This Animal Called Con-Ass

I know, the discussions on Charter change (cha-cha) and constituent assembly (con-ass) have already flooded the Philippine blogosphere, not to mention the internet as a whole and the print media, that to write more about them seems like stuffing more food into an already satiated stomach. But since the country has already been thrown into a continuous national debate on these subjects, and there appears to be no letup in the discussion, I am disposed to put more thoughts into what this con-ass is all about.

As far as our basic law is concerned, the word con-ass only appears in the 1899 Constitution or the Malolos Constitution. Under Title XIII, Articles 89 and 90 of this Constitution, whenever the Assembly (our then unicameral legislature) proposes amendments to the Constitution, the President shall dissolve the Assembly and assemble a con-ass. In subsequent Constitutions - 1935, 1973, 1986 - including the present, the word con-ass is no longer mentioned. This, however, does not necessarily mean the con-ass has been done away with.

A con-ass simply refers to a body with the power to frame, draft or amend a constitution. Thus, although no longer using this term, Constitutions subsequent to the Malolos Constitution still provided for a con-ass, which is either the legislature or a constitutional convention, with the exception of the 1986 Freedom Constitution which provided for a Constitutional Commission.

Our legislature, from the past to the present, has been granted two important functions: (1) to enact laws, which is the legislative function and (2) to propose amendments to the constitution or the constituent function. Notably, under the 1973 and present Constitutions, the legislature may perform its con-ass function by simply proposing amendments to the Constitution when their similar provisions state that any amendment to, or revision, of the Constitution may be proposed by the legislature (National Assembly [under Art. XVI, Sec. 1(1), 1973 Constitution] and Congress [under Art. XVII, Sec. 1(1), 1987 Constitution]) upon a three-fourths vote of all its members. As observed by constitutional law expert Fr. Joaquin Bernas and echoed here already in a recent posting by Dean Jorge Bacobo, Congress is already a con-ass by virtue of Art. XVII, Sec. 1(1). Under the 1935 Constitution, Congress (which was also bicameral) must convene in joint session to be able to exercise its con-ass function. Even then, the Constitution expressly mandates that voting should be done separately by the Senate and House of Representatives. Also, under the Malolos Constitution, the President will have to dissolve the legislature and convoke a con-ass.

In other words, under the present Constitution, everytime Congress proposes amendments to the Constitution it switches to its con-ass function from its legislative function. Therefore, the passage of a resolution convening Congress into a con-ass, such as HR 1109, is unnecessary; a surplusage if you will. The only conceivable use of HR 1109 is to convene Congress in joint session for the Constitution itself makes it a con-ass everytime it proposes charter amendments.

Should Congress elect to perform its con-ass function, instead of passing the same to a constitutional convention, Fr. Bernas opines that this could be done under the normal legislative route, to wit: either house proposes amendments, debates on and approves them, and transmits the same to the other house for its similar consideration, which could either approve them in toto or with modification. In case of modification the differences will be reconciled in a bicameral conference. The proposed amendments from one house could also be disapproved or what amounts to the same thing by not acting on them. Whenever Congress assumes this function, the only difference from its legislative function is that the measures will have to be approved by a three-fourths vote and once carried, the proposals, instead of going to the President for approval, will go to the people in a plebiscite. Recall that House Speaker Prospero Nograles's HR 737, which proposes amendments to the Constitution's economic provisions, would have taken this route had the House pursued it instead of HR 1109.

But there is nothing that prevents Congress from acting in joint session whenever it performs its con-ass function. Although unlike the 1935 Constitution the present Charter does not require Congress to be in joint session, there is also nothing under Art. XVII that prevents Congress from doing this. The matter is entirely discretionary. The more contentious issue, however, is the manner of voting if and when Congress performs its con-ass function in joint session. HR 1109 congressmen insist that voting should be joint because with the non-inclusion in Art. XVII, Sec. 1(1), 1987 Constitution, of the phrase "voting separately," which is expressly required under the 1935 Constitution whenever Congress sits in joint session to propose Charter changes, the implication is that Congress is to vote without distinction between senators and congressmen. They further argue that unlike the 1935 Constitution which says "three-fourths vote of all the Members of the Senate and the House of Representatives," the present Charter merely states "three-fourths vote of all its [Congress] members" in mentioning the voting requirement.

Comparing the 1935 (Art. XV, Sec. 1) and 1987 (Art. XVII, Sec. 1(1)) provisions on constitutional amendments, one would readily see that in the former Congress must convene in joint session, while in the latter there is no such requirement. Since under the 1935 Constitution, Congress is required to be in joint session we find the phrase "voting separately" to affirm and ensure the bicameral nature of Congress. At present there is no need to include such phrase because there is no requirement for a joint session; as already mentioned Congress can become a con-ass through the normal legislative route. The same reason holds true why under the 1935 Constitution the Senate and the House were expressly metioned while under the present Charter only members of Congress is used, as regards the required votes. The fact that the present Charter uses the phrase "upon a three-fourths vote of all its Members" does not necessarily mean joint voting is required, because Congress does not vote jointly in granting tax exemption and when it concurs in the grant of amnesty by the president, and yet the Constitution states that such acts must be approved by a "majority of all the Members of the Congress."

Even when Congress is required by the Constitution to be in joint session separate voting is the rule. In Art. VI, Sec. 23, to declare a state of war, Congress must assemble in joint session and vote separately. In Art. VII, Sec. 4, Congress must be in joint session to canvass the votes for president and vice president and whenever two or more candidates shall have the equal and highest number of votes, separate voting is required to break the tie. Only when Congress, which must be in joint session, revokes or extends the declaration of martial law and suspension of the privilege of the writ of habeas corpus that joint voting is required.

If it weren't for the ulterior motives behind the moves to amend the Constitution and the flagrant disregard by the House of the firmly established principles of bicameralism, maybe there won't be so much noise and objections to amend the Constitution. It has been conceded already by experts that our present Constitution, perhaps driven by the desire to immediately draft a basic law that will address the needs of the country after just being freed from the shackles of authoritarianism, suffers from some defects and shortcomings that must clearly be addressed. Nonetheless, a sensible interpretation of the Constitution is still possible that will prevent us from falling on the precipice of national crisis.