Cha-cha laws and jurisprudence 101

Truthfully, I no longer wanted to add to the ongoing “noise” over Charter change (Cha-cha). However, friends asked me to help them understand what President Marcos had already settled “months ago.” I will try to limit my reply to what I hope is a simple and clear discussion of the basic law and jurisprudence that govern Cha-cha. When there is a hiatus, I will hazard my opinion to which friends may agree or disagree.

LET ME BEGIN WITH THE CONSTITUTION. Its Article XVII states that any “amendment to, or revision of” the Charter may be proposed (1) by “Congress [acting in its capacity in what is commonly called a “constituent assembly” or Con-ass], upon a vote of three-fourths of all its Members,” or (2) by a constitutional convention (Con-con) which Congress may call “by a vote of two-thirds of all its Members.”

The basic law did not specify whether the two houses of Congress shall vote jointly as one chamber, or separately as two chambers. My opinion: They should vote separately, not jointly, because Congress is composed of the Senate and the House of Representatives that meet and vote separately and independently of each other in making, amending, or revising ordinary laws. Hence, they should also vote separately when amending or revising the most fundamental law.

Should the two chambers convene as one deliberative assembly but vote separately? Or may they opt to convene and vote separately? The Constitution does not expressly provide an answer. My opinion: They may convene jointly as one assembly. However, at their option, they can convene separately as if tackling ordinary legislation. The reason is the same: Congress is composed of two co-equal Chambers that meet separately and independently. No law requires them to meet as one body when proposing constitutional revisions or amendments.

I encourage those who sincerely believe the two Chambers should meet jointly but vote separately, or vice versa (meet separately but vote jointly) to bring the issue to the Supreme Court to settle this hiatus for our definitive guidance.

The Charter also requires that “three-fourths” or “two-thirds” of the votes should be based on ALL members, including those absent during the voting. Example: Since the present Senate has 24 incumbents, then three-fourths means 18 affirmative votes (and two-thirds means 16).

SECTION 2 OF THE SAME ARTICLE provides the third Cha-cha method, commonly called people’s initiative (PI). Under this mode, “amendments” may be “directly proposed by the people … upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered voters therein.” Thus, though over 12 percent of voters nationwide may have signed it, the PI petition will still fail if the 3-percent threshold is not obtained in one (or more) legislative district. To stress, a PI may propose only “amendments” but not “revisions” of the Charter.

The Supreme Court, in Lambino v. Comelec (Oct. 25, 2006), held that “revision” broadly implies a change that alters a basic constitutional principle, like separation of powers or the system of checks and balances, while “amendment” broadly refers to a “change that adds, reduces, or deletes words without altering the basic principles involved.” When deliberating on amendments or revisions, our legislators obviously believe they could convene in their separate chambers as shown by their “Joint Resolutions” proposing the addition of the phrase “UNLESS OTHERWISE PROVIDED BY LAW” to three constitutional provisions that limit to Filipinos, or to 60 percent (70 percent in ad agencies) Filipino-owned corporations: (1) the operation of public utilities, (2) basic education, and (3) ad agencies. The Resolutions are almost identically worded except that the House version provides for joint, not separate, voting. An insistence on joint voting may kill the Resolutions because the Senate will not agree.

TWO LOGICAL CONCLUSIONS BECOME OBVIOUS from the foregoing discussion. First, the solons and the Con-con delegates have the exclusive prerogative to propose revisions or amendments under the Con-ass and the Con-con methods, respectively. Second, the people at large have the exclusive prerogative to propose amendments only, not revisions, under the PI. The Constitution expressly prohibits members of Congress from holding “any other office or employment in the Government … during his term without forfeiting his seat.” Hence, they cannot serve as concurrent Con-con delegates.

In sum, our 37-year-old Constitution needs updating. It was born when there was no internet, no mobile phone, no bitcoin, no AI, no Arbitral Award, no Unclos, no neurotechnology, no Facebook, no Dingdong Dantes, no Taylor Swift. To provide clarity to the Con-ass, the Joint Resolutions should proceed, with the guidance of the Supreme Court on the hiatuses, but only on the least controversial proviso, the operation of public utilities. They will serve as models on how to update our Charter via such a mode. If only for this reason, the “noise” would have served the nation.

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