SPEAKER Prospero Nograles has proposed to call Congress to a constituent assembly for the sole purpose of recasting some economic provisions of the Constitution. Not only does he not have enough buyers for his proposal but he is even meeting rejection from almost every sector of society. In fact, he may also be imperiling his hold on the speakership.
I believe that there is good technical reason for opposing the proposal, at least from the side of those who do not want an amendment exercise before the current term ends. The good technical reason is that a constituent assembly, whether consisting of both houses of Congress or of a constitutional convention, is a peculiar sort of animal. Once it comes into existence and is convened, it takes on an independent life of its own. Nobody can limit the scope of what it wants to do.
Thus it is that, in the mind of many, including myself, any attempt at Charter change now, no matter how palatably served, will be looked upon as suspect. It will be seen as what spiritual writers call the cauda serpentina or the serpent’s tail, or what desert nomads would call the camel’s nose in the tent. The fear of many is that the initiation of any form of amendment will open up the floodgates for a total overhaul of the Constitution to favor those who, under the present structure, must relinquish their hold on power because of term limits. There is every indication that this is a well-founded fear.
Is there, however, a controlled way of amending the Charter? Put differently, is a “surgical change” possible? I believe there is. Even now, if the powers that be are really bent on ridding the Constitution of term limits or even on shifting to a parliamentary form of government, such change can already be initiated as early as now. Change can be initiated even without a constitutional convention or without Congress coming together in joint session as a constituent assembly. As I have argued in the past, this is so because of the way the current provision on constitutional change is worded.
The Constitution now 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.” Clearly, a constitutional convention is not needed. Congressional action is needed, but, unlike under the 1935 Constitution, Congress now is not required to be in joint session to be able to propose a revision or amendment. The two Houses have the option either of coming together in joint session or of deliberating separately as they are where they are as they do with ordinary legislation.
In other words, whether to act as two separate bodies or as one body is for Congress to decide. The issue of whether to have a joint session or not is a “political question” beyond the jurisdiction of courts. Thus either House can initiate a constitutional amendment bill or a constitutional revision bill, debate on it, and approve it by a vote of three-fourths of all the members and thereafter pass it on to the other house for similar deliberation and action. If approved by both houses, it can go to a plebiscite for ratification or rejection by the electorate.
The House of Representatives as a body, whether for good or bad motives, seems passionately bent on initiating Charter change. It need not wait for the Senate to agree to come to the House. It can formulate any change it wants now and thereafter send it to the Senate for action.
I must admit that the ultimate reading of the present amendatory text of the Constitution will eventually have to be settled by the Supreme Court. The process I have described can be a vehicle for approaching the Court.
Why won’t the House do this? There are at least two possible reasons. First, the members might not agree that Charter change can be done in the manner I have described. If that’s the case, that’s one idea down the drain. But I think the other reason is that the House wants a method whereby the Senate can be neutralized. As things stand now, whatever the House sends to the Senate according to the method I have proposed will most likely be unceremoniously archived. Hence the preferred method for the House would be a joint session that votes jointly where the senators will be drowned in a sea of House votes. No senator, or no honorable senator, will agree to that. So, how do we get out of this mess?
I am tempted to offer as solution what the Letter of St. Peter says in the liturgy for yesterday, the Second Sunday of Advent: “But the day of the Lord will come like a thief, and then the heavens will pass away with a mighty roar and the elements will be dissolved by fire, and the earth and everything done on it will be found out.”
It is probably not yet time for such a radical solution. Instead, in Isaiah, also in Sunday’s liturgy, there is a gentler solution: God speaks to the prophet saying: “Speak tenderly to Jerusalem.” There is just a chance that God might be speaking to the prophet in Malacańang saying, “Speak tenderly to your people in the House, and tell them to rein in their horses!”
