The Consti's primordial intent: A bicameral Congress

Several attempts to amend or revise the Constitution (popularly known in this country as Charter change [Cha-cha]) in the recent past did not fail to raise a howl of protest. From the administration of Ramos to Estrada to Arroyo, Cha-cha as an agenda of every administration never ceased to have a nemesis coming from different sectors—religious, civil society, political opponents, etc. The ones that are underway in the House of Representatives are no exemption.

But aside from Cha-cha itself, the mode of carrying it out is equally problematic. There are three ways to do it as provided by the Constitution: (1) through Constitutional convention (Con-con); (2) through people’s initiative; and (3) through Constituent assembly. The third one is the option the proponents of Cha-cha in the House want to pursue. However, it is also the trickiest because up to today it is still unclear (and the Supreme Court hasn’t decided yet) whether the two chambers of Congress---Senate and House of Representative---vote separately or jointly should they convene as Con-ass to change the Constitution?

To the proponents of Cha-cha in the House, who are staunch allies of GMA, the two chambers should vote jointly. Seen that way, the Senate, which is independent of the House, would be nothing but a mere cog with virtually no influence whatsoever. That is, of course, not what the framers of the 1987 Constitution intended when they deliberately made the Congress bicameral.

The Constitution may be silent on the question at hand—whether the House and the Senate vote jointly or separately—but a “structural interpretation” could shed light on the debate.

In his column in the Philippine Daily Inquirer, constitutionalist Fr. Joaquin Bernas, S.J. said “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 reason being that “Congress is bicameral and a bicameral body votes separately.” Fr. Bernas added:

When the Constitution wants the two houses to vote jointly, the Constitution says so. This it does when Congress is authorized to override a declaration of martial law. And even when Congress can act only in joint session, as it is the case when called to declare the existence of a state of war, the Constitution still commands that they vote separately. Similarly, under the 1935 Constitution, when Congress could propose amendments only if assembled in joint session, the Constitution commanded that they vote separately.

The reason for separate voting is simple: voting jointly, unless authorized as an exception by the Constitution, destroys the bicameral character of Congress. Thus, the silence of the constitutional text on the manner of voting must be interpreted in the light of the bicameral structure of Congress. Structural interpretation is one of the modes of constitutional construction.

One of the attempts to effect constitutional change comes from Rep. Mikey Arroyo, the President’s eldest son. His is an attempt to amend the Constitution through Constituent Assembly with the Senate and the House voting jointly, not separately.

What the Constitution put asunder let no fools join together.