Annex “A”

The Constituent Assembly Issue

Statement of Legal Position of ONEVOICE
By Christian S. Monsod, Chairman

1. Congress, as a constituent assembly, derives its authority from the

Constitution and must thus be convened in accordance with its provisions.

Under Article XVII, Section 1 of the 1987 Constitution, “[a]ny 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.”

While Congress acting as a constituent assembly is a legislative body of

the highest order,1 and is “endowed with extraordinary powers generally beyond
the control of any department of the existing government,”2 it merely derives its
authority from the fundamental law. Thus, Congress may propose amendments
to the Constitution only because the Constitution explicitly grants such power.3 It
is therefore well-settled that in exercising such power, Senators and Members of
the House of Representatives, act not as members of Congress, but as
component elements of a constituent assembly and derive their authority from
the Constitution.4

Hence, in order to exercise the power to propose amendments to, or

revisions of, the Constitution, Congress should not deviate from the requirements
set forth in the Constitution, but act in conformity with it.

2. In calling all members of Congress to convene into a constituent assembly,

House Resolution No. 197 violates the Constitution because while a joint
session is not required, the Senate and the House of Representatives must
vote separately.

On 7 December 2006, the House of Representatives adopted Resolution

No. 197 calling “x x x all Members of Congress, pursuant to Section 1, Article
XVII of the Constitution, to propose amendments to, or revision of, the
Constitution x x x beginning at ten o’clock in the morning of December 12, 2006
until the approval of particular amendments or revision of the Constitution for

1
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), pp. 1302-1303.
2
Tolentino v. Commission on Elections, 41 SCRA 702 (1971).
3
Gonzales v. Commission on Elections, 21 SCRA 837 (1967).
4
Id.; Tolentino v. Commission on Elections, 41 SCRA 702 (1971); In Re Subido, 35 SCRA 1 (1970);
Sanidad v. Commission on Elections, 73 SCRA 333 (1976); Imbong v. Commission on Elections, 35 SCRA
28 (1970).
submission to the people for the purpose of ratification in accordance with
Section 4, Article XVII of the Constitution.”

It is submitted that Resolution No. 197, while ostensibly merely adopting

the wording of Article XVII, Section 1 of the 1987 Constitution in calling for a
constituent assembly, effectively adopts a system of joint voting for all the
members of Congress (irrespective of whether they belong to the Senate or the
House of Representatives), and is therefore in violation of the Constitution for the
following reasons:

First. The power to propose amendments is given to Congress which is

not a unicameral body but a bicameral body.5 The power to propose
amendments or revisions is a power that is shared by both bodies and neither
can exercise that power alone.

Second, As a constituent assembly, it is essential that both Houses vote

separately because the meaning of a constitutional command can also be drawn
from the known governmental structure set up by the Constitution.6

Third. The intent of the framers of the 1987 Constitution is that both
Houses vote separately.7 The Records of the Constitutional Commission show
that the general rule is that when the Constitution provides that Congress should
vote, it means that both Houses vote separately; otherwise, the Senate will
always be outnumbered and can be effectively absorbed by the House of
Representatives, which would be contrary to the bicameral structure of
Congress.8 The only exception to such rule is for revocation of a proclamation of
Martial Law or suspension of the privilege of the writ of habeas corpus, in which
case, the Constitution explicitly provides that Congress should vote jointly.9

In this regard, the Supreme Court has held that the "fundamental principle
of constitutional construction is to give effect to the intent of the framers of the
organic law and of the people adopting it. The intention to which force is to be
given is that which is embodied and expressed in the constitutional provisions
themselves."10

Fourth. The underlying reasons for adopting bicameralism apply with

greater vigor in the case of Congress acting as a constituent assembly. The
arguments for bicameralism are: “(1) an upper house is a body that looks at
problems from the national perspective and thus serves as a check on the

5
Article VI, Section 1, 1987 Constitution provides that “The legislative power shall be vested in the
Congress which shall consist of a Senate and a House of Representatives x x x.”
6
Bernas, supra note 1 at p. 1298.
7
I Record 375.
8
II Record 452, 493; III Record 699.
9
Article VII, Section 18, 1987 Constitution.
10
Concurring Opinion of Justice Puno in Arroyo v. House of Representatives Electoral Tribunal, 246 SCRA
384 (1995)
parochial tendency of a body elected by districts; (2) bicameralism allows for a
more careful study of legislation; and (3) bicameralism is less vulnerable to
attempts of the executive to control the legislature.”11

Here, the three-fourths vote of the Senate as a separate body cannot be

dispensed with for the above reasons, and because the ends and the means of
the constituent assembly under Resolution No. 197 are one—a usurpation by the
House of Representatives of the powers of the Senate and, if the proposed
amendments are approved, the Executive Department and ultimately, the people.

3. Consequently, without the participation of the Senate and unless three-fourths

vote of the Senate is obtained, there can be no valid proposals to amend or
revise the Constitution.

Anent the role of the Senate, Bernas presents two ways in which the
Senate participates in the process of amendment or revision of the Constitution
and offers his opinion on which is the better one, to wit: “One (which I prefer) I
would call strict, and the other minimalist. Strict participation means that three-
fourths of the Senate should vote in favor of any proposed change. But a
minimalist approach would say that if at least a majority of the Senate should
vote in favor, the needed Senate participation would be satisfied. However, if
separate voting is required—and I maintain it is—the minimalist approach would
not satisfy the three-fourths language of the Constitution.”12

It is submitted that by maintaining the position that separate voting is

required, it would not be sufficient even if individual Senators participate, for so
long as the three-fourths vote of Senate is not obtained, then no proposals to
amend or revise the Constitution will be valid.

4. However, it may be premature to seek judicial review prior to the filing of a

petition with the Comelec praying for the scheduling of a plebiscite.

Since Article XVII, Section 1 of the 1987 Constitution does not say
anything about a joint session, each House may separately formulate
amendments by a vote of three-fourths of all its members, and then pass it to the
other house for a similar process. Any disagreements can be settled through a
conference committee. Alternatively, Congress may decide to come together in
joint session and vote separately on proposed amendments and revisions. Since
the Constitution is silent about the method and since the amendatory process
has been committed to Congress, under the “political questions” doctrine,
Congress should be free to choose whichever method it prefers.13

11
Bernas, supra note 1 at p. 654.
12
Bernas’ column, Philippine Daily Inquirer, 15 January 2006
13
Bernas, supra note 1 at p. 1298.
 Thus, the Supreme Court may, at this point, exercise judicial restraint and
simply allow the exhaustion of remedies within Congress.14

However, once the House of Representatives, acting as a constituent

assembly, submits its proposed amendments to, or revision of, the Constitution to
the Commission on Elections (Comelec) and prays for the conduct of a
plebiscite, then such petition may be opposed on the grounds stated in Item 2.
Should the Comelec decide to grant the petition and schedule a plebiscite, then
such decision may be questioned before the Supreme Court and there would be
no issue as to justiciability and ripeness for adjudication of the matter.

14
See Concurring and Dissenting Opinion of Justice Puno in Francisco v. The House of Representatives,
415 SCRA 44 (2003)