Game plan

Metro Manila breaths a sigh of relief; but the typhoon has claimed its share of lives.

President made an unscheduled trip to St. Luke’s hospital in the last hour (12:57 pm Manila time). Media colleagues report it’s because “she wants to be with her husband during his scheduled check up”. She doesn’t have more important things to do? Here’s the news story, 1 pm.

The administration says there was a momentary blip in economic news, but that Christmas spending plus remittances will make everything hunky-dory.
A colleague explained that what was troubling about the recent news of a slowdown in quarterly growth, is that the economy grew only at 0.3 percent when it was expected to grow at 1.1 percent. The growth was the slowest in 5 Quarters.

The drumbeating continues: less than half of Mindanao’s political leadership trumpets support for a Constituent Assembly. The House leadership says it’s all in the bag, regardless of what the usual suspects in business grumble.

The schedule, insofar as I’ve been able to cobble it together, seems along the these lines:

Dec. 04: House attempts to swiftly amend rules. Sessions on Thursdays for the duration announced.

Dec. 06: Chief Justice Paganiban retires. House of Representatives amends its rules allowing swift passage of a resolution.

Dec. 08: Associate Justice Puno widely expected to be named Chief Justice.

Dec. 13: The Supreme Court goes on Christmas vacation. The debate is whether the Chief Justice has to call his fellow justices to an en banc session to hear any challenges to the House, or whether the Supreme Court might go into hibernation and dither over hearing the case.

Dec. 16: House of Representatives approves a resolution proposing Constitutional amendments. Perhaps five senators materialize during the voting, to signify their participation. This gives the appearance of (token) Senate participation in the process. Commission on Elections receives House Resolution and schedules plebiscite in 60 days.

Dec. 22: Congress goes on holiday recess.

Jan. 16: Comelec announces it will pilot poll automation in Metro Manila and other selected areas.

Feb. 16: Plebiscite Day.

Feb. 17-19: Plebiscite results proclaimed.

Feb. 25: Edsa Anniversary marked with inauguration of Interim National Assembly.

This schedule is based on what I’ve heard from some lawyers and reading between the headlines. Some people I’ve presented it to, think that the Supreme Court will not turn a blind eye to any challenges raised, and that the Comelec won’t necessarily presume that a House Resolution will trigger preparations for a plebiscite. And many other observers think the schedule’s simply too tight. Let’s see.

In the punditocracy, JB Baylon dissects the pros and cons of investigating the President’s husband.

Billy Esposo bids farewell to his readers. He will be taking over Max Soliven’s slot as columnist for the Philippine Star.

The Business Mirror editorial pays tribute to former central bank chief Cesar Rafael Buenaventura who died yesterday.

John Lewis reargues the MacArthur dictum that “there is no substitute for victory” -in Iraq.

Historical footnote: the Supreme Court decision exonerating Ferdinand Marcos for the murder of his father’s political rival.

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Manuel L. Quezon III.

54 thoughts on “Game plan

  1. I think PGMA has diabetes or borderline diabetes. Based from what her doctor said that she should cut off on her carbohydrates, I can safely conclude that her fasting blood sugar is borderline high to high

  2. If Justice Puno will be the CJ, I don’t think he will let the SC turn a blind eye too.

    But then a Miriam Santiago led SC seems more plausible in denying the machinations of the administration.

    In the Lambino ruling; the admin was banking on the votes of 2 justices already perceived (1 wrongly) to heavily favor Sigaw ng Bayan.

    Professionalism set aside for the moment; a Miriam Santiago led SC can assure the administration of 5 scorned justices already against their cases. 5 justices will be hard to surmount. But then again that is professionalism aside.

    Still, I am now in favor of Sen.Miriam as CJ.

    I’m interested in her DISSENTING OPINIONS!

  3. 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; or (2) A Constitutional Convention.

    If and when we ever get to a ConCon, does this mean that the Supreme Court will have to rule on whether a Concon uses a Simple Majority Rule, a 2/3, a 3/4 or a 4/5 Majority Rule?

    I don’t think so because we expect that a Concon will pass its own Rules as to how it will exercise the power granted to it by the Constitution. But notice that the Constitution is actually completely silent on the operations of a Concon.

    That is why I think it is not for the Supreme court either to decide whether the Congress votes separately or votes jointly when it proposes amendments or revision. It is up to the Congress to adopt EITHER mode as a Rule.

    I believe that either mode is actually constitutional as long as the implementation results in a Three Fourths Majority Rule.

    There is nothing for the Supreme Court to interpret or construe. It does not have the ability or the jurisdiction to decide the matter. Only the Congress does.

    Now the congress may adopt either voting jointly or voting separately. But that act of adopting either rule must be done in the normal way: voting separately!

  4. With all due respect, DJB – The Supreme Court will be asked to decided on the issue precisely because the Constitution is susceptible to various interpretations. Fr. Bernas (and the Senate) has explained that the provision you cited does not preclude a vote by both houses of Congress. It is for the Court to decide who is correct.

  5. As we discuss it in our Constitution class, Congress votes according to its two chambers; the Senate and the House of (Mis)Representatives. It’s common sense, why have a bicameral legislature and then have it vote as a combined whole?

  6. DJB,

    I must disagree that the SC has nothing to interpret nor don’t have the ability to decide on the matter. I know you mean well but we will utilize whatever good argument we have.

    I think part of it will hinge on a decision by the Supreme Court on an act of a co-equal branch of government.

    In that decision, the SC held that:

    “The 1987 Constitution expands the concept of judicial review by providing that “(T)he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable – the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court. When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.”

    I think I’ll go with the argument that there will be an abuse of discretion of the House as it it will exercise jurisdiction or excess of jurisdiction over the Senate (as a whole body)in its attempt to go it alone in a Constituent Assembly.

    Heck; if that fails,I’ll go along with yours.

  7. Imagine that we have elected a Constitutional Convention. They meet on the first day, elect their officers, organize their committees, divide up the work, and pass some Rules. Since they were all elected democratically and are ruled by One Man One Vote they decide that to approve their Rules they will adopt a Simple Majority Rule.

    But they pass the following two Rules:

    (1) Amendments will be approved for proposal at plebiscite upon a vote of two thirds of all the Delegates of the ConCon.

    (2) To ensure a gender neutral Constitution, all such votes will be done separately by two separate bodies, one composed of all the women delegates and the other all the men delegates.

    The Rules are passed unanimously.

    Can these Rules be questioned in the Supreme Court?

  8. Rego,
    Yes, three fourths of the House plus three fourths of the Senate equals three fourths of all the Members of Congress. I guess they call this the distributive law of multiplication under addition. hehe.

    Right you are: The Congress is a Democracy of Two. Every Act of the Congress is approved by a unanimous vote of these Two. Both “Members” of “the Congress” must concur before any Law or Resolution may be called an ACT of the CONGRESS. (Except to overturn a martial law declaration–that’s the fly in in this silly ointment called the 1987).

    MONK_X: Precisely! Either voting separately OR voting jointly are valid because each can satisfy the Three Fourths Voting Rule, as rego points out. But that is why it is NOT for the Supreme Court to decide, but for the Congress, to whom the entire DISCRETION is actually granted by Art XVII Sec. 1. Though of course the SC can rule on the complexion of the moon, it is not necessary that it does. Besides it may not do so outside of some actual case or controversy. What is likely to come before them is a House Resolution, which can be ruled insufficient in form, WITHOUT deciding on which one is correct: “voting separately” or “voting jointly”! A House Resolution is insufficient in form simply because it is not an ACT of the CONGRESS, it is an act of the Lower House. And most recognizably so, because the title page will declare it.

  9. To summarize my “weird” opinion:

    (1) The Congress can pass a Rule stating whether it shall propose amendments or revision upon a vote of three fourths of its Members voting jointly or voting separately. Either mode is Constitutional. No one can question the Congress if it adopted either mode.

    (1) The Constitution is absolutely silent on whether it is “voting separately” or “voting jointly”. Therefore, either mode must be allowed and Constitutional. For the Supreme Court to decide it for the Congress without pointing this out to them first and giving them a chance to fill the void themselves, would be an abuse of the Supreme Court’s discretion, (maybe not grave but still an abuse.)

    (3) HOW the Congress is to decide the matter is very much the same issue as how a Constitutional Convention would choose its Rules. Both House and Senate adopt their separate rules by simple majority vote of their Members. Since the Congress is also a Democracy of Two Members (the House and the Senate!) I propose that the Congress must also adopt its Rules, (such as whether it is votes jointly or votes separately when proposing chacha), by Simple Majority Vote of its Two Members (the House and the Senate). A tie vote loses the issue. A unanimous vote is required to approve any Act of the Congress.

  10. Act of Congress, DJB, are always questioned before the Supreme Court. It is the Court’s duty to settle any question pertaining to their constitutionality. Issues regarding impeachment, for example, have been raised in Francisco v. House of Representatives, despite the fact that the Supreme Court has no role in impeachment. These issues are raised before the Court because there is some doubt on how the Constitution is to be interpreted. Laws are questioned before Supreme Court by lawmakers themselves (oil deregulation, for example).

    The Senate already disagrees with the House on the interpretation of the Constitution. The Senate believes the Congress cannot convene as a constituent assembly without teir participation. Who will settle the issue then? Surely there has to be some mechanism to settle the dispute. Even if Congress passes the rules unanimously, it still does not mean that they are constitutional.

  11. DJB,

    When you say “The Constitution is absolutely silent on whether it is ‘voting separately’ or ‘voting jointly’. Therefore, either mode must be allowed and Constitutional.” – you are presenting your interpretation.

    However, not everyone will agree with you. There are other parts of the Constitution that suggest alternative interpretations of the provision.

    In any case, this case will reach the Supreme Court and they will rule that they have jurisdiction over the issue.

  12. monk_x,

    The 1987 Constitution mandates the Congress to vote jointly when deciding to overturn or uphold a declaration of martial law.

    It also mandates the Congress to pass every law by voting separately.

    Thus both “voting jointly” and “voting separately” are considered Constitutional under certain conditions.

    IN the case of Congress chacha, the Constitution is silent. That means either mode is allowed.

    If the Congress decides on one or the other mode, I don’t see how the Supreme Court can overturn its Rule.

    Btw, by a “unanimous vote of the Congress” I mean the vote of 2-0 on the issue is required to satisfy a Simple Majority Rule (50% plus one vote). A 1-1 tie loses because it is only 50% and lacks one vote.

  13. But there are instances (or at least 1 that I know of) wherein the Charter is also silent on whether the House and Senate vote separately in the 1987 Constitution yet they did vote separately.

    That was as concurrence to an amnesty program.

  14. BTW, further down the SC decision, it reads:

    “Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, FULL DISCRETION to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the President’s exercise of judgment deserves to be accorded respect from this Court.”

  15. monk_x,
    I read Bernas’ column. He is only stating the obvious. The Congress is a bicameral body. But it doesn’t always vote separately, because the Congress votes jointly to overturn or uphold any martial law proclamation. His point would only hold if this provision did not exist. But it does exist and it shows the 1987 Constitution is largely inconsistent with a Strict Bicameralism that he did not vote for anyway!

    As it is the Constitution is silent on the matter of voting separately or voting jointly. But it is not an irremediable silence since I claim the Congress can decide the issue itself.

    New Question: Should a ConCon be required to pass all proposed changes by a vote of three fourths of all its Delegates, since the Congress is required to do so?

    Or do we have to run to the Roman Curia, err, the Supreme Court for every lil thing?

  16. DJB,

    This regards your earlier question of whether the rules can be questioned in the SC.

    Since the Charter is silent on how the ConCon works, I don’t think the ability of the ConCon to formulate its own rules can be questioned so those rules will stand. Exception probably will be when the ConCon itself defies its own rules.

    On your New Question; No since the Charter that tells Congress of the 3/4 vote does not say the same for the ConCon.

  17. I agree with DJB and his ‘weird’ opinion but the default must be voting separately if only the House passes its own rules and not the Senate. Voting jointly is just weird for a bicameral body.

  18. DJB,

    Please read the column again. I think Bernas’ point is that the phrase “voting separately” is inserted in the Constitution only when the Houses of Congress sit in joint session. In this case, they are not sitting together so “votin separately” is not required. But since the vote is taken by “all its Members” then Senate’s participation is also necessart.

  19. Thank you so much, DJB.! Your sereis of posting and teh reactions coming from them, is just very enlightening for people like me.

    This is exactly the reason why I dont take the Plan B or Con Ass (or any plans that will be coming )being floated around by the adminsitration. I wanted them to go for it so the public can debate on it. Violently or civil way, doesn’t matter to me for as long we clear up any or all the issues.

    The minus side of it of course is that we may be “taking away food from the table” But then if that is one way for us to mature as a nation , that is just a small sacrifice.

  20. Constitutional Gambit
    GMA can set the scenario for a proclamation of martial law to trigger a constitutional process that will bait or force the senate to join the lower house as a body or as a constituent assembly to jointly address the matter of the proclamation with the executive. GMA allies’ lower house majority will force its interpretation of “voting jointly” that would give them the numbers to railroad the ‘con-ass’ proceedings against the opposition in both chambers. Once charter change is voted into the agenda, it is easily railroaded and pushed onto the (ULAP-Sigaw-COMELEC) referendum express – coup-de-grace. This “window of opportunity” is very tempting for GMA and allies. Gambits, either accepted or declined, are risky, complicated and, for either side, potentially fatal. A crucial miscalculation could trigger a very violent scenario. But GMA’s operators are confident. “Everything is under control”.

  21. And so the whole shebang goes back to the SC once again. One wrong move by the Justices and they could find themselves at the receiving end of the anger of a million marchers. This is it, guys. The last stand.

  22. One wrong move, Phil? You mean if their ruling favors chacha, right? Would that be the wrong move? And so, at the last stand – as you so grandiosely put it – you expect the supreme court to abandon all reason and just rule in a way that will avoid the ‘anger of a million marchers.’ You would hold the Court hostage? How does that make you better than the chacha advocates? It is not enough that they are wrong, Phil. Those who oppose them must be right. And that means letting the SC decide without stupid threats like this, and respecting their decision whatever that might be.

  23. As if it is out of characteer for the trapos to subvert the people’s will and subvert the Constitution?!

    The SC’s credibility is under probation.It could crumble like Mayon’s ash-peek, in a mudslide, burying the Constitution, millions of Filipinos and whatever is left standing of our institutions.

  24. this is to repeat what domingo has posted in djb’s Western-style Democracy november 9 blogpost (with some additions):


    (1) Par 1, Sec. 23, Art. VI–“The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.”

    (2) Sec. 10, Art. VII–“If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President.”

    (3) Par. 5, Sec. 4, Art. VII. “The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.”

    (4) Sec. 9, Art. VII. “Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.”

    (5) Par. 4, Sec. 11, Art. VII. “If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.”


    (1) Sec. 18, Art. VII–“The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.”


    (1) Par. 4, Sec. 28, Art. VI. “4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.”

    (2) Sec. 19, Art.VII–“He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.”

    (3) Par (1), Sec. 1, Art. XVII–“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.”

    (4) Sec. 3, Art. XVII. “The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.”

  25. by default operation, a bicameral legislature votes separately…unless specified as in the case when martial law is granted or revoked by both houses voting jointly. swiftness of an act of Congress is necessary to avoid a Marcos, obviating the need for a tiresome check and balance.

    in the cases of tax exemptions and grant of amnesties, longer period of time for deliberations, checks and balances are required and so Congress acts by default (bicamerally). constitutional amendment/revision by Congress or by a constitutional convention, i think, must likewise be seen within the purview of this default operation.


    djb has a point but i’d rather witness the SC (as an arbiter) join in the fray…

    than, with the lower ass lording it over the upper, seeing the house in disarray…

  26. Supposed the House do proceed with their plan along with a small segment of Senate members.

    If that is challenged in the Supreme Court and the SC decides to lay off then the deal is done as the House with some Senate members will proceed. Since the SC will lay off then I fear the SC cannot dictate the Congress to decide (by voting separately) to determine what rule is to be implemented.

    Supposed the initial act is not challenged and the proposals are eventually laid before the COMELEC. THe COMELEC then decides either to recognize it and set the date for the plebiscite or discards it.

    If the COMELEC takes cognizance of it and sets the date; oppositors then file the case to the SC. If the SC lays off then the COMELEC proceeds with the plebiscite.

    If the COMELEC discards it and the proponents take it to the SC and the SC lays off then the the present Chacha is finished.

    If the SC determines to shy away from the case; I however feel that the stack is heavily in favor of the House.

  27. BTW, I just expounded on the idea of someone who intimated before that the SC must decide otherwise the House will get its way as nothing will bar its actions.

    I just can’t remember where (maybe even in another forum) and who stated that.

  28. jm, as much as I love your Mayon metaphor, I do not see millions marching in case GMA and her minions succeed in pushing their ChaCha plan all the way. My feeling is that the whole debate about uni- vs. bicameralism (and the rest of it), no matter how crucial it might seem to some of us, is not all that interesting to Juan de la Cruz in general. I might be wrong, in fact I really, really wish I am, but I fear I am not.

  29. baycas, great job in delineating Congress’ actions that require separate voting and those that do not. Particular attention must be given to Par. 1, Sec. 1, Art.XVII which specifically prescribes 3/4 vote of all members (no separate voting specified) in proposing constitutional amendment or revision. It is a fundamental rule of construction that what the law does not include, it excludes. “Exclusio unios est exclusion alterius”.

    justice league, I believe SC will decline jurisdiction on the ground of lack of justiciability, the matter being, to my mind, a political question which Congress is in a better position to resolve. But, of course, the justices can choose to be “activists”and if their number is sufficient, they will prevail as the “final arbiter”. In any case, their decision (whatever it may be) will be as controversial as anything they ever had.

  30. Bencard,

    That is a possiblity wherein I feel a decision of the SC to decline jurisdiction will lead to a deck stacked in House’s favor.

    Once this act of the House reaches the COMELEC, the COMELEC will have to decide. the COMELEC decision will undoutedly be brought before the SC.

    If the SC declines jurisdiction then doesn’t it follow that whatever the COMELEC decision was, will prevail?

  31. Yes, Antonio, that is my perception and that is how I feel about this issue. In my opinion, if the SC decides in favor of Cha Cha, it would be the wrong move..because it would be contrary to my personal opinion. It would be the right move for those who believe that the SC should decide in favor of Cha Cha. Each to his own perception of things.

  32. somebody texted me the so called scenario earlier. i thought that it’s silly the house won’t do such a thing. for all their faults, these house members are shrewd. to do such a thing would be tantamount to collective political suicide and would certainly cause further instability. no, i don’t think the scenario would happen, it’s far too remote.

  33. Bencard,
    The Constitution includes next to nothing about a Constitutional Convention. So how does ConCon go about its work if virtually everything is excluded according to your Latin?

    In your opinion can a ConCon adopt Rules that won’t violate the Constitution? Why can’t the Congress do the same?

    Regarding the three-fourths majority rule in Art XVII, please tell me you see that this rule is NOT violated by “voting separately” or “voting jointly” as long as both houses obey it.

    Both “voting separately” and “voting jointly” are not included in the provision. But the Congress can decide which is which, since they were given the power to make any change to the charter to begin with.

    Therefore perhaps you have picked up on the wrong Rule. I think the pertinent rule is:

    A Supreme Court may only CONSTRUE a Constitution. It may not CONSTRUCT it!

  34. bafil,

    I wrote Cong. Teddy Locsin last March part of which follows:

    “On charter change, I heard you say to Rep Nograles that if they railroad the changing of the charter, Cory can call on people power as she did before. Many in our community and I went to Luneta during Ramos and to Ayala during Erap. But now when all issues against cha-cha have aggravated we cannot mobilize. Your stand on cha-cha-now, as I understand, is resignation, surrender, giving way to the railroad and that it is better to participate to mitigate. But, imho, the means determine or dictate the ends. At what point, on what issue or under what circumstances will you make a stand against cha-cha now and guide if not lead the people accordingly?

    May I also share my thoughts on some timely issues:

    1)On the interpretation of the constitutional provisions on how the two chambers should vote if and when they convene as a constituent assembly – jointly or separately: Is a resolution to seek an anticipatory ruling from the Supreme Court a more proactive and responsible way of dealing with a very sensitive and crucial issue considering that great political forces – overt and covert – are on a collision course on this matter?”

  35. “Proposed Rules of Constituent Assembly
    Section 3. When proposing amendments to the Constitution, Members of Congress act, no as Representatives and/or Senators, but as component elements of a constituent assembly exercising constituent power which is separate and distinct from legislative power.”

    Not a Constituent Assembly but a Junta, a Junta of Trapos, is what these rats are convening.
    “Junta comes from the Spanish word for “joined” (hence, a group of persons joined for a common purpose), from Latin junctus, past participle of jungere, “to join.””

    El Junta de los Trapos Ratos de las Islas Filipinas.

  36. DJB, the drafter of the 1987 Constitution (consciously, I presume,) chose to specify the actions they want voted on “separately” by the two Houses of Congress. As you can see, Baycas enumerated those above. As to all the other actions of Congress which Baycas also listed, the drafters, again consciously, I assume, chose to be silent with respect to the manner of voting.

    In interpreting a Constitution or statute, there is an accepted rule which, in effect, holds that when a particular manner of handling is required as to certain specified actions or events in order to be valid, other actions or events not so specified are not subject to the same requirement.

    It is unfortunate that you misunderstood the rule (my “Latin”)as excluding everything that is not mentioned in the Constitution and hence, could not exist or function. As you probably can see now, that simply is not so.

    In my opinion, both the Congress and ConCon are both capable of adopting internal rules that could, or could not, violate the existing Constitution. In a proper case brought before it however, the SC can still declare whether or not any such rule is valid.

    I would answer your question YES, Art. XVII is not violated either way, but then again, SC may rule otherwise in a proper case.

    You may be right, I may have picked a wrong rule. But your “rule” is wrong because in legal parlance, construction of a legal provision is synonymous to explanation or interpretation thereof. I realize that in engineering, to “construct” usually means to build, to create or to make. In this particular instance, we obviously are not using the word construction in the same context, hence the confusion.

  37. justice league, I think you’re right,if SC declines jurisdiction in the first instance, COMELEC’s decision could prevail unless an aggrieved party elevates the matter to SC on certiorari for grave abuse of discretion. In that event, SC would review COMELEC’s action and determine whether or not there was such an abuse in the light of the congressional action and, of course, the existing Constitution.

  38. jm,

    I think the Sc steps in when there are actual controversies. THE house action at this time is still not an actual contoversy yet.

  39. Bencard,
    Thanks for indulging me. I used to think and reason about this thing exactly as you do. But the Constitution is not the Bible and ought not be construed in that manner, as if it were complete but inscrutable. Rather, we must construe or interpret it, extend and build upon it, as long as the foundation is not touched or basic, explicit provisions violated. And though “construction” is often used, loosely in my opinion, to mean “construal” I did purposely use it to mean that the Supreme Court may not INVENT or CONSTRUCT stuff especially when such construction is not necessary. Because the provision is just as silent about “voting separately” or “voting jointly” as it is on whether the ConCon votes separately or jointly.

    BTW, what is your opinion about that? Does ConCon vote separately or jointly? (i.e. Can a ConCon organize itself say into Three Bodies, Upper, Lower and Middle Convention, and decree that they vote separately as three houses on a simple majority rule (2 out of three Conventions passes a provision for their new charter)?

    Also I had to convince yourself that as an engineering object the Congress is “not a democracy of all its Members” but a strict voting democracy composed of exactly TWO different and separate voting democracies, called the House and the Senate. THAT is an explicit thing in the construction of these objects by the Constitution.

  40. DJB,

    Allow me to expend my one cent’s worth out of my two cents. Okay, there’s an ambiguity in the Constitution on the issue of whether Congress should vote jointly or separately. Isn’t it the function of the Supreme Court to interpret the law? To allow Congress to decide the matter would be tantamount to allowing it to interpret the law, a function exclusive to the Supreme Court.

    The matter of a Con-Con is different. Since the Constitution is absilutely silent on how it should operate, perhaps it is okay to concede to it the power to establish its own rules provided these are democratic.

  41. Shaman,

    Actually this is not the case of an “ambiguity”. The provision IS absolutely silent about “voting separately” or “voting jointly”. It is definite only about a Three Fourths Majority Rule, which will not be violated by either mode.

    Can we say that the Congress cannot decide this question?

    If so, what other questions can it not decide? Must the Supreme Court look into a void and “construe” all the undefined rules and regulations that it is obviously for the Congress to craft and adopt as Rules for the purpose of exercising the power of amending and revising the Constitution.

    The power to decide “separately” or “jointly” clearly lies with the Congress. But remember I have insisted that the Congress is not a democracy of all its Members but a democracy of two. That means that under Simple Majority Rule, every act of the Congress, including the adoption of Rules, is always approved upon a vote of 50% plus 1 vote, i.e, by a unanimous vote of both the Congress’ Members: the House and Senate voting separately to adopt such Rules!

    I claim the Congress can adopt any such Rules that do not in fact contravene any provision of the Constitution, including EITHER voting separately or voting jointly.

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