Joint vote makes Senate irrelevant

The new and improved campaign of the ruling coalition to force a revision of the 1987 Constitution as soon as possible is based on the assumption that the supermajority in the House of Representatives (some 88 percent of the 292 seats) will overwhelm the members of the 23-person Senate on any issue because of the principle of joint voting. But this reading of the pertinent constitutional provisions does not only mock the spirit of the Constitution; it also poses a serious danger to the democratic project itself.

To be sure, the main provision related to the responsibility of the Senate and the House convened as a constituent assembly suggests, at first glance, that that reading is right. Article XVII, Section 1 provides that: “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; or 2) A constitutional convention.”

When the legislature converts itself into a constituent assembly, a three-quarters vote of all its members is the threshold for passing any amendment of or revision of the Constitution. If the reference to “Congress” were to be understood as meaning both the Senate and the House, then the much smaller assembly of senators, elected nationwide, each with the support of millions of voters, will be absorbed, and made irrelevant, in the much larger assembly of representatives, some of whom were elected into office with only tens of thousands of votes. This reading is absurd on its face, and even more absurd when studied closely, and in relation to other provisions in the Constitution.

It is a matter of public record, and indeed of history, that the framers of the 1987 Constitution originally contemplated a unicameral legislature, but belatedly decided on restoring the pre-martial-law system of a bicameral Congress: a Senate elected nationwide, a House of delegates representing geographical constituencies or marginalized sectors organized into party-list groups. As the eminent constitutionalist and former Supreme Court justice Vicente Mendoza has written: “… toward the closing days of its session, the [Constitutional] Commission decided to have a bicameral Congress instead. The draft articles on the legislative department and the executive department were amended to reflect this decision, but not the amendment clause.”

Thus, for instance, in Article VI, Section 23, the first subsection provides that Congress must vote separately “to declare the existence of a state of war.” In 2001, after Joseph Estrada’s ouster, President Gloria Arroyo nominated Sen. Teofisto Guingona Jr. to replace her as vice president—and Congress followed Article VII, Section 9 in voting separately to confirm Guingona.

There are a few more provisions in the Constitution that require the unusual condition of both chambers of Congress meeting jointly but voting separately. And indeed this is only to be expected; when the Constitution created two chambers of Congress, then the character of Congress must be entirely bicameral— even when the two meet as one. What is the point of requiring different qualifications and granting different responsibilities if, on the extraordinary occasions they are called together, senators and representatives are deemed as though these differences did not exist?

The spirit of checks and balance within the legislative branch of government, of a careful calibration between national and local constituencies, precedes, and must inform, the language of the Constitution itself. It is not only in the amendment clause that unicameralist language was left unchanged. In the martial law provisions, joint voting is also indicated, but already, on four occasions, Congress has followed the principle of separate voting despite meeting jointly: in 2009, and thrice in 2017 in support of President Duterte’s Proclamation No. 26.

The basic principle is the same: As Mendoza reminds us, “unless the two chambers vote separately, the senators can easily be outvoted by the larger number of representatives. This literal interpretation must perforce be rejected.”

Allowing joint voting would be a rejection of the spirit of the Constitution, the lessons of history, and the needs of a still-fragile democracy.