Congress as a Constituent Assembly

(Statement of Retired Justice Vicente V. Mendoza, Professor of Constitutional Law at the UP of College of Law, before the House Committee on Constitutional Amendments on May 26. 2009 on Resolution No. 1109 on the modes of amending the Constitution.)

MANILA, Philippines – I wish to thank the Committee on Constitutional Amendments of the House of Representatives for inviting me to present my views on Resolution No. 1109 on the modes of amending the Constitution. More specifically, I understand the question in which the Committee is interested is the mode of proposing amendments to the Constitution through Congress. Accordingly, I will confine myself to a discussion of this mode.

Stages in the amendment process

The process of constitutional amendment comprehends two distinct, but related, stages: the making of proposals, and the ratification of the proposed amendments or revisions. Amendments and revisions may be proposed by Congress, sitting as a constituent assembly, or by a constitutional convention. Amendments, but not revisions, may be proposed by the people comprising 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. To be be valid, the proposed amendments or revisions should be submitted to the people in a plebiscite.     

The incomplete proposal clause

A vexing problem since the coming into force of the Constitution in 1987 has been the interpretation of the Proposal Clause of Art. XVII. Unlike the Ratification Clause which, in so many words, describes how constitutional amendments or revisions may be ratified, the Proposal Clause fails to give details of how Congress may propose amendments or revisions or how it may call a constitutional convention. It does not specify how the two Houses of Congress should sit — whether jointly or separately — and how they should vote - whether jointly or separately. Art. XVII, Sec. 1 simply says that “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 brevity of the provision is not due to any notion of brevity as a virtue of a good written constitution but from oversight or even haste of the Constitutional Commission towards the closing days of its sessions.

The Record of the Constitutional Commission shows that the Committee on the Legislative Department unanimously voted to adopt a unicameral National Assembly.1 Accordingly, work in the Committee on Amendments and Transitory Provisions proceeded on the assumption that the legislative department would be unicameral.

For this reason, the Committee looked to the pertinent provisions of the 1973 Constitution, which provided for a unicameral legislature. The pertinent provisions of the 1973 document read:

ARTICLE XVI. — AMENDMENT

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the Batasang Pambansa upon a vote of three-fourths of all its Members or by a constitutional convention.

(2) The Batasang Pambansa may, by a vote of two thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.

SEC. 2. Any amendment to, or revision of this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision.

However, when the question of a unicameral National Assembly versus a bicameral Congress was put to a vote before the plenary session of the Constitutional Commission, the proponents of bicameralism won by the narrow vote of 23 to 22. The articles of the draft Legislative and on the Executive Departments were amended to reflect this fact by providing that when performing non-legislative functions, the two Houses of Congress must sit in joint session but vote separately. But the draft Amendment Article, which had earlier been adopted on July 9, 1986, 3 was forgotten with the result that it was not adjusted to the bicameral character of Congress.

It is noteworthy that when this Article was being discussed in the Committee on Amendments and Transitory Provisions, the following exchange took place between Commissioner Jose Suarez, the Chairman of the Committee, and Commissioner Florenz D. Regalado:

MR. REGALADO. I also notice that both Sections 1 and 2 are premised on the anticipation that the Commission, not only the Committee, will opt for a unicameral body. In the event that a bicameral legislative body will carry the day, has the Committee prepared contingency proposals or resolutions?

MR. SUAREZ. Yes, in that situation, we would provide to include the words IN JOINT SESSION ASSEMBLED.

MR. REGALADO. But still maintaining the same number of votes?

MR. SUAREZ. The Commissioner is right.

MR. REGALADO. Thank you.

A bicameral legislative body was finally adopted, but the Committee on Amendments and Transitory Provision failed to revise the draft Amendment Article accordingly. It seems that for once Homer nodded! Actually, the Constitutional Commission also failed to provide how “a representative of the Congress” in the Judicial and Bar Council should be chosen, now that there are two Houses composing the legislative department of the government.

Construing the incomplete proposal clause

Given the lack of procedure for proposing constitutional amendments through Congress, how should Art. XVII be construed?

The interpretation of an incomplete constitutional provision, like the Proposal Clause, may be likened to the job of an architect who is asked by the owner to finish a structure began by another. The architect must discern the design and construction of the building by carefully studying its features. Justice Holmes described a similar process of constitutional interpretation as that of “considering the origin of [the constitutional provisions] and the line of their growth.”

Now, the architecture of the present Constitution shows that, when performing non-legislative functions, the two Houses are required to when meet in joint session but vote separately to perform non-legislative functions, namely:

(1) To declare the existence of a state of war.

(2) To confirm the President’s nomination of a member of the Vice President of the Philippines in the event of a vacancy in that office.

(3) To decide whether to revoke the President’s proclamation of martial law or suspension of the privilege of the writ of habeas corpus.

(4) To canvass the votes for President and Vice President and, in case of a tie between candidates receiving the highest number of votes for the same either position, to break the tie.

(5) To decide whether the President, who has once declared himself unable to discharge the duties of his office but later claims he can resume office but his cabinet objects, is fit to discharge the powers and functions of his office.11

Undoubtedly, these provisions were patterned after Art. XV of the 1935 Constitution which reads:

ARTICLE XV — AMENDMENTS

SEC. 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.

It is noteworthy that the 1935 Constitution, in dealing with the declaration of war, provided that if Congress made such a declaration, it must do so do so “with the concurrence of two-thirds of all the Members of each House.” This was changed in the present document by requiring Congress to assemble in joint session and its two Houses to vote separately on the declaration of a state of war.

There is every reason to believe that had it not overlooked to provide for this important matter of procedure for proposing constitutional amendments through a constituent assembly, the Constitution’s drafters would have similarly required the two Houses to meet in joint session but vote separately as it have required Congress in performing other non-legislative functions.

Indeed, there is a benefit to be obtained by requiring Senators and Representatives to meet in joint session, as one constituent assembly, with the only proviso that, to prevent the Senators from being outvoted because of their small number by the more numerous Representatives. In this way, they can discuss together and argue face to face the voting should be separate. The idea is not to have one House check the action of the other, which is the purpose for adopting a bicameral system, but rather to make the members of the two Houses of Congress come together to break bread and take counsel from each other. For as it has been held, 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.”

Conclusion

Professor William Van Alstyne has said that “alterations in the fundamental law should be possible but not easy.” The Legislative Model makes the amendment of the Constitution not only possible but swift and easy. On the other hand, the interpretation of our incomplete Proposal Clause based on the 1935 Constitution model makes the process of amending the Constitution not impossible but only not easy. For this reason and because it is faithful to the architectural design of the Constitution, I recommend its adoption whenever Congress acts as a constituent assembly.