MIRIAM: CHARTER NOT ORDINARY BILL

Sen. Miriam Defensor Santiago, a constitutional law expert, said Congress, in discussing charter change, cannot follow the usual procedure in passing an ordinary bill, just so that it can avoid the issue of whether to convene a constituent assembly.

The disagreement between the Senate and the House on whether to convene a constituent assembly needs judicial adjudication. It does not serve as a solution to sidestep the issue, by pretending that a new charter is just like an ordinary bill. That is contrary to decided cases in our country and in the United States, said Santiago, a constitutional law expert and former U.P. professor of constitutional law.

Santiago is a former chair and at present a member, of the Senate Committee on Constitutional Amendments.

I humbly submit that, based on settled jurisprudence, constituent power is NOT part of the broad legislative power conferred on Congress. Constituent power is a sovereign power of the people, who delegate it through the Constitution to any government department they choose executive, legislative, or judicial, she said.

Santiago cited the 1976 case of Sanidad v. Comelec, where Chief Justice Enrique Fernando, a respected constitutional law expert, stressed the distinction between matters legislative and constituent. These are implicit on the treatise on the 1935 Constitution by Justices Malcolm and Laurel.

In his opinion, Fernando quoted Dean Vicente Sinco, as a well known authority on constitutional law: If there had been no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume that power.

Santiago said that Fernandos opinion, which was a concurring and dissenting opinion, prevails over the opinion in the same case by Justice Martin, who took a contrary view, and described the constituent power of Congress as adjunct, although peculiar, to its gross legislative power.

I respectfully submit that the Fernando opinion prevails over the Martin opinion, because Fernando is the recognized constitutional expert, and the Fernando opinion adopted the broad context of constitutional law, while the Martin opinion was limited to the context of martial law, the senator said.

Recently, certain senators reportedly said that the proposal of constitutional amendments is a legislative power; while certain representatives have reportedly taken the contrary view.

If the reports are true, then the representatives are correct. Constituent power is not part of the legislative power. Constituent power is a separate and distinct power conferred on Congress by the people through the Constitution, Santiago said.

Santiago quoted the U.S. case of Ellingham v. Dye: The proposal of amendments to the Constitution is NOT a power inherent in the legislative department, but must be conferred by a special grant of the Constitution.

You cannot solve a problem by ignoring it. If the ordinary legislative procedure is followed, without convening a constituent assembly, the issue would eventually reach the Supreme Court anyway. We may as well ask the Court to settle it now, rather than nibble at the fringes of the problem, Santiago said.

Santiago said she fears that the ongoing Senate-House talks on charter change will reach an impasse on the issue of whether the constitutional provision for a three-fourths vote of Congress should be interpreted to mean that Congress should vote either as a whole, or separately.

Judicial review should be the last resort. But in this case, there is no other resort, because any other option will be merely dilatory, Santiago said.