Tuesday, June 30, 2009

Bernas: Jointly or Separately

Since we have been debating this matter ourselves here at Philippine Commentary, most lately in this post, I think it is appropriate to now reproduce Fr. Joaquin Bernas' PDI column from yesterday in which he summarizes his point of view and the various arguments regarding charter change under the 1987 Constitution. I must say, the quality of argumentation on this blog from lawyers and nonlawyers alike stands toe-to-toe and head-to-head intellectually with the Founding Father. I'm proud of the work everyone is doing on this all important issue. But now...Fr, Bernas on voting jointly or separately: (I reserve my own caveats for the comment thread)
One of the central issues in the current debate on Charter change is the role that the Senate should play. At the moment it is fairly certain that the Senate is not yet willing to join Charter change. But the likelihood is that it will join after the elections of 2010. When it does, how will the voting be—jointly or separately?

That the Senate should be part of the process is beyond question. You can probably count with the fingers of one hand the number of politicians who will question that proposition. As to the manner of voting, however, there is ample debate. I have written on the subject in the past, but it may not be unhelpful to rehash my views on the subject.

The constitutional text is not very helpful. It simply says: “Any amendment or revision of this Constitution may be proposed by the Congress, upon a vote of three-fourths of all its members . . .”

Indeed, there are provisions which specify when the two houses vote separately, namely when breaking a tie between two presidential candidates (VII,4), when confirming the president’s nomination of a vice president to fill a vacancy (VII,9), when declaring a president to be incapacitated (VII,10), and when Congress declares the existence of a state of war (VI,23). From these it might be concluded that when the Constitution wants separate voting it so indicates unequivocally.

There is, however, also a provision which requires Congress to vote jointly, namely when Congress wants to revoke a declaration of martial law or a suspension of the privilege of the writ of habeas corpus (VII,18). From this, it may, with equal logic, be also concluded that when the Constitution wants the two chambers to vote jointly, it so indicates unequivocally. One might also add that voting jointly is so unique for a bicameral body that it is allowed only in one specific instance.

My conclusion from these two separate set of provisions is that the solution to the textual ambiguity cannot be found in any of the separate provisions of the Constitution. These separate provisions do not illumine but only heighten the ambiguity. Thus we are forced to look for clarification and help from elsewhere.

Are there other aids to constitutional interpretation when faced with textual ambiguity? There are. I suggest an exploration of these aids. And the final conclusion may depend on the modality of interpretation that is chosen. Briefly, what are the possible approaches?

One approach used for dealing with an unclear text is historical. It involves an analysis of the intention of the framers of the Constitution and the circumstances of its ratification.

Another is the structural approach. This involves drawing inferences from the architecture of the power relationships in the constitutional arrangement. Structure is what the text shows but does not say. An easy example is “separation of powers.” The text does not say it, but the actual distribution of powers to three departments shows it.

And, of course, there is the doctrinal approach which simply follows earlier judicial decisions. This is the doctrine of stare decisis.

Still another is the ethical approach which seeks to interpret the Filipino “ideals and aspirations” embedded in the constitutional document.

Finally, one might use the prudential approach by weighing and comparing the costs and benefits that might be found in conflicting rules.

I suggest that a combination of the historical and structural approach will be helpful.

Historically, the current provision on amendments and revision was debated on and approved on July 7 and 8, 1986. The prevailing mood then among the members of the Constitutional Commission looked like a preference for a unicameral legislative body. In fact the draft at hand provided for unicameralism. For that reason, the amendatory provision of the 1973 Constitution for a unicameral Batasang Pambansa was copied. On July 28, 1986, however, after much debate, the commission, by a very close vote of 23-22, decided to go bicameral. The commission, concerned as it was with other issues, did not look back. Now we are left with the necessity of trying to construe the meaning of a constitutional provision originally designed for a unicameral legislature but now being placed at the service of a bicameral legislature.

How should a bicameral Congress use it? Congress should use it the way bicameral Congresses are expected to act.

When we look at the reasons the framers of the Constitution went bicameral, we can easily see that the arguments for bicameralism were the traditional ones which say that (1) an upper house is a body that looks at problems from the national perspective and thus serves as a check on the parochial tendency of a body elected by districts, (2) bicameralism allows for a more careful study of legislation, and (3) bicameralism is less vulnerable to attempts of the executive to control the legislature.

I would focus on the second and third arguments. First, bicameralism allows for a more careful study of legislation. Simply put, two heads can be better than one. And since the Constitution is the supreme law of the land, any change done through a bicameral body must be accomplished through the most thorough decision-making process, namely a two-step process.

Second, bicameralism is less vulnerable to executive pressure. In the current context, the prevailing suspicion is that President Gloria Macapagal-Arroyo is pushing her own agenda. True or not, the suspected agenda need purification.

Am I therefore saying that a unicameral body is incapable of a thorough study? I am not saying that. In fact, during the debates of the 1986 Constitutional Commission I voted for a unicameral body. (However, in retrospect and looking at the current House of Representatives, I am glad my side then lost!) What I am saying is that, since Congress is bicameral, it must act as bicameral.


Ding G. Gagelonia said...

Manong I think r. Bernas is actually delivereing aJesuit confession - a confession that they at the ConCom erred, and erred gravely in the incorrect statutory construction of that crucial priviso.

The question now is bukod sa pagbabangong puri, maitatapa ba angpagkakamali?

Dean Jorge Bocobo said...

At the Ateneo last week before the talks, he admitted as much in private to Manolo and Ortega and me while we were waiting for the thing to start. It was a careless slip that has caused this brewing crisis. that's the problem with theologians writing constitutions!

Dean Jorge Bocobo said...

Doesn't Bernas' argument actually reduce to this: "I (we in the Concom) INTENDED it to be voting separately if we went bicameral"?

As a constitutionalist, the good Father Bernas is an "intentionalist" and "structuralist". I agree with the latter but not the former.

His recounting of the history and circumstances of the concom is however open to exactly two different interpretations. For he admits there was some real point in time when persons in the Constitutional Commission DID NOT KNOW how the voting over bicameral unicameral was going to emerge. Bicameral won by a single vote! BUT since the concom never got to discuss chacha provision, how do we know what they WOULD've decided even under a bicameral legislature: after all he cites the inconsistent usage of "voting separately and voting jointly" in at least 5 other provisions of 1987. Ought we not now poll the other living framers? But you see my problem with that?

As for the structuralist argument, of which we are all persuaded, the problem lies in the contradictory occurrences of voting separately and voting jointly provisions in the rest of the Constituition which he also mentions.

The constitution they created was a self-contradictory congeries, because it was rushed and was not cleaned up editorially.

But this is cold comfort to us, and worse for the coming generations.

As I've said in our previous post on this, I think the most principled position of construction in this case of chacha is the CONTRACTARIAN tradition (altho I am uncertain of my nomenclature.) I want to take the text of the Constitution as it is and consider it to be a perfectly valid contract or agreement. The text stands compleat and must be dealt with in that manner.

Thus the conclusion I have come to is that the ambiguity is there but that the Congress itself--and only the Congress--has the discretion to decide HOW it is to exercise the nearly unrestricted constituent power given to it by the Contract. Not SCoRP for it was not given that power.

Thus the Congress must establish its Rules for how to exercise the power (as in fact the House has already done in Rule XX, and which the Senate OUGHT TO DO now, so it cannot be accused of agreement with HRes 1109 by its inexplicable silence!).

My position is that "the Congress" always and axiomatically establishes its Rules through a unanimous vote of both its only co-equal members: the House and the Senate! (Nota bene: in a Democracy of only Two, simple majority rule is congruent with unanimous and separate voting!)

Ding G. Gagelonia said...

I subscrube to that view too, in essence. But given as chamber rules are 'perishable' do they not become subject to rewriting when the powers of the day need to tailor-fit the Rules to their narrow if not ill-intentioned caprices?

This is why I feel strongly that the sin of Bernas and company is great.

BTW one ConCom member, Rene Sarmiento now suts in the COMELEC.

Dean Jorge Bocobo said...

It is actually better that the House and Senate be given all the leeway to decide--based on their own discretion.

Let me pose to you again the example I have given throughout this discussion, which may seem improbable now, but can be used to further strenghten the point that it is CONGRESS and not SCoRP that should get to decide "voting jointly or separately."

Imagine as I have previously suggested some amendment that truly is beneficial to the people, but deleterious to say, selfish business interests. For lack of a more suitable scoundrel, let us say that Lucio Tan has bought off just seven of the Senators. If we insist it is always voting separately and that Congress can NEVER change that, well then, this amendment is doomed is it not?

Yet we have already examined the text and found no reason why, if the Senate, by a simple majority vote established a new rule that voting jointly is best for the country, then indeed why not?

It is purely democratic and purely within the powers granted by the Constitution to the Congress!

"What is not prohibited by the Constitution is allowed." -- Bernas

But agreeing with Bernas DOOMS the issue to adjudication by the SCoRP (read: GMA!)

baycas2 said...

I am also of the opinion that the Congress must thresh out problems and come to an agreement on its own. Why is there a need for interpretation (read: judicial review) when similar provision is already taken without ambiguity?

Most are in anticipation of the SCORP’s decision…but what will happen…which I certainly hope so…when a justiciable controversy fails to materialize? Then we’re back to where we started…this time, possibly, on the ConCon provision [a provision laden with the same elements (words/phrases) as the ConAss provision].

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

Better for the Congress…better for all of us.

Jun Bautista said...

Bicameralism is realized when both the Senate and House exercise their powers independently of the other, namely by voting separately. One can check the other's exercise of its powers. The two houses may sit in joint session, but as long as each retains its independent function bicameralism remains intact. The essence really lies in the power to vote separately. There is of course the danger of gridlock inherent in this as when neither House wants to give in to the other's actions, but this is the price we have to contend with in exchange for the benefits of bicameralism. In every system there is always the downside; it's just a question of which benefits do we value most.

I understand your position DJB that both the Senate and House can, following bicameral procedures, agree to adopt rules to govern their proceedings, but I just cannot agree that such discretion extends to suspending the natural functionality of Congress as a bicameral body, by agreeing to vote jointly in proposing charter changes. That discretion is simply not granted to Congress. They may agree to be in joint session even when not required by the Constitution, change the order of business in their proceedings, or adopt uniform rules of proceedings, but they cannot suspend bicameral procedures by voting jointly where no grant is given by the Constitution. Voting separately is the device by which bicameralism is realized that such goes into the very nature of Congress itself and therefore could not be a mere internal rule to which both houses may simply disregard whenever they see fit. The Constitution implicitly prohibits this by indicating the only instance where bicameralism may be suspended, to wit: exercise of commander-in-chief powers.

Now if Congress exercises a discretion not granted to it, is this not squarely grave abuse of discretion which in the words of the Constitution amounts to lack or excess of jurisdiction by which the SCORP becomes DUTY-bound to correct upon proper petition?

baycas2 said...

Fr. Bernas was quoted several times in the MSM and in this blog: “What is not prohibited (by the Constitution) is allowed.

And on April 27, 2009 he wrote: “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 and the true essence of bicameralism. What troubles me is that these could serve as mantra both for well-meaning individuals and for unscrupulous individuals. Confusion, as it is happening now, and possible mayhem may ensue this July.

Please allow me to propose the following (and erase in our minds the somehow contradiction brought about by Fr. Bernas’ statements):

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.

baycas2 said...

Rules...rules...I thought of it a while back in my discussion with lawyer Bencard here.

Lawyer Abe also blogged about it here. He recalled his old article where he wrote:

On December 5, 2006, the majority bloc in the Lower House, by the tyranny of numerical superiority, conveniently removed the aforesaid second clause in Section 105 of its Rules and passed House Resolution (H.R.) 1450 to convene a House-only constituent assembly for the purpose of proposing Charter changes sans the concurrence of the Senate “voting separately” as is required in enacting an ordinary bill. As intended, H.R. 1450 violates settled constitutional practices of a bicameral (or two-House) congress. Hence, the public outrage, rousing the theretofore abeyant Power.

Section 105 in 2006 is Section 140 in 2007. I have no hard copy of each of the House's current Rules but I contented myself with the ones available online.

I haven't given them much thought and actually abandon the idea when Bencard said:

btw, the house rules you quoted was adopted in November, 2007 by a different HOR. in any event, each house of congress has the power to determine its own rules – at any time – in the absence of a specific constitutional provision to the contrary. what it creates, it can change, modify, or destroy, for good reason that it itself determines.

Now, the Rules propped up again.

I always believe that as long as the bicamerality exists in any Congress' undertaking it is fairly constitutional. (Thus, my poem here.)

I even cited each House’s determination of its own rules of its proceedings (Art. VI, Sec. 16, Par. 3) but as lawyer Jun here said each of the House’s Rules is JUST “housekeeping” matter:

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.

I’ll just repeat what Bencard mentioned:

each house of congress has the power to determine its own rules – at any time – in the absence of a specific constitutional provision to the contrary. what it creates, it can change, modify, or destroy, for good reason that it itself determines.
(Emphasis mine.)

I will again abandon the idea as regards Rules (which are mere products of men and not the Constitution) in relation to the Voting Jointly or Separately.


This is the full quote of the paragraph in Fr. Bernas’ article:

The fundamental principle in all of this is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress. If prohibition there is, it can come either from the letter of the Constitution or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress.
(Emphasis mine.)

There really is prohibition of “voting jointly” on account of Article VI of the 1987 Constitution – The Bicameral Legislature!

Ding G. Gagelonia said...

Spot on Arrt. Jun.

baycas2 said...

This is a reply to Primer over at FV:

What is not prohibited (by the Constitution) is allowed.
- Fr. Bernas

I think Fr. Bernas already extricated himself by the same PDI article he wrote on April 27, 2009. This is the full quote of the paragraph in that masterful piece:

The fundamental principle in all of this is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress. If prohibition there is, it can come either from the letter of the Constitution or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress.
(Emphasis mine.)

There you have it, Article VI of the 1987 Constitution on the Bicameral Legislature we have PROHIBITS both Houses of the Congress to vote jointly.

Thus, in appreciating the meaning of:

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

…by employing 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.

…my hypothesis is that there is NO textual ambiguity in the aforementioned provision. Simply because “the Congress,” being divided, is immiscible (or cannot be added). Hence, no joint voting will take place (or, separate voting will definitely happen!).

To test this hypothesis is to consider (by comparing the Constitutional Amendment/Revision to like-worded provisions) ART. VI, Sec. 28, Par. 4 (Tax Exemption) and ART. VII, Sec. 19, Par. 2 (Amnesty) where:

all the Members of the Congress

…is contained.

There was NO AMBIGUITY appreciated because the Congress already voted separately in Tax Exemption (e.g., RA 9504) and is voting separately in Amnesty (e.g., Proclamation 1377).