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Unwanted weed starts to sprout from a wayward ponencia

(Article published in the Jan  3, 2007 issue of Manila Standard Today)

        It looks we will soon see what Justice Adolfo Azcuna may not have foreseen when he chose to scratch his itch to teach, a malady that I wrote about last year. In the 15 Nov 2006 issue of this column at Manila Standard Today, I pointed out that the good justice, in expressing his views in a separate opinion in the Supreme Court’s decision in Lambino v. Comelec, G.R. No. 174299, promulgated 25 October 2006, went beyond the limits of his role as adjudicator and, in effect, taught, if not advised, the proponents of Cha Cha what to do to achieve one their objectives.  He showed them in detail how to make a valid proposal for a people’s initiative to establish a unicameral congress, the same form he voted for when he was a member of the Constitutional Commission of 1986.

        Now, the papers report that still President Gloria Macapagal Arroyo changed horses as 2006 ended, putting Secretary Ronnie Puno as the new chief operative in the people’s initiative route for Cha Cha vice Speaker Joe de V.  She has apparently scaled down her objectives (or at least decided to do it one step at a time) by, according to Albay Congressman and Presidential economic adviser Joey Salcedo, limiting the proposal to be pushed to simply making the legislative body unicameral.  Of the two present chambers, it is the Senate, of course, that is to be consigned to oblivion.  After all, it is  the Senate that has always been a stumbling block to her plans and its senators, many of whom were her former colleagues in that house, are not willing to do her dance.

        To follow the still President’s marching orders, all that Secretary Ronnie Puno has to do is to follow the road map laid out by Justice Azcuna in his “separate” opinion. The good justice, together with the majority, voted to dismiss the Lambino petition, but he notably did not call it “concurring” obviously because he differed with the Carpio ponencia on, among other items, the need to review Santiago v. Comelec, G.R. No. 127325, promulgated March 19, 1997 and June 10, 1997.  On that point, Justice Azcuna believed that the Santiago doctrine should be re-examined; he proceeded to do his own re-examination, and again along with other justices, concluded that R.A. No. 6735, despite its obvious shortcomings as a legislative act, is a “sufficient and adequate” law implementing the people’s right to directly propose amendments to the constitution though the process of initiative. 

       The first thing Secretary Puno and the still President’s Kampis ought to do, according to the separate opinion  of Justice Azcuna, is to unbundle the bag of you know what that Speaker De Venecia and his Lakas cohorts put together.  The proposed changes in the Lambino petition, advises the good Justice, are ‘separable in nature—a unicameral legislature is one; a parliamentary form of government is another.”

        Then, after putting asunder what De Venecia had put together,  the good Justice, proceeds to answer the question, that is yet to be asked, and pronounces that “a change in the legislature from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable.”  Why? Because, the good Justice elaborates, “the text of the changes needed to carry it out are (sic) perfunctory and ministerial in nature….the changes are simply one of deletion and insertions, the wordings of which are practically automatic and non-discretionary.”  He thus telegraphs his vote in a future case raising the issue of whether the proposed constitutional change is a “revision” which a people’s initiative cannot do or only a permissible “amendment”.

        Finally, lest Cha Cha adherents miss their step, they are given a model that they can simply copy, in the form of the Appendix “A” to Justice Azcuna’s separate opinion. Appendix “A” shows “how the Constitution would read if we were to change Congress from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives.” In approval of his own handiword, like unto God of each of His creation, the good Justice proclaims, “these are mere amendments, substantial ones indeed, but still only amendments and they address only one subject matter.”


        I beg to disagree. A bicameral legislature, as I see it, is not a stand alone question of one or two law-making chambers.  It is an essential component of the principles of separation of powers and of checks and balances that are imbedded in every crucial turn in our constitution.  It is as part and parcel of our system as the permeating idea of separation of governmental powers vested in three independent but interlocking  departments.  Fusing legislative power in one body, I submit,  is to create a leak in the dike of checks and balances that has been the primary defense against the waters of oppression that continually threaten to enter our homes.

        I leave it to students of Philippine history to recall to us why the country was not enamored with the unicameral system when twice it was in the Philippine constitution, the first in the original set up under the 1935 constitution and the second when we had the Batasang Pambansa, interim and otherwise. 

        Instead, I prefer to examine why the US, our unabashed model, went bicameral.  And here I rely again on research material provided by a good lawyer friend from the California Bar, Edward Ord of the Ord and Norman law office.

        It appears from the Debates in the Federal Convention of 1787 as reported by James Madison that untrammeled legislative authority was a major concern.  Thomas Jefferson noted that Virginia’s unicameral legislature, like that of other states in the union, had “assume[d] executive and judiciary powers,” essentially becoming “the definition of a despotic government”.  It was thus strongly felt that “in order to controul (sic) the Legislative authority, you must divide it.”

        Thus, James Wilson, who later became a Justice of the Supreme Court of the United States, maintained that “If the Legislative authority be not restrained, there can be neither liberty or stability; and it can be restrained by dividing it within itself, into distinct and independent branches.  In a single house there is no check, but the inadequate one, of the virtue and good sense of those who compose it.”( Debates, June 16, 1787).

        As pointed out by many other writers recently, the manner in which the House of Representatives (which, by the way, was Justice Azcuna’s Appendix “A”, anointed one to survive) sought to fast break a Con Ass without the Senate in the Ass shows how “virtue and good sense of those who compose it” are currently in short supply.

        This division of the legislature, in our system, took the form of one chamber being elected nationally in a staggered six year terms (to look after the long-term good of the forest) and the other by districts in terms of three years each (to care for short term interest of the individual trees).  As in the US, this “Great Compromise” as it was there known, achieved the objective of preventing the total domination by the urban centers of the less densely  populated areas as well as promoting pluralism in both views and approaches to local and national issues.

        The defining difference between the two houses was crucial to the allocation of functions to be shared by the other departments.  For example, the essentially executive power of conducting foreign relations, particularly entering into treaties, was to be shared, not by the populist House of Representatives, but only by the more nationally imbued Senate. Put another way, the representatives in the House do not have it in them to think state-wise.

        Similarly, the primarily judicial function of sitting in judgment in an impeachment proceeding is vested not on the parochially minded Congressmen but in the more statesmanly inspired Senators.  In other words, impeachment requires mental capability and attitudinal qualities not to be found in the House.

        I hasten to add that the unicameral legislature, in Azcuna’s Appendix “A”,  results in in one body being both the accuser and the judge at the same time.  The good Justice approves of that principle?

        With due respects, I submit, that the spirit of bicameralism is as essential to our constitution as division of powers among branches of government.  Removing the separation of the law-making authority into two houses is equivalent to undermining an essential pillar of our system of government.  The change from two to one chamber may be superficially seen as only one subject, but since the principle behind that duality permeates the other portions of the constitution, I submit, that giving the legislative power only to the House of Representatives constitutes in reality a revision and not just an amendment of the Constitution.

        Just to illustrate. There is a reason why cars have two front tires.  Having only one house of Congress is like designing a car with only one wheel in front.  It promises to give the country the same stability and safety as a go-kart. Try driving one in the streets of the country, please.