Category: fr. bernas

cha-cha crazy

there they go again, chattering about charter change, as if it were even do-able, what a waste of time.   read fr. joaquin bernas’s Finally a new Constitution in 2011?

In my view, one major obstacle to attempts to revise the 1987 Constitution is structural. It has a built-in unintended obstacle to change. And I do not know how this can be overcome this year.

Inmany respects the 1987 Constitution consists of significant borrowings from the 1935 Constitution. Unfortunately, however, the provision on the amendatory process is a carbon copy of the provision in the 1973 Constitution. Year after year since 1987 this has been the major obstacle to change. Why so?

The text says: “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. . . . 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.”

The provision is one formulated for a unicameral legislative body but it is now meant to work for a bicameral Congress. This was not a tactical product designed by an evil genius. It is merely the result of oversight. But the oversight has spawned major problems.

First, must Senate and Housecome together in joint session before they can do anything that can lead to charter change? The 1935 Constitution was very clear on this question: Congress could not begin to work on constitutional change unless they first came together in joint session. The 1987 Constitution is non-committal.

Second, since the text of the Constitution is not clear about requiring a joint session, can Congress work on constitutional change analogously to the way it works on ordinary legislation, that is where they are and as they are? I have always maintained that Congress can, but this is by no means a settled matter. There are those who believe that the importance of Charter change demands a joint session.

Third, should Congress decide to come together in joint session, must Senate and House vote separately or may they vote jointly? The 1935 Constitution was very clear on the need for separate voting; the present Constitution is silent about this. But I am sure that the Senate will not agree to a joint voting where their number can be buried in an avalanche of House votes, an avalanche of votes which can mean the abolition of the Senate! How will this issue be settled? Howsoever the matter might be settled by agreement of the majority of both houses, someone in the minority will run to the Supreme Court to challenge the decision.

What about a constitutional convention? But the business of calling a constitutional convention is fraught with the same problems. Should Congress choose to call a constitutional convention, must the two houses be in joint session? And if in joint session, should they vote separately?

Briefly, constitutional change in 2011 or later can happen only if the members of Congress can agree to work in harmony and if the Supreme Court will not throw a monkey wrench on how Congress decides to do it. Can the members of Congress rise above self-interest and work together harmoniously? Or are we waiting for an extra-constitutional change?

i like it, this obstacle not designed by some evil genius, rather an oversight of cory’s constitutional commission.   it means that charter change can happen only if and when our legislators get their act together, and that’s just so NOT in any one’s agenda.

extra-constitutional change?   another edsa, he means?   but a successful edsa, a successful revolutionary government, one that brings about deep-seated change, is soooo not in the stars, not until a true leader rises, one in the mold of rizal or bonifacio but wise to the ways of the world today and highly-biased for the filipino.