Speedy Cha-cha at the crossroad

The top congressional leaders, Senate President Aquilino Pimentel III, Senate Majority Leader Vicente Sotto III, House Speaker Pantaleon Alvarez and House Majority Leader Rodolfo Fariñas agreed a few days ago to discuss “specific models and proposals in the form of actual constitutional provisions [that] hopefully could muster the required number of votes” in each chamber, and, thereafter, to decide on the thorny issues of whether to meet and vote jointly or separately as a constituent assembly (Con-ass).

Speedy House Cha-cha. This agreement is contrary to the earlier stance of the senators that they would not take up Charter change (Cha-cha) at all unless those thorny issues are first resolved.

Recall that the Senate wanted separate sessions, separate voting and one year to finish the Cha-cha, with the plebiscite to coincide with the 2019 midterm elections. Toward this goal, Sen. Panfilo Lacson said the constitutional changes would be taken up as if they were ordinary legislation with the two chambers meeting and voting separately.

Worse, Sen. Bam Aquino asked the Senate to call for a constitutional convention (Con-con) instead of convening a Con-ass. His proposal received enthusiastic support from many constitutionalists and business groups.

However, to call a Con-con, the Constitution requires a “vote of two-thirds of all [the] Members” of Congress, a call that the House of Representatives is not likely to make. Without the House, the two-thirds vote would be impossible to obtain, whether jointly or separately.

On the other hand, the House wanted to fast-track the revisions in three months via the “vote of three-fourths of all the Members” of Congress, voting jointly, with the plebiscite to coincide with the barangay elections in May this year. In fact, it has started its speedy Cha-cha already, even daring to proceed with “House-only” revisions.

According to Alvarez, the constitutional text does not require either chamber “to convene” or “to vote separately.” Neither does it mention “constituent assembly.” All that the Charter says is: “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” and nothing more on this point.

Supreme Court’s role. I believe the Supreme Court cannot force the Senate to join the House in a Con-ass. Neither can it command the House to join the Senate in calling for a Con-con, because the power to propose constitutional changes is “discretionary.” Basic is the rule that the Supreme Court can command the performance only of “ministerial” duties, not of discretionary functions.

But, in a suit for prohibition filed at the proper time, the Supreme Court can rule on the difficult issues of joint or separate voting and of joint or separate sessions. The suit could ask the Court to bar the House from continuing with its “House-only” Cha-cha, or, later, to prohibit the Commission on Elections from conducting a plebiscite on the revisions.

And even if the House concedes to a separate session and separate voting, I think any member of Congress, or any taxpayer, may still sue in the Supreme Court to determine with finality these fundamental issues.

In fact, the suit can be brought even after the separate votes have been counted, to determine whether they could be added “jointly” to reach the required “three-fourths” vote.

However, the suit for declaratory relief (reported by Rappler) filed by lawyer Arturo de Castro may not prosper because the Supreme Court does not have jurisdiction over petitions for declaratory relief.

One final note: On the extreme, assuming that the Senate majority would still refuse to tackle the constitutional changes proposed by the House, the Supreme Court could still decide the validity of such changes especially if some senators attend the House sessions and participate in the deliberations on the proposed changes.

At bottom, the speedy Cha-cha train has reached a vital crossroad. As foretold in my column on Jan. 14 (“What Alvarez wants, Alvarez gets”), only the Supreme Court can direct the Cha-cha express which fork to take if it must maintain its blitz.

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