Wednesday, June 3, 2009

The Congress Already IS a Constituent Assembly


Surprise, surprise!  Lawyer  Oliver Lozano  has just filed a case with the Supreme Court of the Philippines (SCoRP) over House Resolution 1109.  In a taxpayer suit, he states that, 

“The railroaded HR 1109 is unconstitutional or bogus for deviation from the prescribed procedures to amend the Constitution by excluding the Senate of the Philippines from the complete process of proposing amendments to the Constitution and for lack of thorough debates and consultations.”

The garbled heart of the assailed House Resolution No. 1109 approved just last night in a familiar marathon session states:


In effect all H.Res.1109 does is express the sense of the House that the Congress ought to convene into a Constituent Assembly and adopt some Rules for proposing changes to the charter.

Indeed, the House leadership has said it would forward H.Res.1109 to the Senate for its approval and adoption, and the possible promulgation of a Joint and Concurrent Resolution convening the Congress into a Constituent Assembly.

TRULY, the hardest thing for human beings to see, is what is right in front of their eyes. I must thank Fr. Joaquin Bernas for the title of this post, since it is a direct quotation of something he just said to Tony Velasquez on the early evening news. Fr. Bernas could not have produced a more pertinent and succinct translation of the controversial 1987 provision which states

ART. 17 Sec. 1. Any amendment to or revision of this Constitution may be proposed by the Congress, upon a vote of three fourths of all its Members.

It ought to be obvious, though it is not to most, that because the Congress can propose amendments or revisions right now, it is in fact already convened as a Constituent Assembly. Moreover the present House and Senate Rules merely stipulate that any such proposed amendment or revision undergoes the normal process of passing legislation, i.e., with both House and Senate approving the same using a three fourths majority rule, as required by the Constitution.  

Of course, for a mere House Resolution to be disdainfully silly and superfluous does not make it unconstitutional.  Indeed it does not appear that Oliver Lozano's suit can prosper and will probably meet the same fate as that of an almost identical suit by Rep. Adam Relson Jala which the Supreme Court dismissed as premature last October saying: 

The Supreme Court recently dismissed on the ground of prematurity a petition filed by a member of the House of Representatives urging the Court to direct the House to validate joint voting of the members of the Congress, acting as a constituent assembly, in adopting amendments to or revision of the Constitution.

In a one-page minute resolution, the Court En Banc dismissed the petition for certiorari, prohibition, and/or mandamus filed by Congressman Adam Relson L. Jala of the 3rd District of Bohol against the House of Representatives, challenging the constitutionality of the Rule XX, Section 140 of the Rules of the House of Representatives which deals with the procedure to be followed by the House as regards proposals to amend or revise the Constitution.

On August 13, 2008, Jala has filed House Resolution No. 730 “TO CONSTITUTE THE SENATE AND THE HOUSE OF REPRESENTATIVES INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF DRAFTING AND PROPOSING AMENDMENTS TO, OR REVISION OF, THE 1987 CONSTITUTION PARTICULARLY TO ESTABLISH A UNICAMERAL CONGRESS.” The Resolution underwent first reading on August 26, 2008 in accordance with the foregoing House Rules. Jala contended that the adoption of the rules and the filing of the resolution fulfilled the requisites for the ripeness and maturity of his petition.

In his petition, Jala also alleged that the assailed provision of the House Rules, which states that “the adoption of resolutions proposing amendments to or revision of the Constitution shall follow the procedure for the enactment of bills,” is violative of the Constitution as the provision requires three-fourths (3/4) votes of all the members of the Congress, voting separately.

Jala maintained that the plain language of the Constitution “only requires three-fourths vote of all the Members of the Congress to adopt the said proposals or revisions as a constituent assembly. This means that the Constitution simply requires a JOINT VOTING.”

Jala contended in acting as a constituent assembly, the bicameral nature of the legislature would no longer apply because it would not be exercising its ordinary legislative powers anymore. He added that to interpret the constitutional provision on amendments and revisions in the context of a bicameral body would be unwarranted, as the power to act as a constituent assembly is a constitutional grant and, as such, “must be strictly construed in accordance with the constitutional provision granting such power and may not be interpreted using principles outside the scope of the constitutional provision itself."

Jala therefore prayed that Rule XX, Section 140 of the Rules of the House of Representatives adopted on November 20, 2007 be declared unconstitutional, and that “the Court issue an order directing the House of Representatives that House Resolution No. 730 proceed under Article XVII of the Constitution, validating joint voting in adopting resolutions proposing amendments to or revisions of the Constitution.” (Min. Res. GR No. 184426 , Jala v. House of Representatives, October 7, 2008)

Most likely it will. Until a number of Members of Congress, equalling three fourths or more of the 299 that the SCoRP decided is contained within the Congress (Banat v. Comelec) actually propose a revision or amendment without both House and Senate concurring separately, I do not see anyone committing or proposing to commit a violation of the Constitution.

Moreover, SCORP cannot rule on a hypothetical set of Rules not yet specified or adopted by a hypothetical Constituent Assembly that has not yet been established by the Congress, has not been convened, and may never be.  And is not in the present Budget for funding.

Indeed, the same Rules of the House of Representatives that Jala sought to invalidate as unconstitutional, are plainly in compliance with the Constitution and have been duly adopted by the House and Senate, voting separately as every Bicameral Legislature does. 

I predict another SCORP Minute Resolution dismissing the latest Oliver Lozano gimick-suit for PREMATURITY.


Jun Bautista said...

Yes, indeed there is no longer a need for a formal declaration for congress to be constituted into a constituent assembly following the astute observation of Fr. Bernas. Every time congress proposes amendments to the Constitution it assumes such function, but the crucial questions are: will that assembly (when congress functions to propose constitutional amendments) act in joint session or not, and if so, will both Houses vote jointly or separately? The cha-cha proponents see these as crucial because if they act in joint session, they will force the issue on voting jointly or separately. And they are enamored with the idea of joint voting for tactical reasons: to outvote senators. I believe, however, the majority is still in a quandary on how to force this ultimate issue, given Senate's refusal to join the House.

Dean Jorge Bocobo said...

IF the Congress decides it wants to convene in Joint Session, it must pass a Joint and Concurrent Resolution (by simple majority votes in the separate Houses of Congress) to do so.

If and when a Con-Ass is formally established by the Congress, it can adopt a Rule that when the Con Ass proposes changes for ratification by the People, it will do so either without distinction as to being a Senator or a House Member, OR, as in fact the Congress has done since 1987, that such proposals must still be approved separately by the Senators sitting as body, and the House Members sitting as a body.

EITHER Rule may validly and constitutionally be adopted by The Congress as it deems fit.

BUT the adoption of either rule can only be done in the usual way that the Congress adopts its Rules: by voting separately on Senate and House Rules!

Thus even if 1987 empowers the Congress to use EITHER joint or separate voting, the adoption of such a Rule can only be done by the axiomatic or canonical method that is inherent to a bicameral legislature.

Thanks for raising it, this is a subtle point.

Anonymous said...

hey dean, nice makeover huh?

i like the democracy is morality thing.

by removing the first iraq thingy, does that mean you are abandoning your neo-con ideology too?

Jun Bautista said...

I agree, it is a nice makeover. Anyway, indeed whether Congress sits in joint session or not, the voting will still have to be done separately given the dual structure of Congress. The Constitution explicitly states the instances when both Houses must vote jointly, and proposing amendments to the Constitution is not one of them. This is why I am not really worried about HR 1109 by itself, because as most agree, a Senate action is necessary for Senate to convene jointly with the House.

To me the real intention is for a joint session under the nomenclature con-ass, because only then can the majority in the House force the issue on the methodology of voting. But since the Senate opposes this, the House could just proceed with cha-cha proposals and submit them to a plebiscite sans the Senate. This will clearly create a justiciable controversy, but given the storm of public outrage vs. cha-cha, this could be a suicidal move, aside from not standing any chance of success before the SC.

Anonymous said...


there are only three shades in morality: black, white and the gray areas. democracy is basically gray. or how constituents will want the color to be.

i don't get your contrived syllogism, unless you just want to roil debate again on religion, as you are wont to.

or should not democray be about tolerance? which should include your views against theology.

further, where's the alternative to fb you plan to come up with. can't wait.