Rep. Edcel C. Lagman

Mobile Nos. 0916-6406741 / 0918-9120137

01 October 2011

 

          Representatives and Senators must not be precipitate in adopting a variation of the constituent assembly to propose amendments to the economic provisions of the 1987 Constitution which innovation may be a mongrel bereft of pedigree under the fundamental law.

 

          The constitutionality of the proposed variation must be assured even as the necessity of the proposed amendments needs to be ascertained in the absence of a justifiable clamor from foreign investors to liberalize the nationalistic economic provisions which protect Filipino citizens and safeguard the national patrimony.

 

          A constituent assembly, which is one of the only three modes of proposing charter change, by tradition and experience, has its own nature, processes and objectives which are vastly different from the legislative functions of the Congress.

 

          The other two modes are by constitutional convention and people’s initiative. Amendments by legislation are not authorized.

 

          The congressional procedure of enacting a law, wherein a bill is initiated and approved separately by each Chamber and differing provisions are harmonized in a bicameral conference committee, cannot be made to apply to a constituent assembly.

 

          After the convening of a constituent assembly has been called through a concurrent resolution by the Congress, Representatives and Senators constituting the constituent assembly have to meet in a joint session to consider and propose constitutional change.

 

          The Supreme Court as early as 09 November 1967 in Gonzales vs. COMELEC (21 SCRA 774) made an unequivocal distinction between the legislative authority exercised by the Congress and the constituent power discharged by a constituent assembly.

 

          The High Court ruled that:

 

          “Indeed, the power to amend the constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress x x x hence, when exercising the same, it is said that Senators and Members of the House of Representative act, not as Members of Congress, but as component elements of a constituent assembly.”

 

          This doctrine in Gonzales vs. COMELEC was reiterated in Tolentino vs. COMELEC (41 SCRA 702) and in the separate opinion of Justice Puno in the case of Integrated Bar of the Philippines vs. Zamora (338 SCRA 81).

 

          Verily, the proposal to use the legislative process as the format of the constituent assembly is infirm.

 

          The issue on the constitutionality of the mode or process of proposing amendments to the Constitution has been held in Gonzales, Tolentino and Zamora as justiciable and not a political question.

 

          With respect to the voting procedure in the constituent assembly, Section 1 (1) of Article XVIII is indubitable and clear when it provides for “a vote of three-fourths of all” the Members of the Congress constituting the constituent assembly.

 

          Oversight on the part of the Constitutional Commission of 1986 cannot be presumed when it did not change the manner of voting to “voting separately” by each House when the proposal for a unicameral legislature lost and a bicameral Congress was instead installed.

 

          What should be presumed is that the Constitutional Commission had good reasons for not changing the voting procedure consistent with the decision in Gonzales vs. COMELEC which ruled that “Senators and Members of the House of Representatives act, not as Members of Congress but as component elements of a constituent assembly,” thus obviating the need for separate voting since Senators and Representatives do not represent their respective Chambers in the constituent assembly because there is no institutional or chamber representation in the constituent assembly.

 

          The unequivocal phraseology and intent of the framers of the Constitution requiring a vote of three-fourths of all the Members of Congress voting as a whole as component members of the constitutional assembly cannot be altered except by a constitutional amendment.

 

          This provision is not subject to Congressional variation or innovation. What the Constitution clearly provides, no one must be allowed to alter.