Last Friday, 15 January 2021, Senate President Vicente Sotto III declared that Ako Bicol partylist Representative Alfredo Garbin was out of line when the latter, in his capacity as chairman of the House Committee on Constitutional Amendments, declared his committee as a constituent assembly by itself.
Sotto is correct in that regard, and several ranking officials of the House of Representatives of Congress agree with him.
A mere committee of the House can never be, by itself, a constituent assembly, and more so when the Senate is excluded from the political equation.
When Congress sits as a legislative assembly, it exercises its legislative power, or the power to enact laws and to repeal them. On the other hand, when Congress sits as a constituent assembly, it exercises the constituent power, or the power to propose amendments to the Constitution.
Under Article XVII of the Constitution, it is Congress as a whole, and not a mere committee thereof, which can act as a constituent assembly. The term “Congress” means both the House and the Senate working together, but voting separately.
Although Article XVII is silent on how Congress, sitting as a constituent assembly, is to vote on proposed amendments to the Charter, the logical interpretation of the Constitution as a whole is that both chambers vote separately.
Undoubtedly, both chambers of Congress voting separately on what is to be an official act of Congress results in a more thoroughly debated official act, which is good for public interest.
In that light, if both chambers of Congress have to vote separately on a proposed law renaming a public highway, logic and reason dictate that a separate vote should be taken when proposing amendments to the fundamental law of the land.
Father Joaquin Bernas, SJ, an expert in Constitutional Law and one of the few rational and intellectual members of the unelected 1986 Constitutional Commission that drafted the 1987 Constitution, says that the failure of Article XVII to specify how both chambers of Congress should vote when it sits as a constituent assembly is a clerical oversight of the Commission.
As a lawyer, Garbin is expected to be aware of these legal considerations. Why he seems to have ignored them is a mystery. Some observers say that Garbin was simply so drunk with power that he thought his group, a mere committee of the House, can assume for itself the constituent power of Congress.
Many people also want to know why Garbin is hastily pursuing Charter change to the point of making his committee usurp the constituent power of Congress.
The brazen attitude of Representative Garbin should alarm the Filipino people. Here is a partylist representative who, ironically, seems willing enough to ignore the entire constitutional process in order to railroad proposed amendments to the very Charter his committee seems willing to violate.
It is immaterial that the contemplated amendments to the Constitution are to be confined only to easing up the restrictions in the Charter over nationalized industries, businesses and similar pursuits. The intended amendments are, by themselves, a collective threat to the very essence of the Constitution as the means by the people can prevent any department of the government from becoming too powerful.
If Charter change 2021 proponents are to have their way, they will insert the phrase “unless otherwise provided by law” in the provisions of the Constitution, which strictly regulates foreign influence in nationalized industries, businesses and similar pursuits.
In an essay published last Sunday under this column, it was pointed out that inserting the phrase “unless otherwise provided by law” in those sensitive provisions of the Charter will make Congress too powerful, akin to a “super legislature.” That is antithetical to the principle of separation of powers which, in its federalist concept in the United States where the principle emanated, frowns against granting too much power upon any of the three departments of the government.
Remember, when separation of powers is compromised, the concomitant principle of checks and balances becomes illusory. Heaven help us all when that happens.
It is in the public interest, therefore, that the proposed amendments to the Constitution concerning the national economy be opposed by the Filipino people.