Inconstant, inconsonant


            I’ll just call him Constantin. He seems to be a nice fellow. His name is Constantino Jaraula, the chair of the House committee on constitutional amendments. He uses constitutional provisions and legal arguments in defending JDV’s illegal numbers game or rump con-ass. He can therefore be engaged in discussions on the Constitution because he is disciplined enough to use constitutional law concepts in justifying their planned exercise. This is not to say he is entirely correct. Unlike the comic book character Constantin played by Keanu Reeves on film, he has not experienced any kind of epiphany to discern anything, like what bicameral means. At today’s phonepatched interview over ANC, Constantin said that the provision on amendments in the 1987 Constitution did not use the language of its counterpart provision in the 1935 Constitution on amendments. He is correct there. The provision in the 1935 Constitution is more specific, the 1987 provision is not similarly worded.     Here they are (i copied and pasted from http://www.chanrobles.com because i can’t let my secretary type my blog (normally i just type in my pleading “insert” and “copy 1” or “copy 2”): here they are: 1935 Constitution

ARTICLE XV
Amendments
Section 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

1987 Constitution

ARTICLE XVII
AMENDMENTS OR REVISIONS
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.
xxx

     He then ponted out that in the 1935 Constitution (which establishes a bicameral Congress), the provision specifies that Congress should be in “joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution”.

          Constantin said, see? It specified members of the Senate and the House, and said “in joint session assembled”. The 1987 provision on the other hand is general, is just says three-fourths of all members of Congress.

    

       Constantin further said, why is the “phraseology different? We cannot just say that the framers of the 1987 Constitution were stupid or had amnesia. Because they changed the provision, there must have been an intent to change the meaning. It therefore means both houses voting as one.”

  

         Sounds logical?

    

        Only if you think that constitutional provisions are construed like ordinary statutes.

           They’re not.        

          Only if you think there are only one or two provisions in the Constitution.        

          There are over 200.         

          Statutory construction is that set of principles used in interpreting laws, established in jurisprudence while constitutional construction is that set principles used in interpreting constitutional provisions established also by jurisprudence.

         

          When the provisions are plain and clear, there is no need for construction. Only when they are vague, general, or ambiguous, would there be a need to resort to aids of construction. In statutory construction, if you cannot find the meaning in the plain language of the law, you go back to the records of the deliberation in the legislature to find the meaning and intent of the law. In constitutional construction, the journal and the records are secondary. First, you have to look at the words and construe them in their plain, ordinary meaning; you are therefore looking for the intent of the people who ratified the Constitution when they approved it, not the intent of the framers; and this can be seen (the intent of the people who ratified it) from the plain, ordinary meaning of the words as used in everyday life. Second, you have to look at the entire document or the entire Constitution, situate the particular provision and find out the sense in which it was used.           Never mind if there had been an oversight on the part of the framers such that, for some reason, they forgot to make the provision more specific. It is not the oversight of the framers that controls. It is the intent of the people who ratified the entire Constitution that controls. And the will of the people here is to establish a bicameral legislature as can be seen in the entire Constitution. How do we know that the people intended our system to be bicameral? Because that’s what they ratified in the entire document, in the following provisions:1987 Constitution
ARTICLE VI
THE LEGISLATIVE DEPARTMENT
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.
xxx
Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.
xxx

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

Section 16. (1). The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary.
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.
(3) Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.
(4) Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings.
(5) Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
xxx

Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.
Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.
Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.
(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

                   It is so plain and clear, it is in simple language, this is what the people ratified in the 1987 Constitution: a bicameral Congress. The argument therefore of Constantin is unavailing; it becomes possible only if we close our eyes to the will of the people in establishing a bicameral Congress.           To be fair, it was really an oversight. To end on a funny note, look at this provision in the 1987 Constitution, it is specific in saying that the houses should vote separately:

        1987 Constitution
Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

            In the 1935, it is worded this way:          1935 Constitution

Section 25. The Congress, shall, with the concurrence of two-thirds of all the Members of each House, have the sole power to declare war.
Section 26. In times of war and other national emergency the Congress may by law authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.

       

            Constantin can use this in his favor to say, see? When the 1987 framers mean separate, they say so, they say “in joint session assembled” and “voting separately”.

           Ok, I will concede, the framers weren’t very careful or did not review each provision over and over; it would have probably taken just one hawk-eyed staffmember to see it and we wouldn’t be here now, twenty years later, wasting time engaging Constantin (and the moral of the story is….oh, some other time). All of the framers and the staffmembers were probably dead-tired, weary, bleary-eyed, hungry, fending coups, had deadlines, had families, nobody saw it.

       

             Fortunately, that’s not how the people in their sovereign capacity saw it: they ratified a bicameral Congress, two Houses, and all the checks and balances and imperfections that go with it. And they were constant, consistent.  

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