Saturday, October 8, 2011


Joaquin G. Bernas, S.J.
The year 2009 was another year of varied attempts to achieve charter change. None succeeded. The last was the Lambino attempt to achieve change through initiative and referendum. The attempt was shot down for various reasons. First, the issue of whether there was an implementing law for charter change by initiative and referendum remained unsettled; second, even if there were an implementing law, the procedure followed was fatally defective; third and most important of all, the Lambino attempt was for a revision and not a simple amendment. Initiative and referendum can be allowed only for simple amendment and not for revision. (Incidentally, nobody seems to be thinking of initiative and referendum now.)
Another reason for the failure to achieve change was the fact that there was no agreement about the constitutional way of doing it. It was the tendency of those who studied constitutional law under the 1935 Constitution to think in terms of the amendatory process in that Constitution. Thus they tended to see a joint session of both Houses of Congress as the first necessary step towards attempting change. Understandably so, because the 1935 Constitution said “The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose.” They failed to see or ignored the fact that the 1987 Constitution is worded differently. It 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; or (2) A constitutional convention.”
The current text says nothing about the necessity of a joint session of both Houses. Understandably so, because the current text was drafted at a time when the Constitutional Commission working on the draft was still thinking in terms of a unicameral National Assembly for the Philippines. Hence the current text is an almost verbatim copy of the amendatory provision in the 1973 Constitution which had a unicameral Batasang Pambansa. The understanding was that the text would be adjusted should the Commission opt for a bicameral Congress. The Commission opted for a bicameral Congress, which we now have, but failed to make the adjustment. Hence we have a text which does not tell us explicitly whether Congress should be in joint session or should vote separately if in joint session.
It is clear, however, that the function of initiating constitutional change has been given by the Constitution not to the President nor to the judiciary but to Congress. Thus, it stands to reason that whatever gap there is in the constitutional text on the amendatory process is for Congress to fill.
Now there is growing acceptance of the proposition that Congress, when acting as a constituent assembly, need not be in joint session but may act the way it does in ordinary legislation (because the Constitution does not require a joint session); but if Congress decides to be in joint session (since the Constitution does not prohibit it), and if they do, they must vote separately (because it is the basic intent of having two houses that the wisdom of decisions be subjected to separate votes).
The current leaders of Congress have come to an agreement that the procedure to be followed will be through separate sessions voting by three fourth votes of all the members of each house as they are and where they are. The procedure will follow the ordinary legislative process of having a proposition approved in one House and passed on to the other for similar action. Will it work? Are we now on a sure path to charter change in 2011 or even 2012? Not really.
It is good to remember that the leadership of Congress is but a small percentage of the total membership of both Houses and that the House of Representatives can easily nullify the votes of the Senate. There are currently 285 Representatives and only 23 Senators. Even if the Senate should vote unanimously, a majority of the House can always go in the opposite direction.
There is another factor to consider. The thinking seems to be that the non-joint session process, which I call the “fourth mode” of change, can give “surgical change” a better chance; that is, the change can be limited to the economic provisions. But the “fourth mode” does not prevent anybody in either house from proposing other amendments. The ARMM situation, a high concern of Mindanao politicians, can be a very inviting subject for amendatory consideration, among others.
Another factor to consider is that the “fourth mode” of charter change can still be challenged before the Supreme Court even if only as a dilatory tactic. Although the Supreme Court has no authority to review the substance of proposed changes (except when contrary to jus cogens), it has authority to review the validity of the procedure being followed.
Finally, what about the supposed indifference of the President to constitutional change? Legally the President has no role in the amendatory process, neither on the process being followed nor on the substance being proposed. But politically he can influence the vote of his supporters in Congress.
Will we therefore have constitutional change this year? Your guess is as good or better than mine.
10 October 2011

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