Can the House amend the Constitution alone?

A recent CNN article mentioned:

“On Monday, Alvarez said there is no need to convene Congress into a Constituent Assembly because such is not required under the Constitution.

He added what is stated in the Constitution is “any amendment or revision of this Constitution may be proposed by the Congress upon a vote of three fourths of all its members.”

Alvarez said the number of House members is enough to comply with the three-fourths requirement – hence, they can already propose amendments or revisions in the Constitution even without the 23 senators.”

Based on the article, our Speaker raises two arguments to prove that the Legislature we have is, contrary to popular belief, actually unicameral, rather than bicameral.

  • The first argument can be stated in the following manner: (1) The Constitution provides the manner by which the Constitution can be amended or revised; (2) a Constituent Assembly is not mentioned by the Constitution; therefore (3) a Constituent Assembly is not one of the ways to amend or revise Constitution.
  • The second argument (regarding voting) can likewise be stated in the following manner: (1) A vote of three-fourths of all Members of Congress is needed to propose an amendment or revision of the Constitution; (2) “all Members of Congress” means all members of the House of Representatives (297) and the Senate (23) taken together (297 + 23 = 320) without distinction or qualification; (3) therefore, three-fourths of 320 (240) may be satisfied from the House of Representatives, alone.

The Speaker is totally wrong on both arguments. It is, however, important to first cite the relevant provision in the Constitution regarding proposing amendments or revisions. Article XVII, Sec. 1 of the 1987 Constitution provides:

SECTION 1. 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.

Argument #1

Does the Constitution really say there is a need to provide for a Constituent Assembly? No, the Constitution doesn’t expressly mention the words “Constituent Assembly.” So does that mean Congress can immediately go ahead and propose amendments? No. This conclusion can be reached after understanding the kind of power Congress wields to do that specific act – amending or revising constitutions. Already we have heard of the “Big 3” of constitutional powers – executive, judicial, and legislative. There is, however, a fourth: constituent power. This fourth power is the power to write, amend, and revise constitutions. As such, it’s clear that it cannot be lumped in with the Big 3 since the latter are all powers that stem from the Constitution. To say, for example, that constituent power is part of ordinary legislation would be tantamount to thinking one can fly by pulling on one’s shoes. Plenary legislative power arises from the Constitution, and not the other way around. Hence, in order for Congress to amend or revise the Constitution, something more than ordinary legislative power is required.  That something more is found in Art. XVII, Sec. 1 – the ways Congress wields constituent power. Now, to the point that no “Constituent Assembly” is mentioned, the cheeky retort would be that a rose by any other name would smell just as sweet. No matter how we call it, Congress must convene itself into some X that wields not ordinary legislative power but constituent power.

Argument #2

While the first argument concerns Congress as a whole, the second argument goes into its bicameral nature. The 1987 Constitution created a bicameral Congress, i.e., one with two houses: that of the House of Representatives and that of the Senate. Together these two Houses compose Congress. Therefore, we have a Congress, which is composed of two Houses, which, in turn, are composed of their respective members. Looking at the argument, the only problematic premise in the argument appears to be (2) which lumps members of both houses without distinction. This can be easily refuted with logic and a basic understanding of English.

The prepositional phrase “upon a vote of three-fourths of all its Members” modifies a specific noun, “the Congress.” Since Congress is composed of two subsets, House of Representatives and the Senate, the prepositional phrase should likewise modify both subsets. The expanded form, therefore, of the prepositional phrase is “upon a vote of three-fourths of all Members of the House of Representatives and three-fourths of all Members of the Senate.” To hold otherwise would be to ignore the bicameral nature of Congress (even if that is a popular pastime of our Speaker).

It is also worthwhile to mention that Fr. Bernas, citing the Records of the 1986 Constitutional Commission (I RECORD 375), wrote, “It should be understood that the two houses of Congress vote separately.”

So the clear answer to the title is no, the House can’t amend the Constitution alone.

 

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05-11-17

The night was serene: its black sky dotted with stars above and sweaty faces below. My right hand ached. My wrist screamed as I flexed my hand to relieve the pain. You do not deserve this, I told my hand. There was a sea of people marching out of the examination buildings. There was the black sky and, in front of me, the backs of a thousand heads like a rolling wave spilling out of UST. I had forgotten I had only a sandwich and half a lasagna for lunch. I should be hungry by now, but I do not feel anything. They all said to hope and be confident on the first Sunday, but I do not feel anything. I had to find the gate. The restless roar of those who took the exam was still dulled by the post-exam daze, but I knew it would explode after a few minutes. I had to find the gate, and night was descending. The first day.

I found little comfort in remembering the exam. Don’t think about it, I told myself, as I thought about it. Don’t think about it! Give away questions some say. I hardly doubt that years later we could all say those questions were give aways. But I would wager that those who were actually taking the test would tell another story. I wondered how much of dumb luck is involved in taking the exam. One could study a hundred cases or two thousand provisions, and yet the exam could pick out the hundred-and-first case or the two thousand and first provision. How much of it hangs in the balance — to be decided on the mere whims of one man?

Yet that is the least of what bothers me. The more disturbing character is the almost magical quality attaching to these exams. The top ten are the most coveted in schools and the media — only to disappear after a few days of appearances in the major news channels. Law school deans appropriate them as personal trophies, and discard the rest of the batch. Those who take it study endlessly for nearly six or seven months, not counting the four years of law school. And at the end of it all, an examinee is asked to regurgitate provisions. Enumerate this, explain that, define this, distinguish that. To draw from Eliot, the culmination of my years of study did not end in a bang, but a whimper. In a supreme irony, the whole exercise, which society had sacredly imbued with so much meaning, seemed utterly meaningless to one actually taking it.

It is with a sigh, more of resignation than relief, that I tell myself: “Alas, my boy, you must go on. March.” What else can we do but play our part in this drama of fools. The show must go on. Next week the sun rises on Sunday once again, and Sisyphus must roll up his rock anew.

Martial law as smokescreen.

MORE often than not in history, the biggest blunders occur on account of people who apply lessons from the past to the present, while failing to consider whether those lessons are still relevant in the light of new or current conditions. One example would be the use of the aggressive Napoleonic-era bayonet charge in World War I given the inventions of the machine gun and heavy artillery. For us living in the 21st century, it may seem silly. But those generals, like Joffre and von Moltke, were just learning the power of modern weaponry for the first time. It is with this insight that I now turn to reflecting on martial law, especially given the recent conclusion of the National Day of Protest last September 21, the anniversary of the declaration of martial law in the Philippines. We can call Pres. Marcos whatever we want, but one thing is undeniable: he knew the Constitution, he knew its importance, he knew it to the letter, and, therefore, he knew how to abuse it. Nearing the end of his second and final term and still hungry for power, he knew the answer to what every law professor loves to ask his students: “What’s the remedy?” The answer of course was martial law. Given the terse language of the 1935 Constitution – this would create the chaos he needed and in the words of the recently deceased Littlefinger Baelish, “chaos is a ladder.”

Such were the conditions then. The 1935 Constitution had only one paragraph regarding the President’s martial law powers:

“Article VII, Sec. 11(2):  The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.”

What happens during or after that fateful declaration is only met by silence. It was only in the 1987 Constitution that the President’s Commander-in-Chief powers had its own provision on Section 18, Article VII. The framers intimately knew the lessons and abuses of the “martial regime”  and ensured that it would never happen again. They deleted “or imminent danger thereof” and added the following safeguards, among others:

  1. Congress should convene in joint sessions within 48 hours and decide whether to extend or revoke (but interestingly not to approve) the declaration of martial law;
  2. The President should give a report with 24 hours; and
  3. Any citizen may challenge the sufficiency of the factual basis before the Supreme Court

Notably, the framers even answered the question of what happens to the Constitution and my rights during martial law. The answers are in paragraph 4:

  1. A state of martial law does not suspend the operation of the Constitution; nor
  2. Supplant the functioning of the civil courts or legislative assemblies; nor
  3. Authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function; nor
  4. Automatically suspend the privilege of the writ.”

Talk about safeguards. It would seem to be overkill (I mean that in a good way) on the part of the framers – and for good reason. Never again will those martial law abuses resurface, judging merely by the text of the 1987 Constitution. This is where protests about Duterte declaring martial law again, along with the rising fear of martial law abuses, puzzle me. We apparently assume, along with the framers, that the President still needs martial law to get what he wants. With the 1987 Constitution, the game has changed. To a power hungry President looking for “the proper remedy,” we have to understand that the answer today probably is different from that in 1972. Back then, few may have known the extent and power that would flow from a declaration of martial law. Few probably knew just what a highly intelligent, driven, and egotistical man, could do with martial law.

In a way, it is true that we are stuck in the past. The 1987 Constitution is deeply colored and conditioned to prevent the abuses in the past regime. We view the present from the lenses of the past. Likewise, those WWI generals honestly thought heroic bayonet charges still would work, until losing 30,000 men. While I hate to admit it, maybe those who claim that we should move on are correct but for totally different reasons. Maybe we should move on from the idea that the President needs martial law to commit abuses on the people or plunder the treasury (we have had many examples since 1987 to prove this point of plunder). From the thousands of deaths now under the yet unbroken wings of the 1987 Constitution, aren’t the abuses already here? It would be too uncritical on our part to assume that tyranny cannot don a different form to perpetuate itself.

Laws are only as good as the people under them. I remember a Latin saying that the law looks forward, not backward. True, perhaps, in its application, but definitely not in its creation. Laws are always, in a way, too late. They come after the fact. It took a hazing death to finally enact an Anti-Hazing Law. The law deals with facts, and facts are always in the past.

I think about how Duterte so brazenly talks about martial law and swings it here and there. He knows it is a trigger – like the color red to bulls or yellow to some of his supporters. There is some comfort in knowing I am safe because there is no martial, but the truly frightening thought is that what if, today, the President doesn’t need martial law to abuse the people. Therefore, waving around martial law seems to be a good smokescreen. It achieves two things: (1) conditions and reminds the people of the abuses of the past, reinforcing the old 1935 Constitution assumption that the President still needs it to hold on power just like Marcos, and (2) gives us a false sense of security that as long as there is no martial law, things are just ok.

It is hard, perhaps, to admit that maybe this President is not entirely stupid. Marcos created chaos because of the silence of the Constitution in martial law time. Duterte creates chaos through the Constitution and the noise it (and he) generates, as we all saw on September 21.

Bar Review Log 3: The Grind

D-day minus 46: that’s today. Forty-six days before the first Sunday. Using a countdown for the next forty-six days seems to be more useful that just checking off days on a calendar. Now I marked D-day minus 36, 24, and 12, since I started final preparations on minus 48. Allocating 12 days for each of the four Sundays seemed to be the easiest way to distribute my time. Yet, the monotony is just like the bad news on TV: it’s inevitable. Many times I stop and ask myself after going through the whole bar coverage: “How the hell am I going to remember all this?” Eventually it comes to a point where I have no other choice but to trust in my training. It reminds me of running a steep downhill incline on a bike where one wrong move could mean broken bones or even death. “Trust your bike,” was the advice given to me.

Maybe I need to have a marching hymn – like some obscene rhyme in Full Metal Jacket. Sigh.

Bar Review Log 2: Bar Boys

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SPOILER ALERT: Spoilers may be found in the following article.

Bar Boys: a film that follows one barkada, four young men, in their personal and collective struggles through law school and ultimately the bar exams. As shown from the poster above in clockwise order from the top left, the film focuses on the lives of Erik, Torran, Joshua, and Chris. First, we learn from the film that Erik’s struggles involve coming from a poor family, a poor grasp on English, an unreliable memory, and being unaffiliated (i.e. one without a fraternity). Second, we meet Torran, the apparent alpha in the barkada, with impeccable memory, a solid fraternity, and just the right smarts and connections to get him by law school without much difficulty. He encounters some moral conflict, however, when it comes to participating and reporting hazing excesses (he’s fine with just hazing) – which is as much conflict as he gets in the movie. Third: Joshua failed to pass the law school entrance exam and becomes a model. Throughout the film his character plays a foil of sorts to the self-enclosed realm of the three other men in law school: a reminder of things past and of the world outside. Lastly, Chris is the called the “conyo kid”  for his accented English and his roots from a wealthy family – a fact he literally says out loud near the end of the film, “dahil mayaman ako, hindi ibig sabihin na wala akong problema!” With great power comes great responsibility – thus, Chris’ father has high expectations and even required him to break up with his girlfriend to “avoid distractions.” While kind and caring in appearance, he has no qualms in showing his ruthless side when the time calls for it such as handing out failing grades to his classmates who got wrong answers and choosing to keep his honors over taking a lower grade to allow Erik to graduate on time.

The film had 110 minutes according to IMDB – quite a feat considering that those 110 minutes condensed 5 years of studying in law school and the bar exams. I have to admit that I was skeptical on how a film could condense all that – but Bar Boys managed it. According to a Bar Boys press conference I found on YouTube – the objective of the film was to show the deeply personal struggles behind the toil in the study of law: “underneath that exterior of aral-aral…may istorya yan eh – why they persist. And that’s what the film tries to uncover: ano ba ‘yung istorya mo underneath that exterior,” said the director. On that point, I could say that Bar Boys was rather successful. But as a movie, the problem with that objective is that it could well apply to anything. In other words, it was just too generic.

Every human being has a story. Every person has a past – a history – one with their own dreams and aspirations. And every struggle that involves human conflict eventually is an opportunity for personal revelation. If I could paraphrase Arendt: it is through speech and action that the actor is disclosed and revealed as a person. Why else would the Iliad have those grandiose, largely impractical speeches between two soldiers before they fight to the death? Why have poets and artists taken war as their subject throughout the centuries? Maybe they too saw that war was one way to distill the human condition. That being said, the movie ended up as a compilation of law school anecdotes. We see the challenges of poverty every day in the news as do we see the comforts of the rich or the power of the well-connected. Rich vs poor, strong vs. weak – we have seen it all. Pick any law school and there are bound to be a number of Erik’s, Torran’s, Chris’s, and Josh’s. What makes law school struggles different from med school struggles? What do those characters say about us? What does law school say about us? From Bar Boys: nothing new. It has been said that the truly great stories are those that manage to universalize some particular condition or event – one that cuts into who the particular characters in the story are (e.g. law students) to reveal some insight into who they (and, consequently, we) are as human persons.

To be fair, it was only when I was driving home from the movie that I felt it lacked depth. Some clips had their moment of entertainment. I could relate to many of the clips of recitations, readings, and professors, but that was about it. It was akin to being shown a photo album of the years past. But at the end there it was: it was just the other end of the cover – emptiness.

I can think of two movies that might be fun to juxtapose with Bar Boys: Legally Blonde (2001) and The Paper Chase (1973). The latter was a movie recommended to me during my Constitutional Law 2 class with Prof. Pangalangan. Here’s a clip:

Among the themes in the movie was a law student’s relationship with grades. Grades: that touchy topic of law school that provokes a wide array of reactions among law students. We only get a glimpse of that in Bar Boys when Chris gives 5s to his erring classmates or the struggle of Erik to get a passing mark. The ending of the two movies likewise involves a revelation of sorts of one’s grades. In Bar Boys, Erik holds his final grade in a little brown envelope and gives it to Torran to open, who later misleads Erik into thinking he failed when in reality he passed. In The Paper Chase, we find as the camera hovers over the shoulder of the feared Mr. Kingsfield, the final blue exam booklet of Hart gets a 93 with big “A” written on the front. Later on, the scene cuts to a beach were Hart is sitting by a rock with his feet on the sand. He gets a letter with the words “GRADES ENCLOSED” in bold letters. He pauses, and he’s asked, “Aren’t you going to open your grades?” He thinks and then folds the unopened envelope into a paper plane. He climbs a rock and throws the plane into the sea.

Aside from grades, the juxtaposition of Professors Kingsfield and Hernandez is fertile soil for reflection. But I suppose that’s better left for another blog entry.

BRL 1: Where to study?

[after Van Helsing and Jonathan have returned from driving a stake through Lucy’s heart]

Dr. Steward: I don’t understand it! he’s covered in blood and there’s not a drop on you!

Van Helsing: I have been to many stakings – you have to know where to stand! You know, everything in life is location, location, location..

-from Dracula, Dead and Loving It (1995)

the trenches

Where to study? This is one of the many FAQs that bar reviewees fling to each other during the season. Oftentimes it comes down to some remote and barren Starbucks branch in a secluded or upscale mall not readily accessible by public transportation that charges fixed rate parking and opens late in the morning. I have often mulled over the thought of studying in Starbucks. In reality, however, all the times I found myself studying in Starbucks was just to kill time. I was always there in between events – sometimes during the time between when I would drop off Urie and pick her up after her OLA moot sessions, or simply to wait for the traffic to subside, or just to pass time off in the mall while Urie goes shopping. Rarely did I find myself going to Starbucks per se to study.

Those times I spent there, however, have changed my views on that strange establishment lately. Since as far back as I could remember, I have always looked with a certain disdain at Starbucks for charging exorbitant prices for mediocre coffee full of calories in outrages sizes. A few years ago I mulled over a joke I shared with Urie that the only drink I would order in Starbucks is a tall, black coffee (P105) and for food: a toasty bagel (P55). I did not take it seriously then, since the coffee tasted terrible. It was only years later that I found out that what I abhorred were really the blended drinks. As for the coffee, Starbucks changes its coffee blends regularly and some blends really do taste like shit. On the other hand, there are also some heavenly blends: Verona, House Blend, Guatemala Antigua, Pike Place, Ethiopia, and recently Africa Kitamu. It is always a delight to see them on the menu. What surprised me is that the description on that blend found in the bag is rather accurate. However, I have blacklisted some blends as well: Komodo Dragon, Sumatra, Kati-kati, Willow, Breakfast Blend. The worst! The only remedy is to ask for a french press because that’s money down the drain.

Recently I found out that black coffee is the only reason why I would consider spending some time at Starbucks. I also considered Bo’s but when the barista told me that they use some kind of arabica-robusta mix for their black coffees and charged me almost the same as Starbucks, I just walked out. I also discovered that my disdain for Starbucks is primarily directed to its overpriced blended drinks that are hardly coffee but (in the words of my bar lecturers when they refer to their books) “sell like hotcakes.” I will not be surprised, however, if those items are the ones that keep the establishment afloat. It’s a great business model: great enough to shield those cheapskates like me who spend 2-3 hours in the store with the cheapest product (actually the short brewed coffee is 95, but come on). I won’t be surprised if people like me are the reason why coffee shops go out of business. Think about it: I buy a cup of coffee for P105 and stay there for around three hours. For Starbucks, I’m a NPC (non-performing customer) – I’m always negative. Personally, however, I book it as P20 per hour and a coffee for P45. Considering that the air conditioning is quite good, with a large table, a view, comfortable chairs, and a restroom, P20 per hour is very reasonable. The P55 for the bagel is only when I get hungry.

So that’s the story for the times I’m waiting.

For the times I have to really study (read: dig in the trenches and study), nothing beats the quiet and comfort of a well-ordered table at home. Of course I have a bag of coffee beans as well on standby for those cravings. I bought a hand-grinder a few months ago and I find there is a therapeutic, if not metaphoric, sensation of grinding coffee for a minute or two while pondering bar questions. With some bar review lectures being purely online now, having a self-sustaining bar review environment at home is not only possible, but entirely feasible. Not only does it save me three hours of traffic and around P500 of expenses a day, but I get to spend time with my family. Win-win.

BRL 0: To begin at the beginning

BRL: Bar Review Log – the series of journal entries I will be writing as I study for the 2017 bar exam. Call it catharsis or just the need to reflect and recollect – a respite from the laborious studying of the same subjects I have been studying for the past four years.

***

The other day, 26 June 2017, was my college graduation. The day before that was the university graduation. I had always been cautious about graduation ceremonies in law school. The reason is that it all seems so conditional. The bar exam would be in around four months and that decides in the end whether I will be a lawyer. Yet that cold shroud of indifference had not fully enveloped me then. As the speaker asked the graduates to turn around and face the audience, I caught the smiles of my parents and those were enough reasons for me to be happy.

After the whole ceremony, I could still feel the tenacious clutch of law school on my sleeves. Four years is quite some time and no one leaves Malcolm unscathed. Triumphs, defeats, betrayals, displays of loyalty, integrity, baseness — I have seen all that there. My four years was as much a study of the law as it was a study of human nature and its frailty. Several times I found myself mildly scandalized by the opinions and values I encountered in law school. I eventually realized that it pays to espouse the fashionable opinions of the day which usually consist in abolishing old ways for new ones. That being the case, it follows that references to classical education and philosophy often yielded to rehashed formulations from the activist authors of the day. Cicero, Madison, Plato, anyone?

The image of the desert just dawned on me — how the Israelites wandered around the desert for 40 years looking for the promised land. For me it was the other way around: I left the promised land and was now wandering the desert for 40 years in search of slavery. Ah bon, c’est la vie, n’est-ce pas?

And while I sit here typing a blog that no one will probably read. While I sit, haunted by the phantom of Malcolm Hall, I prepare to begin the long road to the 2017 bar. To begin.