Mongrelized ‘constituent assembly’

Way back in October 2011, when I was the minority leader of the House of Representatives, I exhorted my co-lawmakers in both the House and the Senate not to adopt a variation of the constituent assembly wherein proposals to amend or revise the Constitution would be made through the ordinary legislative process. I felt that the “innovation” was simply flawed, a mongrel bereft of pedigree under the Charter.

Without first convening Congress into a constituent assembly, this skewed variation has again surfaced in “Resolution of Both Houses No. 01.” The resolution proposes to add the phrase “Unless otherwise provided by law” to the following economic provisions mandating preferential ownership for Filipinos:

(a) exploration, development and utilization of natural resources (paragraph 1, Section 2, Article XII on “National Patrimony and Economy”);(b) ownership of alienable lands of the public domain (par. 1, Sec. 3, Article XII); (c) conveyance or transfer of private lands (Sec. 7, Art. XII); (d) investments in certain restricted areas (par. 1, Sec. 10, Art. XII); (e) operation of public utilities (Sec. 11, Art. XII); (f) ownership of educational institutions, other than those established by religious groups and missions boards (No. 2, Sec. 4, Article XV on “Education, Science and Technology, Arts, Culture and Sports”); and (g) ownership and management of mass media and advertising (Sec. 11, Nos. (1) and (2), Article XV on “General Provisions”).

Resolution of Both Houses No. 01 is being debated in the House of Representatives as a regular legislative measure before its transmission to the Senate for concurrence. This procedure is a mongrelized “constituent assembly.”

A Constitution is the supreme handiwork of the sovereign people who ratify it. Although constitutional provisions are not etched in stone, proposals to amend or revise any provision of the Charter cannot be done with facility and alacrity. The Constitution itself provides for the limited modes of effecting Charter change.

The 1935 and 1973 constitutions provided for a constituent assembly or a constitutional convention as alternative modes of initiating Charter amendments. The 1987 Constitution added a third mode—people’s initiative. Therefore, a mere legislative act of Congress, be it a statute or a joint resolution, cannot validly propose a constitutional amendment simply because ordinary legislation is not one of the modes.

Section 1(1) of Article XVII of the 1987 Constitution—which provides that “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”—solely refers to Congress sitting as a constituent assembly, not Congress sitting as a legislative body. A liberal application of this provision, that is, enfranchising Congress as a legislative body to propose constitutional amendments, is flawed and untenable for the following reasons:

(1) Proposing constitutional amendments is an exercise of constituent power. Perforce, Congress must meet as a constituent assembly to validate any proposed amendment.

(2) The errant interpretation justifying the ordinary legislative process as a legitimate mode for Charter change defies established precedents: Congress in 1957, 1966-1967 and 1969, as well as the Batasan Pambansa in 1980-1984, proposed constitutional amendments as a constituent assembly; and more recently, resolutions were filed for Congress to meet as a constituent assembly.

(3) It obliterates the clear distinction between the legislative power of Congress and its constituent authority.

The Supreme Court as early as Nov. 9, 1967, in Gonzales vs Comelec (21 SCRA 774), made an unequivocal distinction between legislative power exercised by Congress and the constituent authority discharged by it as a constituent assembly when it ruled that:

“Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress XXX Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as Members of Congress, but as component elements of a constituent assembly.”

Gonzales was reiterated in Tolentino vs Comelec (41 SCRA 702). Indeed, making use of the ordinary legislative process as an alternative format for a constituent assembly is infirm.

Aside from the procedural infirmity of the resolution, the wisdom of a wholesale grant of congressional power to liberalize or “alienize” the economic provisions is questionable because:

(1) The congressional blanket authority to alter, delimit or altogether delete by law or statute the preferential quantum of ownership reserved to Filipinos is improvident, considering that Congress is a partisan body that is more susceptible to the importuning of vested interests.

(2) The safeguarding of our posterity, the citizenship requirement in land ownership and in the exploration and utilization of strategic natural resources, and the insulation of public utilities, the educational system, media and advertising enterprises from alien control are salutary constitutional provisions which must be maintained.

(3) Foreign investors do not prioritize the liberalization of the economic provisions; in fact foreign investments continue to flow in, given the favorable environment of adequate infrastructure, improved peace and order, predictability and consistency of domestic economic policies, and a vigorous campaign against corrupt practices which deplete foreign capital.

It is very obvious, “Resolution of Both Houses No. 01” is defective in procedure and deficient in merit.

Edcel C. Lagman is a former representative of the first district of Albay.