Cha-cha amid pandemic and before elections

The Senate committee on constitutional amendments, chaired by Sen. Francis Pangilinan, discussed last week problems of changing the Constitution at this time. I will discuss the committee’s questions in the order they were posed.

Is there a need to amend or revise the 1987 Constitution now, given the COVID-19 pandemic and economic downturn and the national and local elections in May 2022? I do not think this is the time to amend the Constitution whether to liberalize restrictive economic provisions or to abolish the party list system or to do both. The threat posed by the pandemic, which already has claimed the lives of more than 10,000 of our people, and the need to campaign for good government, voter education and free, honest, and credible elections, which are just 15 months away, do not allow for time, study and reflection needed for Charter change.

Proposed amendments will have to be submitted to the people for ratification between 60 and 90 days after their adoption. If the plebiscite is held together with the elections in May of next year as proposed in some quarters, it is not hard to see how complicated our problem can become. Not to be discounted is the hazard of a runaway constituent assembly or constitutional convention proposing term extension and other amendments for election purposes.

Should the amendments or revision of the Constitution be proposed by constitutional convention or by Congress acting as a constituent assembly?Historically, the constitutional convention (con-con) method has been used in adopting constitutions, and the constituent assembly (con-ass) method in adopting amendments. The con-con method was used in adopting the 1935 Constitution of the Commonwealth of the Philippines, which eventually became the Constitution of the Republic of the Philippines, the 1973 Constitution, and the present Constitution, following the 1986 People Power Revolution.

On the other hand, we used the con-ass method in 1940 to change the term of office of the President and Vice President from six years to four years with reelection, to replace the unicameral National Assembly with a bicameral Congress and create a CSC, Comelec, and GAO, and in 1947 to grant parity rights to American citizens and corporations in the exploration, development, use, and utilization of natural resources and the operation of public utilities.

Employing the con-ass method to propose amendments in question would thus be consistent with precedent, not to mention that a con-ass is less expensive to hold than a con-con, which requires the election of delegates.

If Congress convenes as a con-ass, should the Senate and the House of Representatives vote jointly or separately? There is actually another question in convening a con-ass: Whether the two Houses of Congress must sit in joint session or separately, aside from the question of whether they should vote jointly or separately. Article XVII, Section 1 of the Constitution gives no answers to these questions. It simply states that “Any amendment to, or revision of, this Constitution may be proposed by…. Congress, upon a vote of three-fourths of all its Members.”

This is because the draft Constitution, of which this Clause is a part, originally provided for a unicameral National Assembly. However, toward the end of its sessions, the constitutional commission decided to have a bicameral Congress. Accordingly, the draft Constitution was amended, except however the Amendment Clause and the provision on the Judicial and Bar Council. This appears, however, to be due to oversight, because Commissioner Jose Suarez, the chair of the Committee on Amendments and Transitory Provisions, is on record as saying that should a bicameral legislative body be adopted, the phrase “IN JOINT SESSION ASSEMBLED” would be included in referring to Congress in the Amendment Clause.

Hence, when Congress sits as a con-ass, the two Houses must sit in joint session but vote separately. In joint session, because, the “Senators and Members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly” (Gonzales v. Comelec, 1967; Tolentino v. Comelec, 1971). The two Houses must vote separately, because otherwise the Senate, with only 24 members, can easily be outvoted by the more than 290-member House of Representatives.

Indeed, in the following cases Congress is required to meet in joint session but vote separately:

• To declare the “existence of a state of war.” (Art. VI, Sec. 23 (1))

• To canvass the votes for President and Vice President and proclaim the winners and, in case of a tie, to break the tie. (Art. VII, Sec. 4)

• To revoke the President’s declaration of martial law or suspension of the privilege of the writ of habeas corpus or extend its period. (Art. VII, Sec.18)

• To confirm the President’s nomination of a Vice President, whenever a vacancy occurs in the office during the term of the Vice President. (Art. VII, Sec. 9)

• To decide a dispute between the President and his Cabinet if, after having been declared unable to discharge the duties of his office, the President claims to be fit to assume office but a majority of his Cabinet disagrees. (Art. VII, Sec. 11)

There is no reason why Congress must not be required to do the same in amending or revising the Constitution. To argue that Congress can do so in the same way as in passing bills is to forget that the Constitution is not an ordinary law but “a superior paramount law… unchangeable by ordinary legislative acts.” (Marbury v. Madison, 1803)

There is indeed much to be gained by having senators and representatives meet and discuss matters together in changing the Constitution.

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Vicente V. Mendoza is a retired associate justice of the Supreme Court.