Voting jointly or separately?

By Atty. Rolex T. Suplico

 

This question has hounded every attempt to amend or revise the 1987 Constitution since it became effective on February 2, 1987. The problem arose because it does not provide whether the Senate and the House of Representatives shall vote jointly or separately. It provides:

“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; or

(2) A constitutional convention.” (Art. XVII, 1987 Constitution)

This is unlike the 1935 Constitution, which had expressly provided that they shall vote separately:

“Section 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.” (Art. XV, 1935 Constitution)

The present attempt by the House of Representatives is not an exception.

Then Rep. Lord Allan Velasco, now House Speaker, filed R. B. H. No. 2 in July 2019. This was the subject of the hearings conducted by the House Committee on Constitutional Amendments chaired by AKO BICOL Partylist Rep. Alfredo Garbin. In the hearings, Rep. Edcel Lagman stated that the Senate and the House of Representatives should vote jointly. He based his assertion on the cases of RAMON A. GOZALES, Petitioner, v. COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING, and AUDITOR GENERAL, Respondents; and of PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, v. COMMISSION ON ELECTIONS, Respondent, G.R. No. L-28224, which was promulgated on November 9, 1967. This was decided by the Supreme Court en banc in a decision penned by Chief Justice Roberto Concepcion.

From the facts of the case, we know that the Senate and the House of Representatives passed the following resolutions on March 16, 1967:
“1. R.B.H. (Resolution of Both Houses) No. 1, proposing Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall have, at least, one (1) member;”

“2. R.B.H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of two (2) elective delegates from each representative district, to be “elected in the general elections to be held on the second Tuesday of November, 1971;” and”

“3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize senators and members of the House of Representatives to become delegates to the aforementioned constitutional convention, without forfeiting their respective seats in Congress.”
On June 17, 1967, Congress enacted Republic Act No. 4913, “providing that the amendments to the Constitution proposed in the aforementioned Resolutions Nos. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967.”

Gonzales filed his petition as a “Filipino citizen, a taxpayer, and a voter. He claims to have instituted case L-28196 as a class suit, for and in behalf of all citizens, taxpayers, and voters similarly situated.” On the other hand, PHILCONSA is “a corporation duly organized and existing under the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever source.”

In its answer, the Solicitor-General argued that the Court had no jurisdiction. library
Citing the case of Angara v. Electoral Commission (63 Phils. 139), the Court held that the “judicial department is the only constitutional organ which can be called upon to determine the proper allocation of power between the several departments and among the integral or constitutional constituent units thereof.”

The Court continued:

“Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is part of the inherent powers of the people — as the repository of sovereignty in a republican state, such as ours — to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. 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. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution — they are the very source of all powers of government, including the Constitution itself.”
The Court stated that “when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court the power to declare a treaty unconstitutional, despite the eminently political character of the treaty-making power.”
“In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the Constitution,” the Court said, “is essentially justiciable, not political, and, hence, subject to judicial review, x x x.”

The Court dismissed the petitions and denied the writs prayed for. In effect, RA 4913 and R.B.H. Nos. 1 and 2 were declared constitutional and valid.

 

Now, let us go back to the pronouncements of the Court, which are relevant to the ongoing attempt at charter change or Cha-cha. It stated that the power to propose constitutional amendments is different from, and is not included, in the power to legislate. In proposing amendments to the Constitution, Congress converts itself into a constituent assembly or Con-Ass.

Rep. Lagman argued that the distinction between Senators and Representatives disappears when Congress converts itself into a Con-Ass. Rep. Tonypet Albano stated that the Con-Ass is a singular or unicameral body. This is to distinguish it from Congress, which is a bicameral body.  In the Con-Ass, there are no Senators or Representatives, but everyone is a Con-Ass Member. Hence, they will all vote jointly. Senators argue that the distinction remains. Hence, as Senators they will vote separately from the Representatives.

I agree that the 1987 Constitution is vague. And this is where the Supreme Court should step in. But then it takes two to tango, or to Cha-cha.

It is impossible for a law to be enacted, or a resolution to be passed, by Congress, if one chamber refuses to cooperate, as it is a bicameral body. The issue will never reach the Supreme Court. Thus, the question of whether the Senate or the House of Representatives should vote jointly or separately in proposing amendments to, or revisions of, the 1987 Constitution shall forever remain unanswered. There, it shall remain in limbo until someone sometime in the future will launch another attempt at amending or revising the 1987 Constitution, and breathe life into the question: to vote jointly or separately?