Con-ass: convene, discuss, and vote separately

Congress has taken it upon itself to amend the Constitution. To approve the amendments and recommend their ratification in a plebiscite, should Congress (1) convene, (2) discuss and debate, and/or (3) vote jointly or separately? My short answer is “separately” in all these three acts.

After hearing various resource persons and thereafter voting, 64-3-3, the House Committee on Constitutional Amendments asked the plenary of the House of Representatives to approve the “Resolution of Both Houses (RBH) No. 2.” In so doing, it likewise answered “separately.”

This resolution, sponsored by Speaker Lord Allan Velasco, seeks to amend the nationalistic provisions of the Constitution by adding the phrase “unless otherwise provided by law” in:

1) Article XII on the exploration, development, and utilization of natural resources and the operation of public utilities; however, the ownership of private land shall remain in Filipino hands; 2) Article XIV on educational institutions; and 3) Article XVI on mass media and advertising.

In this way, the restrictions would remain in the text of the Charter but Congress would be empowered to increase or reduce the percentage of foreign equity in, and/or the extent of the foreign control/management/supervision of, the corporations and associations covered by the said Articles.

Some constitutionalists—notably my esteemed friend, retired Justice Vicente V. Mendoza—opine that the two Houses must convene and debate jointly as one body but vote separately. They say that when Congress acts as a constituent assembly (con-ass), it must sit and deliberate in joint session but vote separately.

I respectfully disagree. The Constitution (Art. XVII, Sec. 1) simply provides, “Any amendment to… this Constitution may be proposed by… Congress, upon a vote of three-fourths of all its Members…” It does not say that the two chambers must convene and debate jointly as one body.

In the instances when Congress is required to assemble as one body but vote separately (like to declare the existence of a state of war, to canvass the votes cast for president and vice president, or to confirm the President’s nominee for Vice President when a vacancy occurs in such office), the Constitution, unlike in the amendment provision, says so expressly and in unmistakable language.

Well-settled is the rule that what is not expressly or impliedly prohibited by the Constitution may be done by Congress provided that such act or omission is within its power. Clearly, the act of separately convening and deliberating on proposed amendments is not expressly prohibited by the Constitution. And, per the cited constitutional provision, the act is clearly within the powers of Congress.

Separate voting, though not expressly provided in the same provision, can be clearly implied from the nature of Congress as a bicameral body. If it votes separately during its regular function of legislation, so must it vote separately in its constituent function of amending the Constitution.

Another esteemed friend, retired Justice Adolfo S. Azcuna, one of the framers, observed that “… until a resolution is adopted and passed by the necessary votes, then I believe that the act of converting (itself) into a constituent assembly is not completed.”

In the present case, such requirement had already been fulfilled by the RBH by expressly providing, “RESOLVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES (caps in original), by a vote of three-fourths (3/4) of all its Members, each House voting separately,… propose amendments to Articles XII, XIV & XVI of the Constitution…”

By these texts, the RBH gave more than enough notice that Congress was converting itself to a con-ass. Though the RBH did not textually require separate assembly and separate deliberation, the very action of both chambers in so separately assembling and separately deliberating is more than enough proof. Indeed, actions speak louder than words.

IN SUM, I respectfully submit that if both the Senate and the House separately assemble, deliberate, and approve the RBH by three-fourths vote of all their respective members, Congress would have satisfactorily converted itself into a con-ass. Moreover, such actions will, in my humble opinion, hurdle a challenge in the Supreme Court. In the future, both Houses should, I think, approve the “Internal Rules of the Constituent Assembly” integrating the “separate” concept.

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