Under Article XVII of the 1987 Constitution, there are three methods by which amendments or revisions to the Constitution may be proposed, namely:
1) By Congress, as a constituent assembly (Con-ass), upon a vote of three-fourths of all its members (Section 1[a]);
2) By a constitutional convention (Con-con) called for the purpose by Congress, by a vote of two-thirds of all its members or by majority of all its members, submit to the electorate the question of calling such convention; and
3) By the people directly, through initiative upon a petition of at least 12 percent of the total number of registered voters, of which every legislative district must be represented by at least 3 percent of the registered voters therein (Section 2).
The raging debate now between the Two Houses of Congress, which appear to have ruled out a Con-con and Peoples Initiative, is the issue of convening and voting jointly.
The House of Representatives by a voice vote (“viva voce”) of the 186 members present approved the adoption of House Concurrent Resolution 9 (in Substitution of 28 separate House Bills/Resolutions) “To Constitute The Congress of the Philippines as a Constituent Assembly For The Purpose Of Proposing Amendments To, Or Revision Of, the 1987 Constitution.” The House position is that voting is done jointly to determine the three-fourth vote. The senate has always rejected joint voting for the obvious reason that the Senators are outnumbered by the congressmen. This is the sore issue of institutional equality.
Sen. Panfilo M. Lacson Sr. has proposed PS Resolution 580 “Resolution Calling For the Constitution of the Senate of the Philippines Into a Constituent Assembly To Propose Amendments To or Revision of the Constitution And Upon Approval of The Three-Fourths Vote, Vote of Its Members Adopt The Same.”
The effect of Sen. Lacson’s proposal, if approved by the Senate, would result in two Con-ass convening separately and voting separately, and by three-fourth vote of its members, adopting amendments, which may conflict with each other. A third Bicameral Assembly or Committee will have to thereafter meet to reconcile conflicting proposals of the Senate and House to come out with one version to be presented to the Filipino people in a plebiscite. House Speaker Pantaleon D. Alvarez retorts that “the 292-member House could go it alone, if worse comes to worst. A three-fourth vote in the House could still satisfy the three-fourth vote of Congress, considering the disparity in numbers” (Philippine Daily Inquirer, January 19, 2018, at p.2). Sen. Francis N. Pangilinan, chairman of the Senate Committee on Constitutional Amendments, said the House “should think twice about forcing the issue and proceeding with Cha-cha even without the concurrence of the Senate.” “It takes two to Cha-cha” added Sen. Ralph G. Recto (Ibid). It seems this issue will end up in the Supreme Court, which may or may not want to intervene on a “political question.” But should the Supreme Court determine that there is a justiciable issue to resolve, the opinion of the Framers of the 1987 Constitution is enlightening. Fr. Joaquin Bernas, distinguished constitutionalist stated that:
“But where in the Constitution does one find this mode? The elements of this mode are all in Article XVII. The fundamental principle is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress provided it can be traced somehow to the powers of Congress. It is clear from Article XVII that the power to propose amendments can only be activated by Congress. The two houses of Congress are not required, as they were under the 1935 Constitution, to be in joint session. Hence, it is quite possible for the two Houses to formulate amendments the way they formulate laws—as they are, where they are. Once one House is through with a draft, it is passed on to the other House for action. If there is a prohibition, it can come either from the letter of the Constitution [and there is none] or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress.” (Whereas Clause,
Senate Resolution 580)
Retired Justice Adolfo Azcuna, who was also a member of the 1986 Constitutional Commission, likewise opined that:
“As long as it is within the terms of Article XVII…. Article XVII says Congress may propose amendments by three-fourth vote. I examined the proposed bill and it contains a very key provision. Pursuant to Article XVII, it’s not an ordinary legislation being proposed. It’s being taken up pursuant to Article XVII in the exercise of constituent power. It signals that Congress is exercising constituent powers. If you omit the phrase, it will have doubtful validity. You’re exercising constituent powers. There is no general provision, which says that Congress, when tackling not legislation, must meet in joint session. There is none. When it comes to amendment, it doesn’t say you have to meet in joint session. (Ibid).
Likewise, the Supreme Court has ruled that when Congress meets to propose amendments to the Constitution (and not merely ordinary legislation) it acts not as members of Congress but as component elements of a constituent assembly.
As ruled by the Supreme Court in the case of Tolentino v. Comelec, GR L-34150, October 16, 1971, thus:
“Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress (Section 1, Article VI, Constitution of the Philippines). It is part of the inherent powers of the people—as the repository sovereignty in a republican state, such as ours (Section 1, Article 11, Constitution of the Philippines)—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. (Section 1, Article XV, Constitution of the Philippines) 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. (Of amending the Constitution)—for their authority does not emanate from the Constitution—they are the very source of all powers of government, including the Constitution itself.”
Unlike the 1935 Constitution (Article XV, Section 1 thereof), Section 1(a) of the 1987 Constitution does not mention Congress having to convene in ”joint session assembled” for the purpose of proposing constitutional amendments. Some commentators claim that this could be an oversight—we had shifted from a unicameral congress to a bicameral congress, and the Framers may have failed to correct Section 1 to reflect the bicameral nature of the House. It could also be just poor draftsmanship. Or, the most logical is that the omission was deliberate and that the intent really of our Framers was that Congress does not need to be in joint session assembled when it proposes amendments to the Constitution. It can meet and vote separately.
The House and Senate will continue to bicker with each other, ad nauseam—such is the nature of the beast! But the white elephant in the room is the issue of, “Do we really need to amend our 1987 Constitution?” Is it really “imperative that reforms be introduced to the present Constitution for it to be responsive to the exigencies of the times” and “to make it more attuned and responsive to the demands of present conditions and economic realities?” (Whereas Clauses, House Concurrent Resolution 09) Or do we just need to enact implementing legislation to breath life into our national aspirations as a “Sovereign Filipino People” as expressed in our 1987 Constitution to build a just and humane society “xxx under the rule of law and a regime of truth, justice, freedom, love, equality and peace.”
There is conventional wisdom in the saying, “If it ain’t broke, don’t fix it.”