Friday, June 12, 2009

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.

24 comments:

Dean Jorge Bocobo said...

Jun,
Here we approach a subtle point. I'm not sure I entirely agree with your statement that: "Even when Congress is required by the Constitution to be in joint session separate voting is the rule." as being automatically applicable.

Indeed, even if the Congress is not meeting in joint session, could not the House and Senate approve Joint and Concurrent Resolutions that adopt as a rule "joint voting" whenever the Congress exercises constituent power.

The subtle point being that in order to adopt such a rule for chacha proposals, the Congress must vote separately as House and Senate first!

I think this is a necessary consequence of the unavoidable fact that the 1987 provision allows for either joint or separate voting modes to comply with the 3/4 majority rule.

Of course the Senate would not agree to that now. But it is not inconceivable or unconstitutional!

I guess the other point I feel very strongly about is that the Supreme Court really has no bidnez telling the Congress HOW it is to exercise constituent power, beyond the requirement to comply with the 3/4 rule. The so called ambiguity in the provision is entirely within Congress discretion to settle--bicamerally first.

Jun Bautista said...

Dean,

My view is simple, joint voting connotes joint session, but joint session does not necessarily mean joint voting, as obviously the Consti itself provides instances when separate voting is required even when Congress is in joint session. In fact, I mentioned in my post that joint session-separate voting is the rule, to which you disagree. This view is based on the fact that the only instance where the Consti requires joint session-joint voting is when Congress reviews martial law declaration or suspension of the privilege of the writ of HC.

You seem to be suggesting that joint voting can happen even if Congress is not in joint session. But each house must act as a body under the norms of bicameralism; each house must assemble, have a quorum, and proceed to do business independently of the other. Before Congressman Luis Villafuerte withdrew his cha-cha efforts, he was circulating a cha-cha resolution among congressmen and senators to gather the 3/4 votes. He was apparently of the view that even if both houses do not sit jointly acquiring the 3/4 vote by joint voting could be achieved. But the problem with this is that each house is a collegial body and as such acts in a collective way, and not through the separate acts of its members. Every measure that each house must carry should be considered by it as a body, instead of presenting it to each member directly as by circulating, say a joint and concurrent resolution for his/her signature.

I hope I have not missed the subtlety of the point you raised, otherwise please explain further.

BTW, Happy Independence Day!

rc said...

Dean,

Isn't the problem here that the constitution is ambiguous about how the word 'bi-cameral' is defined? It seems to me the authors added too much here...in mathematical terms, the problem has too many equations and not enough unknowns.

If they had never added this language in the first place, there would be no loophole to exploit...in that case, it would be clear that the congress must act as a bi-cameral institution on all matters...even those as weighty as changing the structure of the congress.

Interested to hear your thoughts.

Jun Bautista said...

rc,

While waiting for Dean's reply, allow me to share my view. The bicameral nature of Congress is clearly defined when it says in Art. VI that it is composed of the House and the Senate. The Consti also enumerates the instances when each House may act alone, such as when the Senate ratifies treaties or the House initiates impeachment proceedings. The issue got muddied with the concept of voting on proposed amendments, because the current Art. XVII, Sec. (1) did not use the phrase "voting separately" or "voting jointly."

rc said...

Jun,

You and I are in agreement. Great article, btw.

rc said...

Happy Independence Day Philippines!

foolishsociety said...

Sir Jun,

Would another body like, say, The Supreme Court or Senate, have its say or give a go signal for this "Con-Ass" move to go further?

Please excuse the question, I'm a 14 year-old trying to squeeze the matter into my brain. Though, you're post gave much enlightenment and its just what I need for my study on the current Charter Change issue.

Thank you very much. Hats off to you.

Jun Bautista said...

rc, thanks.

Jun Bautista said...

foolishsociety,

Hats off to you too for taking an interest in this issue at such a young age! Anyway, you may dispense with the "sir" and you raised a valid question.

The Senate indeed has a say on this matter, because as I have repeatedly pointed out, Congress is not only made up of the House, but of the Senate as well. But the way things are the House is disregarding the Senate, and because of that someone might just find a third party arbiter to solve the conflict, which is the Supreme Court. Before the Supreme Court could come in, however, there must be what lawyers call a "justiciable controversy," which means someone must've done an illegal act that caused an injury.

Interestingly, the House (although HR 1109 is being severely criticized and objected to) has not yet legally caused an injury to the Senate, because as one of the two chambers of Congress, the House can propose amendments in the same manner that the Senate can, because this is how bicameralism works. The real problem will come when, WITHOUT THE SENATE, the House will call a plebiscite to submit the proposed amendments it made. Here now will lie the injury (depriving the Senate of its con-ass power and violating the Constitution). The Supreme Court can be asked to stop this.

Jun Bautista said...

foolishsociety,

If I may add to what I just said, when the House opens session in July pro-con-ass congressmen said they will start acting as a con-ass pursuant to HR 1109 to consider amendments to the Constitution. They are apparently acting on the theory that all the members of Congress, congressmen and senators, have just been convened as one con-ass and it would be the fault of senators not to participate.

The Supreme Court might just take an activist stand to prevent the further escalation of the issue by entertaining a petition to prevent the pro-con-ass congressmen from proceeding on the ground that HR 1109 is not sufficient to convene all members of congress into a one body because the Senate has not concurred. An argument could be made that the proceeding is illegal and deprives the Senate of its con-ass prerogatives, hence justiciable controversy.

domingoarong said...

I think the reason why the House of Representatives is overly confident that it can “convene” without the Senate is the dispositive paragraph in HR 1109, which reads:

“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 AND THAT UPON ITS BEING
CONVENED SHALL ADOPT ITS RULES OF PROCEDURES THAT SHALL
GOVERN ITS PROCEEDINGS.”

Note the misleading line at the beginning--“THAT THE MEMBERS OF CONGRESS BE CONVENED.”

The subtle play of words is ingenious, since the power to propose any amendment to, or revision of, the Constitution under Sec. 1 of Article XVII is actually vested, NOT upon “the members of Congress,” nor upon the House of Representatives sitting alone for that matter, but upon “the Congress,” a bicameral, constitutionally consisting of a Senate and a House of Representatives.

But however worded, it is the source of the resolution itself--the House of Representatives--that betrays the utter invalidity of HR 1109 (and the sheer arrogance of its authors, I may add) to compel “the Congress” or even “the Members of Congress,” Senators included, to CONVENE.

For, allow me to repeat for the nth time--

The House of Representatives, the source of the HR 1109, is NOT “the Congress” the Constitution empowers to propose amendments to, or a revision of, its provisions; so, how can a mere resolution of one chamber alone, the House of Representatives, even if unanimously approved by ten times more House members than Senators, be regarded as that of “the Congress”?

And this is because I read the phrase “The Congress, upon a vote of three-fourths of all its Members” to consist of two segments, separated by the comma.

The first, “The Congress,” means that it is “the Congress,” as defined in Article VI, that is conferred the power to propose amendments to the Constitution.

The second, separated by a comma, “upon a vote of three-fourths of all its Members,” was added to specify the method of voting to be adopted. But before the vote (or any vote for that matter) can be taken, “the Congress” so empowered--in order to be authorized “to do business”--must first be convened by the Presiding Officers of each House (Senate President and Speaker) and a quorum of a majority of each House verified to be in attendance, with the roll of Members, as to be expected, called SEPARATELY for each House (even if the meeting is held in “joint session”).

And it is only after each House of “the Congress” has been convened “to do business” that the “vote of three-fourths of all [the] Members” of “the Congress” on the amendment proposal is to be tallied (as clearly worded, “of all its Members”), JOINTY.

(NOTE: For an overview of why there is another chamber, the Senate, the authors of HR 1109 should again read more closely The Federalist No. 62 (and 63) at http://thomas.loc.gov/home/histdox/fed_62.html)

baycas2 said...

"...because Congress does not vote jointly in granting tax exemption..."

Jun,

Back in 2006, I was already curious in Par. 4, Sec. 28, Art. VI of the 1987 Constitution. Can you give an example if ever there has been an instance that the Congress has granted tax exemption? How was the "majority of all the Members of the Congress" interpreted?

baycas2 said...

…Congress does not vote jointly…when it concurs in the grant of amnesty by the president…

Again, was there an instance when Sec. 19, Art.VII of the 1987 Constitution ("He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.") was already used?

How did they go about the process?

baycas2 said...

I already have an example re: Tax Exemption:

Republic Act 9504

This Act which is a consolidation of House Bill 3971 and Senate Bill No. 2293 was finally passed by the House of Representatives and the Senate on May 28, 2008 and May 27, 2008 respectively.

But the process is just like passing a law, i.e., both Houses voted separately. How does it conform to the required vote by “majority of all the Members of the Congress?” I guess it does, by “default” separate voting inherent to a bicameral legislature.

Can the process be similarly applied re: Proposal for Constitutional Amendment/s or Revision/s?

I guess the process may not be convincing enough to alter the Pro-ConAss’s conviction because it’s just like passing any other law.

…Let’s consider an example on Amnesty Grant by the president if ever there is one.

baycas2 said...

From the glimpse of how this 2007 amnesty –

Proclamation 1377

is being handled, the bicameral legislature (with both Houses voting separately) is in the works.

So, in two constitutional provisions where the vote from “all the members of the Congress” are involved, the Houses voted separately.

ALL THE MEMBERS OF THE CONGRESS

(1) Sec. 19, Art. VII. "He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress."

(2) Par. 1, Sec. 1, Art. XVII. "Any amendment to, or revision of, this Constitution may be proposed by the Congress, upon a vote of three-fourths of all its Members."

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

(4) Sec. 3, Art. XVII. “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.”


From a layman’s point of view, I believe that the other two provisions [Items No. (2) and No. (4) above] must follow the norm of separate voting in a bicameral legislature. The words “all the members” must not be taken literally as both Houses do business separately. Leaving out some words (e.g., “jointly” or “separately”) doesn’t alter the true meaning of the provisions. There is NO ambiguity.

The interpretation is actually a no-brainer to all lawmakers…UNLESS, of course, they have a sinister plot!

baycas2 said...

The equation as spelled out in Article VI of our Constitution (the bicameral nature of the Legislative Department):

The Congress = Senate + HOR (each House doing business separately)

-----

The Legislative Department = two collegial bodies each having two important functions.

Collegial bodies*:
(1) Senate
(2) HOR

Functions:
(1) to enact laws, the legislative function
(2) to propose amendments to the constitution, the constituent function

Or, to characterize or illustrate it in some other way (possibly visual and tactile)…

The Testicles = two friendly balls each having two important functions.

Friendly balls*:
(1) Right
(2) Left

Functions:
(1) to produce testosterone, responsible for male virility
(2) to produce sperm, responsible for male fertility

Of course, there is also a difference because the two collegial bodies of the legislature NEED each other to function UNLIKE the two friendly balls that can exist solitarily.

-- *The Senate was once located higher than the HOR but each of these bodies (and balls, for that matter) may actually be considered higher than the other depending on one’s perspective (or anatomy).

-----

Oh, how the Pro-ConAss’s wished they were The Testicles of a young man…

because The Testicles never cease to function even with a unilateral castration!

Jun Bautista said...

baycas2,

Thank you for supplying the instances on the grant of tax exemption and amnesty. Great research!

BTW, I enjoyed the testicles analogy. lol

Jun Bautista said...

domingoarong,

I couldn't agree more.

baycas2 said...

Leave out personalities and present situation aside…and then consider the wordings as you go back to the enumerated provisions here

In Summary A:

all the Members of the Congress” wasn’t taken in its literal meaning because the Congress means the bicameral legislature of the Senate and the HOR…each chamber doing its own business separately.

If they took the use of those words to mean a bicameral Congress in concurring Grants of Amnesty and in Tax Exemption, what prevents them to do the same in proposing Constitutional Amendments and in calling for a Constitutional Convention? Precedence is key, I believe.

In Summary B:

The use of the words “both Houses” has a tendency to add up the number of the Members of the Congress so the words “voting separately” is specified.

Remember also that on two occasions in the summary the Congress is in joint session: in declaring the existence of a state of war (1) and in canvassing the votes for president and vice-president (3). Does that imply also that in occasions (2), (4), and (5) both Houses are in joint session? I cannot give an educated guess right now.

In Summary C:

As I said, the Congress normally votes separately. “Voting jointly” has to be specified because the Congress will deviate from its normal procedure.

This C is almost identical to A because “all the Members of the Congress was used…and NOT “both Houses.” This time “voting jointly” was added obviously to veer away from the usual Congress’ path.

-----

Certainly, one must not take my word as legal truth. That’s just how I understood the whole thing considering that it left questions in my mind back in 2006. I found the answers now.

(Thanks to domingoarong who started doing the summary 3 years ago. You’re welcome, Jun.

Sorry, DJB, but this is a reply to Manong Bencard. I just can't post this at FV.)

domingoarong said...

Jun

Sec. 23 of Article VII provides:

“Section 23. The President shall address the Congress at the opening of its regular session …”

Arroyo will once again deliver the “State of the Nation” (SONA) address shortly.

Traditionally, “the Congress” will meet in “joint session” to hear the annual presidential speech before “members of Congress.”

Will "three-fourths of all the Members of Congress" be there?

Jun Bautista said...

baycas,

You had a very interesting exchange with bencard at FV. Keep the flame burning!

Jun Bautista said...

domingoarong,

Could you clarify your question? thanks.

domingoarong said...

Jun

What I was trying to convey was this: What if the Speaker of the HOR--after Arroyo’s SONA and before adjournment--immediately declare that “the Congress,” now in “joint session,” is already effectively convened to discuss proposals to amend the Constitution as provided in HR 1109 and immediately proceed to approve the said Resolution “upon a vote of three-fourths vote of all its Members”?

Jun Bautista said...

domingoarong,

To say that such a move will cause unrest is putting it mildly. The Senate, let alone the people, can never let such a ploy pass. Can it legally be done? Certainly not! First, a concurrent resolution (again to be approved by both houses) will be passed for both houses to convene to hear the president's message. Clearly there can be no other business that may be tackled and if there were - such as considering amendments - the reso must specifically say so. It goes without saying the Senate will not go along with this. Secondly, HR 1109 alone - which has already been rebuffed by a unanimous reso by the Senate - cannot be the basis for an additional business in the SONA.

Again, the purpose of the joint session in July is to hear the president's SONA and no other. After the president completes her message, the joint session will have achieved its purpose.