CONSTITUENT ASSEMBLY Congress as a Constituent Assembly ...
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Congress as a Constituent Assembly: Examining the Extent of its Discretion in the Amendatory Procedure janice Kae P. Ramirez·· I. INTRODUCTION .......................... • .......... . 506 II. TaE CoNSTITUTIONAL AMENDATORY PRocESs .............. 51 I A. 'The Constitution of Sovereignty B. Amendments' and Revisions under the 1987 Constitution C. A, Procedural Ambiguity III. TaE CoNcEPT oF JuDiciAL REviEW ...................... 517 A. The Principle of Separation of Powers B. The Role of the Judiciary C. The Political Question Doctrine D. Grave Abuse of Discretion IV. ThE CoNsmuENT PowERs OF CoNGRESS ................. -532 A. Origin of Constituent Power B. Constituent Powers Defined C. The Constituent AssembLy D. jurisprudence on Proposal of Amendments E. · Some Observations V. INTERPRETING ARTICLE XVII, SEcTION 1(1): Two APPROACHEs .. 542 A. The Drilon Formula: A Bicameral Approach B. The Cruz Formula: A Unicameral Approach VI. AN ANALYSIS • • • • • • • • . • • • • • . • • • • • • • • • • • . . . . . ••...•• 544 A. A Political Question? t. B. Grave Abuse of Discretion? C. The Drilon Formula D. The Cruz Formula VII.CONCLUSION • .................................. •. -574 I. INTRODUCTION An analysiS of the past and present Philippine constitutions reveals that the fundamental law of the country is in reality, not that fundamental. Just like any ordinary statute, it is subject to change in order to adapt to changing 'o3J.D., with honors, Ateneo de Manila University School of Law. Cite as 48 ATENEO LJ. so6 (2003). 2003] CONSTITUENT ASSEMBLY )07 times. Much can be said regarding the longevity of the Philippine Constitution. The 1935 Constitution was seriously questioned only in the 196as. In the case of the 1973 Constitution, it was under siege from the day of its birth. Today, the new Constitution is only 16 years old, but it is already under intense siege. 1 If one browses through the five-volume record of the 1986 Constitutional Commission, one will find that only a handful of provisions received unanimous approval. All the rest were products of compromises ratified by 78% of the electorate on 2 February 1987. 2 Many believe that the 1987 Charter could stand much improvement in both substance and form. It was criticized for having been conceived in haste by a body hardly prepared for the task. There were a few impressive exceptions but the membership in general was neither distinguished nor was it equal to their vital task. Significantly, all the commissioners were appointed by the President and were not chosen directly by the people.J . Public discu.ssion of the proposed draft was largely uninformed and far from spirited. Opposition thereto was disorganized and mostly sporadic. The Constitution was ratified not because of its merits, but out of the people's desire for stability after the overthrow of the Marcos dictatorship and the disarray of the EDSA Revolution. Many thought it was good for the time being but not forever.4 It .was likewise attacked for its length. In this regard, Fr. Joaquin G. Bernas, S.J., one of the key framers of the present Constitution, has this to say: I agree with the critics on this point. But I must sa) that the length is also due partly to the desire of the writers to accomplish their task as speedily as possible. There were those among the writers who, consciously or unconsciously, approached the task as if it were a matter of writing statutes, or who wanted their favorite ideas to be immortalized in the document. The process of pruning these ideas, if pushed to a more satisfactory conclusion, would have taken a long time. Time was saved and the body .. succeeded in finishing the draft in five months when these ideas were allowed to enter unenforceable generalities or as commands conditioned by the phrase "as may be provided by law." The net effect is that, strictly 1. Joaquin G. Bernas, A I<>-year-old Constitution, ToDAY, Feb. 2, 1997, at 7 Bernas, A Jo·ytar-old]. 2. Joaquin G. Bernas, Nonvirtues of '87 Charter, TODAY, Sept. 28, 1997, at 9· J. Isagani A. Cruz, Flaws in the Constitution, PHILIPPINE DAILY INQUIRER, Aug. 8, 1999, at 6 [herein?fter Cruz, Rau·s]. 4· Id.
Transcript of CONSTITUENT ASSEMBLY Congress as a Constituent Assembly ...
Congress as a Constituent Assembly: Examining the Extent of its Discretion in
the Amendatory Procedure janice Kae P. Ramirez··
I. INTRODUCTION .......................... • .......... . 506 II. TaE CoNSTITUTIONAL AMENDATORY PRocESs .............. 51 I
A. 'The Constitution of Sovereignty B. Amendments' and Revisions under the 1987 Constitution C. A, Procedural Ambiguity
III. TaE CoNcEPT oF JuDiciAL REviEW ...................... 517 A. The Principle of Separation of Powers B. The Role of the Judiciary C. The Political Question Doctrine D. Grave Abuse of Discretion
IV. ThE CoNsmuENT PowERs OF CoNGRESS ................. -532 A. Origin of Constituent Power B. Constituent Powers Defined C. The Constituent AssembLy D. jurisprudence on Proposal of Amendments E. · Some Observations
V. INTERPRETING ARTICLE XVII, SEcTION 1(1): Two APPROACHEs .. 542 A. The Drilon Formula: A Bicameral Approach B. The Cruz Formula: A Unicameral Approach
VI. AN ANALYSIS • • • • • • • • . • • • • • . • • • • • • • • • • • . . . . . ••...•• 544
A. A Political Question? t.
B. Grave Abuse of Discretion? C. The Drilon Formula D. The Cruz Formula
VII.CONCLUSION •..................................•. -574
I. INTRODUCTION
An analysiS of the past and present Philippine constitutions reveals that the fundamental law of the country is in reality, not that fundamental. Just like any ordinary statute, it is subject to change in order to adapt to changing
'o3J.D., with honors, Ateneo de Manila University School of Law.
Cite as 48 ATENEO LJ. so6 (2003).
2003] CONSTITUENT ASSEMBLY )07
times. Much can be said regarding the longevity of the Philippine Constitution.
The 1935 Constitution was seriously questioned only in the 196as. In the case of the 1973 Constitution, it was under siege from the day of its birth. Today, the new Constitution is only 16 years old, but it is already under intense siege. 1 If one browses through the five-volume record of the 1986 Constitutional Commission, one will find that only a handful of provisions received unanimous approval. All the rest were products of compromises ratified by 78% of the electorate on 2 February 1987.2
Many believe that the 1987 Charter could stand much improvement in both substance and form. It was criticized for having been conceived in haste by a body hardly prepared for the task. There were a few impressive exceptions but the membership in general was neither distinguished nor was it equal to their vital task. Significantly, all the commissioners were appointed by the President and were not chosen directly by the people.J
. Public discu.ssion of the proposed draft was largely uninformed and far from spirited. Opposition thereto was disorganized and mostly sporadic. The Constitution was ratified not because of its merits, but out of the people's desire for stability after the overthrow of the Marcos dictatorship and the disarray of the EDSA Revolution. Many thought it was good for the time being but not forever.4
It .was likewise attacked for its length. In this regard, Fr. Joaquin G. Bernas, S.J., one of the key framers of the present Constitution, has this to say:
I agree with the critics on this point. But I must sa) that the length is also due partly to the desire of the writers to accomplish their task as speedily as possible. There were those among the writers who, consciously or unconsciously, approached the task as if it were a matter of writing statutes, or who wanted their favorite ideas to be immortalized in the document. The process of pruning these ideas, if pushed to a more satisfactory conclusion, would have taken a long time. Time was saved and the body .. succeeded in finishing the draft in five months when these ideas were allowed to enter unenforceable generalities or as commands conditioned by the phrase "as may be provided by law." The net effect is that, strictly
1. Joaquin G. Bernas, A I<>-year-old Constitution, ToDAY, Feb. 2, 1997, at 7 [herein~fter Bernas, A Jo·ytar-old].
2. Joaquin G. Bernas, Nonvirtues of '87 Charter, TODAY, Sept. 28, 1997, at 9·
J. Isagani A. Cruz, Flaws in the Constitution, PHILIPPINE DAILY INQUIRER, Aug. 8, 1999, at 6 [herein?fter Cruz, Rau·s].
4· Id.
