I attended yesterday's conference at the Ateneo de Manila University Law School at the Rockwell Center in Makati on the Constituent Assembly proposal of the Lower House. I recorded the four main speakers and offer a summary and reaction to their statements in the Comment Thread. I invite all Philippine Commentary authors, readers and visitors to listen to the speeches and enter comments on this important and crucial issue facing the nation...
Before his address to ADMU law students yesterday about the brewing controversy over House Resolution 1109 to convene the Members of House and Senate into a Constituent Assembly, I asked Founding Father Joaquin Bernas a hypothetical question:
If the Senate--for whatever reason and no matter how unlikely it actually is today--were to pass a resolution of its own, agreeing to convene in Joint Session with the Lower House, AND agreeing to make no distinction between Members of the Senate and Members of the House when voting to propose amendments to or revisions of the Constitution--would this be Constitutional? In other words does the Congress have the power under the Constitution to decide via separate Joint and Concurrent Resolutions that henceforward the Members of House and Senate will VOTE JOINTLY when proposing Charter Changes.
I was SHOCKED and DISAPPOINTED at his answer: "NO!" Fr. Bernas said, he would go to the Supreme Court himself with a justiciable controversy over such a hypothetical move by the Senate, because as he very plainly made clear in his talk to the students, he believes this would violate the essential bicamerality of the Congress.
I BEG TO DISAGREE.
For I cannot understand how such an arrangement would be unconstitutional. To me, as long as the Senate and the House SEPARATELY agree that their Members will VOTE JOINTLY on chacha proposals with both Houses applying the three fourths majority rule, the Constitutional provision is completely upheld:
Article 17 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.
Indeed, the present arrangement is one in which Senate (without passing an explicit Rule) and House (by adopting Rule XX in 2007 and since 1987) have SEPARATELY decided that their Members will propose charter changes in the manner of processing bills...i.e. that they will vote SEPARATELY.
Just last Friday in his PDI column, Fr. Bernas defined for us what he calls the "1109 Purists" among the House Members backing what is essentially a unicameral conass. This group of people believe that it would be unconstitutional for House and Senate to VOTE SEPARATELY because they believe the "plain language and meaning" of the cited provision FORCES a joint voting of all the Members of the Congress.
Now of course anyone who understands the Distributive Law of Multiplication under Addition can see the utter weakness and fallaciousness of this argument from Bernas' 1109 Purists. It is abundantly clear, and mathematically undeniable, that the constitutional requirement of "three fourths of all its Members" can be complied with entirely and compleatly by the Congress under EITHER a joint or separate voting rule.
But is Father Bernas' own position and argument any stronger than that of the Unicameral or 1109 purists? I think only very marginally so, and as I will show below, his argument leads to the SAME wrong conclusion as that of the House. I would characterize Bernas' position as a "1935 Purist!" in which he makes an appeal to the explicit nature of the provision in the 1935 Constitution which instructs the House and Senate to meet in joint session for joint deliberations, but separate voting. This is his position too: that House and Senate can meet in joint session but must vote separately.
I agree with his conclusion, but I don't believe the justification for it is IN the 1987 Constitution! Even with Fr. Bernas' recollection that during the 1986 ConCom deliberations which crafted 1987, they had fully intended to say "voting separately" but just forgot after the Bicameralist won by one vote, we are still faced with the plain text of the Constitution which plainly allows either JOINT or SEPARATE voting. As Father Bernas himself says in the speech, "What the Constitution does not prohibit, is allowed". (He says this in explaining that the Congress may propose ANY amendment or revision).
I think that BOTH the arguments of the 1109 Purists and the 1935 Purists (with whom I side only philosophically) are EQUALLY WEAK and FALLACIOUS.
The only thing they seem to agree upon however is the conclusion that this must all be settled by the Supreme Court (SCoRP), with the 1109 Purists banking on the 14 of 15 Justices reportedly in GMA's pocket (I don't necessarily believe that), and Fr. Bernas on the fundamental principle of Bicameralism.
AGAIN, I BEG TO DISAGREE.
I think that the CONGRESS has the entire discretion and power to decide HOW it will exercise Constituent Power. I think that the Constitution, grants to it that power, save that it must comply with the three fourths majority rule. I do not believe that the Supreme Court can, or should decide for the Congress. The TEXT of the Constitution DOES NOT PROHIBIT either joint or separate voting. Both modes would be Constitution IF AND ONLY IF either rule is adopted SEPARATELY by both Houses of the Congress.
I believe that the central issue here is not: "Joint or Separate Voting?" but: "Who decides: SCoRP or the Congress!"
IF the Congress cannot agree on HOW it will exercise Constituent power, they would not violate anyone's rights, neither each other's, if they DO NOT or CAN NOT propose charter changes! Yet is it not obvious that up until GMA and the House minions decided they would be willing to throw the country into Constitutional Crisis by intentionally and despicably igniting a "justiciable controversy" that the Congress HAD ALREADY decided it would be voting separately?