GRACE POE's TRANSCRIPT ON CHARTER CHANGE

Sen. Grace Poe: Thank you, Mr. Chair. Actually I'm not a lawyer unlike the chairman of this committee or the one who proceeded before me, our bar topnotcher. But I'd like to consider myself as a student in a way, and I'd like to be enlightened just like many of our countrymen were a bit apprehensive about this push and especially at this time. I would like to ask, well, anyone who can answer. Initially, Senator Recto brought up the question about the 1935 Constitution and he was saying at the time both Houses, if I'm not mistaken, convened jointly but voted separately, am I correct?

Sen. Franklin Drilon: Yes, that is correct. Senator Poe, if I may reply quickly because that was required in the 1935 Constitution. The Congress in 'joint session assembled' may propose amendments to the Constitution, that phrase 'in joint session assembled' is not in the Constitution today. And that's why I am of the belief that we need not have a joint session, with all due respect for Justice Mendoza. That's the clear language, that's the present language of the Constitution. And unfortunately, if it's alleged that there's an error, that error, whether or not it's true, the way the Constitution's is phrased today in contradistinction to the previous Constitution, the phrase 'in joint session assembled' is there and therefore it strengthens the proposition that we need not assemble jointly. We can meet separately as a constituent assembly and have the required three-fourths vote to amend the Constitution. Thank you.

Poe: Thank you for the clarification, to our minority leader. So, Mr. Chair, if it does not specifically say in this Constitution that we should convene jointly. It also does not say specifically in our present Constitution, the phrase voting separately, am I correct?

Sen. Francis Pangilinan: That is correct. In fact, the Constitution says the Congress upon both are three-fourths of all its members, it didn't say whether it is voting separately or jointly. Although, of course, our legal experts here, Constitutional commissioners have said that the reference is it should vote separately.

Poe: So, meaning if we choose one phrase over the other and its interpretation, for example, we assert that in this Constitution, it does not mention voting, convening jointly. But then we all, but we assert, on the other hand, that should we not convene jointly, we still vote separately, which is not in this Constitution, I know it's very confusing. That will really open up a lot of arguments, depending on the intention of the lawmakers. For example, obviously, in terms of the numbers and this is always the point of argument is that we will be outnumbered should we vote jointly. So, my question is this, as one of our resource persons said, not the resource person today but in the column of Justice Carpio. He said, 'we will never know the outcome should this be elevated to the Supreme Court, poses great danger also in terms of the process.' My next point here is that the Lower House always asserts that they will only touch the economic provisions. I'm sorry I wasn't here earlier because I conducted my own hearing in the Public Services Committee, but I heard it was asked already that should we convene for this discussion that the actual agenda may not necessarily be limited to one that was first expressed before convening. For example, even if both Houses agree, I don't know how, will it be a joint resolution, etc. or having just the focus on economic provisions. Would that be enough to ensure that no other provisions other than the economic provisions in the Constitution will be touched?

Pangilinan: Well, earlier Senator Gordon raised that question, and the answer of Justice Mendoza is that once you go through that constituent assembly process, there is no prohibition as to what can be tackled. And therefore, any and all items can be tackled in a constituent assembly, theoretically.

Poe: So is there a cure because I'm one that believes that there are a lot in our economic provisions that need to be amended in order to spur growth and economic activity. But is there a remedy, since I am not a lawyer as I mentioned, is there a remedy that we can do to regulate ourselves, legislate something that will compel us to limit our discussion, to just economic provisions?

Pangilinan: Yes, if I may respond, the column of the Justice Carpio provides, he suggests some proposals. The remedy being that Congress should first enact a law that, if I may quote, "to ensure that the Senate and the House will vote separately, Congress must first enact a law prescribing that even if Congress convenes as a constituent assembly, the Senate and the House shall approve separately, by three-fourths vote, any proposed amendment to the Constitution.' Of course, it sounds like a warning. This law can be questioned before the Supreme Court. And if the law is affirmed as constitutional by the Supreme Court, then only then can the Senate be assured that it will remain a co-equal body with another.

Poe: So, Mr. Chairman, I agree with that because we can approve a law. On the other hand, it will still emanate, I guess we can see their intention, clearly, if they're supportive of really what they've been professing which is voting separately. On the other hand, since it's not mentioned in the Constitution itself, there's that ambiguity, it can still be questioned if we can go against what was written in the Constitution as to the interpretation of voting separately or jointly. What I'm trying to say is that, maybe now, do we have here members of the constitutional convention of 1986? Are they unanimous in their pronouncements that the intention of the framers at that time was really for both Houses to vote separately. Because the intention of the law of the framers is usually what is taken into consideration when there's a vagueness in the wording of the law.

Pangilinan: Yes, we have former Commissioners Azcuna, Monsod, and Florangel Braid were here. Commissioner Monsod, you're raising your hand, go ahead and please respond.

Comm. Christian Monsod: You know, there were 48 commissioners and only about 12 or 13 are still alive. So, as far as the commissioners, who are still alive, I believe, and that they agreed, we made a mistake. And that the intent is that there should be a separate vote.

Poe: So this is unanimous with the living members with the living framers.

Monsod: As far as I know, Commissioner Azcuna is here.

Poe: Will you be able to come up maybe with a resolution among yourselves clarifying the issue with statements on how you recount the discussions were at that time, why you may have omitted it inadvertently. That will help if there are further discussions on the matter but a written resolution will certainly be a strong argument in favor of our interpretation.

Monsod: Yes, that's a very good suggestion. We will meet and we will talk about it. I'm almost sure that the other commissioners here will agree. Thank you very much.

Poe: I would also like to comment to Mr. Monsod, I see your technical person there, helping you with your connection...There was also a pronouncement by the President that aside, he didn't mention anything about the economic provision or I think he was leaving it up to us. But his clear intent was the partylist system and Senator Drilon, our minority leader, was saying, this does not necessarily have to go through the constitutional change that they were proposing in the House, but just an amendment in the partylist law. So, number one, my question is with the pronouncements of the House now, are they even considering amendments to the partylist system? Or are they just now saying that it will be purely about the economic provisions? And number two, would the experts here agree that reforming the partylist system would not necessarily need a constitutional amendment? So, the first question.

Monsod: Yes, actually the mention of the partylist was an offhand remark of the President. But the purpose in which he said it was that he just wanted to get rid of the communist in the partylist elections. I believe that there needs to be changes in the partylist. The latest decision of Justice Carpio is the closest to the intent of the Constitution. But I think there are three things that must be changed. One, is the limit of three because the partylist system is a proportional system of representation. So, there should be no limit of three. Number two, there should be a strict provision in the law, you don't need the constitutional change for that. And number three, in the Carpio decision, there was a loophole, that the partylist can be represented, should be presented by somebody from the sector. And then other than that, or an advocate with a record of advocacy, that's a loophole. There are so many political dynasties that are in the partylist who lives in Forbes Park. Number four is that the Carpio decision, I think settled forever, the interpretation that the partylist is only the marginalized and underrepresented group. That's not, that is inconsistent with the wording of the constitutional provision itself.

Poe: Okay, Sir. Thank you for enlightening us although the discussion of that will be more extensive if there's a law proposing the amendment in the partylist system or maybe just an order from the Comelec. My question though is that with the House pronouncement lately, they're just saying, maybe the chairman can help me. They're just saying that they will confine it to the economic provisions, with no mention of the partylist, am I correct?

Pangilinan: I think so, yes, yes.

Poe: And then also just to clarify with the Minority Leader, with the permission of the chairman, the Minority Leader said that, with regards to the partylist reform bill that can be done actually without going through the entire constitutional amendment with both Houses convening, am I correct, Minority Leader?

Pangilinan: I'm not sure if he's online now but I will confirm that he, I have read his opening statement. And it's consistent with your earlier question.

Poe: Okay. Lastly, as a concerned citizen, with what we're going through now, I would like to ask, maybe the DILG or, I don't know who. With the suggestion of our chairman, do you think that the matter is of great importance that this is something that we need to tackle at this point, especially that we are now fast approaching a national election in 2022. So, maybe Usec. Malaya can answer.

Usec. Jonathan Malaya: Yes, Mr. Chairman. We mentioned, Mr Chairman, our position during the earlier part of the presentation wherein we mentioned there that based on the consensus of economic managers, Secretary Dominguez, Secretary Lopez and all of the members of the Interagency Task Force that it is crucial for the country at present, to be able to open up the industries as a measure to rev up the economy after the loss sustained because of the global pandemic.

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Poe: With all due respect, I know what the economic managers are saying. But there are also business groups, if I'm not mistaken, that have also expressed their concern about the timing of this bill, of this action... Now, when it comes to supporting our economy, at least in the Senate and in the House, we've done a few things already for that. And if I may, of course the passing of the FIST bill, the Financial Institutions Strategic Transfer Act, right now we have the bicameral meeting for the CREATE bill. I think if I'm not mistaken, but, which was spearheaded by the hardworking senator from Taguig, Pia Cayetano that was also passed in both Houses. We have the AMLA bill that was passed. We have the GUIDE bill that is now being proposed, we have the Public Service Act, which will change, redefine foreign ownership restrictions in the country. All these things are being done, or are doable, without having to resort to a constitutional amendment for the economic provisions. And if I may be candid, one of the reasons why the PSA is on hold, is number one, there has been no certification for the passage of the Public Services Act, as opposed to the other bills that were presented to both Houses. Number two, and rightly so, many of our colleagues now are little bit wary about passing or easing the restrictions on foreign ownership because of certain relations we have with other countries that might dominate ownership in the country. Now this, we cannot say that this is an unfounded reason, I am for easing foreign ownership, although you can understand the ambivalence of some or the objection of others, because of some countries that have interest in our country. So, with that, Mr. Chairman, I would just like to say that I would like to ask one last question. If we tackle this now, for example, we agree to convene for constitutional assembly, realistically, how long will it be for us to pass wouldn't this have to go through a plebiscite meaning in 2022, all of those proposed changes Mr Chair, would have to be subjected to a plebiscite. Am I correct?

Pangilinan: That is correct.

Poe: So meaning the laws that we have now, for example, they all of a sudden, for some reason, a prohibition on term limits will be changed. Those that will win in 2022 would already be subjected to that, if, let's say, the provisions in the constitutional amendments were ratified by the public.

Pangilinan: I do not think so because if they were elected under the 1987 Constitution then the terms will be covered by the 1987 Constitution. And if the plebiscite is coinciding with the 2022 elections, then it will be the succeeding elections that will be covered by the new, by the approved amendments, assuming it is approved.

Poe: Thank you for that clarification. Now, Mr. Chair, here's an argument before I close. The House is saying that this is important because of the economic provisions. I agree with the intention that we need to strengthen some of our laws in order to boost our economy. On the other hand, there are laws—there are bills already in place like the Public Service Act that will address some of the concerns or some of the provisions that we would like to amend from the Constitution or from the laws that we already have. Now, if their argument will be this, but the Public Service Act might be questioned through the Supreme Court because of the constitutional, maybe conflict, about the definition of ownership. But even if we go through all of this exercise, there is no guarantee that it will not also be questioned in the Supreme Court. So what I'm saying is, at this time when there are a lot of concerns in the public and we already have bills in place that might help boost our economy, I think that it is a more realistic and less contentious goal to look at that route first before going through the entire exercise of a constitutional amendment, supposedly for economic provisions. That's all, Mr. Chair, unless Senator Cayetano whose hand is raised might object to my analysis.

Sen. Pia Cayetano: No, I'm not objecting, but with the permission of Sen. Grace Poe and the Chair and the body, I'd just like to interject because she mentioned my name in CREATE. I totally agree with Sen. Grace Poe's statement about the work that has been done on economic provisions. The lady has spearheaded AMLA and FIST and we have moved that forward. And as she pointed out, it is this representation that spearheaded CREATE. And so I echo, in a way, what I'm hearing from her that when we passed CREATE and this was the latter part of November, Nov. 26 to be exact, the House had already passed their version of CITIRA. And that whole time, they have been through the chairperson of my counterpart in the House that, the chairperson Cong. Joey Salceda, had manifested that they will be adopting the Senate version because they know that we had had numerous and very lengthy debates and included all sectors in preparation of the finalization of this bill. So it's been two months, dear colleagues 'no, I've said this on the floor but now that we have our esteemed resource persons here, I feel like this should be part of the record na it's taken two months, it's past two months, and the House has not been able to—they decided not to adopt the Senate version, and I actually received informally a 57-page matrix of changes they want in CREATE. I can just imagine what these economic provisions are going to be about. I mean, seriously, 57-page matrix on the changes on CREATE that I think all my colleagues will be able to stand by the fact that hinimay naman natin ng todo-todo 'yun. So that is the reality that will be confronting us, as pointed out by Senator Grace and I want to put that on the floor— I mean on the table so that you are aware 'cause this is the reality. The last point I want to raise though, yesterday, they said that they may be amenable to reducing it to three items because the Senate has pretty much taken a stand na 'sobra na 'yan. I mean, this is what's going on. So I just wanted to share that, Mr. Chair, and thank you Senator Grace. I think she wanted to add something.

Poe: Mr. Chair, in closing, first of all, I would like to actually acknowledge. I've seen how the proponent for the CREATE Bill in the Senate has really worked hard on this. I really marvel at how she's able to stand endlessly I think for eight hours. I don't know if this is part of her workout regimen. But really, to be physically and mentally be sharp for that long. So, I know we really, with our clean conscience we really deliberated on this. And thank you for putting in perspective that the CREATE, one aspect of the economy when it comes to taxes, took that long to deliberate and not even done because the house has a lot of disagreeing provisions. What more something like this. So panghuli na lang po. Paalala lang sa atin siguro ay naghihikayat magkaroon ng constitutional amendments na sinasabi na baka kwestyunin 'yung voting separately. 'E kung 'yun nga, sinabi nga natin paulit-ulit, kung 'yun nga mga pagpapapangalan ng mga kalsada o pagpapalit ng mga pangalan ng mga eskuwela tayo ay bumoboto ng hiwalay sa mga ganyang bagay lamang, 'e ngayon pa kaya na mismo ang ating konstitusyon ang apektado ay bigla nalang mag-iiba ang ating gawa ng batas. So 'yun lamang po, Mr. Chair, thank you to our resource persons and for enlightening us today.