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'Con-ass dead without Senate' - UP law professors

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by Purple S. Romero, abs-cbnNEWS.com/Newsbreak | 06/17/2009 8:59 PM

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MANILA - Any move by the House of Representatives to amend the charter is dead without the Senate’s backing, according to constitutional law experts from the UP College of Law.
 
Salvador Carlota, a law professor and former dean of the UP College of Law, said House Resolution 1109 (HR 1109), which allows the lower House to amend the constitution through a Senate-less constituent assembly (Con-ass) is an “exercise in futility.”

“Congress cannot convene itself without both chambers agreeing," he said in a UP faculty colloquim on charter change held Wednesday. "If the Senate disagrees, the matter ends there."

He added that the lower House recognized this already way back in 2006, when it passed Concurrent Resolution no. 26 calling  on both chambers of Congress to convene as a Con-ass. The bill died in the Senate.

Last June 2, the lower House passed HR 1109 calling for the convening of a Con-ass.

They invoked Article XVII of the 1987 Constitution, which states that amendments may be introduced by a vote of three-fourths of all the members of the Congress. However, it does not specify if Congress should vote jointly or separately. 

Loud and clear

But Merlin Magallona, another former law school dean and counsel of the Philippines in cases filed at the International Court of Justice, explained that the absence of a phrase on whether Congress should vote separately or jointly does not automatically grant the lower House the legal leeway to change the charter on its own.

He said “voting separately” was stipulated in the 1935 Constitution, thus establishing the means to amending the charter. Even though this is not specified in the 1987 Constitution, the aim of a constituent assembly is still to change the charter.

Thus, Magallona said Congress must adopt the methodology already laid out in the 1935 Constitution.

“There is no conflict [between 1935 and 1987 Constitution]…The 1987 Constitution only states the outcome of the method, but that method is the same as that written in the 1935 Constitution. It is inescapable that you will arrive at the same method of voting stated in the 1935 Constitution,” he said.

No Senate, no Con-ass

Magallona added that the present charter is replete with provisions recognizing the indispensability of the Senate in pushing for various governmental actions, such as the declaration of war and the replacement of the president in case he is deemed unable to discharge his duties.

“There is no public office or officer called 'member of the Congress.' He is either a senator or a member of the House of Representatives,” Magallona pointed out. 

Retired Supreme Court Justice Vicente Mendoza, in a statement sent to the colloquium, echoed  this view.

He said that while the proponents of the 1987 Constitution "overlooked" the phrase "voting separately," there is "every reason to believe that the Constitution's drafters would have similarly required the two Houses to meet in joint session but vote separately as they have required Congress in performing other non-legislative functions." 

Petitions premature

Meanwhile, in the aftermath of the Supreme Court’s dismissal of the petitions seeking to nullify HR 1109, new ones could again question its constitutionality.

The High Tribunal junked on Tuesday the taxpayer suits filed by Oliver Lozano and Louis Biraogo for being premature. In a resolution penned by Chief Justice Reynato Puno, the SC ruled that there is no justiciable issue to act on yet.

“No actual convention has yet transpired and no rules of procedure have yet been adopted... no proposal has yet been made, and hence, no usurpation of power or gross abuse of discretion has yet taken place,” the SC said in its unanimous decision.

Do nothing

UP College of Law Dean Marvic Leonen said the best legal step to take now is to do nothing.

He added that opposing parties should hold on to their horses since the lower House remains powerless as a Con-ass without the Senate.

Carlota also said that from a practical standpoint, HR 1109 is “doomed to fail” due to lack of time, with national elections to be held in less than a year.

He also cited recent reports of congressmen planning to withdraw their support for the contentious resolution.

Rizal Rep. Michael John Duavit, secretary-general of Nationalist People’s Coalition, and Quezon City Rep. Matias Defensor, have said they may sing a different tune in the face of growing public protest against HR 1109.

“No one wants to join a sinking ship, and it appears that HR 1109 is slowly sinking,” Carlota said.