These days, we hear the incessant chatter of the legal mercenaries (Sorry, luminaries) of the Administration stating that the Constitutional provisions on amendments are ambiguous, and therefore, require the interpretation of the Supreme Court. That is the reason, they say, for the drive to obtain a three-fourths majority to file a “test case” before the Supreme Court.
The case will test two alternative interpretations of the Constitutional provision that states that:
"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 "[Art. XVII, Section 1.]
The first interpretation maintains that the three-fourths vote is to be derived by the two Houses of Congress voting separately. In other words, Congress may sit as a constituent assembly, if three-fourths of the Senate, AND three-fourths of the House agree.
The other interpretation states that the vote is taken jointly; that means that the three-fourths vote will be reckoned from the total number of Senators and Representatives of Congress. Because there are twenty-four Senators and 250 Congressmen, the total is 274. Three fourths of that total is 205. Even if it be presumed that all the Senators vote against the convening of a constituent assembly, a supermajority is still possible if 205 Congressmen vote in favor of a constituent assembly. They imply, therefore, that the participation of the Senators is not even necessary.
The advocacy for a joint vote stems from the fact that the Constitutional provision does not employ the phrase “voting separately”. This omission, according to Congressman Pablo Garcia (Gloria Arroyo’s John the Baptist), “was deliberate”, considering that in other provisions, the phrase “voting separately” was included. The omission, he opines, yields the interpretation that the Framers of the Constitution intended a joint vote of Congress.
The fawning Evangelist conveniently ignores the provision that states:
"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it" [Art VII Section 18.].
It is clear from the foregoing, that if the Framers intended a joint vote, they would have so stated, as they did in the above provision. How then do we interpret the seeming ambiguity of the Constitutional provision on amendments?
What is the nature of the powers exercised?
A careful reading of the several provisions that require the Congress to vote separately, and obtain a supermajority, and the sole provision that requires a joint vote, would reveal the nature of the power exercised. From that analysis, we can determine whether or not the power to amend the Constitution is more akin to the several or to the single provision. If the amendatory power is of similar nature to the several provisions, then logic requires a similar procedure – a separate vote; if the amendatory power is kin to the sole provision, then the procedure should be similar to that sole provision.
First provision – Power to declare war.
The first provision requiring a separate vote refers to the power to declare war, which is provided as follows:
The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war [Art. VI Section 23. (1)].
Second provision – Power to override a Presidential veto.
The second provision which requires a supermajority obtained by the Houses of Congress voting separately, is the provision on the overriding of a Presidential veto. That provision states:
"Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it" [Art. VI Section 27. (1)].
Third provision – Breaking a tie between or among Presidential candidates.
The third provision requiring a supermajority of the Houses of Congress voting separately is in the selection of a President, when the votes of two or more candidates are tied. That provision provides:
"The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately." [Art VII Section 4, par. 5]
Fourth provision – Filling a vacancy in the Office of the Vice President.
The fourth provision requiring a majority of the Houses of Congress voting separately is in the selection a Vice-President when there is a vacancy in that Office. The Constitution provides for the nomination by the President, to be confirmed by a majority of the Members of both Houses voting separately.
"Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately" [Art. VII Section 9].
Fifth provision – Choosing between an ailing President and the Vice President.
The fifth provision requiring a supermajority of the Houses of Congress voting separately occurs when a choice must be made as to which person shall discharge the powers and functions of the President – the President, who by the declaration of the Cabinet is incapacitated, or the Vice-President. The making of that choice is reposed in the Congress voting separately, as follows:
"If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office "[Art VII Section 11, par. 4]
Sole provision requiring a joint vote.
The sole provision that provides for a joint vote of both Houses of Congress occurs when the President proclaims martial law, or the suspension of the privilege of the writ of habeas corpus. This is the only instance when the Constitution requires a joint vote to obtain a simple majority, and is provided as follows:
"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it" [Art VII Section 18.].
Legislative power.
An observant reader would immediately see that the several provisions requiring the Houses of Congress to vote separately partake of the nature of (1) the exercise of legislative power, or (2) the delegated power of election. The first two refer to the exercise of legislative power, which has been defined as:
"The legislative power has been described generally as the power to make, alter, and repeal laws" (Yazaki Torres Manufacturing, Inc. v. Court of Appeals G.R. No. 130584 June 27, 2006).
Although the provision on war powers does not come within the “classical” definition of legislative power (the enactment of laws), it is a power reposed solely in the legislature, and therefore, part of the “legislative powers”. That is evident in the fact that the provision is located in the Article that establishes the legislature and confers its powers. Article VI starts with Section 1, which states that:
The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
It, thereafter, defines the structure of the legislature, its composition, the qualifications of its members, and confers its powers. The American Constitution, from which most of the provisions of the Philippine Constitution is sourced, is more precisely worded as follows:
"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
Delegated power to elect a President or Vice-President.
The three other provisions requiring a supermajority with the Congress voting separately, refer to the power of the people to elect their leaders. That power is delegated to the Congress in these three instances:
1. In the event of a tie between two or among three or more candidates, the Constitution delegates to the Congress, the power of the people to elect which of the tied candidates shall govern;
2. In the event of a vacancy in the Office of the Vice-President, the Constitution delegates the power to elect, in the President (nominating) and the Congress (confirming); and
3. In the event of incapacity of the President, as reported by his Cabinet, the Congress may elect as between the ailing President and the Vice-President, who shall govern.
It is clear from the foregoing, that the Constitution has defined how a vote is to be obtained, when the legislative power is exercised. It has also defined how a supermajority is obtained, in the exercise of legislative power – the supermajority must be obtained from each House of Congress.
The provision we are construing is clearly the exercise of legislative power, as that phrase is defined – the making of laws. The only difference between the enactment, or amendment of statutes, and the amendment of the Constitution lies in the fact that the amendment of the Constitution requires the ratification of the People – a requirement not imposed in the enactment of statutes. That interpretation finds further support in the text of the Constitution itself, which states that:
"The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum."
The provision states that the legislative power is vested in the Congress – except to the extent reserved to the people by way of initiative. That implies that amendment of the Constitution is also a species of legislative power; but amendment by initiative is reserved to the People. Amendment by way of a constituent assembly is reposed in Congress, or may be reposed by Congress in a Constitutional Convention.
It has been held that “Congress need not repeat itself, restating in each subsequent enactment an intention Congress thought it clearly expressed once already." [US v. Eric V. Johnson (22 F.3d 106, 6th Circ., 1994)]. That doctrine, it is submitted, applies with equal force when it is the Sovereign People who have expressed their intent. Since the intent has already been expressed in earlier provisions of the Constitution, there is no need to repeat the intent in the provisions on amendment. The phrase “The Congress, upon a vote of three-fourths of all its Members”, therefore, must be interpreted to mean a three-fourths vote of each House voting separately.
It may be argued, however, that if the People need not repeat themselves in defining how legislative power is exercised, and how a supermajority is obtained, then why did it repeat itself in the several provisions we enumerated above? There is no repetition, as we detail below.
The power to declare war is not legislative power, if by that, is meant, the power to make laws. The war power is a separate power reposed in the legislature; it is for that reason that a definition of how the vote is to be taken was made.
The other instances where a supermajority is required, with the Congress voting separately, are occasions where the power exercised is not legislative; they are occasions when the power of the people to elect their President or Vice-President is delegated to the Congress.
Each of the five provisions requiring a separate vote are distinct instances of the exercise by Congress of its powers. There is no repetition at all.
Fact-finding requires a joint vote.
In stark contrast, the sole provision which requires a joint vote is not in exercise of legislative power. The Congress, in that instance is engaged in fact-finding – whether or not there is an emergency to justify the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. This is the only instance where the bar to concerted Congressional action has been lowered – the vote is taken jointly, and a mere simple majority of that joint vote is taken.
This lowering of the bar is founded on a historical basis.
When Marcos proclaimed martial law, he incarcerated most of the Senators and Congressmen. Senators Salonga, Aquino, Tañada, among others, were incarcerated, so that the Senate was practically decimated. It was, therefore, impossible to obtain a quorum in the Senate, and perhaps, even in the House of Representatives. This is the reason for the lowering of the bar in the case of the proclamation of martial law, and the power of Congress to revoke said proclamation.
The foregoing clearly shows that the amendment process, being an exercise of legislative power, requires the Congress to obtain a supermajority by voting separately. The contrary interpretation is contrived erudition.
They say that necessity is the mother of all invention. Yes; and the need to cling to power has proven to be the mother of this contorted sophistry.
The letter of the Constitution, we submit, must be interpreted guided by its spirit. That spirit, finds flesh in the structure ordained – a bicameral Congress. The spirit, therefore, is bicameralism, and every act of Congress requires the participation of both Chambers; and the reckoning of a supermajority requires that each House vote separately.
The case is not ripe for adjudication.
There may, however, be no need for the Supreme Court to decide this question, even if the contrary interpretation is upheld, and the Congressmen gather the requisite number of votes.
If the majority vote of the Congress is to be appreciated with both Houses voting jointly, then it must follow the procedure of the sole provision providing for such joint vote. That provision requires that the Congress be in joint session assembled. True, the provision does not explicitly state so, but the provision requires the President to submit his or her report on martial law to the Congress in person or in writing. Whenever the President delivers a report in person, like the State of the Nation Address, the Congress is required to assemble in joint session.
Since the Senate has not agreed to a joint session, no valid vote can, or has been taken. There is, therefore, no controversy, and the issue to be presented by Congressman Villafuerte to the Supreme Court, is premature. The issue presented being non-justiciable, the only resolution in order is a dismissal.
