'A clarity of vision being dimmed'

I do not see anything legally or constitutionally objectionable to the draft Rules of the proposed Constituent Assembly (as posted by mlq3 and DJB).

Rule I in fact clearly recognizes the basic two-step process involved in order for the Congress of the Philippines to PROPOSE amendment to, or revision of, the Constitution by constituting itself as a constituent assembly.

The FIRST process is the CALLING of a constituent assembly out of the members of Congress. The resolution to call must be voted by three-fourths of all the members of Congress.

The SECOND process is the APPROVAL of the proposed amendments or revisions deliberated upon by the Constituent Assembly. The resolution to approve the proposal or proposals must be voted by three-fourths of all the members of Congress.

Neither Congress nor the Constituent Assembly may do away with the constitutional requirements of the foregoing two-step process. Violations of these requirements may be challenged before the Supreme Court and the Court may not evade its responsibility to pass upon the matter, it being clearly a justiciable controversy, and not a political question.

In between the first step and the second step would be the adoption of certain rules (e.g., Rules II through VIII of the draft Rules) concerning the parliamentary procedure for deliberating the intended amendments or revisions. These rules are political in nature and, being subject only to the discretion of Congress convened as a constituent assembly, are beyond the ambit of the Court; unless, otherwise, breaches of fundamental rights are involved such as those that may call for the application of the due process and the equal protection clauses (e.g., a gender-based voting requirement).

Where’s the rub?

First, what is the manner of voting as provided under the 1935, 1973 and 1987 Constitutions with respect to the two-step process?

The 1935 Constitution, which provided for a bicameral congress (i.e., a congress with two Houses, the Senate and House of Representatives), required thus:

“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 . . .” (Article XV, Section 1)

The 1973 Constitution, which provided for a unicameral national assembly, set forth the following:

“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 . . .” [Article XVI, Section 1(1)]

The 1987 Constitution, reverting to a bicameral congress, provides as follows:

“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 . . .” [Article XVII, Section 1(1)].

While the pertinent provisions of the 1973 Constitution and the 1987 (the present) Constitution are identical, the very natures of these assemblies under the two constitutions are not. The National Assembly under the 1973 Constitution being unicameral would have no choice but to vote jointly because for all intents and purposes it was just one assembly. It is not so as regards the present Congress under the 1987 Constitution, which is essentially composed of two houses or assemblies internally checking each other.

The Congress under the present Constitution is no different than the Congress under the 1935 Constitution. Therefore when the 1987 Constitution does not specify how Congress shall vote when constituting itself as a constituent assembly for the purpose of proposing an amendment to, or revision of, the Constitution, it is simply assuming the obvious, that is, that it will vote as a bicameral body as in the 1935 Constitution and not as a unicameral assembly as in the 1973 Constitution.

I have no access at this point to the debates among the commissioners who drafted the 1987 Constitution. But do those debates even matter if the people who ultimately approved the 1987 Constitution had in mind the structure of government under the 1935 that had served the country well rather than the discredited Marcos constitution of 1973 which they rejected?

As Justice, and later Chief Justice, Fernando used to say in our Constitutional Law class, “this simply indicates the clarity of vision being dimmed.”

Dimmed by what? Your guess is good as mine.