Hubris or Stupidity?

"It's up to the individual senators to endorse it. But we will go on to the next stage - convening a constituent assembly - with or without them." Thus, cavalierly proclaims Nueva Ecija Representative Rodolfo Antonino when asked about the next steps to be taken after the House of Representatives passed the much disdained HR 1109 - a resolution seeking to convene Congress into a constitutent assembly to propose amendments to the Constitution.

As if many have not spoken yet - expressing objections to HR 1109 from mild rebuke to raging outrage, that even led Jesus Is Lord (JIL) head Eddie Villanueva to call the legislators who approved the measure as terrorists and one blogger to compare them with the 9/11 terrorists - congressmen like Antonino, led by House Speaker Prospero Nograles, are still bent on their brazen attempt to introduce changes to our basic law by proceeding with their convoluted view that the House could do it alone.

As we have feared in previous postings, the majority in the House is now moving toward the most stupid thing to do by unilaterally acting to propose amendments to the Constitution. Congressman Mauricio Domogan of Baguio City minced no words when he said that the House will start with the charter change process before President Arroyo gives her State of the Nation address when Congress resumes session in July. The theory that Domogan and Antonino, the proponents' mouthpieces, are pursuing is that only a simple majority is needed to convene Congress into a constitutent assembly and that by the sheer number of those who approved HR 1109 - the gang of 174 - they already achieved sufficient votes for this purpose, thereby negating the need for the senators' votes. Yes, you got that right, these geniuses are actually saying that the Senate does not matter; in fact they intend to send HR 1109 to the individual senators, instead of the Senate as a body, as a token gesture to give them a chance to participate. So much for bicameralism. Even as now they have already amended the Constitution!

So now we can see a bifurcated process unfolding: (1) convening Congress into a constituent assembly, requiring only a simple majority and (2) proposing amendments to the Constitution, requiring three-fourths vote. According to the proponents, in both cases the senators' votes are inconsequential as the House membership alone can muster the needed votes. The grotesqueness of this is readily apparent. How can HR 1109 alone - a pure act of the Lower House - become the decision of Congress that is composed of not only the House but the Senate as well? As we have been repeatedly saying a two-chamber Congress, with limited exceptions, can only act with both Houses acting in concert. And sending HR 1109 to individual senators for their signatures will not satisfy this legal requirement even if majority of them were to sign it, since the acts of the senators could only constitute as an act of the Senate if they are acting as one body, in session assembled.

In addition, as pointed out by Fr. Joaquin Bernas, no further act is necessary to convene Congress into a constituent assembly as it is already constituted as such by virtue of Article XVII, Section 1 of the Constitution. Let me just add that Congress is automatically set in a constituent assembly mode from a purely legislative mode whenever it proposes amendments to the Constitution, even in accordance with the normal legislative route. A joint session is not even essential because what will characterize Congress as a constituent assembly is the act of introducing changes to the Constitution, for the word "constituent" refers to the power to frame a fundamental law or constitution and to introduce changes to it, as opposed to the exercise of mere legislative powers which refers to the enactment or amendment of statutes. What the Constitution only requires is that a three-fourths vote, compared to a simple majority in enacting laws, is necessary to approve the amendments and ratification by the people in a plebiscite to make them binding.

Be that as it may, nothing - legally, that is - will as yet prevent the House from proceeding. As soon as the House reconvenes, it can start proposing amendments. It can perfectly do this in accordance with Congress's power to propose amendments to the Constitution under Article XVII, Section 1. But there is a big "but." Such act would only be the sole act of the Lower House that will have to be transmitted to the Senate for its approval. Given Domogan and Antonino's statements, however, the House would proceed with step two of the bifurcated proceedings by sticking to its absurd logic that the convening of Congress into a constituent assembly (joint session is more like it) has already been approved and, therefore, the House members would be acting or representing Congress as a whole when they start deliberating and approving amendments to the Constitution in July. It's like telling the senators, "Congress is now convened into one and ready to amend the Constitution. It's up to you if you want to join or not," with the addendum, "either way, we have the votes to approve the amendments."

But why is this obssession and unwavering insistence despite the strong public outrage against charter change? How could these congressmen not heed the public sentiment and risk political suicide? It is obvious that these congressmen, a lot of them lawyers and veterans of Congress, know that without the Senate an act of the House alone cannot pass constitutional muster, and yet there is this sinister confidence to proceed. I would concede there can be a valid debate between joint and separate voting, but to say that a joint session - the vehicle to jumpstart the debate - of both Houses could be achieved by HR 1109 alone would be the height of stupidity that does not even merit the passing attention of the Supreme Court.

The majority in the House might have just stumbled and bared its ulterior motive in following and revealing an absurd theory. Domogan and Antonino's statements may have just revealed that all this fuzz about forcing a justiciable controversy is but a smokescreen for something bigger. The stupidity of their position with which they are so confident, coupled by their indifference to the public sentiment, are sending dangerous signals that something terrible is in the offing. Take note, this adamance - which is becoming exceedingly clear as deliberate - is stoking the fire of discontent and as I write this, preparations are underway for massive protests and rallies. The hubris is simply alarming. Nuff said.

TO VOTE JOINTLY, OR SEPARATELY, THAT IS THE QUESTION

Congressmen who have been assiduously pushing for Charter change (Cha-cha) via Congress acting as a Constituent Assembly have firmly set their sights on forcing a joint voting by all members of Congress, thus removing the distinction between senators and representatives. This intention, which has long been made public, has finally been formalized by the majority in the House of Representatives with the haphazard adoption of House Resolution 1109 last Tuesday.

But the trigger, if you will, cannot as yet be pulled since the bullet that will hit the target is still unavailable. The mere passage of HR 1109, although feared by many as a prelude to the railroading of amendments to the Constitution, is not enough to achieve the House's objective of creating a justiciable controversy that will bring the Supreme Court in for the purpose of ruling on the methodology of voting. As everyone who understands how our system of government functions already knows, the House alone cannot convene Congress in joint session because the Senate, which is equally a part of Congress, must concur.

The issue on joint or separate voting can only arise when the Senate agrees to sit with the House in joint session. Unfortunately for the House, the majority and minority blocs in the Senate have already signified their unanimity to oppose the House's efforts; in fact, even before HR 1109 there is already that disinterest to join by the Senate in apparent awareness of the House's dark scheme to outvote the senators in a joint session. But time is running out for the ruling party since elections are just around the corner so, despite the impediments and the expected firestorm of public outrage, the House proceeded with the plan and adopted HR 1109 in the hope that someone, like lawyer Oliver Lozano, will file a petition before the Supreme Court to thresh out the voting issue. But this petition is expected to fail for prematurity.

A reading of HR 1109, particularly its whereas clauses, clearly shows that voting jointly or seprately is what the majority in the House want to be settled. And the majority's position, of course, is that voting should be done jointly, which they justify by saying that the non-inclusion in Article XVII, Section 1 of the 1987 Constitution of the phrases "in joint session assembled" and "the Senate and the House of Representatives voting separately," as found in the 1935 Constitution, conveys the intention that voting on the amendments should now be undertaken jointly. More on this in subsequent postings.

So why the obsession on this mode of voting? The number of representatives is clearly superior to that of the senators. If the numbers are correct, there are reported 275 representatives and 23 senators. Lumping them together under one roof we have a total of 298 legislators. Three-fourths vote is necessary to approve any amendment, so if the mode of voting be joint then all that is needed is 224. Since there are 275 representatives they can very well outvote all 23 senators, assuming only 51 representatives do not follow suit. Fr. Joaquin Bernas calls this drowning senators in a sea of House votes.

But what assurance does the House have in getting a favorable decision from the Supreme Court, if and when it is finally able to bring the issue to the Court? The administration hopes to fill all the vacancies in the High Court, that will be created with the retirement of a number of justices before President Arroyo's term expires, with appointees who will render a favorable decision. With the retirement of Justices Dante Tigna and Alicia Austria-Martinez, allegations are already flying high that Malacañang's unseen hand is working for the appointment of lawyer Rodolfo Robles, who is said to have close ties with the Macapagals. Another aspirant who is seen as a Malacañang favorite is Solicitor General Agnes Devanadera who, like Robles, favors joint voting.

After having said all these, House Speaker Prospero Nograles and company will still have to devise more creative ways on how to properly bring the issue of joint or separate voting before the Supreme Court. With opposition from a Senate that is afraid to ride against the storm of public criticism on Cha-cha, the vehicle - a joint session of both Houses under the nomenclature Constituent Assembly - is still elusive. We will see how Nograles convinces his colleagues in the Senate when he meets with them about HR 1109.