The Office of the President has announced the appointment of former Chief Justice Andres Narvasa as chairperson of the Preparatory Commission on Constitutional Reform, pursuant to an executive order issued by the President. I respectfully submit that this executive order is illegal and unconstitutional. This being so, the basic maxim laid down as early as 1886 applies: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is an inoperative as though it had never been passed.”* (Emphasis added.)Last November, the President reportedly issued an executive order creating the commission, which has the duty to study and recommend amendments to the present Constitution. The commission shall consist of not more than 25 members appointed by the President. Among the members are supposed to be three retired members of the Supreme Court, a representative from the Integrated Bar of the Philippines, the chair of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, the chair of the House counterpart committee, four representatives from academe, one from the business sector, one from the women’s sector, and one each from the media, labor, agricultural sector, and local government units.
The commission has a time horizon ending June 30 this year. Executive Secretary Ronaldo Zamora has reportedly said that the roster of members will be completed in the next two weeks.
It is imperative for Congress to act immediately and slay this monster on sight, and vitiate this unlawful office. It would be a catastrophe if a new Constitution for our republic should be initiated by an unconstitutional act. That unconstitutional act would in itself vitiate the entire system of laws on which our very democracy depends. If the President has been offered erroneous legal advice, I respectfully submit that it is now the bounden duty of the Senate of the republic to point out that the President’s men have led him to a slippery slope, and to call a halt to the unconstitutional process unfolding before our eyes.
I say that it is unconstitutional for the President to issue an executive order creating the commission, because the power to propose amendments to the Constitution belongs to Congress, and to Congress alone. This is so clear from the precise language of our Constitution, that to argue otherwise would be to run the risk of pleading guilty to constitutional illiteracy.
The constitutional provision I refer to is Article 17, entitled “Amendments or Revisions.” Specifically, it provides:
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.x x x
Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.
When we read Section 1 in conjunction with Section 3, we are left with one emphatic message: It is Congress, and Congress alone, which can propose any charter change. The President is pointedly excluded from this listing. Therefore, under the standard rules of statutory construction, since the President is not included, he must be excluded. Inclusio unius est exclusio alterius. The inclusion of one is the exclusion of another. The exclusion of all others is absolute.
Under these sections, if Malacañang wants to take the initiative, the proper procedure is to call a caucus of Congress members belonging to the administration party, and to propose the introduction in both chambers of a concurrent resolution creating the preparatory commission. Since Congress members are elected by the sovereign people, and since charter change is an act of sovereignty, then such a Congress resolution would be a proper exercise of sovereignty. This is the constitutional contemplation. I respectfully submit that to argue otherwise is to manifest a serious form of constitutional dyslexia*.
Nothing can be more logical than the proposition that if Congress has the exclusive power to amend or revise the Constitution, then Congress also has the exclusive power to create a preparatory commission for this purpose. This is a simple application of the doctrine of necessary implication.
In fact, the Supreme Court itself has applied this doctrine under precisely the same circumstances in which we now find ourselves. I am referring to the 1970 case of Imbong v. Comelec (35 SCRA 28). In Imbong, the Supreme Court held: “The grant to Congress as a constituent assembly of such plenary authority to call a constitutional convention includes, by virtue of the doctrine of necessary implication, all other powers essential to the effective exercise of the principal power granted.”
At this point, it becomes my painful duty to mention a case decided by the Supreme Court during the period of martial law. I am referring to the 1976 case of Sanidad v. Comelec (73 SCRA 333). This was a majority opinion, because two justices dissented. The two who dissented were Justices Teehankee and Muñoz Palma. The ratio decidendi of Sanidad is extremely unfortunate. The only fortunate aspect of that infelicitous decision is that it limits itself to a martial law situation.
In Sanidad, the Supreme Court ruled that although the Constitution did not grant constituent power to the president, still President Marcos could propose amendments to the Constitution. However, Justice Martin, who wrote the opinion, was quick to add that the Court decided to concede this power to President Marcos because of “the extraordinary conditions of martial law and of the government under the transitory provision,” as well as the nature of crisis government. The decision said that during martial law, President Marcos possessed legislative power, and therefore had the power to propose amendments to the Constitution because the power to propose amendments is, to quote the decision, “adjunct although peculiar to his gross legislative power.”
This being the constitutional environment of the Sanidad decision, I respectfully submit that the Sanidad decision means only that the President could propose amendments to the Constitution IF AND ONLY IF any other operative constituent body is absent. In other words, the President can propose charter change only during martial law. Therefore, if there is no martial law, the President has no power to propose charter change.
In conclusion, allow me to summarize what I comprehend to be the constitutional vision. The power to propose charter change is part of the legislative power vested in the Congress, which consists of the Senate and the House of Representatives. The power to propose charter change is NOT an executive power. When the President, conceivably acting on incompetent legal advice, seeks to exercise a power reserved to the legislative department, it is the duty of the legislature, particularly the upper chamber, to affirm the rule of law. The rule of law mandates that the preparatory commission should be created by concurrent resolution of the Congress, and not by executive order.
In view of the urgency and primordial necessity of resolving the constitutional issue involved, I move that this speech should be referred to the Committee on Rules, which should be tasked with conveying it immediately to the Office of the President, after proferring the respects of the Senate.
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The Isulong Team: Isulong SEOPh, Isulong Seoph by Benj, Pinoy Isulong by Seoph Martinez and Useless Isulong