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Sounding Board
Constituent assembly in July?

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:40:00 06/22/2009

Filed Under: Charter change, Congress, Politics

CHANCES are that some members of the House of Representatives will push for the activation of the House as a constituent assembly. Of course, they have every right to do that. But not to worry. What the outcome will be is very much a matter of speculation. Let me join the speculation.

Clearly, a substantial number of members are seen as supportive of the idea of acting as a constituent assembly. But they do so for different reasons. Some think that it is the right thing to do for the country. God bless them! It is not clear how big their number is. Others, I am told, just want to be seen as supporting the idea so that their pork barrel allocation will not be withheld; but they will cast their votes on the side of the angels when reckoning day comes. What will Bayani Fernando say of them?

Assuming that a large majority of them really support Congress as a constituent assembly, it is not very clear what kind of constituent assembly they would like to be. There are those who believe that the House as a constituent assembly should not exclude the role of the Senate as a partner constituent assembly. As I recall, this was the position of Speaker Prospero Nograles when he supported what has been referred to as the ?fourth mode? of proposing amendments. He was not alone in supporting that position, but now it is not clear to me if that is still the Speaker?s position. He seems to look beleaguered every time he appears on television.

There are also those whom I would call the ?1109 purists? who believe that the House can go it without the Senate and will indeed go it without the Senate.

Whether they are ?fourth mode? adherents or ?1109 purists,? they are one in their desire to get the Supreme Court involved as legitimizing agent of how they want to proceed. The Supreme Court has just reiterated what every law freshman should know, namely that the Court will get involved only when there is an actual controversy involving conflict of rights. What will it take to get the Supreme Court involved after Congress convenes in July? It will not be easy.

I begin with the ?fourth mode? adherents. If some time after the House resumes session it should succeed in approving a proposed amendment by a vote of three-fourths of all the members, and thereafter pass their approved proposal to the Senate, will there already be a justiciable controversy? Will anybody now be able to go to Court to challenge the legality of the ?fourth mode?? I do not think so. Nobody?s right will have been violated. The ?fourth mode? will be completed and be ripe for Court action only if the Senate acts on the proposal by accepting it and joining the House in scheduling it for a plebiscite. Those who do not accept the ?fourth mode,? because they believe that every proposed amendment must be deliberated on in joint session, can then already challenge the constitutionality of the ?fourth mode.?

But if the Senate rejects the House proposal, the proposal will be dead in the water. Or if the Senate refuses to act on the proposal and simply archives it, there will be no ?fourth mode? to bring to the Court. Nor can the Court compel the Senate to act. So separation of powers dictates.

What about the ?1109 purists?? What must they do to get the Court involved?

Those whom I call the ?1109 purists? do not deny that even if the Senate does not participate they still have to obtain a three-fourths majority of the sum of all the House members and Senate members. They agree that the Constitution requires three-fourths of all the members of Congress. On the basis of their theory, and assuming that there are 270 members of the House and 24 senators, three-fourths of the sum would mean roughly 220 votes consisting of House members and perhaps a smattering of stray senators. That would be the number needed under the ?1109 purists? theory to approve a proposed amendment.

The betting in gambling circles, however, is that the odds are 10 to 1 against reaching that number. In such a situation again there will be nothing to bring to the Supreme Court. Congress itself will have solved its own problem.

But of course, as in Iran, miracles can happen. And if 220 or so votes are garnered and a plebiscite on a proposal is called, the Supreme Court will be asked to perform a legitimizing miracle.

In the light of all these and if my speculations make any sense, what is the relevance of the rallies and other movements opposing Con-ass? It would seem that the Con-ass problem can be solved as a simple numbers game in Congress itself.

I do not agree with those who say that rallies are nothing but useless noise. They are noise, indeed, but of the type which can invade the consciousness of men and women in Congress who are still deliberating whether to be honorable or to be practical. And I believe that there is enough honor in the House that can overcome reckless adventurism even at the cost of their share in the pork barrel.

There is talk now of the possibility that some 1109 diehards might try to waylay the joint session assembled to listen to the State of the Nation Address and try to force it into a constituent assembly session. That would be the height of insolence, a slap on the face of the Senate and of the people. And it would be a clear sign of desperation.

Finally, I am not against amendment or against a constituent assembly as such. It is just that, with all due respect, I cannot entrust constitutional revision to the majority of the present crop of House members.

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