Philip William C. Altares Atty.

Maricris Pahate
1K Statutory Construction

Question 1

The pertinent provisions of the 1987 Constitution:

Article XVII 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

2) A constitutional convention

Article VI 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.

The Facts and the Arguments:

The House of Representatives passed a bill proposing an amendment of the

1987 Constitution, which was supported by the vote of 220 congressmen. When the
bill was elevated to the Senate, only two senators voted in favor of the proposed
amendment.

Notwithstanding the dismal vote at the Senate, the COMELEC started

preparations for a plebiscite to submit the proposed amendment for ratification. The
Senate, through the Senate President, filed a petition for Prohibition against the
COMELEC, contending that Section 1 of Article XVII contemplates the respective
houses of Congress in joint session, voting separately, with at least three-fourths of
each house voting in favor of the proposed amendment.

The Senate argued that under the 1935 Constitution, which established a
bicameral legislative body, proposed amendments to the Constitution shall be made
by Congress in joint session assembly, by a vote of three-fourths of all the members
of the Senate and of the House of Representatives voting separately.

The Senate further noted that the wording of Article XVII Section 1 of the
1987 Constitution is similar to the provisions under the 1973 Constitution, which
established a unicameral legislative body. The 1973 similarly provided that “any
amendment to, or revision of, this Constitution may be proposed by the Batasang
Pambansa upon a vote of three-fourths of all its members, or by a constitutional
convention.”

The Senate thus argued that since the 1987 Constitution returned to a
bicameral legislature, it follows that the voting requirement will follow the procedure
provided for under the 1973 Constitution; and that the Constitutional Commission,
though it substantially copied the provisions of the 1973 Constitution, just
inadvertently excluded the words, “joint session” and “voting separately” .

On the other hand, the COMELEC argued that since the membership of
Congress includes both houses, the 222 affirmative votes (House + Senate)
constituted more than the mandated three-fourths vote under the 1987 Constitution,
and since there is no additional requirement that there must be a joint session, the
procedure taken by the House of Representatives was in accord with the Constitution.
The COMELEC argued that the words of the Constitution are clear, and there is no
room for construction. Moreover, the COMELEC argued that the exclusion of the
words “joint session” and “voting separately” cannot be attributed inadvertence
because the Constitutional Commission was consistent, even repeating the same
voting requirement in Section 3 of the same Article XVII of the 1987 Constitution:

“Sec.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.”

How is Congress supposed to vote? Construe Section 1, Article XVII of the 1987
Constitution. (50 pts)

ANSWER

The primary consideration before constuing a provision of the law is when there is
ambiguity to the law itself. A statute is said to be ambiguous if it is admissible of two
or more possible meanings. Stated differently, ambiguity exists if reasonable persons
can find different meanings in a statute, document, etc. If the law is clear and
unequivocal, the Court has no other alternative but to apply the law and not to
interpret.Construction and interpretation of law come only after it has been
demonstrated that application is impossible or inadequate without them.

The Constitution must be construed as a Whole.In construing the Constitution, it must

be read and construed, not as isolated and independent precepts, but as an integral part
of the whole document in which it is embodied and in the light of the history its
enactment and insertion in the fundamental law. ( Tabor vs. Gavina 79 Phil. 421
[1947])

Every part of the Constitution must be given effect. Conflicting provisions must be
harmonized where this is possible.

Ordinarily then, words used in the Constitution should be given their plain, natural
and usual signification unless technical terms are employed, in which case, the sense
attached to them prevails. The Constitution is primarily a people’s document and not a
lawyer’s document. ( Cordillera Regional Assembly vs. COMELEC, L93054, Dec. 4,
1990)
Article VI, Section 1 provides:

“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.”

The 1987 Constitution has thus restored bicameralism.Congress, under the new
Constitution, is composed of the House of Representatives and of Senate. That is
granted without further argument.

Under Article XVII of the 1987 Constitution, the Constitution may be amended by:
first, Congress, upon a vote of three-fourths of all its Members; second, a
Constitutional Convention convened by a two-thirds vote of all Members of Congress,
or decided on by the electorate after the matter is referred to them by a majority vote
of Congress; third, the exercise of people’s initiative. What is therefore popularly
known as a constituent assembly is the Congressional exercise of its power to propose
amendments or revisions to the Constitution upon a vote of three-fourths of all its
Members..

The Senate argues that both Houses must vote in joint session. Whether they should
vote jointly or separately is a different matter altogether. Sadly, the 1987 Constitution
provision on the constituent assembly is vague. There’s nothing that mentions in joint
assembly or voting jointly or voting separately.

Where does this thing about a joint session comes from? Back when the 1935
Constitution was still in effect, the Philippines had a bicameral legislature much like
what we have today. The 1935 Constitution said, “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.”

The phrase “in joint session” or any analogous term was not reproduced in Marcos’
1973 Constitution because, by then, after declaring Martial Law and abolishing
Congress, he had convened the unicameral interim Batasang Pambansa which later
became the regular national assembly. With reference to the constituent assembly, the
pertinent provision is found in paragraph one of Section 1 of Article XVI: “Any
amendment to, or revision of, this Constitution may be proposed by the National
Assembly upon a vote of three-fourths of all its Members, or by a constitutional
convention.”

When the 1987 Constitution was drafted by Cory Aquino’s hand-picked members of
the Constitutional Commission, the draft called for a return to a bicameral legislature.
The provisions on amendments, however, failed to reflect this change. There is no
mention of a joint session nor is there anything that specifies whether the voting
should be joint or separate

In its article on amendments, the 1935 Constitution was clear. It provided: “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 the purpose.” The 1987
Constitution, by contrast, reads: “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
xxx?. Whatever may have been the thoughts and assumptions of the eminent members
of the Constitutional Commission are now immaterial. The text must control.

We can safely presume and legally do so, in fact that the framers of the 1987
Constitution knew the phraseology of the 1935 Constitution with regard to
amendments and revisions. If the present provision differs in formulation from that of
the 1935 Constitution as it clearly does then the rules of interpretation bid us to
attribute significance to the change. The Con-Com changed the phrase because it
intended a change in the way the constitution is amended or revised. If it is argued
that the drafters of our present Constitution assumed that the same process would be
followed as that provided for in the 1935 Constitution, then the question, why did
they re-word the provision, demands an answer. It certainly was not merely to make
clear the intent of the provision. Compared to the murky Article XVII, Section 1 of
the present Constitution, the 1935 Constitution provision was crystal clear and left no
further questions to be answered.

Congress is composed of the House of Representatives and of Senate. When you

therefore say “three-fourths of all its Members”, then the words should be taken in
their ordinary meaning three-fourths of all the members of the House of
Representatives and the Senate, put together. It would have been the easiest thing in
the world for the Con-Com to have required “three-fourths of the members of the
House of Representatives and three-fourths of the Senate”, but that is not how the text
goes. It merely requires “three-fourths of all its Members”. It would then seem that to
require three-fourths of each House voting separately is to require what the
Constitution textually does not and to amend the Constitution by construction.

There are places in the Constitution where the separate vote of each chamber is
required. To declare the existence of a state of war, what it requires is “a vote of two-
thirds of both Houses in joint session assembled, voting separately.” It is by “two-
thirds vote of both Houses, voting separately” that Congress declares a President
unable to discharge the powers and duties of office, enabling the Vice President to
become acting President. By contrast “Congress, voting jointly, by a vote of at least a
majority of all its Members in a regular or special session, may revoke the
proclamation of martial law.”

So, why was does the article on amendments not make a similar requirement: “a vote
of three-fourths of both Houses in joint session assembled, voting separately?” The
only answer I can reasonably advance is because that is not what the Commission
intended. It intended a “majority of all the members of Congress” to be able to
propose amendments to the Constitution.
Question 2

The pertinent provision of the 1987 Constitution:

“Sec.4.

The President and the Vice-President shall be elected by direct vote of the people
for a term of six years which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of the same date six years
thereafter. The President shall not be eligible for any reelection. No person who
has succeeded as President and has served as such for more than four years shall
be qualified for reelection to the same office at any time.”

FACTS:

The COMELEC has officially proclaimed former President Joseph Estrada as

the winner of the 2010 presidential elections. Discuss the constitutionality of his
reelection. (50 pts)

ANSWER:

Let us start with a little background. Estrada was elected president in 1998, but his
tenure was cut short when on January 2001 he was ousted from office during the so-
called EDSA II revolution where the Supreme Court, in an unprecedented manner,
made then Vice President Gloria Macapagal-Arroyo the president by administering to
her, through then Chief Justice Hilario Davide, the oath of office for the president.
The Supreme Court later on legitimized GMA's assumption of office by ruling in
Estrada v. Desierto that Estrada resigned the presidency under the artful doctrines of
"totality test" and "constructive resignation." In 2004, after serving about three years
as president, GMA run for and was elected as president.

In January 2001, Philippine President Joseph Ejercito Estrada was replaced in a coup
by Vice President Gloria Macapagal-Arroyo. Estrada was facing then a Senate
impeachment trial when Supreme Court Chief Justice Hilario Davide, Jr., who had
been presiding the trial, appeared before a fiercely anti-Estrada crowd and swore in
“President” Arroyo. It was nothing short of “revolutionary” and foreclosed all
question about her legitimacy. Buth both she had and the Supreme Court said it was
nothing “revolutionary”--- just a simple operation of the constitutional provision on
presidential succession.

Former President Joseph Estrada is has won the election in 2010. He says that the
prohibition stated in Article VII Sec. 4 of the 1987 Constitution does not apply to
him. It states:

" The President and the Vice-President shall be elected by direct vote of the
people for a term of six years which shall begin at noon on the thirtieth day of
June next following the day of the election and shall end at noon of the same
date six years thereafter. The President shall not be eligible for any re-election. No
person who has succeeded as President and has served as such for more than four
years shall be qualified for election to the same office at any time."
It is a cardinal rule in the construction of the constitution that the words used shall be
given its plain meaning because it is the people’s document and not a lawyer’s
document. Where words used in a constitution have both restricted and general
meanings, the rule is that the general prevails over the restricted unless the context in
which the are employed clearly indicates that the limited sense is intended. ( Marcos
vs. Chief of Staff, AFP, 89 Phil 239 [1952])

Following the settled rule, we should define the words in its simplest sense. The use
of the definite article "the," before the word president, and the word "re-election" in
Section 4 are not conclusive grounds in saying that the prohibition on second election
to the presidency applies only to the incumbent president. It is argued that the
adjective "any" before the word re-election dispels this. Thus, when Section 4 states
that the president shall not be eligible for any re-election, it means that the president
cannot be elected president again either immediately upon the expiration of his or her
term or on any presidential election thereafter.

The subject was debated on July 25, 1986 as part of the consideration of the term of
various elective officers. The Commission was presented with three possible options
regarding the president’s term: (1) no immediate reelection; (2) no re-election; (3)
unlimited number of reelections.

No immediate reelection” meant the possibility of reelection after some interruption.

Unlimited number of reelections meant just that. But what did “no re-election” mean?
The following exchange took place:

BISHOP BACANI: I would like a clarification first. Does “No reelection” mean the
President can never be reelected?

THE PRESIDENT [Cecilia Muñoz Palma]: I believe the motion is just for non-
reelection, is it not?

MR. ROMULO: No reelection.

THE PRESIDENT: But it does not say forever.

MR. ROMULO: The meaning of no reelection is that the person can never run again
—absolute ban.

BISHOP BACANI: Therefore, if she ceases from office she cannot run even after six
years.

THE PRESIDENT: Even after?

BISHOP BACANI: That is the understanding. Thank you.

When the choices were finally put to a vote, 32 voted in favor of “no immediate
reelection” and only 5 against.
Before the day’s session ended, however, Commissioner Ambrosio Padilla moved for
a reconsideration of the decision. His motion to reconsider was approved 22 to 5.

In the ensuing debate, Commissioner Padilla was the main proponent of a perpetual
ban on reelection while Commissioner Francisco “Soc” Rodrigo sought the retention
of the original vote for “no immediate reelection.”

Before a vote was taken on the subject, the presiding officer made sure that the
meaning of Padilla’s proposal was clear to all:

THE PRESIDENT: So, the effect of this is, the President will serve for six years
without reelection. That carries a total ban on his being elected again at any future
time to the position of President.

MR. PADILLA: That is correct. It is a continuing prohibition for reelection.

Before the commissioners cast their ballot, the president reiterated her clarification:

THE PRESIDENT: The vote will be “yes” if one is in favor of Commissioner

Padilla’s proposal or “no” if one is against.

Forty-two (42) commissioners cast their ballot. After the ballots were counted, the
president made the announcement:

THE PRESIDENT: The results show 26 votes in favor, 15 against and 1 abstention;
the proposal that the President will serve a six-year term without reelection at any
time is approved.

That was not yet the end, however. Commissioner Serafin Guingona, who was the
only one who had abstained in the voting on Padilla’s proposal, did not think that the
matter was over.

MR. GUINGONA: I beg the Chair’s indulgence to present my proposal.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: My proposal is that the President shall be elected for a term of six
years and may run for one reelection immediately after his term, provided that no
President may serve for more than 12 consecutive years.

n effect, Guingona was asking for a reconsideration of the vote favoring Padilla’s
proposal for a total ban. The body considered it a reconsideration and voted 31 against
and 10 in favor.

The final action on the presidency, however, did not come until the body deliberated
on the draft article on the executive department. The draft evidently had been
prepared before the Commission could finish its consideration of the term of office of
various national elective officials. Hence the draft still contained the following
provision on the president: “He shall be disqualified from immediate reelection.”
On July 29, 1986, Commissioner Lorenzo Sumulong, in his sponsorship speech on the
draft, pointed out that the word “immediate” should no longer be there. On July 30,
during the period of amendments, Commissioner Hilario Davide Jr. proposed what is
now the final version: “The President shall not be eligible for any reelection.” He
explained his amendment thus: “The purpose of this amendment is to be consistent
with what the body had approved in the matter of the term of the President.”

Before the final approval of the Davide amendment there ensued the following
exchange:

MR. [FLORENZ] REGALADO: May we inquire from Commissioner Davide why he

proposes that the President shall be completely ineligible for any future elective office
lower than the presidency? . . . Would it not be possible that perhaps a former
President may wish to share his talents and experience with the people by running for
a lower position like that of a Senator?

MR. DAVIDE: He can. He is only banned from reelection, meaning to the same
office, but not from running for any office. So the wording is very clear: “THE
PRESIDENT shall be INELIGIBLE FOR ANY reelection.”

I am sure that by now Ambassador Davide has already heard that not a few refuse to
see the matter as very clear. As for me, it is at least very clear that a former president,
male or female, is qualified to run for congressman, senator or vice president!
But, wait! Is there an exception from the total ban in favor of an elected president
who, for whatever reason, may have served for less than a full tenure? All I know is
that no such exception was discussed or even proposed. There was no discussion
whatsoever of length of tenure, but only of length of term.

As we can inferred, the members of the Constitutional Assembly intended that the
president is ban or ineligible for ANY RE-ELECTION.

Therefore, the re-election and the proclamation of the COMELEC is in effect null and
void being unconstitutional.

Reference:

Agpalo, Ruben. Statutory Constructtion

Bernas, Joaquin. The 1987 Constitution

Munoz, Jr. Mauro et.al. Philippine Governance and Constitution.

Paguia, Alan. Rule of Law or Rule of force

http://opinion.inquirer.net/inquireropinion/columns/view/20090524-
206898/Presidential-reelection
House Resolution 1109 (re: Constitutional Amendment or Revision)

(The House of Representatives recently issued a resolution asking that members of

Congress — which, in a bicameral set-up, is composed of the Senate and the House of
Representatives — convene to consider amendments or revisions of the Constitution.
A stated purpose is to highlight a justiciable controversy, to allow the Supreme Court
to decide, whether the Constitutional amendment/revision by Congress should be
done by both chambers voting separately)

House Resolution No. 1109

A RESOLUTION CALLING UPON THE MEMBERS OF CONGRESS TO

CONVENE FOR THE PURPOSE OF CONSIDERING PROPOSALS TO AMEND
OR REVISE THE CONSTITUTION, UPON A VOTE OF THREE-FOURTHS OF
ALL MEMBERS OF CONGRESS

WHEREAS, there are proposals to amend or revise the 1987 Constitution, which is
presently enforced, but any of such proposals cannot be considered, heard, debated,
approved or disapproved, unless any of the modes expressly provided by Article XVII
of the present Constitution is adopted;

WHEREAS, adopting a mode of amending or revising the Constitution, as mandated

by said Article XVII is a condition precedent, a pre-requisite, before specific
proposals to amend or revise the Constitution could be considered by the Members of
Congress, convened to exercise the constitutionally ordained power to amend or
revise the Constitution.

WHEREAS, there is a recognized distinction between the exercise of legislative

powers of Congress from the exercise of the constituent power to amend or revise the
Constitution;

WHEREAS, Congress, in the exercise of its legislative power as provided in Article

VI of the 1987 Constitution, cannot amend or revise the Constitution, but it is through
the exercise of its constituent power under Article XVII, Section 1 of the Constitution
that “any amendment to, or revision of the Constitution may be proposed, upon a vote
of three-fourths of all its Members”;

WHEREAS, while the prescribed method of enacting constitutional change in the

1935, 1973, and 1987 Constitutions are different from the method of enacting
ordinary legislation, there is a very distinct and notable difference between the 1935
and the 1987 Constitution, which respectively provides as follows:

The 1935 Constitution:

“The Congress in joint session assembled, by a vote of three-fourths of all Members

of the Senate and of the House of Representatives voting separately may propose
amendments to this Constitution or a call a convention for that purpose.”

The 1987 Constitution:

“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.”

WHEREAS, it is to be emphasized and underscored that some essential words and

phrases in the aforequoted 1935 Constitution were deleted and no longer contained in
the aforequoted 1987 Constitution, such that the “amendments by deletion” are as
follows:

1. The phrase “in joint session assembled” in the 1935 Constitution was deleted;

2. The phrase that the Senate and the House of Representatives, voting separately”
was also deleted;

3. The percentage of voting three-fourths of the respective membership of each House

(the Senate and the House of Representatives) treated separately has also been
deleted and substituted with a vote of three-fourths of all the Members of Congress
(i.e., ¾ of the “members of Congress” without distinction as to which institution of
Congress they belong to).

WHEREAS, the intention of the amendments of the 1935 Constitution by deletions

of certain words and phrases thereon by the 1987 Constitution are clear and manifest
as underscored in the preceding WHEREAS Clauses and by such deletions, the
meaning and application of the corresponding provisions of the 1987 Constitution on
Amendments and Revision have been changed. There are however oppositors
claiming adverse legal interests who claim that, notwithstanding that the express,
clear, and unambiguous provision of Article XVII Section 1 of the 1987 Constitution
that any amendment to, or revision of the 1987 Constitution that any amendment to,
or revision of the 1987 Constitution shall be upon a vote of three-fourths of all the
Members of Congress (i.e., not three-fourths of each House voting separately as the
oppositors contend), a justiciable controversy involving the active antagonistic
assertion of alleged legal rights by the oppositors, on one side, and the denial thereof
by the proponents of this Resolution, on the other side, shall ripen for judicial
determination as and when this Resolution calling upon the Members of Congress to
convene in exercise of its constituent power is filed, heard, and approved.

WHEREAS, while no specific proposals to amend or revise the present Constitution

could formally be given due course unless and until this call to convene Members of
Congress, as provided herein, is effected. It is hereby pledged and covenanted by the
proponents of this Resolution, that by their signatures hereto that whatever
constitutional changes may be proposed at the appropriate time, preferably after the
constitutional issues may be proposed at the appropriate time, preferably after the
constitutional issues of construction and interpretation by the Honorable Supreme
Court of the justiciable controversy that may arise shall have been resolved with
finality that:

1. The term of office of the incumbent President and Vice-President shall not be
extended;
2. The term of office of Senators, Congressmen, Governors, Mayors, and other
elected officials whose term of office shall expire in 2010 shall not be extended;

3. The term of office of the twelve (12) Senators who were elected in 2007 for a six
(6) year term ending in 2013 shall not be shortened and they shall be allowed to finish
their term;

4. That there shall be elections in 2010.

WHEREAS, there is a specific proposal that for the Philippines to be internationally

competitive in attracting foreign investments and technology transfers that the
economic provisions of the Constitution is proposed to be amended in an appropriate
manner, but such specific proposal to amend the present Constitution cannot be
formally presented and resolved until the mode for amending or revising the
Constitution is convened and made operational through the application of Article
XVII of the present Constitution.

NOW, THEREFORE, BE IT RESOLVED, THAT THE MEMBERS OF

CONGRESS BE CONVENED FOR THE PURPOSE OF PROPOSING
AMENDMENTS TO, OR REVISION OF THE CONSTITUTION UPON A
VOTE OF THREE-FOURTHS OF ALL ITS MEMBERS AND THAT UPON
ITS BEING CONVENED SHALL ADOPT ITS RULES OF PROCEDURES
THAT SHALL GOVERN ITS PROCEEDINGS.