Today’s column of Fr. Joaquin G. Bernas, titled “Jointly or separately” makes interesting read although at least one earlier column has been written on the same theme. This time, Bernas runs down possible ‘approaches in dealing with the text of the Constitution’.
Bernas made crystal clear distinctions. The historical analyzes the intention of the framers and circumstances of its ratification. The structural draws inferences from the architecture of the power relationships in the constitutional arrangement. The doctrinal simply follows earlier judicial decisions (doctrine of stare decisis). The ethical seeks to interpret the Filipino ‘ideals and aspirations’ embedded in the document. The prudential weighs or compares the costs and benefits found in conflicting rules.
To his advice, Bernas deems combined historical and structural approaches helpful.
Citing pertinent historical dates, such as the debates on July 7 & 8, 1986 over provision on amendment and revision, Bernas alluded to a preference for a unicameral legislature. Apparently however, this was not so when the Constitutional Commission on July 28, 1986 voted to go bicameral with a vote of 23-22. So Bernas is saying that something designed for a unicameral is now used for a bicameral.
Still however, Bernas can readily supply the arguments at the reasons the framers of the Constitution went bicameral, to wit: 1). an upper house looks at problems from national perspective; 2). bicameralism allows more careful study; 3). bicameralism is less vulnerable to attempts of the executive to control legislature. So, he simply added to explain that ‘two heads can be better than one’. That any change done through a bicameral body must be accomplished through the most thorough decision-making, it being a two-step process.
With the prevailing suspicion of GMA pushing her own agenda, true or not, Bernas believes that bicameralism provides the ‘purification’. Bernas made admission that he voted for unicameral during those debates but glad that his side lost especially looking at the current House of Representatives now. Thus, since Congress is bicameral, it must act as bicameral.
This conclusion in fact bolsters his preliminary supposition at the start of his essay on the role of Senate in Charter change. Indeed, there seems no question that Senate is part of the process.
However, Bernas finds the constitutional text as not very helpful or this which says, “Any amendment or revision of this Constitution may be proposed by Congress, upon a vote of three-fourths of all its members…” Thus, he went to discuss on this textual ambiguity. This means that provisions on the one hand require Congress to vote jointly as other provisions on the other require Congress to vote jointly. In both cases, they are so indicated in the Constitution rather unequivocally.
Thus, those various approaches as aids to constitutional interpretation when faced with textual ambiguity were authoritatively suggested by Bernas. However, if there is at least one statement made that is left unclear is when Bernas said – “One might also add that voting jointly is so unique for a bicameral body that it is allowed only in one specific instance”.
I take it as Bernas’ own predisposition that at least in the light of the 1109, the same ought to be voted upon separately. In saying so, I sure distinctly can recall to mind that in fact, Bernas raised this point of view during the second committee hearing at the House when him and Associate Justice Mendoza were present as resource persons. Thus, we better hope the hardline 1109 adherents do not take the Senate for granted and give it all the space it needs – the right to vote upon Charter change – separately, but never jointly.
Popularity: 1% [?]
Good of you to bring attention to this, Prime.
I think what is particularly revealing is Bernas’s ‘confession’:
“… Historically, the current provision on amendments and revision was debated on and approved on July 7 and 8, 1986. The prevailing mood then among the members of the Constitutional Commission looked like a preference for a unicameral legislative body. In fact the draft at hand provided for unicameralism. For that reason, the amendatory provision of the 1973 Constitution for a unicameral Batasang Pambansa was copied. On July 28, 1986, however, after much debate, the commission, by a very close vote of 23-22, decided to go bicameral. The commission, concerned as it was with other issues, did not look back. Now we are left with the necessity of trying to construe the meaning of a constitutional provision originally designed for a unicameral legislature but now being placed at the service of a bicameral legislature.”
I wonder why it has taken this long for the Jesuit priest to admit that the ConCom erred.
If anyone cares, here’s the link to that Bernas column:
http://opinion.inquirer.net/inquireropinion/columns/view/20090629-212895/Jointly-or-separately
Keen readers of Bernas sure know that he is careful with his statements.
Perhaps, he will not even readily admit of any ConCon error even in the very light of the historical background he provided in his essay. And I guess, rightly so.
For instance, even after having fully discussed the bicameral set up, Bernas is not even saying that a unicameral is lacking in thorough study. He is not even saying that.
I am not sure but perhaps, the language of diplomacy or just a trained mind in the possible nuances of language.
Yes, Prime, you can say that.
But however else Bernas frames it, he is simply emgaged I think is legalistic if not judicial equivocation.
Inaamin niyang sumablay sila pero nagpapalusot siya.
Please read the following articles:
“ARTICLE VI
Section 28, Paragraph 4
No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.”
“ARTICLE VII
Section 19, Paragraph 2
He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.”
Note the similarity of the preceding provisions to ARTICLE XVII, Section 1, Paragraph 1 (The Amendment/Revision Provision)…
ART. XVII, Sec. 1, Par. 1 contains “The Congress” and “all its Members.”
DJB mentioned recently that “The Amendment Provision is indeterminate–resolutely and utterly so–on the matter of separate or joint voting.”
Will this conclusion of indeterminacy (or Fr. Bernas’ ambiguity) also apply in the two provisions above?
Granting that the ConAss will not push through and the ConCon will instead be the one espoused, will we again succumb to the dilemma of indeterminacy (or Fr. Bernas’ ambiguity) come 2010???
Please read the ConCon provision:
“ARTICLE XVII
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.”
—–
Voting separately or jointly?
The INDETERMINACY (or Textual Ambiguity)
Was already made a fallacy.
Note in Tax Exemption and in Amnesty
The Congress votes separately.
What prevents one from ably
Appreciate similarly
In Con-Con and in Con-Assembly?
—–
Oftentimes I hear and read Fr. Bernas refer to Statutory Construction. Well, I haven’t heard or read him mention Sir William Blackstone or even Joseph Story as regards the Rules of Interpretation.
There really is a way to interpret the provisions. I invite you to DJB’s post “Amongst the Legal Eagles on Constituent Assembly.” You may also be able to listen to the eminent Fr. Bernas there.
Thank you.
Left to their own, attorneys will often screw it up,
as they cannot foresee the future too well, either
and Judges are left to discern the “intent” of the writers,
beyond the words.
I no longer read the blogs about the words.
I’ll wait until the court presents its discerned view.
Joe
Fr. Bernas was quoted:
On May 27, 2009: “What is not prohibited (by the Constitution) is allowed.”
And exactly a month earlier: “What is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress.”
I think these statements further discombobulate the voting jointly or separately.
Guys,
Let me just propose:
What the Constitution has put asunder,
Let no man join together;
And, what the Constitution has joined together once,
Let no man increase it for the nonce.
We resist any interpretation from anybody to legalize the grab of
power of Gloria Arroyo and her cahoots. We want the Presidential
election to elect a new President by 2010. We follow the Constitution
for a Bicameral Assembly. Anything else we consider illegal. We want
her out. She has done a lot of harm to the country already.
Honduras has just exiled its President, who tried to stay in power
beyond his term by trying to amend the Honduras Constitution. The Honduran President is now exiled in Costa Rica. A new President has taken over with the help of the military. There are truly patriotic people in the Honduran military who do not want their country to become another Banana Republic.
But Hyden : the Honduras event — the military kicking out an incumbent President and putting another in his/her place — IS banana.
The extra-judicial (which Patricio Mangubat and even Abe Margallo (now US citizen) exhorts Filipinos to do) is banana .
this is just impossibly ignorant..
why dont people read?
Soon, I guess, baycas, the views of Bernas may be put to test – per chance there is already self-contradiction involved.
But if it is, it must be indubitably shown but I still think that he can still defend all that he has so far formulated.
I think Fr. Bernas already extricated himself by the same PDI article he wrote on April 27, 2009. This is the full quote of the paragraph in that masterful piece:
“The fundamental principle in all of this is that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress. If prohibition there is, it can come either from the letter of the Constitution or from the fundamental structure of our constitutional government. Thus, for instance, the implicit prohibition of joint voting comes from the bicameral structure of Congress.”
(Emphasis mine.)
There you have it, Article VI of the 1987 Constitution on the Bicameral Legislature we have PROHIBITS both Houses of the Congress to vote jointly.
Thus, in appreciating the meaning of:
…by employing Joseph Story’s:
“Where the words are plain and clear, and the sense distinct and perfect arising from them, there is generally no necessity to have recourse to other means of interpretation.”
…my hypothesis is that there is NO textual ambiguity in the aforementioned provision. Simply because “the Congress,” being divided, is immiscible (or cannot be added). Hence, no joint voting will take place (or, separate voting will definitely happen!).
To test this hypothesis is to consider (by comparing the Constitutional Amendment/Revision to like-worded provisions) ART. VI, Sec. 28, Par. 4 (Tax Exemption) and ART. VII, Sec. 19, Par. 2 (Amnesty) where:
“all the Members of the Congress”
…is contained.
There was NO AMBIGUITY appreciated because the Congress already voted separately in Tax Exemption (e.g., RA 9504) and is voting separately in Amnesty (e.g., Proclamation 1377).
Maybe Fr. Bernas should refer to Sir William Blackstone et al and Joseph Story first before he resorts to other means of interpretation. Primary in consideration is the same instrument (i.e., the 1987 Constitution) before anything else.
The Congress being divided MUST never be added…
Unless the Constitution tells otherwise…
i.e., in revoking martial law and suspension of habeas corpus (the only instance when “voting jointly” appears in The One Instrument).
beycas,
Am not taken by the Jesuit’s equivocation.
This bears watching.
Perhaps, we soon can connect the dots – as to say that as one school of thought – Bernas, in fact, supports the foundation for a Con-Ass or Cha-Cha as contemplated by the 1109 rabid adherents.
Is baycas about ready to connect the dots?
Ding,
I feel that we should keep tab with Bernas.
Who knows it will soon become clear which side of the constitutional question he wants to weaken and which side it is he wants to strengthen by way of plausible legal arguments?
I can suspect that for now, he plays on both ‘territories’.
Agreed, Prime.
Primer,
Fascinating point. I wondered about his leanings, as he seems to be one of the “respected elders” of Philippine public opinion. So he is right now testing the winds, eh? I hope they blow the right direction.
Joe