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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 theConstitution and must thus be convened in accordance with its provisions.
Under Article XVII, Section 1 of the 1987 Constitution, “[a]ny amendmentto, or revision of, this Constitution may be proposed by: (1)
the Congress, upon avote 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 beyondthe control of any department of the existing government,”
2
it merely derives itsauthority from the fundamental law. Thus, Congress may propose amendmentsto the Constitution only because the Constitution explicitly grants such power.
3
Itis therefore well-settled that in exercising such power, Senators and Members of the House of Representatives, act not as members of Congress, but ascomponent elements of a constituent assembly and derive their authority fromthe Constitution.
4
 Hence, in order to exercise the power to propose amendments to, or revisions of, the Constitution, Congress should not deviate from the requirementsset 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 ResolutionNo. 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, theConstitution
x x x beginning at ten o’clock in the morning of December 12, 2006until 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 SCRA28 (1970).
 
submission to the people for the purpose of ratification in accordance withSection 4, Article XVII of the Constitution.”It is submitted that Resolution No. 197, while ostensibly merely adoptingthe wording of Article XVII, Section 1 of the 1987 Constitution in calling for aconstituent assembly, effectively adopts a system of joint voting for all themembers of Congress (irrespective of whether they belong to the Senate or theHouse of Representatives), and is therefore in violation of the Constitution for thefollowing reasons:
First.
The power to propose amendments is given to Congress which isnot a unicameral body but a bicameral body.
5
The power to proposeamendments 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 voteseparately because the meaning of a constitutional command can also be drawnfrom the known governmental structure set up by the Constitution.
6
Third.
The intent of the framers of the 1987 Constitution is that bothHouses vote separately.
7
The Records of the Constitutional Commission showthat the general rule is that when the Constitution provides that Congress shouldvote, it means that both Houses vote separately; otherwise, the Senate willalways 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 whichcase, the Constitution explicitly provides that Congress should vote jointly.
9
 In this regard, the Supreme Court has held that the "fundamental principleof constitutional construction is to give effect to the intent of the framers of theorganic law and of the people adopting it. The intention to which force is to begiven is that which is embodied and expressed in the constitutional provisionsthemselves."
10
Fourth.
The underlying reasons for adopting bicameralism apply withgreater vigor in the case of Congress acting as a constituent assembly. Thearguments for bicameralism are: “(1) an upper house is a body that looks atproblems 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 theCongress
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 SCRA384 (1995)
 
parochial tendency of a body elected by districts; (2) bicameralism allows for amore careful study of legislation; and (3) bicameralism is less vulnerable toattempts of the executive to control the legislature.”
11
 Here, the three-fourths vote of the Senate as a separate body cannot bedispensed 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 theHouse of Representatives of the powers of the Senate and, if the proposedamendments are approved, the Executive Department and ultimately, the people.
3.Consequently, without the participation of the Senate and unless three-fourthsvote 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 theSenate participates in the process of amendment or revision of the Constitutionand offers his opinion on which is the better one, to wit: “One (which I prefer) Iwould call strict, and the other minimalist. Strict participation means that three-fourths of the Senate should vote in favor of any proposed change. But aminimalist approach would say that if at least a majority of the Senate shouldvote in favor, the needed Senate participation would be satisfied. However, if separate voting is required—and I maintain it is—the minimalist approach wouldnot satisfy the three-fourths language of the Constitution.”
12
It is submitted that by maintaining the position that separate voting isrequired, it would not be sufficient even if individual Senators participate, for solong as the three-fourths vote of Senate is not obtained, then no proposals toamend 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 sayanything about a joint session, each House may separately formulateamendments by a vote of three-fourths of all its members, and then pass it to theother house for a similar process. Any disagreements can be settled through aconference committee. Alternatively, Congress may decide to come together in joint session and vote separately on proposed amendments and revisions. Sincethe Constitution is silent about the method and since the amendatory processhas 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.
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