OPINION: The worm within

Manolo Quezon — The Explainer

Posted at Jan 16 2018 04:43 PM | Updated as of Jan 16 2018 07:51 PM

The House of Representatives and the Senate, both of which, together, comprise Congress, have a fundamental disagreement on how the Constitution should be amended by Congress. This disagreement can be boiled down as a disagreement on whether the letter of the law, or the spirit of the law, should be followed. The law in question being the Constitution.

And here lies the ultimate problem—the Constitution itself. What happened, and the reason for these two clashing opinions within Congress, is that our Constitution was a rush job. Or, to be precise, the part of about Congress, and how Congress should go about amending the Constitution, was a rush job. 

Fr. Joaquin Bernas, one of the leading framers of the Constitution, has written several times that for most of the Constitutional Commission of 1986's deliberations, the framers were viewing a unicameral National Assembly as the legislature. Only late in the day, and by one vote, did they decide, in the end, to restore a bicameral Congress, with a House and a Senate. 

The clincher, though, is that they seem to have forgotten, or overlooked—pick your own polite phrase for it—going back to make sure the Constitution's provisions, originally written with a unicameral National Assembly in mind, would be revised to take into account a bicameral Congress. 

So, we have a bicameral Congress, where as you know, and as senators have pointed out, proposed laws have to go through three separate readings in each chamber, and then reconciliation in the bicameral conference committee. Senators have pointed out that if a simple law on, say, turning a local road into a national road, or naming a school, and so on, has to go through this process, all the more the process should apply to something as serious as proposing an amendment to the Constitution. This is what I mean by the Senate invoking the spirit of the law. The Constitution created a bicameral Congress, after all.

And here enters where the House insists the letter of the law should prevail. In two specific cases, the proclamation of martial law and deciding on proposing amendments to the Constitution, the Constitution sets aside bicameralism. We've seen it in past Congressional deliberations on martial law. The Constitution says the House and the Senate must convene in joint session but also says once convened, they vote as one. To save face, the House allows the Senate to vote first, but in the end the votes of the senators are lumped together with the votes in the House to determine the final outcome, which is basically whatever the House pleases—and the House is always pleased to vote as the President desires.

In the case of proposing amendments to the Constitution, all it commands is that any proposal for an amendment or a revision can be done by "The Congress, upon a vote of three-fourths of all its Members," makes the proposal to the electorate by means of a plebiscite. The House says this means that the House and Senate vote together. That is the letter of the law. The Senate says this violates the spirit of the law, and besides, unlike a vote on martial law, in which the Constitution specifically says the House and the Senate vote jointly, there is no specific command for them to vote as one. 

The result of this disagreement is that for two decades, the House and Senate have been at an impasse, for two reasons. 

The first is because of the institution that is supposed to weigh in when there are fundamental disagreements on how to interpret the Constitution—the Supreme Court. Were it to rule on the basis of the spirit of the law, as it often has in the past, then the ambitions of the House would be permanently crushed. 

The second reason is public opinion, which, over the past 20-odd years, has generally been hostile to constitutional amendments as motivated by political self-interest and not the national interest. Energy and resources were used up proposing, instead, the third method to amend the Constitution, which is by people's initiative—but decisions by the Supreme Court have ended up making the procedure so complicated and expensive as to be impractical. 

But you might ask, if you paid attention in Constitution class, why not have a Constitutional Convention? Even the President, in his first State of the Nation Address, made a pitch for a convention. Only to be convinced to drop the idea by the House, which has some fixed ideas as to what amendments the Constitution needs —ideas a freely-elected convention, which the Senate would be open to, might not necessarily share. Then where would you be? And besides, the House argues, it's expensive.

So, we are where we are. If there's been an unbreakable logjam for close to a generation, why should things be any different, now? 

Political observers might tell you, the balance of power has shifted. But let me go back to our title. For a generation, there's been a fight over what is supposed to be a basic feature of any Constitution—a means to improve it. The Constitution has ended up written in a way that practically makes it impossible to do so, at least in a way our leaders are comfortable with. A generation of being frozen in time is unhealthy for any institution. Someone, somewhere, sometime, in frustration, is bound to say of the Constitution as one might of a sick dog—put it out of its misery, take it into the back garden and shoot it. 

Except for politicians, it's not about the gun but the political equivalent, which is politely called "political will." Just do it, and let the chips fall where they may. All such gambles being premised, of course, on the old casino principle that the House always wins. 

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