Joaquin G. Bernas, S.J.
Last week Speaker Belmonte made the first salvo for cha cha since six years ago. He wants it to begin in the House of Representatives and he wants it done not through a constitutional convention but through a constituent assembly. When he fired this salvo, he may have been still feeling euphoric because of the successful impeachment of the Chief Justice. I myself think that the outcome of the impeachment was not due so much to the efforts of the House but to the support of some senators and finally to the admissions of Corona himself. At any rate, the Speaker wants to limit amendments to economic provisions of the Constitution.
Although he seemed to have the support of Senate President Enrile, the reaction of the Palace was instantaneously negative. “If it ain’t broke, don’t fix it,” said the President. The view from the Palace is that it ain’t broke. The Palace thinks that there is no obvious need for changes in the economic provisions because, notwithstanding the current provisions, the economy is flourishing swimmingly. We will leave that there.
As to Speaker Belmonte’s proposal, however, history tells us that cha cha with the support of Fidel Ramos and later with the support of Gloria Macapagal Arroyo did not get anywhere. How will it fare without the support of President Aquino? When you add to this the technical problems in the current constitutional text on charter change, how will the Speaker avoid what killed the efforts of Pirma and Sigaw and others. While we are at it, it might be good to review the inherent obstacles found in the Constitution itself. It should be salutary to recall the obstacles that thwarted charter change under Ramos and under Arroyo.
I am not saying that we should not have charter change. I myself have a number of changes in mind. When the 1987 Constitution was promulgated, I don’t think anyone among those involved in writing it entertained the thought that the document’s wisdom would never be questioned. After all, it made some significant and debatable departures from what the nation had considered to be traditional wisdom. Thus, during the Ramos years there already was a proliferation of amendment proposals. I recall, for instance, that the Philippine Constitution Association told President Ramos that it had 97 amendments. Sergio Apostol alone had 147! There were more, but none succeeded.
During the Arroyo years there were also vigorous efforts at charter change. In 1995 proponents were so confident that Speaker de Venecia could speak as charter change was all over but the shouting. For her part, the thinking of President Arroyo was that charter change should finally succeed by the middle of that year. The biggest obstacle they never succeeded in hurdling, however, was the Senate. It has to be remembered that any change in the Constitution can be achieved with the support of two-thirds of all the members of Congress and not just of the House.
The manner of obtaining the two-thirds vote became a subject of intense debate during the Arroyo years. During that time there were various modes of computation being bruited about. The most liberal of these (wild, if you wish) was that proposed by Speaker Joe de Venecia. In the Speaker’s theory even if only one senator should attend a session a session of a constituent assembly, there could already be a valid proposal of amended provided that the total number of votes approving the proposal reached three-fourths of all the members House and Senate put together. It was a cry of desperation.
Another mode possible was that the three-fourths vote would be based on the total membership of Congress put together.
A third mode of computation is the strict mode. This is what I personally hold, namely, that the vote required is three-fourths of all the members of the Senate and three-fourths of all the members of the House taken separately.
The computation problems which arose during the earlier attempts at amending the Constitution have never been resolved. The proposal of Speaker Belmonte to give the task of amendment to a constituent assembly will have to deal with this problem before the process can get anywhere.
Why do we have this problem? The problem is a necessary product of the way the constitutional provision on amendment is worded. It says: “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 is a copy of the text of the 1973 Constitution which was meant for a unicameral National Assembly. But now the same provision is meant to be used for a bicameral Congress. How is the bicameral Congress to act? In joint session or in separate sessions? If in separate sessions, the two Houses would normally vote separately. If in joint session, how will they vote: jointly or separately? And if voting separately, how will the two-thirds be computed? Two-thirds of all the members of each House computed separately or two-thirds of the sum total of all members?
I suggest 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. The oppoents of charter change are probably saying: Let’s see you do it!
16 July 2012