AMENDMENTS OF CONSTITUTION BY LEGISLATION ILLEGAL
The proposed “mongrel” constituent assembly (con-ass) to seek amendments to the 1987 Constitution that was proposed during the Legislative Summit last Thursday is not provided under the Charter and its forming would run contrary to the basic law of the land, according to a senior member of the House of Representatives.
In a statement, House Minority Leader Edcel Lagman said the proposal to convene a con-ass and adopt amendments to the Constitution using the same procedure in crafting laws as proposed by Sen. Franklin Drilon would be unconstitutional.
He warned members of both House and Senate against adopting a variation of the con-ass, saying it would run contrary to the very charter Congress seeks to amend.
“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,” said Lagman as he stressed that “the constitutionality of the proposed variation must be assured even as the necessity of the proposed amendments needed 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.”
Lagman said that a constituent assembly, which is one of the only three modes of proposing Charter change (Cha-cha), by tradition and experience, has its own nature, processes and objectives which are vastly different from the legislative functions of Congress.
The other two modes are by constitutional convention and people’s initiative.
“Amendments by legislation are not authorized,” Lagman said.
According to the Albay solon, 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.
Lagman said that the Supreme Court in its ruling in November 9, 1967 in the case of 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.
In that particular case, the SC 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, 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, Lagman said 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,” said Lagman. “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,” the solon added.
The opposition lawmaker further said that any 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 Comeledc 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,” said Lagman.
“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,” he stressed.
“This provision is not subject to Congressional variation or innovation. What the Constitution clearly provides, no one must be allowed to alter.”
The revived move for Charter change has drawn mixed reactions among the senators with majority of them expressing concerns over the timing of the charter change.
Senators Francis Escudero, Loren Legarda and Francis Pangilinan had said the move should not be the priority of Congress but Senator Franklin Drilon believed it was the ‘best time’ to discuss it.
”It’s okay to discuss, I have no objections to studying and discussing it but I have yet to be convinced that this is needed at this time and should be a priority,” Escudero said.
”While charter change remains and will always be an important political exercise in a dynamic society for such to progress and endure, timing and adequate resources to push for such move should be carefully factored in,” the Senate committee on justice chairman said.
Legarda, chairman of the Senate committee on foreign affairs, said there were other priority agenda that should be discussed by Congress, including the job creation and foods.
”Whether it would be prioritized, it’s up to the President (Benigno Aquino III) but there is so much priority on the table. The priority should be on food and job creation,” Legarda said.
Pangilinan said the problem in the country was not the Constitution but poor implementation of the laws.
”It is not the Constitution per se but our collective failure to implement the fundamental law. That is the problem. Hundreds of laws already enacted but have yet to see full implementation and here we go again pushing to rewrite more laws,” Pangilinan said.
Drilon, however, believed that it was the best time to amend the Constitution “now that the President has expressed no interest of doing it and therefore, we are assured that he is not interested also of extending his term.”
”This is not the priority but we intend to present it to the President to justify the need and, to me, more than other any time, this is the best time to change the Constitution,” Drilon said.
Drilon allayed fears that the Cha-cha will be used to prolong the term of the elected government officials specially the lawmakers, saying the amendment will be focused “only” on the economic provision.
”This is the best time to look at the economic provision of the Constitution. When else we do this. This will be transparent. If it is not acceptable, then we will not go through it,” Drilon said.
Drilon said they were now working on the mechanics and the manner to which the charter would be amended to be presented in the next legislative summit after the October break.
Senate Minority Leader Alan Peter Cayetano admitted that he was surprised when the charter change has been discussed during the First Legislative Summit last Thursday at the Shangri-La Hotel.
“I was surprised because the agenda didn’t include anything about Cha-cha,” Cayetano said.
Cayetano also believed that it was not the appropriate time to discuss Cha-cha due to the important issues that should be given priorities like the people affected by the series of typhoons. –Charlie V. Manalo, Daily Tribune
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