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The Charter change train

It looks like the Cha-cha (Charter change) train is running in earnest and even President Aquino, who initially opposed it, is now leaving it to Congress. That is the way it should be; but, of course, he can always express his preferences to his people in Congress.

The main interest of those sponsoring Cha-cha is the national economy aspect of the Constitution. It is being said that only the economic provisions of the Constitution and none of the political provisions will be touched. That, however, is not for any individual to decide. I know that some lawmakers have signed a pledge that only economic amendments will be proposed. But there is no constitutional authority that can dictate what amendments may or may not be taken up. Once the process is opened and a political amendment is proposed, Congress will have to discuss it, vote on it, or reject it outright. Until all noneconomic amendments are rejected, one can still slip in.  Only Congress has the final say.

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Let me also make the observation that not everything about the national economy has been set by the Constitution. Under the Constitution itself, Congress has been given ample power for setting the balance of economic interests between local and foreign investors. The power of Congress on this matter is in Section 10 of Article XII. It will be recalled, for instance, that the meaning of the 60-40 rule for public utilities was not set by the Constitution but by the Foreign Investment Act. Perhaps Congress should even now explore what else it can do about the balance of economic powers without having to wait for a constitutional amendment.

Even as there already is talk about what amendments to initiate, there is no definite decision yet on how the amendatory process will be done. This is a matter for Congress to decide. It is therefore important to know what options Congress has. I have written about this before but it seems to be a live issue again.

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In general, amendments or revisions may be proposed either by a constitutional convention, or directly by the people, or by Congress. Which procedure to use depends on Congress. No one seems to be thinking of calling a constitutional convention or leaving the proposal of amendments to the people. We are therefore left with Congress as the agency to do the job. What procedure should Congress follow?

On this subject, the Constitution is barren of details. It simply says:

Section 1. 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;

It will be noticed that the Constitution imposes on Congress only one restriction, namely that any proposal be approved by three-fourths of all its members. This means that aside from the requirement of a three-fourths vote, Congress is free to decide how it will go about the task. What are the options?

First, the two houses of Congress might come together in joint session for the purpose of proposing amendments. This has been done before. The Constitution says that a three-fourths majority is needed to approve a proposal. But the Constitution does not say whether the two houses vote jointly or separately. That is for Congress to decide.

The normal procedure would be that they vote separately since Congress consists of two separate houses. The decision to have two houses was based on the argument that decisions should be reached not once but at least twice. Because of this reason for having two houses, separate voting is the general rule and joint voting is allowed only when the Constitution says so.

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Second, both houses might decide to do it the way they pass ordinary legislation, that is, as they are, where they are and voting separately, but by a three-fourths majority of each house, and only coming together, the way they do in ordinary legislation, to reconcile differences.

Several years ago I proposed this second method and theoretically it was accepted by members of Congress, but it was never used. I am informed that at least the House of Representatives is considering using this method. But does the Constitution allow it?

My usual answer to such a question is: If it is not prohibited, then, whether stupid or wise, it is allowed. In this case, I believe it is wise. How so?

For a number of reasons. First, the Constitution says that Congress may propose amendments but leaves much of the details of how to do it to the wisdom of the illustrious members of Congress. Second, it is wise because, among other reasons, it will allow for a focused debate and avoid rambling discussions. It will also allow Congress to prioritize urgent matters and have them approved in a plebiscite earlier, and give it the satisfaction of having something to show to the people they serve.

The current Constitution was drafted and ratified in 1986-1987 in the wake of the People Power Revolution. All these years it has remained virginal. It has been praised but also criticized for various reasons, among them being that it was drafted by 48 people handpicked by President Cory Aquino. Changes have been proposed from time to time, but none has ever reached the plebiscite stage. Will change be achieved during the presidency of President Cory’s son? There still are about two years before his term ends.

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