Cha-cha by legislation: Constitutional or not?

MANILA, Philippines – “It’s a case of a forgotten provision – perhaps one of the ‘senior moments’ in the Constitutional Commission.”

In the House of Representatives committee hearing on proposals to amend the economic provisions of the 1987 Constitution Tuesday, February 25, two retired Supeme Court justices said they believe that the Senate and the House must first convene in a Constituent Assembly before tackling proposed amendments. 

But there are also constitutional experts who are of the view that the legislative route – where charter change would treated in the same way as a bill filed in Congress – proposed by Speaker Feliciano Belmonte Jr is also valid. 

Belmonte and supporters of his move are pushing for amendments to select provisions of the Constitution, notably the limits to foreign ownership of land and businesses. 

Other sectors however fear that any attempt to change the Constitution might end up touching the political provisions of the Charter, specifically term limits for national and local officials.

Previous attempts to change the Constitution have failed.

The discussions in Tuesday’s charter change hearing reflected the long-standing debates on the proper mode of amending the Constitution – one of the reasons that has prevented Congress from revising the 1987 Constitution since it was ratified in a plebiscite. 

The provision in question is Article 17, Section 1 of the Constitution which states that: 

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. 

“The provision does not specify how the two houses of Congress should sit – whether jointly or separately or how they should vote – whether jointly or separately,” said retired SC Justice Vicente Mendoza. 

The history of the provision 

Why was the provision framed this way? During the hearing, the retired SC justices narrated the history of the contentious provision. 

When members of the constitutional convention were crafting the 1987 Constitution, the body was expecting that a unicameral legislative body would be approved in the final draft. 

When a bicameral legislature was approved in the end, retired Chief Justice Reynato Puno said the Constitutional Commission “neglected” to revise Article 17, Section 1 to better suit the needs of the new Congress.

“It’s a case of a forgotten provision – perhaps one of the ‘senior moments’ in the Constitutional Commission,” Puno explained.

Although the Constitution does not specify in what mode charter change must be done, Puno said Article 17, Section 1 must not be interpreted in any manner that would negate or diminish the bicameral nature of Congress. 

In his view, Belmonte’s Resolution of Both Houses No. 1 – which seeks to amend certain economic provisions of the Constitution – must be tackled in a Constituent Assembly, where the Senate and the House will hold sessions together, but vote separately. 

“In a bicameral legislature, the power to propose amendments or revise the Constitution belongs to both Houses. It can not be exercised unilaterally by one House alone. This constituent power is granted to both Houses as institutions,” he said. 

He stressed, though, that each chamber of Congress must vote separately. 

“A bigger anomaly will result if we are seduced by the thought that the 3/4 vote should be computed by both houses and not by 3/4 vote cast in each House,” Puno said. “The proposal will render the Senate vote irrelevant.”

The intent of Article 17, Section 1, Mendoza said, can be seen in records of discussions by the Constitutional Convention. 

When asked then about what would happen if the Constitutional Commission would opt for a bicameral legislature – which it did in the end – Mendoza said one of the commissioners said the commission would push for the inclusion of the phrase “in joint session” while maintaining the same number of votes required to approve charter change.

Both Puno and Mendoza are of the view that the history and the intent of the provision must be taken into consideration.

‘Legislative route also valid’

Other constitutional experts, however, believe that Belmonte’s legislative route is also an option. 

For retired SC Justice Adolfo Azcuna, it is enough that the resolution acknowledges Article 17, Section 1 – and the vagueness of the provision works to Congress’ advantage. 

Azcuna said there are no provisions in the Constitution that say both chambers of Congress can’t meet separately. 

“I don’t wish to limit powers of Congress beyond what the Constitution does,” he said. 

During the hearing, Ilocos Norte Representative Rodolfo Fariñas also cited an article written by constitutional expert Fr Joaquin Bernas published in the Inquirer. It shared the view that the Constitution does not prohibit both chambers of Congress from meeting separately to discuss charter change. 

The article said:

My usual answer to such a question is: If it is not prohibited, then, whether stupid or wise, it is allowed. In this case, I believe it is wise. How so?

For a number of reasons. First, the Constitution says that Congress may propose amendments but leaves much of the details of how to do it to the wisdom of the illustrious members of Congress. Second, it is wise because, among others, it will allow a focused debate and avoid rambling discussions. It will also allow Congress to prioritize urgent matters and have them approved in a plebiscite earlier and give its members the satisfaction of having something to show to the people they serve.

Key amendment

With the amount of debate on the issue, Gabriela Representative Luz Ilagan called on the committee to invite more resource persons. The committee has yet to decide on the matter. 

Belmonte’s Resolution of Both Houses 1 seeks to add the phrase “unless otherwise amended by law” to articles in the Constitution that specify 40% limits to foreign ownership of land and businesses, including management of media, franchises to public utilities, and ownership of educational institutions.

The resolution also seeks to increase foreign participation in developing, exploring, and utilizing lands of public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy fisheries, forests or timber, wildlife, flora and fauna, and other natural resources. The Constitution provides that at least 60% of capital should be owned by Filipinos.

Belmonte earlier said he is confident the House can pass a consitutional amendment without any riders concerning term extensions or proposals to transform the government into a parliamentary form. – Rappler.com