Wednesday, June 24, 2009

Amongst the Legal Eagles on Constituent Assembly

OR, How Two Opposed Arguments Reach the Same Wrong Conclusion on Conass

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...




Joaquin Bernas, SJ [MP3]









Manuel L. Quezon III [MP3]










VICTOR F. ORTEGA [MP3]








ADEL TAMANO [MP3]




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?

38 comments:

Benito P. Yadao, Jr. said...

Are the talks of Manuel Quezon III and Victor Ortega combined in the single mp3 file named "2009j22-ORTEGAonConass.mp3"?

Dean Jorge Bocobo said...

Thanks Benito, I just had the wrong link in there.

Benito P. Yadao, Jr. said...

Thanks for posting the audio files for the benefit of us who were not at the event in person.

Dean Jorge Bocobo said...

During the Open Forum in Ateneo yesterday, I asked Rep. Victor F. Ortega whether or not the House Leadership believes it has repealed or amended Rule XX adopted by the House in November 2007 at the start of the present Congress:
----------------------------------------------
Section 139. Proposals. The Congress, upon a vote of three-fourth (3/4) of all its members, may propose amendment(s) or revision of the Constitution.
Section 140. Form of Proposals and Procedure for Adoption. Proposals to amend or revise the Constitution shall be by resolution which may be filed at any time by any Member. The adoption of resolutions proposing amendments to or revision of the Constitution shall follow the procedure for the enactment of bills.
Section 141. Constitutional Convention. The Congress may, by a vote of two-thirds (2/3) of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit to the electorate the question of calling such a convention.
----------------------------------------------

His answer stunned but delighted me: NO!

In other words, going entirely by its official ACTS, the Lower House Rule XX Sec. 140 that says chacha proposals will be processed like bills still stands: the House has not made JOINT VOTING its Rule, HRes 1109 notwithstanding! Rep. Ortega claims, 1109 is a mere invitation to meet.

He stated that during the session that approved HRes 1109, the House leadership declared its commitment to obeying this Rule, which, by the way was the subject of a Constitutional challenge which I discussed in the Philippine Commentary post (inspired by a remark of Bernas' on television the night I wrote it!): The Congress Already IS a Constituent Assembly. SCoRP dismissed Rep. Adam Relson Jala's suit that above Rule is unconstitutional for prematurity, but its Constitutionality is self-evident! After all, this is the procedure by which ALL official ACTS of the Congress is processed, whether they end up as Republic Acts or Joint and Concurrent Resolutions of House and Senate.

What this really proves of course, is that the 1109 Purists face a major roadblock in that under the STATUS QUO--the arrangement that the House and Senate BOTH agree upon today-- the House binds itself to the rule it adopted in 2007: that Chacha proposals shall be approved by Congress for ratification at plebiscite in the same way that it passes laws: by SEPARATE VOTING and approval of both Houses of the The Congress.

Rep. Ortega told me that this was his own personal position and that of many other Congressmen. Not of the 1109 purists, to be sure, but what a revelation that the House Leadership is not in fact united in this matter!

As Fr. Bernas further explained during the Forum, he agrees that the House and Senate can meet JOINTLY to deliberate chacha proposals, but that he thinks they must vote SEPARATELY under a three fourths majority rule.

This is certainly the way that HOUSE RULE XX states it should be done! HRES 1109 is, as Ortega characterized it, "a mere invitation to the Senate to meet jointly" to deliberate on chacha proposals.

--------------------------------
“NOW THEREFORE, BE IT RESOLVED, THAT THE MEMBERS OF CONGRESS BE CONVENED FOR THE PURPOSE OF PROPOSING AMENDMENTS TO, OR REVISION OF THE CONSTITUTION UPON A VOTE OF THREE-FOURTHS OF ALL ITS MEMBERS THAT UPON ITS BEING CONVENED SHALL ADOPT ITS RULES OF PROCEDURES THAT SHALL GOVERN ITS PROCEEDINGS.”
--------------------------------

The Senate can reject or approve or archive the House Resolution. Indeed, if I were the Senators, I would be willing to meet in Joint Session as invited by the House above, and to challenge the House to break its own Rules and not merely adopt the SEPARATE VOTING procedure it has already agreed to in Rule XX and has not repealed even with HRES 1109!

baycas2 said...

I think "joint session, joint voting" in constitutional tinkering is NOT unconstitutional.

Jun Bautista said...

DJB,

The 1987 Constitution has expanded the powers of the Supreme Court (SCORP) by enlarging its certiorari jurisdiction, so much so that even a conceivably political act (justiciable political question) may now be subject to judicial review if the same violates the parameters set by the Constitution.

Thus, while it is true that the matter of Congress convening jointly is discretionary it is still bound by its bicameral nature to vote separately. Here there is no discretion because the Constitution has set the parameter, namely: that we have a bicameral Congress that must vote separately. When can it vote jointly? This being the exception, it happens only when the Constitution expressly allows it as when Congress, being in joint session, is to review the president's declaration of martial law or suspension of the privilege of the writ of HC (in fact, in no other provisions of the Constitution that joint voting is allowed). As correctly observed by baycas in his comments to my last article on Con-ass, the phrase "voting jointly" is inserted because it is not the norm.

Notice also that Art. VIII, Sec. 1 of the Constitution, in defining judicial power, makes it a DUTY on the courts to determine whether or not an instrumentality or branch of the government acted with grave abuse of discretion. This is a dramatic departure from the American concept of certiorari where the SCOTUS has complete discretion in exercising its certiorari jurisdiction. We have also long departed from the US concept of political question (http://articleiii-4.blogspot.com/2009/05/political-question-dichotomy.html) because such phrase is no longer a magical incantation that will automatically stymie the SCORP from hearing a case involving the political departments of the government. The key is, did the act in question violate the parameters set by the Constitution? If it does then the SCORP is duty-bound to rule on its legality.

The political departments of our government (executive and legislative) can only exercise their discretion within the parameters set by the Constitution, otherwise their actions become judicially reviewable for being grave abuse of discretions.

Dean Jorge Bocobo said...

Jun,
Suppose the Senate tomorrow separately passes a joint and concurrent resolution with the House agreeing to "vote jointly" on Charter change proposals upon a vote of three fourths of all its Members. Has not the Congress BICAMERALLY established a new Rule for itself?

Why would this be a grave abuse of discretion? Does not Article 17 Section 1 give to "The Congress" the power to propose chacha?

"What the Constitution does not prohibit is allowed." (Bernas) especially when you give an entity like the congress constituent power.

But this is interesting...I take it you are with Bernas as a "1935 purist?" -- that you believe my hypothetical is a justiciable controversy?

I think the basic arguments of the 1935 purists and the 1109 purists are equally weak and will only play into the hands of SCORP.

I think Congress should decide the issue, not SCORP. Article 17 Section 1 clearly gives them that leeway. Just as it gives a ConCon that leeway to establish any of its Rules.

Remember that under Separate Voting, a group as small as seven senators can block any proposal. We might like that today, but someday in the future we might not. Thus a simple majority of the Senate could CHANGE their own Rule and agree with the House to vote jointly. That I think would be constitutional as long as the three fourths majority rule is upheld.

Dean Jorge Bocobo said...

I guess what I am also saying is that for me there is a kind of "prejudicial question" (don't know if that is the right lawyerly term!) involved here: WHO actually should decide about "voting jointly or voting separately". I say it is the Congress and not SCoRP. If the two Houses cannot agree, on HOW then they simply can't propose their changes, until they can agree (as they do today on separate voting, going by their standing Rules!).

Who's rights would be violated if the congress is not able to agree?

there are other modes for the people to do chacha.

BTW, the 3/4 of all its members conundrum apparently also exists in the provision that says upon a vote of 2/3 of "all its members" the Congress can put the question of a Concon to a plebiscite!

Jhay said...

On that hypothetical move of both House and Senate you've mentioned, I tend to agree with Fr. Bernas that it is unconstitutional because it clearly goes against the bicameral nature of Congress.

And since voting jointly is so unique for such a Congress, it is only allowed by the Constitution in one instance, say the revocation of the President's declaration of martial law.

Each House may have the freedom to pass resolutions, separately, on almost any matter they like, that freedom has a limit and such has been imposed by its structure as shown by the text of the Constitution.

Dean Jorge Bocobo said...

How does it violate bicamerality when House and Senate SEPARATELY agree to adopt a certain Rule?

And as you say, revoking OR upholding a martial law declaration can be done with just a simple majority vote in a joint session. Is this then also unconstitutional?

I think both 1109 purists and 1935 purists have equally weak arguments that are actually the same: they want the SCORP to agree with their opinion.

I say SCORP has no jurisdiction to tell the Congress how to do its job.

Now let me give you another hypothetical. Suppose there is a certain amendment to the constitution that is truly and actually supported by the people, by the Lower House and say 17 of the Senators.

Now under separate voting rules, just seven senators could prevent the adoption of such a resolution.

Is this right? I don't think so. But how could we get around it without violating bicamerality?

Only by separate House and Senate votes to start voting jointly.

Remember the only real requirement in the Constitution is that 3/4 of all in congress agree.

HOW the Congress gets to that number is up to the House and Senate voting separately!

Until the Constitution is amended to remove the ambiguity, we have to live with this very fundamental but principled attitude.

domingoarong said...

DJB

I agree with your position in the hypothetical case you cited.

I think what you are trying to convey is that the SCORP does NOT have the power to COMPEL a separate, co-equal branch of government from performing what the two Houses of a bicameral Congress have agreed to do in its interpretation of the phrase “upon a vote of three-fourths of all its Members” as grammatically intended to mean “VOTING JOINTLY.”

However, before Members of “the Congress” in your hypothetical case can cast their votes JOINTLY, both Houses of “the Congress” must first be convened SEPARATELY, since the constitutional authority consists of two sections, separated by the comma:

“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.”

It is clear in the first line that it is “The Congress” that is vested the power to PROPOSE; the next line, separated by the comma, “upon a vote of three-fourths of all its Members,” simply describes the manner of voting required to be observed.

The Constitution defines “The Congress” as consisting of a Senate and a House of Representatives and describes how Members of each chamber are called to order by their respective presiding officers (the Senate President and the Speaker of the HOR), the roll of Members of each House called and a quorum to do business in each House taken and confirmed in order to convene “to do business.”

But once each House of “The Congress” has convened, SEPARATELY, how will the vote be taken consistent with the mandate--“upon a vote of three-fourths of all its Members”--JOINTLY OR SEPARATELY?

Of course, “voting separately” is regarded as the “norm” and “voting jointly” the exception (as in the revocation of the President’s martial law declaration)..

But the question lingers: Why are there several provision in the Constitution that specifically mention the phrase “voting separately”? Why repeat what is regarded as the “norm” in the manner of voting?

Is this repetition of what is generally regarded as a “norm” in a bicameral body, “voting separately,” inserted only as a matter of abundant caution?

Or is this not simply a product of sloppy drafting brought about by--and this is what the framers have been telling us over and over again--a last-minute change in the form of government that the framers adopted?

But whatever the justification, I agree with DJB that the ordinary grammatical meaning of the phrase ought to be made to prevail and be applicable, since the phrase does not need any interpretation at all. For, if not, what other sloppily drafted provisions are there strewn in the 1973 Constitution that needs to be read differently from how it is grammatically worded clearly?

Besides, both Houses convene (whether separately or jointly, it does not matter)--NOT as a legislative body (the proposal to amend, in fact, does not require the signature of the President for approval)--but as an extraordinary body, a “Constituent Assembly” or whatever name the Members would agree to baptize the group with.

Thus, acting as a NON-legislative, but constitutional, body this time around, “all the Members,” in both Houses of “The Congress, as in DJB’s hypothetical case, are free to promulgate whatever rules they deem fit to govern the procedure during their discussion of proposals to amend or revise the Constitution different from that governing “the Congress” as a bicameral legislative body, so long as the manner of voting prescribed is consistent with their grammatical reading of the evidently plain and simply-worded phrase which ordinarily means what it says, and that is--“upon a vote of three-fourths of all its Members.”

Dean Jorge Bocobo said...

I'm sorry Domingo Arong, but I think you have misunderstood my position.

My position is that Art. 17 Sec. 1 is utterly silent on "voting separately and voting jointly". I don't think it is obvious that the plain grammatical interpretation should be "voting jointly",

My position is that the provision ALLOWS either voting jointly or voting separately.

My main point is that this decision of how the Congress will vote is purely a matter of CONGRESS DISCRETION and not a matter that can be adjudged by statutory construction in a SCoRP case.

It is NOT a justiciable controversy that will be settled by some construction of the provision.

My main axiom is that "the Congress" always adopts its Rules separately and more importantly: unanimously.


By this I mean that I think of the Congress as a Democracy of two members operating under simple majority rule: which in such a case always demands unanimity of both Houses!

Thus as long as House and Senate both approve of a given Resolution separately, that Resolution can EITHER that they will vote separately on chacha proposals (as they have established with Rule XX in the House), or they can change it and start voting jointly (unlikely under the present composition of the Senate--but not unconstitutional if it happens!)

Dean Jorge Bocobo said...

Put this another way: The 1109 Purists insist that the "plain language of the Constitution" "means" it is "voting jointly". The 1935 purists (Bernas) claim their "intention" was "voting separately" because they eventually voted for a Presidential System with a bicameral legislature but forgot to clean up the text (as domingoarong correctly points out).

But isn't it obvious that neither position is "obvious" or binding because of the mathematics and the English comprehension of the provision itself--which is dead silent about the matter.

Thus I have reduced the conundrum to asking who actually has the POWER to decide HOW constituent power will be exercised?

To me the answer is obvious: the Congress. But it seems there is a hard and durable, near-theological belief, that SCoRP is supposed to decide all this. Whatever happened to Separation of Powers?

baycas2 said...

Rules of Interpretation under the Principles of Statutory Construction can resolve the apparent ambiguity. Ambiguity which I think is non-existent in reality (as I explained in your recent blog posts on ConAss and explained also here and here). If only the intent of the Constitutional Commissioners is taken in deep consideration, regardless if there was only one vote in favor of the bicameralists, then there will be an end to this discussion on "voting separately or jointly." The enveloping nature of a bicameral legislature is enshrined in the Constitution and this will supersede or be in effect in any legislative undertaking, more so, on the constituent power of Congress.

Whether “majority,” “two-thirds,” or “three-fourths” of all the Members of the Congress is provided is of no matter. We have to just consider the words/phrase “all the Members of the Congress.”

I will just reiterate my comment in the blog post “Ignorant and Ignoble:”

The 2 keys “All the Members of the Congress” (Art. XVII, Sec. 1, Par. 1) and “All the Members of the Congress, voting jointly” (Art. VII, Sec. 18) should have clinched the lawmakers’ understanding of when the Congress vote separately or jointly. Needless to say that in the former key the Congress votes separately…for why would the words “voting jointly” must be added to the latter key?

However, if this so-called ambiguity is pushed to the point when justiciable controversy will exist, definitely, the one SCORP takes on the interpretive task of resolving the issue EVEN to any branch of government (Art. VIII, Sec. 1). Theirs is the last say as Ricelander here or Reality Check (over at FV) put it. (This is also taking into consideration Sir William Blackstone’s teachings for judges’ guidance in the Rules of Interpretation. Judges are supposed to be well versed in the interpretive task whether it concerns a law, a treaty, or in this case, a constitution.)

-----

If I may just repeat what I posted at Chris’ blog (link given above in my first comment here):

As to having joint session or not in proposing amendment/s or revision/s, the most important thing is to fulfill the requirement of a bicameral legislature first (e.g., coming up with concurrent resolutions in order to come to an agreement, akin to the annual concurrent resolution of each House just to hear the president’s SONA) before anything else.

Who knows, the Senate will be so kind enough to resolve to a “joint session, joint voting” scenario (aside from revoking the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus).

Of course, presently, committing to such a scenario will not happen for it would be tantamount to a suicide when a unicameral legislature is decided by the 3/4s Majority Members of the HOR.


This is in keeping with each House’s determination of its own rules of its proceedings (Art. VI, Sec. 16, Par. 3). So I believe, as long as the bicameral legislative function (or constituent function, for that matter) is FIRST met, the “joint session, joint voting” CAN be constitutional.

domingoarong said...

DJB

That is precisely what I think too--that it is the separate and co-equal Congress that alone decides whether to vote jointly or separately owing to the missing or omitted words in the amendment article which “allows” either of the two scenarios.

But that’s the second step, since both Houses of Congress in your hypothetical case have already agreed to accomplish the first--convene.

This will not, of course, deter others with a different view of the language to challenge it and SCORP will most certainly entertain it.

As I have already said in an earlier post, the authority to “convene” (in the present case, the Presiding Officers of both Houses) in order accomplish the first step, to be authorized “to do business” (or to invite the other House and to propose amendments) is significant. In 1973, the incumbent President, Marcos, who was authorized to “convene” the Interim National Assembly created under the 1973 Constitution decided not to “initially convene” the Assembly, and what transpired later is history.

Jun Bautista said...

DJB,

That a bicameral legislature does its business separately and therefore vote separately is the first axiom of bicameralism. The separate and concurring act of each chamber becomes the act of one: Congress. And this norm continues even when the Constitution says the two houses must convene in joint session, as when doing a presidential canvass or declaring a state of war. In one instance, however, the Constitution explicitly says voting must be done jointly which is when Congress considers declaration of martial law and suspension of the privilege of the writ of habeas corpus (HC).

You asked how can the passage by both houses of a resolution (acting separately) to convene Congress in joint session and adopt joint voting in proposing charter changes be abuse of discretion. My quick answer is the Constitution does not prescribe joint voting under Art. XVII, Sec. 1(1) as it does when martial law or suspension of HC is considered. In other words no authority is given for Congress to depart with the norm: separate voting or both Houses acting separately to come up with a common position that would constitute an act of Congress. You argue that what the Constitution does not prohibit could be done, citing Fr. Bernas. Indeed, there is an IMPLICIT prohibition for both Houses to vote jointly by structurally making Congress bicameral, our first axiom of bicameralism. The discretion to suspend the norm of bicameralism is simply not given to both Houses. There must be an express authority for them to do so, again as in martial law and habeas corpus cases.

Since Art. XVII, Sec. 1 (1) is silent on the modality of voting, we take it to mean that Congress should act in its default mode in proposing charter changes. Whenever we see the word "Congress" or phrase "members of Congress" in the Constitution, unless otherwise provided, they should be understood in accordance with the structure of Congress as a bicameral body. So suspending bicameralism should be authorized, otherwise it becomes an abuse of discretion that the SCROP can correct. Indeed a justiciable controversy!

If the SCORP's jurisdiction is invoked in this situation and it acts to correct it, will the SCORP be usurping the prerogatives of Congress? I say not. It would merely be telling Congress what the Constitution allows, that is Congress is not given the discretion to disregard the norm of bicameralism in proposing charter changes because no authority is given in this regard.

Of course we heard the argument that why did not Art. XVII, Sec. 1(1) explicitly mention "voting separately" as the Constitution does in other cases. The reason is simple: Congress is not required to be in joint session as it was under the 1935 Constitution. So there was actually no need for the con-com to insert such phrase (although it would have been more preferable if it were the case, as it could have avoided the current debate). But such silence is not really a problem as all we need to do is go back to the structure of Congress as a bicameral legislature. In fact, the non-inclusion of the phrase "voting separately," as well "voting jointly," is an indication that voting cannot be done jointly because the silence on the modality of voting is an indication that Congress should go about its business in the normal way.

Furthermore, the fact that Art. XVII, Sec. 1(1) merely mentions all members of Congress in stating the vote required does not suggest discretion to vote jointly or separately. Several other provisions of the Constitution use this statement, but it does not mean Congress could exercise discretion to adopt the modality of voting in disregard of the first axiom of bicameralism.

Jun Bautista said...

From domingoarong:

"But the question lingers: Why are there several provision in the Constitution that specifically mention the phrase “voting separately”? Why repeat what is regarded as the “norm” in the manner of voting?

"Is this repetition of what is generally regarded as a “norm” in a bicameral body, “voting separately,” inserted only as a matter of abundant caution?"

It could be a matter of abundant caution that the phrase "voting separately" is inserted despite the norm that a bicameral congress votes separately. At the same time, notice that in those instances where we see such phrase Congress is required to be in joint session. Again, let me go back to my postition that Art. XVII, Sec. 1(1) did not include such phrase because there was no requirement for Congress to be in joint session. It may or may not convene in joint session, but there is no requirement, so the "abundant caution" is not necessary.

Jun Bautista said...

from baycas:

"This is in keeping with each House’s determination of its own rules of its proceedings (Art. VI, Sec. 16, Par. 3). So I believe, as long as the bicameral legislative function (or constituent function, for that matter) is FIRST met, the “joint session, joint voting” CAN be constitutional."

This is not merely a matter of "rules of proceedings." The decision to vote jointly or separately is not for Congress to make, but the Constitution as it goes into the very essence of what constitutes a bicameral legislature. The authority of Congress to formulate its rules of proceedings (rules of order: such as the order in which members are to take turns in speaking or how debates are conducted) is a house-keeping matter, but the modality of voting (jointly or separately) is a fundamental matter which only the Constitution may prescribe.

Dean Jorge Bocobo said...

Jun,
Yours is the position taken by Fr. Bernas, so you are in good company. My opinion is that the bicameral nature of congress is expressed in the fundamental idea that Congress can do anything not prohibited by the constitution (or international law) as long as they agree to it in separate votes of each House. But to say that SCoRP can tell Congress how to exercise a power clearly granted to it by the Constitution and NOT to SCoRP--this would violate Separation of Powers.

The logical consequence of this position however, is that SCORP will be made usurp the Congress' power to propose amendments and revisions in a provision that obviously does not contain the answer. They will have to insist that half a dozen is not the same as six.

This position plays right into the hands of the Palace.

Test the position out however on the following question:

Suppose the House and Senate cannot agree on the National Budget. Can the SCORP tell them it shall be XXX amount and not YYY amount, or split the difference between them?

baycas2 said...

Thanks, Jun, for the comment. The mere “housekeeping” matter is what must be construed from Art. VI, Sec. 16, Par. 3 of the Constitution.

-----

“My position is that the provision ALLOWS either voting jointly or voting separately.”
- DJB


“Voting separately” appears four (4) times in the Constitution. On two occasions, the Congress is in joint session: in declaring the existence of a state of war (Art. VI, Sec. 23, Par. 1) and in canvassing the votes for president and vice-president (Art. VII, Sec. 4, Par. 5).

What is noteworthy is that instead of the phrase “all its Members” or “all the Members” appearing in the four provisions, the words “both Houses” appear.

Certainly, the use of “voting separately” could be a matter of abundant caution but I think in interpreting the provisions on ConAss (Art. XVII, Sec. 1, No. 1) or ConCon (Art. XVII, Sec. 3) where the words/phrases “The Congress” and “all its Members” are seen, one must consider the same elements contained in other sentences in the Constitution (applying Blackstone’s rule).

“The Congress” and “all its Members” appear also in the revocation of martial law/suspension of habeas corpus (Art. VII, Sec. 18, Par. 1). This time, “voting jointly” was added. This addition, of course, is instinctive because this compels a deviation from the normal procedure of voting separately.

Thus, voting separately can be inferred to take place in the ConAss and the ConCon provisions.

But can there really be a chance of voting jointly in ConAss and ConCon? Or, is voting jointly prohibited in ConAss and ConCon?

Other Blackstone’s rules…

a. “Words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use
b. “The effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted

…may also be applied.

“The Congress” performs its function as a bicameral legislature and so the word “all” in the phrase “all its Members” does not necessarily mean adding the Members of both Houses. Each House works separately as dictated by Art. VI, thereby, implying a separate vote from each House. (This is in contradistinction to the four provisions where “voting separately” were added as “both Houses” of “The Congress” would confusingly mean adding the number of senators and congressmen. Hence, the words “voting separately” is inevitably added.)

Moreover, voting jointly by all Members would mean an absurd interpretation and definitely will NOT be allowed because fundamentally the Congress does not operate that way. Thus, voting separately should be employed in the ConAss and the ConCon provisions.

Jun Bautista said...

DJB,

The question is could Congress exercise discretion in setting aside the rule of bicameralism in proposing amendments to the Constitution? What I get from you is that, yes it could by separately agreeing to adopt the rule of joint voting in proposing charter changes. But like I said, this is simply not a discretion granted to Congress because it is the Constitution that specifies the instance (only one) when bicameral procedures (separate voting) are suspended. And the bicameral nature of Congress is the basic prohibition under the Constitution whereby Congress cannot set aside procedures of bicameralism. That is implied. So the Constitution prohibits the two Houses from acting as one body, to wit: voting jointly.

There will be no usurpation by the SCORP of Congress's power to propose charter changes. The SCORP cannot tell Congress what changes to propose or how long it will debate on any proposal. But the SCORP can certainly tell Congress that it cannot disregard the rule of bicameralism - which is its nature. Telling Congress that it cannot vote separately because that would violate its nature is not usurping its powers or violating the separation of powers any more than telling Congress that it must approve proposed charter changes by 3/4 vote or pass bills in three readings or cannot override a presidential veto of a legislation by less than 2/3 vote, etc. In such cases, the SCROP is not asserting its supremecy but simply telling Congress that it must exercise its discretions within the parameters set by the Constitution. The clear parameter in this debate is that Congress is bicameral and not a unicameral assembly, and proposing charter changes is not authorized by the Constitution to be done unicamerally . . . by joint voting wherein distinctions between senators and congressmen and between the two houses are temporarily set aside. And yes - I hasten to add - the SCORP can tell Congress how to exercise its powers when the same is being exercised not in accordance with the parameters set by the Constitution, for this power - a duty even - is imposed by the Constitution itself in Art. VIII, Sec. 1. Of course the SCORP cannot tell Congress what type of legislation it wants to adopt, but even this is, however, limited when the subject violates fundamental rights - again must be within constitutional guidelines.

With due respect, the question you posed is not on point because here we are talking of a purely political question, a question of policy, becaue it has something to do with the content of a legislative measure itself. But if what is at issue is whether or not the Senate could originate a budget measure then the question becomes a legal one that becomes justiciable. The question of whether the Senate and the House can agree to modify the default mode by which Congress goes about its business as a bicameral body when it comes to charter changes is not a purely political one, because it goes into the definition and nature of what our Congress is.

Note the following constitutional provisions:

"Art. VI, Sec. 28(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress."

"Art. VI, Section 19, paragraph two: He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress."

Both use the phrase "all the members of Congress" in relation to the votes required. Following your view, do you mean to say that the Senate and House could likewise adopt concurrent resolutions separately and provide in such resolutions that voting on such matters will be done jointly? simply because these provisions do not specify the modality of voting?

The use of the collective phrase "all members of Congress" is not a grant of authority or discretion to decide whether to vote jointly or separately.

Jun Bautista said...

From DJB:

"My opinion is that the bicameral nature of congress is expressed in the fundamental idea that Congress can do anything not prohibited by the constitution (or international law) as long as they agree to it in separate votes of each House. . ."

But Congress cannot also suspend its bicameral operation unless the Constitution grants it such authority. The essence of bicameralism is that there are two separate Houses that can check each other's actions, which is accomplished by each House voting separately (the manner by which its power is exercised - casting of vote). Only the Constitution can suspend this norm and it does so in very limited instances. Proposing cha-cha is not one of them, because nowhere in Art. XVII, Sec. 1(1) is that procedure provided.

domingoarong said...

Jun

The grim irony of this debate is that the ambiguity of the amendment article in question obviously stems from the framers’ now-admitted omission of just two or more determinant words in a provision of a Constitution that legal scholars view, on the contrary, as wordy, awash with abundant caution in several passages, in fact.

This is actually a debate to justify on the one hand, or underline on the other, the framers’ purely honest mistake that is, of course, intolerable in a document as authoritative as the Constitution itself.

Although strictly read grammatically, the provision is susceptible to allowing either “jointly” or “separately,” I think the reasonable reading is that the provision was actually intended to mean what the phrase the framers omitted was meant to convey: “voting separately.”

If SCORP ever gets to resolve this problem and decides on the “voting separately” line, I would certainly relish reading the dissenters, if any,

Jun Bautista said...

domingoarong,

The framers may say what they want, but that would not be conclusive in interpreting the Constitution unless one is an "originalist" or who views constitutional interpretation as limited to what the framers intended it to be. It would appear, however, that the SCORP - while has from time to time looked into the framers' intent - is anything but originalist. And while grammar may be a guide in interpretation, the Constitution must also be interpreted as a whole and when it comes to provisions involving Congress, structurally - that is, what is the nature of Congress?

Dean Jorge Bocobo said...

Good of you to bring up "intentionalism", "originalism" and other modes of constitutional construction, Gentlemen!

I myself am a Contractarian. I want to largely IGNORE Bernas memories and intentions and half-recalled bits of discussion amongst the ConCom members.

I want to regard the Constitution almost purely as a Social Contract, a legally binding agreement between the People and their government, complete and enforceable as written.

I understand and appreciate the arguments all have made, but have taken this position, because I accept the Constituiton as it this generation has received it. The Amendment Provision is indeterminate--resolutely and utterly so--on the matter of separate or joint voting. Thus, as Bernas declared at the confab, "What the Constitution does not prohibit is allowed." Since it prohibits neither, both are allowed. Even as I fully appreciate Jun's and Bernas' insistence on a kind of preternatural or metaphysical inviolability of bicamerality. But as both admit, the Constitution itself DOES explicitly violate bicamerality in the Commander in Chief Provision--surely a KEY and CRUCIAL provision!

But how would the rest describe their attitude towards the Constitution and its construction?

Originalist?
Intentionalist?
Contractarian?
Hybrid?
Casuist? (seriously!)

Jun Bautista said...

As a relatively permanent instrument that is meant to serve as our fundamental guide (indeed the basis for our laws and norms of governance), the Constitution should be viewed as a living entity that finds relevance with the times. This view, which is the anti-thesis of originalist thought, is echoed by former SCOTUS Justice William Brennan in 1985 in his following words;

"the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but the adaptability of its great principles to cope with current problems and current needs."

I am also at the same time of the view that it should likewise be interpreted according to how the people understood the Constitution when they went to the polls to cast their votes - contractarian? So one might say that I got a hybrid view of constitutional interpretation.

My reading of the people's intent in approving the Constitution is that they understood we have a bicameral legislature and should rightly function so as such. Thus, whenever we see the word "Congress" appear in the Constitution we understand it refers to both its houses acting within their respective spheres; that it would be redundant or superfluous to spell out this distinction.

Jun Bautista said...

From DJB:

"Even as I fully appreciate Jun's and Bernas' insistence on a kind of preternatural or metaphysical inviolability of bicamerality. But as both admit, the Constitution itself DOES explicitly violate bicamerality in the Commander in Chief Provision--surely a KEY and CRUCIAL provision!"

I believe "violate" is not the appropriate term to use. Violate implies the doing of something not allowed. When the Constitution says Congress must vote jointly in reviewing the president's martial law or HC declaration, it was not violating bicamerality - it was simply ALLOWING unicamerality for this exceptional instance. For this reason also, I am not saying bicameralism is inviolable under the Constitution. All i'm saying is that suspending the rule on bicameralism should be expressly prescribed by the Constitution because it would be a drastic departure from the very nature and essence of our bicameral Congress. Well, perhaps I could say it is inviolable where the Constitution does not allow it; not inviolable in the sense that the Constitution allows an instance where unicamerality is applied.

baycas2 said...

ARTICLE 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


-----

Reading through the provision, some lawmakers would consider the Congress will be voting jointly as there really is no stipulation of “voting separately” (like in several other provisions, four to be exact, which explicitly say so).

However, Bernas proposed the idea: “What the Constitution does not prohibit is allowed.” In effect, even though “voting separately” is not indicated in the provision, the Congress could indeed vote separately.

Whether the legal luminaries are right or wrong, the Principles of Statutory Construction are AT ONCE being employed in their explanation.

Let us depart first from the preceding and read the provision as it is and then consider Joseph Story’s:

Where the words are plain and clear, and the sense distinct and perfect arising from them, there is generally no necessity to have recourse to other means of interpretation.

“The Congress” being divided must NOT be added.* It’s as simple as that…I think.

But we are already into the protracted debate of whether “The Congress” and “all its Members” vote separately or jointly.

DJB could be right in saying: “The Amendment Provision is indeterminate--resolutely and utterly so--on the matter of separate or joint voting.” Here lies the so-called ambiguity** of the provision.

Story continued:

It is only, when there is some ambiguity or doubt arising from other sources, that interpretation has its proper office. There may be obscurity, as to the meaning, from the doubtful character of the words used, from other clauses in the same instrument, or from an incongruity or repugnancy between the words, and the apparent intention derived from the whole structure of the instrument, or its avowed object. In all such cases interpretation becomes indispensable.

So it’s highly possible that eventually the SCORP will be asked to interpret the ambiguous provision. Nonetheless, I believe that the Congress could easily sort out the issue by interpreting it also without having to create a justiciable controversy. Who knows the congressmen would come to their senses that the provision is not ambiguous after all and, in fact, they have already done their bicameral duty even though some form of ambiguity in the provision exists (see footnote).

If I may paraphrase Sir Francis Bacon’s reminder…I hope our lawmakers’ office is not just jus dare but also jus dicere in some ways while doing their job.

-----
*Unless the Constitution adds both Houses of the Congress (viz., the Commander-in-Chief provision)

**Although I don’t really subscribe to the idea of its ambiguity now as I found out the lawmakers’ interpretation of the Tax Exemption and Amnesty provisions, i.e., without ambiguity. The lawmakers interpreted the phrase “all the Members of the Congress” as The Congress, voting separately!

Anonymous said...

The essence of bicamerality is that the senate is not goobled up by the sheer size of house numbers. In joint voting, the 24 senators will not stand a chance against the 265 house members. Hence, the norm is separate vote.

The separate vote is a constitutional guarantee against tyranny of the majority where minority rights can be severely affected by the popular votes at the house.

Bicamerality as a check mechanism is not absolute. The constitution dispenses separate into joint voting in cases where the country is in grave danger that a legislative gridlock is unwarranted in the review of president's martial law declaration or suspension of habeas corpus. This is for higher purpose that the senate has to yield to superior house number in joint voting.

In the proposed change of structure as the house is asking the senate to commit suicide and yield in joint voting, the proviso granted by the constitution under the rules prevail. It needs only a majority vote of the 24 senators if it chooses to yield and adopt voting.

The constitution simply emphasizes that each body can go by their own rule. At least, senate need to consent on its own death so to speak.

-dOdOng-

baycas2 said...

ARTICLE VI
Section 28, Paragraph 4

No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.


ARTICLE VII
Section 19, Paragraph 2

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.


-----

DJB said “The Amendment Provision is indeterminate--resolutely and utterly so--on the matter of separate or joint voting.

Will this conclusion of indeterminacy also apply in the two provisions above?

Granting that the ConAss will not push through and the ConCon will instead be the one espoused, will we again succumb to the dilemma of indeterminacy come 2010???

-----

ARTICLE XVII
Section 3

The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Dean Jorge Bocobo said...

Baycas,
You're in fine form and are all over this topic. Thanks.

BTW, the "indeterminacy" exists in so many places actually, but significantly in the provision where "all the members of congress" may call for a referendum for the people to decide if they want a ConCon. Hehe.

So really, what is most fundamental is HOW the Congress is to decide upon its official ACTS, name.ly the RULES by which The Congress exercises its myriad powers, duties and responsibilities.

That is where the Axiom of Bicamerality clearly applies.

baycas2 said...

Voting separately or jointly?
The INDETERMINACY
Was already made a fallacy.

Note in Tax Exemption and in Amnesty
The Congress votes separately.

What prevents one from ably
Appreciate similarly
In Con-Con and in Con-Assembly?

baycas2 said...

Fr. Bernas was quoted:

On May 27, 2009: “What is not prohibited (by the Constitution) is allowed.

And exactly a month earlier: “What is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress.

I think these statements further discombobulate the voting jointly or separately.

DJB,

Let me just propose:

What the Constitution has put asunder,
Let no man join together;

And, what the Constitution has joined together once,
Let no man increase it for the nonce.

Dean Jorge Bocobo said...

Excellent Those are KEEPERS, baycas2. Thanks for putting them here, I shall have to bookmark these for later use!

Anonymous said...

baycas,

slogans fit to scream on tshirts you have there.

i.n.e.

Jofti said...

I just noticed, just skimming through this site, sobrang legal ng pinag-uusapan re Con-Ass. This maybe an ignorant post because I am not a student of law or even well-versed in law. However, from what I know bilang isang simpleng masa, I do not want Constituent Assembly for the very reason of lack of trust in our Congress Representatives. They do not clearly represent the MASA because they are not from the MASA. Kaya am sorry to say how much may this seemed to be legal, but it does not actually mean it is fair for the Filipinos. We have entrusted our future long enough to these TRAPOS. Look where it got the Philippines!

Please stop upholding this rotten cancerous system and let us help in building an anti-trapo system without all these trapo politicians.

I AGREE THAT OUR CONSITUTION IS NOT PERFECT. THERE ARE SOME PROVISIONS THAT NEED AMENDMENTS BUT NOT DURING THIS TIME, IN A SYSTEM OF TRAPO ELITE AND ANTI-MASA SYSTEM. PLEASE LET US NOT BE CONTENTED WITH WHAT IS LEGAL AND IN THE LAW BECAUSE IN THE END, MOST OF THESE ARE MADE TO PROTECT THIS ROTTEN SYSTEM.

Jofti said...

I just noticed, just skimming through this site, sobrang legal ng pinag-uusapan re Con-Ass. This maybe an ignorant post because I am not a student of law or even well-versed in law. However, from what I know bilang isang simpleng masa, I do not want Constituent Assembly for the very reason of lack of trust in our Congress Representatives. They do not clearly represent the MASA because they are not from the MASA. Kaya am sorry to say how much may this seemed to be legal, but it does not actually mean it is fair for the Filipinos. We have entrusted our future long enough to these TRAPOS. Look where it got the Philippines!

Please stop upholding this rotten cancerous system and let us help in building an anti-trapo system without all these trapo politicians.

I AGREE THAT OUR CONSITUTION IS NOT PERFECT. THERE ARE SOME PROVISIONS THAT NEED AMENDMENTS BUT NOT DURING THIS TIME, IN A SYSTEM OF TRAPO ELITE AND ANTI-MASA SYSTEM. PLEASE LET US NOT BE CONTENTED WITH WHAT IS LEGAL AND IN THE LAW BECAUSE IN THE END, MOST OF THESE ARE MADE TO PROTECT THIS ROTTEN SYSTEM.

Jun Bautista said...

Jofti,

I understand where you're coming from; the majority of people may not really understand these arcane legal concepts or be simply uninterested in them, but let us not forget that our present Constitution is largely a reaction to our bitter experiences in the past, intended as it is to prevent officials abuses from happening again. To be sure it is not a panacea, but it is our duty to know it and ensure it serves its ultimate purpose of promoting the common good.

These congressmen are apparently trying to emasculate this basic law by seeking to amend the Constitution in disregard of one of its inherent checks against arbitrariness by disregarding the Senate.