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Panel chair insists House committee now convened into Con-Ass, but legal experts disagree

The newly installed chair of the House committee on constitutional amendments raised a few eyebrows after insisting his panel is already convened into a Constituent Assembly (Con-Ass) during its hearing on Wednesday, January 13.

Ako Bicol Representative Alfredo Garbin Jr, the panel chairman, argued that the committee can supposedly be treated as a Con-Ass – one of 3 modes allowed to amend the 1987 Constitution – because they are exercising their power to propose amendments to the charter. 

“Yes, we are sitting as a Constituent Assembly exercising our constituent power,” Garbin, a lawyer, declared during the hearing.

He was responding to the separate queries of Bayan Muna Representative Carlos Zarate and Sagip Representative Rodante Marcoleta, who asked a follow-up question.

Zarate first clarified if Con-Ass is the mode lawmakers want to undertake for the charter change (Cha-Cha) proceedings since it is what is indicated under Resolution of Both Houses (RBH) No. 2 penned by Speaker Lord Allan Velasco, who is proposing amendments to the economic provisions. 

Minutes later, Marcoleta directly asked Garbin if the committee is already sitting as a Con-Ass. Garbin agreed.

“When we dealt with or proposed amendment to the Constitution, we are sitting as a Constituent Assembly. Hindi tayo kailangang magbagong-anyo na kung saan, iba ‘yung suot natin or magsama-sama tayo (We don't need to change our form or come together),” Garbin said. 

“Every time we dealt with a proposing amendments to the Constitution or revising the Constitution, we are sitting as a Constituent Assembly, we are exercising our constituent power apart from our legislative power,” he added. 

In a text message later sent to Rappler, Garbin explained the Constitution does not provide for the convening of the Con-Ass prior to making proposals for amendments to the Constitution. He also said Con-Ass is not mentioned in the rules of the House.

"A Constituent Assembly is a body authorized by the Constitution to propose amendments or revision. Congress is already authorized by Article XVII to propose amendments or revision. In other words, the Constitution has made Congress both an ordinary legislative body, through Article VI, and a Constituent Assembly, through Article XVII," he added. 

Panel vice chairman Lorenz Defensor also backed Garbin, saying both the House and the Senate can vote separately under their new interpretation of the Con-Ass. 

“We can proceed separately or vote separately.... We can sit down together with the Senate to reconcile whatever provisions we have approved,” said Defensor.

Both Garbin and Defensor then said that 3/4 of all members of the House and the Senate voting separately can supposedly approve the proposed amendments on 3rd and final reading.

Should both chambers approve different amendments, a bicameral conference committee can be convened to reconcile the differences. 

A Con-Ass, however, is convened when both houses of Congress come together as a body to propose amendments or revisions to the Constitution through a vote of 3/4 of all members. 

Still, the charter is silent on whether the House and Senate should be voting jointly or separately – a contentious issue that has led to a stalemate in past Cha-Cha attempts

Is Garbin correct? No, say law experts

Legal experts like constitutional law professor Tony La Viña disagreed with Garbin’s interpretation on the Con-Ass.

La Viña told Rappler that the entire House and the Senate – not just one committee – can convene into a Con-Ass.

“That’s a novel idea. The practice and jurisprudence is that there must be a resolution from both houses to convert Congress into a Constituent Assembly. It must also be the whole House and not just a committee of a House,” said La Viña. 

Even Deputy Speaker Rufus Rodriguez – who used to be constitutional amendments committee chair before he was promoted in the House leadership – said Garbin made a “misappreciation” of what a Con-Ass is.

"No, I do not agree with the position. The Constituent Assembly can only be constituted by the plenary of the entire Congress, by the House. So this is just a preparatory action by a committee to propose to the House,” said Rodriguez, a former law school dean.

“Committees can never be a Constituent Assembly. They are preparatory to the Constituent Assembly,” he added. 

Zarate also tweeted that a House committee "cannot just declare motu propuo that it is now being constituted as a Constituent Assembly."

"Amendment via legislation route of House is not the Constituent Assembly contemplated by the 1987 Constitution," said the Bayan Muna congressman.

That Garbin is now insisting on new interpretation on how a Con-Ass is convened might indicate that the House is bent on rushing Cha-Cha, La Viña warned.

“The timeline to do this is abbreviated. Essentially, it has to be done by March before the Holy Week retreat. That’s why they want to rush this. I suspect they have a signal from the President,” La Viña said.

Senate President Vicente Sotto III earlier revealed that President Rodrigo Duterte wanted Congress leaders to revisit Cha-Cha to change the party-list system in a bid to boot out progressive lawmakers critical of him. 

Voting jointly or separately?

During the hearing, Albay 1st District Representative Edcel Lagman said the Supreme Court already ruled in the Gonzales vs Comelec case in 1967 that there is a distinction between the powers of Congress to legislate laws and its constituent authority to propose amendments to the charter. 

The veteran lawmaker argued that if Congress were to convene into a Con-Ass, then the House and Senate must vote jointly on the amendments.

“In other words, if members of the Con-Ass are not sitting as legislators but as constituent members of the assembly, then the voting should not be separate but it should be joint…because senators and representatives are not there acting as legislators but as members of a Constituent Assembly,” Lagman said. 

Marcoleta shared the same sentiment, saying that Velasco’s renewed push for Cha-Cha would be futile if there would not be enough votes in the Senate. 

“Maybe you should have sounded off your counterparts in the Senate na makukuha talaga nila yung 3/4. Eh bakit pa tayo nagtatangka ng pagbabago dito kung wala pala silang made-deliver doon?... Mas maganda 'yung joint voting na lang 'yung i-advocate natin,” asked Marcoleta.

(Maybe you should have sounded off your counterparts in the Senate that they would really be able to secure the 3/4 votes. Why would we even attempt to make changes here if they cannot deliver there?... It would be better if we advocate for the joint voting instead.)

Garbin, however, said the Speaker’s order was for both houses to vote on the amendments separately, not jointly.

Senior Deputy Majority Leader Jesus Crispin “Boying" Remulla believes it would be more prudent to let the Supreme Court resolve the issue on the voting.

“I believe this matter is a prejudicial question for us to resolve before we can even begin our work because this will be a waste of time if this question is not answered properly by the judiciary,” said Remulla. 

Garbin acknowledged Remulla’s proposal, but still proceeded with the hearing, where several economists were invited to share their views on the proposed surgical amendments to the economic provisions of the Constitution. – Rappler.com

Mara Cepeda

Mara Cepeda writes about politics and women’s rights for Rappler. She covers the Senate and the Office of the Vice President. Got tips? Send her an email at mara.cepeda@rappler.com or shoot her a tweet @maracepeda.

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