1986 Con-com bequeathed conundrum in amending the Constitution

WILL the Philippine Republic survive the torment of watching the two houses of Congress individually conven- ing as a “constituent assembly” in amending the 1987 Constitution?

As important, should the Republic suffer the warnings of President Duterte that the nation will face war if Congress does not approve the Bangsamoro Basic Law (BBL) and pave the way for a shift to a federal system of government?

You could get sick trying to digest all this in one sitting. I know some people who have already given up on the entire business of Charter change in exasperation over what is happening. Congress members are on stage, we citizens are the spectators. Why do we have to watch all the craziness and self-seeking?

On the conviction that we cannot leave such an important issue as Charter change to the sole discretion of legislators, I have persevered in my research to gain better understanding of 1) why we always end up in a straitjacket whenever the idea of amending the Constitution comes up; and 2) how we should sensibly proceed in any serious effort to amend or improve the Charter.

I have found a few answers, and I would like to share some of them here.

Factions oppose Charter change

First, there are various factions in the country that oppose Charter change, even just the idea of amending the Charter.

Foremost among these are the surviving members of the 1986 Constitutional Commission, who were appointed or hand-picked by President Corazon Aquino to write the new and eventual 1987 Constitution; the members of the Liberal Party and the political opposition today; and the remaining forces of the two Aquino administrations or the Yellow Cult as some have described them.

Former Supreme Court chief justice Hilario Davide epitomizes this opposition. They oppose any move to amend or revise the Charter, no matter how limited.

Like Cory Aquino, veterans of the Aquino administration and Liberal Party members harbor proprietary rights over the Constitution. And they derive some 31 years, their faction has successfully fended off all attempts to amend the Charter.

They are now moving to thwart Charter change under the Duterte administration.

Reactionary Senate

Ironically, the Senate, a key part of Congress, has carelessly morphed into a reactionary faction that sternly opposes Charter change.

The republic’s senators are troubled by the numerical superiority of the House of Representatives, which in a constituent assembly (con-ass) could reduce them to shift in systems, from presidential to parliamentary, or a shift in structure, from unitary to federal, the Senate could be written away.

As a consequence, the Senate, largely on the motion of Sen. Panfilo Lacson, has moved to constitute itself as constituent assembly by its lonesome. It aims to stop Charter change dead on its tracks. Some, like Lacson, have threatened with expulsion senators who lend support or attend the sessions of the lower House as a constituent assembly.

How will Lacson justify convening the Senate as a constituent assembly before the Supreme Court? Will Chief Justice Sereno support this novel reading of the Charter?

Con- com is to blame for confusion

In a series of columns and opinions written in 1999, Rev. Joaquin Bernas, S. J, provided the whys and wherefores for the frequent confusion and controversy whenever there is a move to amend the 1987 Constitution. The columns and opinions can be found in the book,

by Jaoquin C. Bernas ( Ateneo de Manila University Press, Quezon City, 2003).

On his own avowal and while himself a member of the 1986 Constitutional Commission, Bernas contends that the commission must bear most of the responsibility for the confusion and circus that now envelops the plan of Congress to convene as a constituent assembly to revise or amend the Constitution. It left behind a problematic provision concerning the procedure for amending the Charter. The procedure is not clearly spelled out. It is unclear on the procedure for calling a constitutional convention. It is even more unclear on the procedure for Congress to convene as a constituent assembly.

Bernas writes: “Article XVIII says: ‘any amendment to, or revision of, this constitution, may be proposed by (1) the Congress, upon a vote of three-fourths of all its members.)’ This empowers Congress to act as a constituent assembly. But when acting as such, must the two houses come together in joint session? And if they do, should they vote jointly or separately?”

Joint voting is the constant rule whenever a vote is called for. It is the logical rule for a bicameral system that requires dual decision. There is only one instance when the Constitution prescribes a joint vote: when voting to revoke or extend martial law.

Senators, past and present, have opposed joint voting because a unanimous vote of the Senate can be wiped out by a contrary vote by the House. The decision that would come out, for all intents and purposes, will be the decision of the House of Representatives and not of the bicameral body.

High court should rule on procedure

The prospect of 24 senators being drowned by an avalanche of representatives is what impels the republic’s senators to avoid a constituent assembly of both houses, and to oppose joint voting by the bicameral Congress.

It has been suggested by Bernas that the Charter could be amended through a “constitutional amendment bill” that embodies the ideas of constitutional reform of the administration and of individual legislators. The bill can then be processed by both houses of congress like a normal piece of legislation. If the bill is passed, the amendment must then be presented to the people in a plebiscite

Is such a procedure constitutionally correct? Bernas says it is. But he also suggests that it will be better if the Supreme Court makes a correct reading of the Constitution.

He wrote: “The Constitution means what the Supreme Court says it means, whether you like it out is by creating a situation which will enable the Court to tackle and resolve the issue.”

I submit that the hour has arrived to submit the issue to the high court for resolution. As Bernas says: “Until this matter of pro Supreme Court, we will continue to debate about procedure before we can get to substance.”

I will turn to the matter of substance in my next column.