Onevoice Statement Of Legal Position - The Constituent Assemply Issue 2006

Annex “A” The Constituent Assembly Issue Statement of Legal Position of ONEVOICE By Christian S. Monsod, Chairman 1. Congress, as a constituent assembly, derives its authority from the Constitution and must thus be convened in accordance with its provisions. Under Article XVII, Section 1 of the 1987 Constitution, “[a]ny amendment to, or revision of, this Constitution may be proposed by: (1) the Congress, upon a vote of three-fourths of all its Members; or (2) a constitutional convention.” While Congress acting as a constituent assembly is a legislative body of the highest order,1 and is “endowed with extraordinary powers generally beyond the control of any department of the existing government,”2 it merely derives its authority from the fundamental law. Thus, Congress may propose amendments to the Constitution only because the Constitution explicitly grants such power.3 It is therefore well-settled that in exercising such power, Senators and Members of the House of Representatives, act not as members of Congress, but as component elements of a constituent assembly and derive their authority from the Constitution.4 Hence, in order to exercise the power to propose amendments to, or revisions of, the Constitution, Congress should not deviate from the requirements set forth in the Constitution, but act in conformity with it. 2. In calling all members of Congress to convene into a constituent assembly, House Resolution No. 197 violates the Constitution because while a joint session is not required, the Senate and the House of Representatives must vote separately. On 7 December 2006, the House of Representatives adopted Resolution No. 197 calling “x x x all Members of Congress, pursuant to Section 1, Article XVII of the Constitution, to propose amendments to, or revision of, the Constitution x x x beginning at ten o’clock in the morning of December 12, 2006 until the approval of particular amendments or revision of the Constitution for

1

Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), pp. 1302-1303. Tolentino v. Commission on Elections, 41 SCRA 702 (1971). 3 Gonzales v. Commission on Elections, 21 SCRA 837 (1967). 4 Id.; Tolentino v. Commission on Elections, 41 SCRA 702 (1971); In Re Subido, 35 SCRA 1 (1970); Sanidad v. Commission on Elections, 73 SCRA 333 (1976); Imbong v. Commission on Elections, 35 SCRA 28 (1970). 2

submission to the people for the purpose of ratification in accordance with Section 4, Article XVII of the Constitution.” It is submitted that Resolution No. 197, while ostensibly merely adopting the wording of Article XVII, Section 1 of the 1987 Constitution in calling for a constituent assembly, effectively adopts a system of joint voting for all the members of Congress (irrespective of whether they belong to the Senate or the House of Representatives), and is therefore in violation of the Constitution for the following reasons: First. The power to propose amendments is given to Congress which is not a unicameral body but a bicameral body.5 The power to propose amendments or revisions is a power that is shared by both bodies and neither can exercise that power alone. Second, As a constituent assembly, it is essential that both Houses vote separately because the meaning of a constitutional command can also be drawn from the known governmental structure set up by the Constitution.6 Third. The intent of the framers of the 1987 Constitution is that both Houses vote separately.7 The Records of the Constitutional Commission show that the general rule is that when the Constitution provides that Congress should vote, it means that both Houses vote separately; otherwise, the Senate will always be outnumbered and can be effectively absorbed by the House of Representatives, which would be contrary to the bicameral structure of Congress.8 The only exception to such rule is for revocation of a proclamation of Martial Law or suspension of the privilege of the writ of habeas corpus, in which case, the Constitution explicitly provides that Congress should vote jointly.9 In this regard, the Supreme Court has held that the "fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves."10 Fourth. The underlying reasons for adopting bicameralism apply with greater vigor in the case of Congress acting as a constituent assembly. The arguments for bicameralism are: “(1) an upper house is a body that looks at problems from the national perspective and thus serves as a check on the 5

Article VI, Section 1, 1987 Constitution provides that “The legislative power shall be vested in the Congress which shall consist of a Senate and a House of Representatives x x x.” 6 Bernas, supra note 1 at p. 1298. 7 I Record 375. 8 II Record 452, 493; III Record 699. 9 Article VII, Section 18, 1987 Constitution. 10 Concurring Opinion of Justice Puno in Arroyo v. House of Representatives Electoral Tribunal, 246 SCRA 384 (1995)

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.”11 Here, the three-fourths vote of the Senate as a separate body cannot be dispensed with for the above reasons, and because the ends and the means of the constituent assembly under Resolution No. 197 are one—a usurpation by the House of Representatives of the powers of the Senate and, if the proposed amendments are approved, the Executive Department and ultimately, the people. 3. Consequently, without the participation of the Senate and unless three-fourths vote of the Senate is obtained, there can be no valid proposals to amend or revise the Constitution. Anent the role of the Senate, Bernas presents two ways in which the Senate participates in the process of amendment or revision of the Constitution and offers his opinion on which is the better one, to wit: “One (which I prefer) I would call strict, and the other minimalist. Strict participation means that threefourths of the Senate should vote in favor of any proposed change. But a minimalist approach would say that if at least a majority of the Senate should vote in favor, the needed Senate participation would be satisfied. However, if separate voting is required—and I maintain it is—the minimalist approach would not satisfy the three-fourths language of the Constitution.”12 It is submitted that by maintaining the position that separate voting is required, it would not be sufficient even if individual Senators participate, for so long as the three-fourths vote of Senate is not obtained, then no proposals to amend or revise the Constitution will be valid. 4. However, it may be premature to seek judicial review prior to the filing of a petition with the Comelec praying for the scheduling of a plebiscite. Since Article XVII, Section 1 of the 1987 Constitution does not say anything about a joint session, each House may separately formulate amendments by a vote of three-fourths of all its members, and then pass it to the other house for a similar process. Any disagreements can be settled through a conference committee. Alternatively, Congress may decide to come together in joint session and vote separately on proposed amendments and revisions. Since the Constitution is silent about the method and since the amendatory process has been committed to Congress, under the “political questions” doctrine, Congress should be free to choose whichever method it prefers.13

11

Bernas, supra note 1 at p. 654. Bernas’ column, Philippine Daily Inquirer, 15 January 2006 13 Bernas, supra note 1 at p. 1298. 12

Thus, the Supreme Court may, at this point, exercise judicial restraint and simply allow the exhaustion of remedies within Congress.14 However, once the House of Representatives, acting as a constituent assembly, submits its proposed amendments to, or revision of, the Constitution to the Commission on Elections (Comelec) and prays for the conduct of a plebiscite, then such petition may be opposed on the grounds stated in Item 2. Should the Comelec decide to grant the petition and schedule a plebiscite, then such decision may be questioned before the Supreme Court and there would be no issue as to justiciability and ripeness for adjudication of the matter.

14

See Concurring and Dissenting Opinion of Justice Puno in Francisco v. The House of Representatives, 415 SCRA 44 (2003)