Interpreting the Constitution’s Con-ass provision

The decision of the administration to propose a shift to federalism through a constituent assembly (Con-ass) raises anew a vexing problem that has been with us since the adoption of the Constitution in 1987: how Congress, when acting as a Con-ass, should sit. The Constitution’s meager provision gives no answer to this question. Its Article XVII, Section 1 simply states: “Any amendment to, or revision of, this Constitution may be proposed by (1) The Congress, upon the vote of three-fourths of all its Members.”

The problem is not just how the two chambers of Congress must vote, whether separately or jointly, as current discussions of Article XVII, Section 1(1) appear to frame the issue. The issue, rather, is how the two chambers must sit when acting as a Con-ass, whether together in joint session or separately, as in making laws.

As far as the manner of voting is concerned, Article XVII, Section 1(1) literally means that the total number of the members of the House of Representatives and of the Senate must be considered in determining the three-fourths vote required, because this provision says “The Congress,” not “Each chamber.” It is quite clear, however, that unless the two chambers vote separately, the senators can easily be outvoted by the larger number of representatives. This literal interpretation must perforce be rejected.

It is the manner of sitting as a Con-ass that is at issue. This is because the constitutional provision in question was intended for a one-chamber legislative body, following the initial decision of the Constitutional Commission to adopt a unicameral national assembly. However, toward the closing days of its session, the Commission decided to have a bicameral Congress instead. The draft articles on the legislative department and the executive department were amended to reflect this decision, but not the amendment clause.

Given this fact, how should the amendment clause on the Con-ass be read?

First.  The interpretation of an incomplete constitutional provision may be likened to the job of an architect tasked to finish a structure left undone by the original builder. The architect must discern the design and construction of the building by carefully studying its features. Justice Holmes described the process of constitutional interpretation as that of “considering the origin of [the constitutional provisions] and the line of their growth.”

An examination of the relevant provisions of the Constitution will show that whenever Congress is to perform nonlegislative functions, the two chambers are required to meet in joint session, but to vote separately, thus:

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

To confirm the president’s nomination of a vice president whenever there is a vacancy in the office during the term of the vice president. (Art. VII, Sec. 9)

To revoke the president’s declaration of martial law or suspension of the privilege of the writ of habeas corpus. (Art. VII, Sec. 18)

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 decide whether the president, who has declared himself or herself unable to discharge the duties of his or her office and subsequently claims fitness to resume but his or her Cabinet disagrees, is fit to discharge the powers and functions of the presidency. (Art. VII, Sec. 11)

In all these cases, the two chambers are required to meet in joint session but vote separately, except only when considering the declaration of martial law or suspension of the privilege of the writ. In the latter case (the declaration of martial law or the suspension of the privilege of martial law), Congress must meet in joint session and vote as one body.

This special procedure is prescribed for Congress when performing nonlegislative tasks; there is greater reason for requiring it in amending or rewriting the fundamental law. For as Marbury v. Madison held, “as a superior paramount law, the Constitution is unchangeable by ordinary legislative acts.”

Second. When the present Constitution was being discussed in the Constitutional Commission, Commissioner Regalado asked Commissioner Suarez, the chair of the committee on amendments and transitory provisions, if  he had a “contingency proposal” in the event it was finally decided to have a bicameral, instead of a unicameral, legislative body. Suarez answered, “Yes, in that situation, we would provide to include the words IN JOINT SESSION ASSEMBLED.”

Third. There is benefit to be gained by having senators and representatives meet and discuss matters together face to face. The idea is not to have one chamber check the action of the other, which is the purpose for having a bicameral system for legislation, but rather to make the members of the two chambers come together, so to speak, to break bread and take counsel from each other. As the Supreme Court has pointed out, in such a case, 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, 21 SCRA 774,785 (1967); Tolentino v. Comelec, 41 SCRA 702, 714]

These considerations must be kept foremost in mind, given the fact that the amendments or revisions being proposed involve no less than the redistribution of the powers of government and the relaxation of the nationalistic economic provisions in our Constitution.

Vicente V. Mendoza, retired justice of the Supreme Court and professor of constitutional law at the UP College of Law, is currently Independent Person of Millennium Challenge-Philippines.