The House, the beauty and the beast

Following the first attempt by the House of Representatives to constitute itself into a Senate-less constituent assembly in December 2006, I posted the following commentary:

Since the Spirit of ’86 that had driven Marcos into exile, People Power has ensconced itself as the Great King in the wilderness of Philippine politics. As such, even if often perceived in lurking mode, it has been watchful and ever on guard, its prying and piercing eyes overhanging as Damocles’ sword upon anyone intent with fiendish or improvident essay at tyranny in the very home of the power’s modern exteriorization.

Aspiring Marcos wannabes, blindsided by avarice and ambition, and seemingly less forthright today with their contrivances and designs, will ignore the lessons of history yet aglow, and make the mistake of underrating the potency of People Power. Mark it: they’d be pushed at their wit’s end, trounced and humbled.

The cold winds of an impending tyranny are proving to be the natural inflatus, the breath of life, of the quiescent Creature, and already the mere stirring of its becoming is unleashing a virtual tsunami that need not materialize to actually inundate the House of sin. But men (and women) love power. Recalcitrant and the promise of domination irresistible, they’ll continue to taunt the Sovereign’s fury.

This is apparently what has happened when the House majority of the Philippine Congress attempted to fiddle with the Constitution in the face of considerable negative public sentiments and in open derogation of settled constitutional practices. The immediate reaction has been public outrage forcing the Malacañang-backed plot, through an alliance of pro-administration congressmen, to abort – for now. But, the passion for control over others is dizzying and dazzling. The House Speaker and his cohorts as well as the Queen bee by the Pasig River, although stunned, are simply showing signs of hemming and hawing but not backing off.

The burning issue: whether the two Houses of Congress, the Senate and the House of Representatives, should vote jointly or separately when as elected legislators they decide to wear different hats as members of a constituent assembly to propose amendments to, or revision of, the Constitution which requires “a vote of three-fourths of all its members” to do so. The answer, as spelled out in the House’s own Rules interpreting the constitutional provisions in question, is too plain to be mistaken.

Section 105 of the House (of Representatives) Rules has provided the following:

“Section 105. Form of Proposals and Procedure for Adoption. – Proposals to amend or revise the Constitution shall be by resolution which may be filed at any time by any Member. The adoption of resolutions proposing amendments to or revision of the Constitution shall follow the procedure for the enactment of bills (Italics mine).”

Bills are enacted by Congress with the Senate and the House of Representatives “voting separately.” Hence, pursuant to Section 105 of the House Rules, any proposal to amend or revise the Constitution shall follow the same procedure for the enactment of bills, that is, the Upper House (the Senate) and the Lower House (the House of Representatives) “voting separately.” Not anymore.

On December 5, 2006, the majority bloc in the Lower House, by the tyranny of numerical superiority, conveniently removed the aforesaid second clause in Section 105 of its Rules and passed House Resolution (H.R.) 1450 to convene a House-only constituent assembly for the purpose of proposing Charter changes sans the concurrence of the Senate “voting separately” as is required in enacting an ordinary bill. As intended, H.R. 1450 violates settled constitutional practices of a bicameral (or two-House) congress. Hence, the public outrage, rousing the theretofore abeyant Power.

While the House Speaker, his gang and their chameleonic Palace patroness are on a tactical flank maneuver – . . . to attain their dubious ends – the jungle King, agitated, intently pries into their movements. (So do the hyenas in some corporate or other cloak lying in wait and salivating for the nation’s patrimony that Charter change proponents seem eager to lay bare for exploitation by speculators, alien or otherwise, among other objectives that remain problematic.)

The Multitude is therefore in admonitory groan, yet menacing enough to send chills up the spines of the schemers, momentarily halting the onslaught of the Charter change loco motive. The Great Power is likely to rise to the occasion, as in the past, if sufficiently provoked to protect the constitutional realm.

The Horde of Representatives, under a new leader, but himself led by the nose by a manipulative cowherd, has decided to taunt the Beast once again. The plotters which may have enlisted the silent conspiracy of certain robed sires, so the suspicion goes, seem desperate and bolder. What they are thinking is quite baffling. Are they in for a big showdown?

It should be recalled that about six months ago, or in December 2008, the Senate sensing renewed efforts to fire up the stalled Cha cha train, passed a unanimous resolution declaring “that any attempt by the House of Representatives to unilaterally propose amendments to, or revision of, the Constitution without the approval by three-fourths of the Senate voting separately is unconstitutional.” At that time I suggested that the Senate move was motivated by self-interest: “The honorable senators must have come to their full senses that once the House, with the Supreme Court’s assent, succeeds to constitute itself as a constituent assembly, nothing can stop it from proposing the abolition of the Senate as a Philippine institution.” I proceeded to distinguish the Constitution from Constitutional Law:

While the Constitution is supposed to consist of the traditions and practices of the Philippine polity, constitutional law is basically the handiwork of the Supreme Court.

So, whether the brazen attempt of Arroyo’s House toadies to install a tyrannical republic (even sans martial law) will be legitimized or not will depend, at least for now, on what the Court will do once the issue is brought before it.

If the history of constitutional law jurisprudence is any guide, it tells us that when the constitutional provision in question is ambiguous (because it lends only general direction so the judge must give effect to the constitutional logic behind the provision), the window of opportunity to be flexible has allowed the judiciary to mess around with its powers somehow. (For that matter, we can say any lawyer quite versed in Philippine constitutional law can also come up with a legal brief for or against the Villafuerte Charter change initiative, and either way it could possibly stand serious scrutiny.)

The reality of the matter is that the Constitution contains both rules and principles. In cases where the Constitution, for instance, requires an up or down decision such as the1/3 votes of the members of the House to impeach a president, there is not much that can be done to go about the “numbers” rule. But, in the case of the recent impeachment against President Arroyo, did the congressmen who actually voted down the impeachment complaint comply with the principle of rudimentary fairness by ignoring the requirement of “probable cause”?

Article XVII, Section 1 of the Constitution may be silent on how Congress should vote to convene itself as a constituent assembly for the purpose of proposing amendments or revisions to the Constitution, but does that follow that the basic principle of bicameralism (the institution of a two-house congress as an intra-chamber “checks and balances” mechanism) may not be read into the plain letter of the law as a matter of course?

We should know by now that the Court as a neutral balancer of interests is a myth; on the contrary, it is a formidable “political” powerhouse. In the US , for example, a unanimous court against Richard Nixon on the release of the Watergate audio tapes forced him to resign the US presidency. In the Philippines , a bunch of “supreme cowards” has put the Marcos constitution into effect by a viva voce ratification process that was not clearly sanctioned by the 1935 Constitution, allowing Marcos to rule as a despot as a result.

The focus of this piece is to underscore that there is a fundamental constitutional principle that has been infringed by the very purpose given for House Resolution 1109, which purports to create a “justiciable controversy . . . (that) shall ripen for judicial determination as and when this Resolution calling upon members of Congress to convene in exercise of its constituent powers is filed, heard and approved.”

To begin with, the amending the process, which is at the heart of the Constitution of Sovereignty (the other divisions of the fundamental law are the Constitution of Liberty and the Constitution of Government) is a highly political process. It is that part of the Constitution which reminds us that the people have the “final say” on how they want to rule and be ruled. Our system of government will lose any claim or pretense to being a democracy if this principle is set aside. For a political decision of immense consequence like this, it is always wise and preferable that the people themselves or their alter egos specifically chosen for the purpose (a constitutional convention) propose changes to the Constitution.

Second of all, since the amending process is a political process, the court is NOT part of it as a matter of constitutional principle. The unaccountable judiciary gets involved only in a very narrow sense which happens when its duty to define constitutional limits is called upon in appropriate cases. Hence, when not so called upon, judges take a passive role or stay in the sidelines, allowing the political agencies of the government full sway to effect such changes to the constitutional system as they consider apt and necessary. The people are therefore deemed to observe and respect their own self-imposed limitations as contained in the amending process or their chosen agents do it right from the start in the light of those limitations. If there is then any doubt as to the political and/or constitutional correctness of the intended or desired changes to the Constitution, every effort should be exerted to resolve those doubts in open public debates rather than in secret deliberations of unaccountable judges. That’s how an ordinary law is enacted: laws are not passed with the thought of submitting them to a final judicial veto. And that simply is the reason why the vast, vast majority of legislations become operative and final without any judicial intervention.

So, why shouldn’t proposals to change the fundamental law of the land deserve at least equal treatment as any proposed ordinary legislation? Why shouldn’t the House do it right the first time without any legitimating judicial intervention aforethought?

As noted above, the Senate is unanimous in declaring the House scheme unconstitutional, the public sentiment is overwhelmingly against it, and no one (not even any of the sponsors of HR 1109) appears interested to debate the merits and demerits of the only intended amendment specified in the resolution in question, i.e., to amend the economic provisions in the Constitution.

What is the whole sinister point of provoking People Power? Your guess is as good as mine.

My hope then as now is: That “this whole affair would turn on the country once more not in terms of aspiring for some ad hoc, procedural or otherwise self-regarding Charter adjustments but of serving as a prelude to serious collective soul-searching of what has really gone so wrong about our country . . . (and offer) yet another unique opportunity to rediscover the true Philippine Beauty leading to a national catharsis without the Beast rising to its feet.”

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