Joint voting on Cha-Cha? Senate's problems, plans against it

MANILA, Philippines – Senators are vehemently opposed to proposals for a joint voting on Charter Change in a Constituent Assembly (Con-Ass). 

It’s a unifying issue among members of the majority and minority blocs. After all, the Senate’s voice would be practically drowned out by the nearly 300-member House of Representatives. (READ: The problem with Con-Ass? Distrust of Congress)

If the Senate’s vote is needed on ordinary bills such as the changing of schools’ names, why not on the crucial task of amending the Constitution?

The confusion lies in the very Charter they are seeking to change. Article 17, Section 1 of the 1987 Constitution states that any amendment or revision may be proposed by Congress, upon a vote of 3/4 of all its members (Con-Ass). It is silent on the manner of voting.

This is sure to reach the Supreme Court (SC), the final arbiter of the law. Senate Minority Leader Franklin Drilon earlier said the minority bloc is "open" to questioning it before the High Court.

But what exactly are the senators’ issues against joint voting on Charter Change?

Senate’s ‘death’

While both chambers of Congress are deemed equal, there are differences in how they are elected.

Senators are elected on a national level while representatives are elected locally. Amending a Constitution would affect the nation, including its national security, economy, foreign policy, and its type of government.

With only 23 sitting members, the Senate would be deemed useless in joint voting with the House. No senator would want to become irrelevant.

Initially, some senators like Drilon and Grace Poe wanted a Constitutional Convention (Con-Con) to amend the Charter. With President Rodrigo Duterte’s statement pushing for Con-Ass, some have already conceded but with the condition that there should be separate voting.

“Given the extent of the proposed changes in the Constitution, I maintain that having a Constitutional Convention is the best and most acceptable mode to take, even if it appears impractical to some… Any move for a literal interpretation that would obliterate the relevance of the entire Senate by the 300-member lower House in the voting must be rejected for being contrary to the spirit of the 1987 Constitution,” Poe said in a statement.

“Yes, if we vote jointly, we become irrelevant. That is an unfortunate interpretation… If the Senate’s vote is needed to change the name of a high school, I cannot imagine that the framers of the Constitution contemplated of the situation where the Senate’s vote is just equivalent to that of 290 or so congressmen in a joint voting. No senator will agree to this kind of interpretation,” Drilon said.

Senator Panfilo Lacson shared the same sentiment and said agreeing to it would be like a “death warrant” for the chamber.

No checks and balances

Should there be joint voting, Lacson argued that there would no longer be checks and balances between the two chambers.

The House, filled with Duterte allies, could easily decide on the amendments, with the Senate having practically no say on the matter. Speaker Pantaleon Alvarez has floated the idea of a "no-election" scenario in 2019, which senators opposed.

“Kung isang buong Constituent Assembly ang both Houses, Lower House at Upper House, wala nang checks and balances. Unang-una, kakainin kaming lahat ng boto ng mga kongresista. 'Yan ang puwede sabihin, ako siguro subjectively, dahil this early nakikita na natin sa pamamagitan ng kanilang mga pahayag sa media kung ano ang kanilang real intentions,” Lacson said.

(If both Houses will be part of one Constituent Assembly, there will be no checks and balances. First, the senators' votes will be eaten by the votes of the congressmen. That's what I can say because this early, we can all see through their media statements what their real intentions are.)

Senator Francis Pangilinan also questioned the House's intentions and said it could not be trusted to amend the Charter.

“After witnessing the congressional hearings on extrajudicial killings, on Senator [Leila] de Lima's alleged connection with drug syndicates, on the P6.4-billion [Bureau of Customs] shabu smuggling scandal allegedly involving the Davao Group, the impeachment of Chief Justice [Maria Lourdes] Sereno, the approval of the one-year extension of martial law in Mindanao, the slashing of the [Commission on Human Rights] budget to P1,000 pesos, will you trust Congress with Charter Change? And if your answer is 'No,' are you just going to sit and watch should Congress proceed to amend the Constitution?” Pangilinan said.

It is also usually the House that is more likely to follow the wishes of the Duterte administration than the Senate. Senators are also more sensitive to public opinion and feedback, as there are only 23 of them.

“Ang problema, ang ibang congressman naman parang gigil na gigil magkaroon ng no-el... Kitang-kita mo ang parang intention nila, hidden agenda ng iba. Kaya sila boboto and I hope, and I am confident sa mga kasamahan ko sa Senate, hindi ganoon ang pananaw. Ako kumpiyansa ako roon kasi kabisado ko kasamahan ko na may delicadeza kasi bilang na bilang kami. Kitang-kita sila. Sa HOR 'di masyadong makikita... So papayag ba sila na ang tingin sa kanila 'di sila mapagkatiwalaan, mga balasubas sila? 'Di sila siguro papayag na ganoon,” Lacson said, referring to his reelectionist and graduating colleagues.

(The problem is that some congressmen are eager to have a no-elections scenario. You can see their intention, hidden agenda. That's why they're going to vote. I hope, and I am confident, that my colleagues in the Senate do not share the same sentiment. I am confident because I know them, they have delicadeza. We are just a few members here. The public would see them, unlike in the House, where they could vote and not get noticed. So will my colleagues allow that they go down in history as not trustworthy and as swindlers? They won't agree to that.)

SC, plans ahead

With all this, the Senate has anticipated several scenarios and plans, ultimately ending at the SC.

Drilon earlier said the minority could question the joint voting before the High Court.

Senate President Aquilino Pimentel III is set to file a resolution calling for a joint session with the House for a Con-Ass but with separate voting.

But for Lacson, this could pose a threat to the Senate. He explained that a case would likely be filed before the SC. If the SC decides for joint voting and the Senate is already in a joint session with the House, it would be like a death sentence to the upper chamber.

“Sinasabi ko para kaming nagpirma 'pag nag-affix kami ng signature namin sa resolution na 'yan na mag-joint session kami with the Lower House, parang death warrant namin 'yan, parang pinatay namin ang sariling institution namin which is the Senate,” said Lacson.

(I'm saying if we affix our signature to the resolution calling for a joint session with the House, it's like signing our death warrant. We're killing our own institution which is the Senate.)

Lacson is instead filing a resolution calling for the Senate to constitute itself as a Con-Ass. The ideal scenario is like in passing ordinary legislation: both chambers would constitute themselves as Con-Ass separately, propose their own amendments, and vote separately. A bicameral conference committee would then be convened to thresh out differences between the two versions.

To speed up the process, Lacson said the two chambers, in backchannel talks, could discuss disagreeing provisions and settle them.

"Ang logic dito, ang pilosopiya rito, kung ang simpleng legislation na mag-amend tayo ng batas nangangailangan tayo ng participation on equal footing, participation ng Senado at Kongreso, what more ang i-a-amend natin ang Saligang Batas mismo?" Lacson said.

(The logic here, the philosophy here is if there is equal participation and footing in amending laws, participation of both the Senate and the House, what more if we are amending the Constitution itself?)

Timeline

It’s highly likely that should there be Charter Change, it would be through a Con-Ass. Ultimately, it would be up to the SC, which is rocked by an impeachment complaint against its chief magistrate.

Another issue is time. Lawmakers have to discuss and decide on the impeachment complaint, which is expected to reach the Senate for trial. By October 2018, reelectionists are set to file their certificates of candidacy for the 2019 midterm elections. It’s as good as the campaign season, as politicians would start going around the country.

“Depende kung anong magiging process nang pag-propose ng amendments. Kung mai-stuck kasi sa voting jointly or separately, 'di kakayanin. 'Pag transmit ng impeachment, which in all likelihood ma-transmit, bawas 'yun [sa oras]. Lalong mahihirapan,” Lacson said.

(Depends on the kind of process in proposing amendments. If we get stuck in the issue of voting jointly or separately, we cannot do that by then. If the impeachment complaint is transmitted, which in all likelihood it will be, it would lessen the time for Cha-Cha. We will have difficulty.)

Whether or not a new Constitution could be presented to the public through a plebiscite in May 2019 remains unclear to date. After all, Congress has yet to hurdle the technical issue of voting before it could go to the more important discussions on the amendments. – Rappler.com

Camille Elemia

Camille Elemia is Rappler's lead reporter for media, disinformation, and democracy. She won an ILO award in 2017. She received the prestigious Fulbright-Hubert Humphrey fellowship in 2019, allowing her to further study media and politics in the US. Email camille.elemia@rappler.com

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