DOABLE CHARTER CHANGE

In my column last week I ended with the suggestion that before Congress can attempt to touch the substantive provisions of the Constitution, it should first find a way of settling how Congress will proceed in the light of the vague amendatory provision of the Constitution.  I also said that the opponents of charter change are probably saying:  Let’s see you do it!

If what Speaker Belmonte and Senate President Enrile are saying about charter change is an indication that there is an atmosphere favoring charter change in both House and Senate, there may be a way of doing it quickly.  What I wrote about earlier as a fourth mode of charter change might be the way.  What is this fourth mode?

But first, what are the currently discussed and acceptable modes?  The first is charter change through a constitutional convention.  This entails electing a body of representatives distinct from the Congress. This can be as expensive as supporting a second Congress.   The nation is sharply divided about using it.  It also opens up the entire Constitution for total overhaul, a prospect I myself do not favor.

The second is through “initiative and referendum.”  This was tried by Sigaw ng Bayan and the outcome was a disaster.

The third is through Congress in joint session assembled but voting separately.  Congress in joint session simply converts itself into a constituent assembly.  This is how it was done under the 1935 Constitution and it can still be done under the current Constitution if only House and Senate can agree to use it.  But like a constitutional convention, it opens the entire Constitution for examination and revision.

What I would call the fourth mode is charter change through Congress doing as two Houses doing it in separate sessions. The two houses can support a “surgical” mode of change focused only on one amendment.  How will this work?

 It will work pretty much like the legislative process.  It can start in either House with a bill proposing a focused amendment.  The house where it is filed threshes is out as it does legislative bills and concludes it with approval by a three-fourths votes of all the members.  The approved bill is next sent to the other house for a similar processing.  Once a constitutional amendment bill is approved by both houses, it can be sent for ratification by the people during the next national election.

But where in the Constitution does one find this mode?  The element s of this mode are all in Article XVII.  The fundamental principle is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress provided it can be traced somehow to the powers of Congress.  It is clear from article XVII that the power to propose amendments   can only be activated by Congress. The two houses of Congress are not required, as they were under the 1935 Constitution, to be in joint session.  Hence, it is quite possible for the two Houses to formulate amendments the way they formulate laws—as they are where they are. Once one House is through with a draft, it is passed on to the other House for action.  If prohibition there is, it can come either from the letter of the Constitution (and there is none) or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress.

Where will the President be in all of this?  It is clear that the President is adamantly opposed to constitutional change now.  But it is also clear from the text of the Constitution that the President has no role in the formulation of amendments except to the extent that he can influence the members of Congress, as he did in the recent impeachment exercise.  His direct role will only be in the formulation of the budget needed for the plebiscite.  But if Congress is truly determined to achieve constitutional change, budgetary problems can be solved.

This brings us finally to the will and willingness of Congress to make the change.  Are Senate President Enrile and Speaker Belmonte speaking for their respective houses or only for themselves?  Will all the members of the House, and not just the famous 188, click their heels and salute when Belmonte calls for charter change as they did when the President called for impeachment.  Can Enrile succeed in overcoming the reluctance of the Senate to play in the charter change game?  Can the two of them coopt the President into their plans?  There are as yet no clear answers to these questions.

23 July 2012