Commentary
Don’t we have a rigid Constitution anymore?
By: Vicente V. MendozaPhilippine Daily Inquirer
Leaders of Congress have reportedly proposed the amendment of the economic provisions of the Constitution through a procedure similar to that for passing laws, with the only difference that the proposed amendments or revisions will be submitted to the people for ratification in a plebiscite instead of the President for his approval. The proposed procedure is not only unwise but also contrary to the Constitution.
At the outset, let me say that it was only through oversight that those who drafted Article XVII of the Constitution failed to provide the procedure for amending the Constitution by Congress. However, there are enough reasons to believe that they intended the same procedure as that provided in the 1935 Constitution. Firstly, there was more or less an understanding in the Constitutional Commission that in the event a bicameral legislature won the day (in view of the intense debate on bicameralism vs. unicameralism), amendments or revisions proposed by Congress must be adopted in joint session with the two Houses voting separately. Secondly, throughout the deliberations of the ConCom, the assumption was that a National Assembly would be adopted. Hence, proposals were tailored for a unicameral legislature. Toward the close of its sessions, however, the ConCom voted for a bicameral Congress. There followed a rush to revise the draft constitution to provide that the two Houses of Congress should meet in joint session, with the vote of each House to be determined separately, whenever Congress is to perform non-legislative functions. This procedure is now found in the following provisions: (1) Art. VI, Sec. 23 (1) (to declare the existence of a state of war), (2) Art. VII, Sec. 9 (to confirm the President’s nomination of a Vice President in event of vacancy in that office during the term), (3) Art. VII, Sec. 11 (to determine whether the President, who has declared himself unable to discharge the functions of his office and later gives notice of his readiness to resume his functions but his Cabinet believes otherwise, is now fit to return to office), (4) Art. VII, Sec. 4, par. 4 (to canvass the votes for President and Vice President), and (5) Art. VII, Sec. 18 (to decide whether to revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus).
In all these cases, except when considering the proclamation of martial law or suspension of the privilege of the writ—in which case the two Houses vote jointly—the two Houses are required to meet in joint session with the two Houses voting separately. Through oversight, however, the drafters failed to revise Article XVII to reflect the decision to shift to a bicameral legislature. Nevertheless, that Congress must hold a joint session and vote with the two Houses voting separately when considering amendments to the Constitution may be inferred from Article XVII, Sec. 1 which states that “Congress (not each House) upon the vote of three-fourths of all its Members” may propose amendments or revisions to the Constitution. This means Congress as one constituent assembly.
If this special procedure is required to be observed by Congress in performing non-legislative functions, there is greater reason to believing that no less should be observed in amending or rewriting the fundamental law. In Marbury v. Madison, it was held that as a “superior paramount law, the Constitution is unchangeable by ordinary legislative acts.” That’s why the US Constitution is classified as a rigid constitution (as opposed to a flexible constitution). Our 1935 Constitution too was thus classified. To make it subject to change by the ordinary legislative method would make it no different from ordinary legislation. To paraphrase Chief Justice Marshall, we must never forget it’s a Constitution we are changing.
This must be kept in mind especially now that the economic provisions of the Constitution are being proposed to be changed. These provisions were originally adopted in the 1935 Constitution, then carried over to the 1973 and later reiterated in the present one, with modifications to strengthen the nationalistic spirit of the original document. If these provisions designed to place the national economy in the hands of Filipinos is to be liberalized, at the very least they must be fully discussed in a joint session of the two Houses. That any change will be by the vote of three fourths of all the members of each House voting separately and submitted to the people in a plebiscite will not suffice. What is needed is a joint session that will bring together the members of both Houses to debate the proposals. The give and take of such a discussion will be wholly missing if the members of each House keep to themselves. Any disagreements between the two Houses cannot be adequately considered in a bicameral conference committee as in ordinary lawmaking.
The lesson of the Parity Amendment, which for 27 years (1947-1974) gave Americans and corporations owned by them the same rights in regard to the “disposition, exploitation, and development, and utilization” of our natural resources and the operation of public utilities in this country, is too recent to be forgotten. Three opposition senators and eight congressmen, all belonging to the opposition, had to be excluded from their respective chambers, on some pretext to ensure approval of the resolution proposing the amendment. The present proposals will do away with the 60-40 equity requirement and other restrictions and give parity rights not only to Americans and their corporations but also to all foreigners for all time. If these proposals are to be presented to the people for approval, the people must at least be enlightened by a full discussion of the issues by their representatives in Congress in joint session assembled and acting separately only when voting.
Vicente V. Mendoza is a retired justice of the Supreme Court.
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