral legislature and clearly obey the Constitution.

But the good Rep. Villafuerte believes that when the Members of Congress are exercising the power to propose amendments or revisions to the charter, they are not acting as legislators because it is "constituent power" they are exercising, not legislative power. Thus, he insists, that when exercising its constituent powers under the Constitution, the Congress must convene itself into a completely different entity, called a Constituent Assembly (Con-Ass). And here the good Rep. Villafuerte makes a stunning leap and claim to trigger his hoped-for justiciable controversy: he asserts that three-fourths of all the Members of the Congress (even if they are all members of the House) can vote to convene Congress into such a Constitutent Assembly!

Occam would've castigated Villafuerte for an excess of appurtenances. I believe that the Congress COULD convene itself into such a Constituent Assembly if the House and the Senate voted to do so with simple majorities--but voting separately!

There are many places in the Constitution, in which it is entirely silent on HOW certain things are to be achieved or accomplished, usually leaving it up to Congress to pass "enabling legislation" for that purpose.

In reality, the Congress has already resolved the ambiguity in the chacha provision when the House and Senate each separately adopted Rules for exercising the power to propose amendments and revisions according to the procedure for enacting bills into law, but instead of simple majority votes in each of the House and Senate, they impose the Constitution's three fourths majority rule, still voting separately.

In other words, the Congress has interpreted the 1987 provision as if it were the 1935 provision, with each of the House and Senate voting separately. In my opinion this is perfectly reasonable and right, since the basic form of the government with a bicameral legislature, a strong chief executive and an independent judiciary has not changed. We still have a presidential form of government with a bicameral legislature, not a unicameral parliamentary one.

Speaking to Pia Hontiveros (Strictly Politics, ANC) Rep. Luis Villafuerte, President of the Kampi Party of Gloria Macapagal Arroyo, said he wants to trigger "a justiciable controversy" to get the Supreme Court to rule definitively on the meaning of Article 17 Sec. (1). For this purpose he has drafted a resolution on which he says he only needs 198 signatures to trigger that justiciable controversy. But Rep. Villafuerte informs the audience that his resolution does not contain any specific amendment or revision of the Constitution as such, but only "establishes the mode" by which Congress is to exercise its "constituent power" to propose such changes for ratification at plebiscite.

The leitmotif of the Villafuerte mode of exercising constituent power is the concept of a "Constituent Assembly (Con-Ass)." Notice that in the 1935 provision, Congress "in joint session assembled" proposes amendments with House and Senate Members voting separately and obeying the three fourths majority rule. The Villafuerte Resolution however contemplates an entirely different entity altogether than that found in the 1935 Constitution. He envisions a Constituent Assembly whose Members are all the Members of Congress with no distinction as to whether they are Senators or House Members.

The Villafuerte Con-Ass looks an awful lot like a Constitutional Convention composed of all the Members of the Congress. But since the identity of each Members of Congress as Senator or Congressman has been obliterated, we must presume that this new body, this Con-Ass, must also elect separate leaders to run the Con-Ass, with a separate bureaucracy and funding requirements, office space, support staff and facilities, which of course, the same bunch of Members, but acting in their alter ego capacity as the Congress, must fund in the budget.

When exercising "constituent power", claims Rep. Villafuerte, the Members of Congress are not acting as legislators and therefore Congress can dispense with its normal mode of "voting separately" as it does on normal legislation, ignore the difference between Senators and Congressmen and act just like a Constitutional Convention.

All in all, Villafuerte's conception of charter change through the Congress involves the re-organization of the Members of the Congress into an entirely separate entity that is a unicameral Constituent Assembly. This is very different from the 1935 "joint session" of the Congress, since the latter unambiguously upheld the bicameral nature of the Congress even when exercising what Villafuerte calls constituent power.

There is nothing ambiguous about the 1987 provisions grant of constituent power--the power to propose charter changes--to THE CONGRESS, and not to its individual members as some kind of personal entitlement. Thus there could be nothing more contradictory of the plain language of the Constitution --that any revision or amendment may be proposed BY THE CONGRESS-- than the following statement of the good Rep. Luis Villafuerte: (MP3)