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.