LAST January 2005, then Speaker Joe de Venecia was speaking of Charter change as if it was all over but the cheering. President Macapagal-Arroyo herself pronounced her incantation then that there should be Charter change by the middle of the year.
Almost three years later, the Charter change movement is still gasping for breath, but threateningly. In the coming months, the government entities to watch, aside from the House of Representatives itself, will be the Senate and the Supreme Court. And, of course, Malacańang, and also the Judicial and Bar Council.
True, within the House itself, there is resistance to the bulldozing moves of administration forces secretly bent on keeping GMA beyond 2010. But the administration has the prayerful support of Press Secretary Jesus Dureza, a GMA alter ego. But at the moment, the biggest obstacle to Charter change still seems to be the Senate, unless the Senate’s new majority is co-opted by the administration.
The Constitution says that Charter change can be initiated only by Congress. If the Senate refuses to participate, Charter change cannot be initiated. Congress has two houses and the act of only one house is not an act of Congress. If, under the Constitution, neither house may adjourn for more than three days without the consent of the other, with greater reason such an important move as initiating Charter change may be done by one house without the consent of the other.
Indeed, the Senate might decide to participate in a constituent assembly. Such fact alone, however, does not mean that the Senate has consented to Charter change. To consent means to approve a proposed change. And the Constitution says that this can be achieved only by a vote of three-fourths of all its members.
The administration forces do not seem to see it that way. Three years ago there were three different views on how to achieve the three-fourths vote while at the same time effectively dispensing with the need for Senate cooperation.
The computation of the required three-fourths vote will become the center of controversy in the coming months. The goal seems to be to achieve change in 2009 even as the goal of extension of terms is being vigorously but unconvincingly denied.
Three years ago the most liberal of the views for attaining the three-fourths vote was that of then Speaker Joe de Venecia. It was reported then that for the Speaker, even if only one senator should attend a joint session of a constituent assembly, there could be a valid proposal of amendment, provided that the number of votes approving the proposal should reach three-fourths of all the members of the House of Representatives and of the Senate added together. “Will you come into my parlor, said the spider to the fly.”
How the participation of one senator can be considered the participation of the whole Senate is beyond me. I wonder if JDV really holds this position, especially now that his fortunes have changed.
Another mode of computation which I understand might have been considered by some well-placed members of the judiciary was that the vote of a majority of the members of the Senate would suffice to make the proposal a proposal of the whole Congress. So far, however, I have not heard any justice whisper support for such a mode.
A third mode of computation is the strict mode. This is what I personally hold, namely, that the vote required is three-fourths of all the members of the Senate and three-fourths of all the members of the House taken separately. In support of this position is the fact that Congress is bicameral and a bicameral body votes separately.
When the Constitution wants the two houses to vote jointly, the Constitution says so. This it does when Congress is authorized to override a declaration of martial law. And even when Congress can act only in joint session, as it is the case when called to declare the existence of a state of war, the Constitution still commands that they vote separately. Similarly, under the 1935 Constitution, when Congress could propose amendments only if assembled in joint session, the Constitution commanded that they vote separately.
The reason for separate voting is simple: voting jointly, unless authorized as an exception by the Constitution, destroys the bicameral character of Congress. Thus, the silence of the constitutional text on the manner of voting must be interpreted in the light of the bicameral structure of Congress. Structural interpretation is one of the modes of constitutional construction.
Ultimately, however, all of this will have to be decided by the Supreme Court. At the moment we can only try to guess what winds are blowing in the Supreme Court. But it is important to note that seven justices will be retiring in 2009. The first will retire in January, the second in February, the next in April, and so on.
Recall that the decisions of the Supreme Court are final. But as Justice Jackson put it, “We are not final because we are infallible, we are infallible because we are final.” As Secretary Dureza reminds us, however, the final word on who sits in the Supreme Court belongs to the President.
It was not so under the 1935 Constitution when the final word belonged to the Commission on Appointments. Now, the only legal force that can control the President’s appointing authority is the Judicial and Bar Council (JBC). Unfortunately for the watching public, the JBC, contrary to the practice of other important bodies, insists on secret balloting in the choice of who to recommend to the President.
