Philippine e-Legal Forum

Now that the Supreme Court has dismissed the petition of Lambino et.al., it is expected that the same petitioners through the President’s allies in the Lower House would finally resort next to the other mode in the amendatory process, i.e. proposal by the Congress, upon a vote of three-fourths of all its members (Sec. 1, Art. XVII, 1987 Constitution).

Significantly, however, the phrase “voting separately”, which appears elsewhere in the Constitution (Sec. 4, 9 and 11, Art. VII and Sec.23, Art. VI), is nowhere to be found in the provisions of Article XVII (Amendment or Revision of the Constitution). It is also interesting to note that the Constitution unequivocally requires “voting jointly” when Congress wants to revoke a declaration of martial law or a suspension of the privilege of the writ of habeas corpus (Sec. 18, Art. VII). The latter provision further heightens the ambiguity. The textual ambiguity of Sec.1, Art. XVII thus raises a question of whether or not the Senate and House of Representatives should vote jointly or separately.

From the way I see it, the pro-charter change group, notwithstanding the Lower House’s superior numbers and their intention to disregard the Senate in the voting, is likely to face again another difficult challenge in their desire to have the Constitution amended for I am very certain that the issue of whether or not the two houses of Congress should vote jointly or separately would be brought before the Supreme Court. The case would be then titled the Senate of the Philippines vs. the House of Representatives, a monumental jurisprudential precedent.

We, students of law, are glad that some legal luminaries are shedding light on the ambiguities of the constitutional text on charter change. Majority of authorities opine that Sec.1, Art. XVII is to be understood as three-fourths of the Senate and three-fourths of the House of Representatives.

We have learned from Statutory Construction that there is no provision in the 1987 Constitution which prescribes the rules or the manner it should be construed. The rules of construction are found in American and Philippine jurisprudence, one of which is the rule of giving effect to the intention of the framers.

The intention of the framers could be discovered from the historical basis of constitutional provision sought to be construed along with other circumstances that may shed light on the intention of the framers (Caltex Phil Inc. vs. Palomar, L-19650). The framers of the Constitution went bicameral after a long debate and close vote. Bicameral legislature was the intention of the framers, where the two houses vote separately to check each other. Scholars have made a number of arguments to explain bicameralism. One of the common arguments is that it helps to preserve “mixed governments”. In such setting, bicameralism allows the Upper House to have a veto on policy. More generally, an explicit role of bicameral system is the protection of minority who is overrepresented in the Upper Chamber. Bicameralism is defined as the requirement of concurrent majority support from distinct assemblies for new legislation (Tsebelis, George and Jeanette Money, 1997, Bicameralism, Cambridge University Press).

The constituent function is conferred on a bicameral Congress. Both chambers should autonomously perform as a bicameral legislature to check one another. The 1935 Constitution, a bicameral system, provided that the two houses Congress, voting separately, may propose constitutional amendments. The phrase “upon a vote of three-fourths of all its members” in Sec.1, Art. XVII of the 1987 Constitution should therefore be construed as “three-fourths of the Senate and three-fourths of the House of Representatives”, voting separately, which is the very essence of bicameralism.