How to amend the 1987 Constitution

By former Chief Justice Reynato S. Puno

Posted at Jun 07 2015 03:40 PM | Updated as of Jun 07 2015 11:40 PM

MANILA - Article XVII section 1 of the 1987 Constitution provides the procedure for its amendment or revision, viz:

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.

Before us is Resolution No. 1 introduced by Speaker Feliciano Belmonte, Jr. entitled “Resolution of Both Houses Proposing Amendments to Certain Economic Provisions of the 1987 Constitution of the Republic of the Philippines Particularly on Articles XII, XIV and XVI.” Its resolutory part states: “Resolved by the Senate and the House of Representatives, by a vote of three fourths of all its Members, each House voting separately, and pursuant to article XVII of the Constitution of the Republic of the Philippines, with the following proposals: …”

The question is whether Resolution No. 1 is in accord or is in discord with Article XVII, section 1 of the 1987 Constitution which prescribes the procedure for amending or revising the Constitution. Again, we are confronted with the need to properly interpret Article XVII section 1. Its history reveals that this section was written in anticipation that a unicameral legislature would be established in the final draft of the 1987 Constitution. Contrary to expectation, a bicameral legislature was chosen by the Commissioners. Unfortunately, the Committee on Amendments and Transitory provision forgot to rewrite Article XVII section 1 and adopt the time tested procedure of amending or revising a constitution where the legislature is bicameral in character. In bicameral legislatures, the traditional mode of amending or revising a Constitution is for both houses to convene in joint assembly and to vote separately. These requirements are omitted when the legislature is unicameral for self-evident reasons.

Stated otherwise, the problem is: how do you interpret the procedure of amendment or revision of the Constitution provided in its Article XVII section 1 which was designed for a unicameral legislature yet we have a bicameral legislature? In the search for the proper approach, I submit, with due respect, the following thoughts:

1. We should consider the history of Article XVII section 1, and give life to the intent of the people that ratified the Constitution.

2. The clear intent is to have a bicameral and not a unicameral legislature.

3. Following that intent, Article XVII section 1 should not be interpreted in any manner that will negate or derogate the bicameral nature of our legislature which is the constitutional structure approved by the people.

I further submit that we can take an approach without doing violence to the literal words of Article XVII, section 1 of the 1987 Constitution. In light of our time constraint, allow me to give an abbreviated discourse.

Let us again examine the exact wording of the pertinent part of Article XVII section 1 of the 1987 Constitution, to wit:

Sec. 1. Any amendment to or revision of this Constitution may be proposed by:

1. The Congress upon a vote of three fourths of all its members: or x x x

As worded, section 1 does not specifically command that the two houses of Congress, the Senate and the House, must meet in joint session. Neither does it provide how the three-fourths shall be computed, i.e., whether the three-fourth vote shall be determined based on the votes in each house, meeting separately or three fourths of the votes cast in both houses, meeting together. These omissions have given rise to the view that Congress need not convene as a joint assembly when exercising its power to propose amendments to the Constitution. Also, it has given birth to the concomitant thought that the three-fourth vote can be computed on the basis of the total votes cast in both houses and not the votes in each house.

It is respectfully submitted that both propositions will attract a strong constitutional challenge. It is too simplistic to argue that they are not literally prohibited by Article XVII, section 1. The unequivocal history of section 1 rejects them. To recall, it was never the intention of the Constitutional Commissioners to amend or revise the Constitution where a bicameral legislature has been installed using a procedure of amending or revising a Constitution where a unicameral legislature has been established. The absence of the phrases “joint assembly” and “voting separately” in section 1 of Article XVII does not justify any suggestion that Congress need not meet jointly. Nor does it justify the idea that Congress need not vote separately. To repeat, when the Constitutional Commissioners, thru its Committee on Amendments crafted section 1, they had the impression that a unicameral legislature would be adopted in the final draft of the 1987 Constitution. Unfortunately, it was not adopted and instead a bicameral legislature was established. Due to inadvertence, the unthinkable happened --- the Committee neglected to revise section 1 to make it conform to the traditional way of amending or revising a Constitution where the legislature is bicameral.

Given this historical reality, Article XVII, section 1 cannot be interpreted in a manner that will erode the bicameral nature of the legislature that was chosen by our people when they ratified our 1987 Constitution. A contrary interpretation will have undesirable consequences. We need to have a more profound understanding of the necessity of a “joint assembly” in a bicameral legislature. The power to propose amendments or to revise the Constitution is known as the constituent power of Congress. In a bicameral legislature, it belongs to both of its houses. It cannot be exercised unilaterally by one house alone. The constituent power is granted to both houses as institutions. Its exercise, however, is done thru the individual lawmakers. Its exercise from beginning to end, must be characterized by the equal, uncoerced participation by both houses in their institutional capacities. It’s a latent power vested in both Houses and to trigger its use, either House, as institutions, must invite each other to gather together in joint assembly to propose amendments or revision of the Constitution. The invitation must be acted upon favorably or unfavorably by either House as an institution, at the very least, by a majority of its members. In deciding to act favorably or unfavorably on the invitation, the two Houses exercise their constituent power which is exclusively lodged on them by the Constitution. The exclusiveness of this power underlines its importance. Whether or not it should be exercised, how it will be exercised, the manner and procedure of its exercise are to be determined by each House alone. We should also not lose sight of the purpose of its exercise. To my mind, its purpose is both to complement and to countercheck the exercise of half the power that belongs to the other branch. For all these reasons, we should refrain from interpreting Article XVII, section 1 in a way that will diminish the importance of convening both houses in a bicameral legislature as a joint assembly when they exercise their constituent power.

But there is more. It is also evident that the ambiance in a joint session, where the Senators and Congressmen stand in the same footing with each other as they discuss the proposal to amend the Constitution is different as when they debate with each other in separate sessions. In a joint session, there can be no doubt that the quality of the debate is enhanced and enriched by the exchanges of ideas coming from Senators who represent the general interest of the people at large and from Congressmen who represent the particular interest of their specific districts. The uninhibited collision of these contending ideas brings out the best from the people’s representatives in the Senate and in the House when they are jointly assembled. The people deserve nothing less than their cerebral best when the representatives from the two houses of Congress are proposing to amend the fundamental law of the land.

A bigger anomaly will result if we are seduced by the thought that the three-fourths vote should be computed on the basis of the total votes cast in both the Senate and the House and notthree-fourths of the votes cast in each House voting separately. Even with a blindfold, one can see that the proposal will render the Senate vote irrelevant considering the disparity of the number of Senators and the Congressmen in the latter’s favor. Again, there is no gainsaying the fact, that in proposing amendments and revising the Constitution, the Senate must be regarded as a distinct, separate and co-equal institution of the House, and this institutional role of the Senate cannot be whittled a bit even if there are less Senators than Congressmen. When the members of both houses vote as co-equal institutions, no one should be considered as superior or inferior from another, because of the arithmetic of number alone. If ordinary laws cannot be enacted without the equal participation of the Senate, the more reason that a proposal to amend or revise the Constitution cannot be passed without the equal participation of the Senate. The Constitution never contemplated the Senate to be a useless appendage in the making of a law, more so in the making of a Constitution. Nonetheless, it appears that Resolution No. 1 respects the institutional right of the Senate to vote separately and to compute the three-fourths vote necessary to propose any amendment to the Constitution on the basis of the votes cast in each house.

In sum, I respectfully submit that Congress should interpret Article XVII, section 1 in a manner that will respect the bicameral nature of our Congress. The people voted for a bicameral legislature where both the Senate and the House are co-equal with one another, each granted with powers designed both to complement and to check each other. We are bound by the people’s will. This delicate structure of our legislature established by the people themselves is an important component of our constitutional blueprint and cannot be violated without shaking the foundation of our constitutional structure. Let us all be guided by following the universal canon of constitutional construction, viz:

"In construing a constitutional provision, it is the duty of the court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. Every statement in a constitution must be interpreted in the light of the entire document, rather than as a sequestered pronouncement; it must be regarded as consistent with itself throughout, and because fundamental constitutional principles are of equal dignity and none must be so enforced as to nullify or substantially impair the other, the court should harmonize them if this can be done reasonably and without distorting the meaning of any provision.

"It is an established canon of constitutional construction that no one provision of the constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and are to be so interpreted as to effectuate the great purposes of the instrument. Frequently, the meaning of one provision of a constitution standing by itself may be obscure or uncertain, but is readily apparent when resort is made to other portions of the same instrument. It is often necessary to interpret the constitutional provision with an eye to their relation to other provisions."