ON NOGRALES THE RESOLUTION

If the House of Representatives passes the Nograles resolution by mere majority vote, then it will be unconstitutional. We are not allowed to conflate an ordinary bill with a charter change resolution. There is simply no correspondence between the two measures.

If the Nograles resolution is limited to economic provisions, then it is only an amendment, and not a revision. An amendment is limited only to specific provisions. Revision covers the entire Constitution.

But whether amendment or revision, the vote required is three-fourths of all the members of Congress. Any vote less than three-fourths is unconstitutional. For example, to pass a charter change resolution in the same way as an ordinary bill – by mere majority vote – is unconstitutional.

The reason for this is that the power of charter change is NOT part of the legislative power of Congress. Instead, the power of charter change is part of the inherent power of the people, who have spoken through the Constitution.

The power of Congress to pass laws is derived from its legislative power. By contrast, the power of Congress on charter change is derived from the Constitution. This difference was emphasized by the Supreme Court in the 1967 case of Gonzales v. Comelec.

The Constitution provides for charter change under Article 17 entitled “Amendments of Revisions.” The Constitution does not include charter change under Article 6 entitled “Legislative Department.” This is textual proof that a charter change resolution should not be treated like an ordinary bill. It would be like comparing a dilis to a whale.

The Nograles resolution, even if it follows the Rules of Procedure of the House of Representatives, is unconstitutional. By requiring only a majority vote, it contravenes the constitutional provision that charter change should pass by a three-fourths vote.

Press Statement

7 December 2006

WHY I DID NOT SIGN THE RESOLUTION

I agree with the Resolution that a constituent assembly should be bicameral. Under the doctrine of necessary implication, since Congress is bicameral, the term “Congress” means the two chambers. Further, the Supreme Court has already ruled in a decided case that the House of Representatives, acting alone, is not Congress.

However, I regret that I disagree with the Resolution, when it claims that three-fourths vote of the Senate, voting separately, is necessary. My position is, that a substantial number of senators is sufficient to meet the constitutional requirement for Senate participation in a joint session, with joint voting. I base my opinion on the fact that in several provisions, the Constitution takes care to specify when Congress should vote separately.

Since the Constitution does not specify separate voting for a constituent assembly, the reasonable conclusion can be drawn that voting does not have to be separate. To insist on separate voting, despite constitutional silence, would be engaging in speculative exegesis, which is not allowed in constitutional law.

Further, to insist on separate voting, without explicit constitutional basis, would be to vest in the Senate the power to veto the will of the sovereign people, as expressed through their representatives. It is true that the Senate also represents the sovereign will. However, since a senator has a national constituency, while a representative has a district constituency, it can be argued that a representative has a more direct grasp of public sentiment. For if a representative acts contrary to the wishes of his district constituents, he risks being voted out of office after three years.

I am told that the Resolution has been signed by over a majority of the Senate. This seems to indicate that a reasonable number of senators cannot be mustered to participate in the constituent assembly, sufficient to fulfill the constitutional requirement of Senate participation. If so, I venture the opinion that if the House decides to revise the Constitution unilaterally, the Supreme Court will strike down the fruits of its labors.

If a substantial number of senators decide to participate in the constituent assembly, I shall accompany them. However, in my mind, three or four senators would not be substantial compliance with the Constitution, and I would hence decline to participate in Consa.

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