Only the Supreme Court can resolve the issue of whether Congress should meet jointly and vote separately in the current contentious effort to amend the Constitution, legal luminaries said at a forum held at the University of the Philippines on March 14. 

“We can save much time and effort if this is resolved once and for all by the Supreme Court,” said Rene Sarmiento, one of the framers of the 1987 Constitution. Former chief justice Reynato Puno said Congress should settle the issue first; “otherwise,” he said, “there will be a challenge” at the Supreme Court. He pointed out that the Makabayan bloc of lawmakers in the House of Representatives had manifested an intention to elevate to the high court the “procedural infirmities” of a joint congressional resolution. 

“Most probably, the high court will intervene because it is a matter of innate or proper interpretation that the questions that are being raised are novel,” Puno added. 

The forum, “Do We Need Charter Change? Issues and Alternatives,” was presented by the Center for People Empowerment in Governance in cooperation with the Office of the UP President, UP College of Law, and UP Law Center.

Separate hearings

After a spat over the controversial people’s initiative to rewrite the Charter, the Senate and the House have separately begun hearing joint resolutions that seek to ease limits on foreign ownership of public utilities, educational institutions and the advertising industry. This would entail Congress convening itself into a constituent assembly to introduce amendments or revisions to the Charter.  

In his remarks, Puno spoke at length about Article 17, Section 1.1 of the Constitution, calling it the “Achilles’ heel” of the joint resolutions of both chambers.  

“Unless this constitutional issue is settled, all these discussions about amending certain alleged restrictive economic provisions in the Constitution may just be too precipitate,” he said.

Article 17, Section 1.1 of the Constitution provides that Congress may propose an amendment by a vote of three-fourths of all its members.  

According to Puno, members of the 1986 constitutional convention that crafted the Charter had the impression that a unicameral Congress would be adopted; thus, they prepared Article 17, Section 1.1, But at “the last minute,” he said, a bicameral Congress was adopted.

“In the rush of things, they forgot to adjust their recommendation on how to amend the Constitution, where Congress is bicameral and meeting as a constituent assembly,” he said. “Hence, we have this anomalous Article 17, 1.1 which is fit for a unicameral Congress. It’s an unfortunate inadvertence. Some call it momentary amnesia.”

2 schools of thought

This situation resulted in two opposite schools of thought on how Congress, convened as a constituent assembly, should meet and vote—that is, “whether they should meet jointly and vote separately,” Puno said.  

The first school of thought maintains that the specific provision “is an admitted case of inadvertence” and, hence, should be “disregarded,” he said. “They submit that any interpretation should consider that what we have is a bicameral Congress, and should not stray from the tradition and practice that when its members convene as a constituent assembly, they meet jointly and they vote separately.” 

The second school of thought was espoused by the late Jesuit priest, lawyer and professor Joaquin Bernas, who asserted that this provision grants Congress the power to act as a constituent assembly to rewrite the Charter, Puno said. Thus, “how the two Houses shall meet, and how they shall vote—whether jointly or separately—is up to the senators and the congressmen to determine by the rules that they will adopt.”

Bernas, who was among the framers of the Constitution, theorized that Congress can “decide these details in view of the silence” of Article 17, Section 1.1, Puno said.

Puno believes that both chambers are now adopting Bernas’ stand. But this would invite a “constitutional challenge” given that it was a “personal view” that Bernas expressed after the ratification of the Charter, Puno said.

3 ways  

The former chief justice proposed three ways to settle the “constitutional quandary.” 

The first is to submit the matter directly to the people for judgment through a referendum. The second is to have this repealed by Congress sitting as a constituent assembly. 

“They should craft a provision that is fit for a bicameral Congress. They should revisit the 1935 Constitution,” Puno said. “Acting as a constituent assembly should mean ‘meet jointly and vote separately’.”

And the third is to bring the matter to the Supreme Court “for interpretation.” 

Puno expressed confidence that the high court would take up the matter. Under the Constitution, its judicial power is “expanded,” which includes the duty to “determine any grave abuse of discretion amounting to lack or excess of jurisdiction” by any branch of the government, including Congress, he said.

Foreign investments  

Puno also raised the caveat that the matter of questioning the constitutionality of Congress’ actions alone would trigger reservations among potential investors. 

“The moment that the high court entertains this case, and if you’re a foreign investor, and you’re uncertain of the constitutionality of these amendments, will you come in?” he said in response to questions.  

Risk analyst Emmanuel Leyco agreed with Puno. “Charter change is an indicator of political instability. Why? Because there’s this suspicion that the economic issues are not the major issues. The real issue here is term limits,” he said, citing a common argument of those opposed to current efforts to amend the Constitution. 

Sarmiento said that contrary to claims by the proponents, the joint resolutions of both the Senate and the House are not the “Solomonic solution” to the revision of the allegedly restrictive provisions of the Constitution.   

“It will not unlock the economic potential of the Philippines,” said Sarmiento, a former elections commissioner. “Foreign investors will not come because of relaxed or liberal economic provisions.” 

Surveys in recent years showed that business’ confidence was influenced by such factors as corruption, macroeconomic volatility, geopolitical conflict, inflation, cyber risk and social inequality, expensive electricity and slow internet, among others, he said.