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

THE FIRST SALVO FOR CHA CHA

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

Obama Care and Us

Even as controversy continues among us over the Reproductive Health Bill, a similar and more wide ranging controversy goes on in the United States.  An important aspect of the US debate is about the implications of freedom of religion.  And since the doctrine on religious liberty was brought to the Philippines from the United States, it might profit us to ponder what is happening and what has happened in the United States.  The recent Supreme Court decision National Federation of Independent Business v. Sebelius covered just part of the total controversy.  The fight of the US Bishops is over an area wider than what had been decided so far.

In a document entitled Our First, Most Cherished Liberty the US Bishops summed up some of the government policies they are fighting against thus:

1. “HHS mandate for contraception, sterilization, and abortion-inducing drugs. . . .  In an unprecedented way, the federal government will both force religious institutions to facilitate and fund a product contrary to their own moral teaching and purport to define which religious institutions are "religious enough" to merit protection of their religious liberty. These features of the "preventive services" mandate amount to an unjust law. As Archbishop-designate William Lori of Baltimore, Chairman of the Ad Hoc Committee for Religious Liberty, testified to Congress: ‘This is not a matter of whether contraception may be prohibited by the government. This is not even a matter of whether contraception may be supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to provide coverage for contraception or sterilization, even if that violates their religious beliefs.’”

2. “State immigration laws. Several states have recently passed laws that forbid what the government deems "harboring" of undocumented immigrants—and what the Church deems Christian charity and pastoral care to those immigrants. Perhaps the most egregious of these is in Alabama, where the Catholic bishops, in cooperation with the Episcopal and Methodist bishops of Alabama, filed suit against the law.”

3. “Altering Church structure and governance. In 2009, the Judiciary Committee of the Connecticut Legislature proposed a bill that would have forced Catholic parishes to be restructured according to a congregational model, recalling the trusteeism controversy of the early nineteenth century, and prefiguring the federal government's attempts to redefine for the Church "religious minister" and "religious employer" in the years since.”

4. “Christian students on campus. In its over-100-year history, the University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage.”

5. “Catholic foster care and adoption services. Boston, San Francisco, the District of Columbia, and the state of Illinois have driven local Catholic Charities out of the business of providing adoption or foster care services—by revoking their licenses, by ending their government contracts, or both—because those Charities refused to place children with same-sex couples or unmarried opposite-sex couples who cohabit.”

6. “Discrimination against small church congregations. New York City enacted a rule that barred the Bronx Household of Faith and sixty other churches from renting public schools on weekends for worship services even though non-religious groups could rent the same schools for scores of other uses. While this would not frequently affect Catholic parishes, which generally own their own buildings, it would be devastating to many smaller congregations. It is a simple case of discrimination against religious believers.”

7. “Discrimination against Catholic humanitarian services. Notwithstanding years of excellent performance by the United States Conference of Catholic Bishops' Migration and Refugee Services in administering contract services for victims of human trafficking, the federal government changed its contract specifications to require us to provide or refer for contraceptive and abortion services in violation of Catholic teaching. Religious institutions should not be disqualified from a government contract based on religious belief, and they do not somehow lose their religious identity or liberty upon entering such contracts. And yet a federal court in Massachusetts, turning religious liberty on its head, has since declared that such a disqualification is required by the First Amendment—that the government somehow violates religious liberty by allowing Catholic organizations to participate in contracts in a manner consistent with their beliefs on contraception and abortion.”

Most relevant to the controversy among us on the RH Bill is what the Bishops cite as HHS mandate for contraception, sterilization, and abortion-inducing drugs.  The others are not yet a live issue among us.  But when one considers that a member of Congress has already thought up the idea of banning religious objects in government offices, I would not be surprised if other legislators should think up other religion related bills.

Religious freedom came to the Philippines as constitutional law with the arrival of American occupation.  Freedom of religion firmly implanted in our country is not just the right to choose what to believe internally.  It also includes the right not to be forced to act against one’s belief and the right to act according to one’s belief.  We should be vigilant against incursions against these rights.

9 July 2012

First Salvo For Cha Cha

The First Salvo for Cha Cha

 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

JBC Odds and ends

JBC Odds and Ends

Joaquin G. Bernas, S.J.

When a reporter asked me whether I would accept nomination to the post of Chief Justice, with a straight face I said no because I hate work and the pay is not right.  Wonder of wonders, somebody told me that my answer came out in media!

But not everything is comical.  There are some legitimate issues coming out.  The first is the challenge to the eight-man composition of the current Judicial and Bar Council. 

Indeed it is true that the Constitution provides for only seven members and only one of them is from Congress.  As I recall, however, this was one of the provisions in the draft of the constitution which escaped the attention of the drafters.  The provision was approved when he Constitutional Commission was still thinking in terms of a unicameral National Assembly.  Thus, only one representative for the legislative body was provided for.  After the Commission decided to go bicameral, no adjustment was made.

In the early days of the 1987 Constitution the practice was for the Senate and House members in the Judicial and Bar Council either to alternate or to be given only half a vote each.  As I understand from the complaint against current practice, the congressional members now each have one vote.  If this is so, it is not such a world shaking inaccuracy.  It can easily be remedied.  But it would be interesting to check back records to see if any nominee has ever been recommended because a majority vote was reached in his or her favor on the basis of the vote of the two legislators.

In fact, however, there are other instances of failure to adjust to  the shift to a bicameral legislative body.  The most serious is the provision on amending the Constitution.  What we have is  copy of the constitutional amendment provision in the 1973 Constitution.  It now 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 has paralyzed attempts to revise or amend the Constitution.  The debate has frequently been stalled on just how this provision should be implemented.  Under the 1935 Constitution the provision clearly required a joint session.  It commanded Congress that, in proposing changes to the Constitution, it must be in joint session but they must vote separately.  The paralyzing debate under the 1987 Constitution is on whether a joint session is required or whether separate sessions can do the job or in either case whether they must vote separately.

Another item that has come up from the JBC is the report that all applicants for the position of Chief Justice should undergo psychological test.  I suppose that this is not just for aspiring Chief Justices but also for all aspiring justices of the Supreme Court. 

The constitutional qualifications of a member of the Supreme Court are listed thus: “No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.” And for all other members of the judiciary the Constitution says:  “A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.”

In 2008 when the question arose whether the mandatory drug testing found in the Dangerous Drugs Board Act could be applied to candidates for national office, the Court ruled that the qualifications found in the Constitution for national elective officials was exclusive and that Congress could not prescribe additional qualifications.  Should this ruling of the Court apply to drug testing of applicants for the Supreme Court?

The constitutional requirements for membership in the Court are also exclusive.  They may not be expanded by Congress and much less by the Judicial and Bar Council which has neither legislative nor constituent power.

It might be argued that drug testing can come under the general requirements of “competence, integrity and probity.”  Indeed, psychological fitness for the office can be understood as required.   But this is to be verified not through the technical skills of a psychiatrist but by the ordinary prudential judgment of the judgment of the members of the JBC. After all, psychological imbalance of a person can have external manifestations easily verifiable.  There have been examples of this.  The JBC may not delegate its power to a person who is not one of them. If a psychiatrist were needed for this, the Constitution would have required that one be a member of the JBC.

Finally, I would consider it insulting to require a sitting Justice of the Supreme Court to submit himself or herself to psychological testing for the purpose of determining whether he or she deserves a seat.  In fact, many of the current nominees would also be insulted by the requirement.

2 July 2012