Article XVII
Section 1
Any amendment to, or revision of, this Constitution may be proposed by:
1)
2)
The Congress, upon a vote of three-fourths of all its Members; or
A constitutional convention.
Section 2
Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three
per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than
once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
Section 3
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.
Section 4
Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the
votes cast in a plebiscite which shall be held not earlier than sixty days nor later than
ninety days after the certification by the Commission on Elections of the sufficiency of
the petition.
•
Permanence of the Constitution
o
According to Justice Cardozo:
§
"The inn that shelters for the night is not the journey's end. The law, like the traveler, must be ready for the morrow."
§
(Atty. G):
§
o
Justice Cardozo was thinking of an instance when the Constitution is ready for a change.
Vanhorne vs Dorrance
§
The US Supreme Court said that:
§
§
"The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with
the tide of events: notwithstanding the competition of opposing interests, and the violence of contending parties, it remains
firm and immoveable, as a mountain amidst the strife of storms, or a rock in the ocean amidst the raging of the waves."
(Atty. G):
§
According the US SC, a Constitution is firm and immoveable, meaning, it should not move.
§
But our very own Supreme Court disagreed with what was said in Vanhorne vs Dorrance, as our SC said that:
§
§
Yes, a Constitution must be stable, but it cannot stand still.
§
It should move; it cannot stand still, but it must be firm.
§
Our own SC recognizes the limitations of our Constitution, that it needs change so that it may become
always relevant.
In that regard, as discussed, our Constitution is a Rigid Constitution.
§
Being Rigid, it follows a strict Formal Procedure in order that it can be changed.
Amendments, and Revisions to the Constitution [JARY 2021]
1
•
What are the Two Changes that can be brought into the Constitution:
1)
Amendment; and
2)
Revision
•
(Amendment and Revision)
o
What’s the Difference between, Amendment, and Revision, according to the SC in Lambino vs COMELEC?
§
Answer:
1)
Amendment
§
An Amendment is only a piecemeal isolated change in the Constitution, which adds, deletes, or improves the provision, without
changing the substance of that provision.
§
The only purpose of an Amendment is to improve that provision, without changing the essence of the provision.
2)
Revision
§
A Revision is a change in the Constitution, which overhauls the entire Constitution, or which re-writes the entire document.
o
o
In the case of Lambino vs COMELEC, the SC applied the “California Test,” or the “Two-Part Test,” in determining the character of a Proposed Change. The
Two-Part Test can be applied to determine, whether the proposed change to the Constitution is an Amendment, or a Revision. Either, or both of the test can be
applied to Determine such. The following are the “Two-Part Test” in California, where the system of Initiative was copied from:
1)
Quantitative Test; and
§
Comment:
§
Here, the courts will just mathematically count how many provisions of the Constitution will be affected by the
proposed change.
§
If a proposed change will affect a substantial number of the provisions of the Constitution, the change then will be in
the character of Revision; but if the proposed change will only affect a few provisions, it will only be considered as
an Amendment.
2)
Qualitative Test
§
Comment:
§
Here, the courts will determine, the character of change involved, but by the Substantive Effect of the proposed
change.
§
There are Two Standards Under the Qualitative Test:
1)
The courts will look into whether the proposed change will vary or modify the Governmental Structure
(then it is a Revision); OR
2)
The courts will look into whether the proposed change will alter a General Principle Underlying the
Constitution (then it will also be a Revision)
§
Hypo:
§
Supposing only One Provision of the Constitution will be affected by the proposal.
§
Does that mean that it will only be considered as an Amendment?
•
Answer:
§
Not automatically.
•
Regardless of the number provisions affected, under the Qualitative
Test, courts will look into the substantive effect of the proposed
change.
•
If it will only affect One Provision, it can still be considered as a
Revision when the proposal will
Lambino vs COMELEC:
§
In this case:
§
There are Two Proposals.
1)
By Shifting from Presidential, to Parliamentary; and
2)
By Converting Congress from Bicameral to Unicameral
§
Two Part Test (Applied in this case):
1)
Under the Quantitative Test:
§
It will not only affect Two Articles, particularly, Articles VI, and VII, but it will affect, all in all, 105 Provisions
(will be affected by the Two Proposals).
§
Definitely, 105 Provisions is a substantial number of provisions.
§
Therefore, Quantitatively, the nature of the Two Proposals, is a Revision.
2)
§
•
Under the Qualitative Test:
§
(Modification of Governmental Structure)
§
By shifting from Presidential, to Parliamentary, it will Change the Governmental Structure; and
§
Similarly, the conversion of the Congress from Bicameral to Unicameral, the Governmental Organization
Plan, or Structure, will be modified.
§
(General Principle Underlying the Constitution):
§
By shifting from Presidential, to Parliamentary, the proposed change will render Nugatory the Principle
of Separation of Powers, because under the Parliamentary Form of Government, the Department
performs Two Great Powers (Executive, and Legislative).
§
By converting the Congress from Bicameral to Unicameral, the proposed change will render Nugatory
the Principle of Checks and Balances, because under this principle, both Houses must concur in order
for the Congress to act.
Therefore, Quantitatively, and Qualitatively, the Two Proposals are in the nature of a Revision.
§
Being a Revision, the Two Proposals are therefore not appropriate for an Initiative (under Sec. 2, of Article XVII).
Can the Congress Amend, or Revise the Constitution?
o Answer:
§
No.
§
The Congress cannot Amend, or Revise the Constitution.
§
This is because, there are Two Steps in the Amendment or Revision Process: the First step is Proposal, and the Second Step is
Ratification.
§
The Congress, as a Constituent Assembly, can only Propose, but it CANNOT Amend or Revise the Constitution.
§
In this regard, the SC ruled, using an American Principle, in the case of Occena vs COMELEC, that:
§
“The Congress, as a Constituent Assembly, can propose anything, but can conclude nothing.
§
The Congress can only Propose Amendments, or Propose Revisions, but cannot Amend, or Revise the Constitution.”
Amendments, and Revisions to the Constitution [JARY 2021]
2
•
Two Steps in the Amendment or Revision of the Constitution:
1)
Proposal for Amendment or Revision may be made by:
a)
Congress as a Constituent Assembly;
b)
Constitutional Convention;
c)
People’s Initiative
2)
Ratification
•
Constituent Power
o What is the Power Discharged by the Congress in Proposing Amendments or Revisions to the Constitution? Is the Congress exercising a "General Legislative
Power?" We know that “General Legislative Power” is the power to enact laws to alter or repeal them. Is the Congress discharging a “General Legislative
Power” when proposing Amendments or Revisions to the Constitution?
§
Answer:
§
No.
§
The Congress is exercising a different power, called a “Constituent Power."
§
When the Congress acts as a Constituent Assembly in proposing Amendments, or Revisions to the Constitution,
the Congress is not discharging a General Legislative Power, but a Constituent Power.
§
A Constituent Power is a power which emanates from the Constitution, and cannot be exercised, unless
provided for by the Constitution.
§
Which means that, under the 1987 Constitution, the only reason why the Congress can Propose Amendments,
or Revisions to the Constitution is because it is expressly authorized under Article XVII.
§
Without Article XVII of the 1987 Constitution, the Congress CANNOT Propose Amendments, or Revisions
to the Constitution.
§
The Congress, as an institution, can only participate in the Proposal Stage; but the Congress, as an institution, can NO
longer participate in the Ratification Stage.
§
The members of Congress can participate as “Citizens,” but they cannot participate as members of Congress.
§
Which means, the Congress cannot Amend, or Revise the Constitution, as they can only Propose Amendments,
or Revisions.
•
(Gonzales Case vis - a - vis Sanidad Case)
o How can we reconcile the ruling of the SC in Gonzales vs COMELEC, and the ruling in Sanidad vs COMELEC? Note that, the Gonzales case was decided
in 1967, while Sanidad was decided in 1976.
§
Answer:
§
Sanidad vs COMELEC
§
In this case:
§
President Marcos, under the 1973 Constitution, Directly Proposed Changes to the 1973 Constitution:
1.
by changing the "National Assembly” to “Batasang Pambansa,” and
2.
by asking the People whether they intend to continue with the legislative powers of the President,
or to continue with Martial Law.
§
Note:
§
Under the 1973 Constitution, Legislative Power rest on the:
§
"National Assembly" during a period of normalcy, and
§
"Interim National Assembly” during the period of transition.
§
But the Power to Call the National Assembly rest on the President.
§
(Actions did by Pres. Marcos):
§
Instead of Calling the “Interim National Assembly,” President Marcos exercised
directly, the legislative powers of the “Interim National Assembly.”
§
President Marcos also exercised the Power of the “Interim National Assembly”
to Propose Amendments to the Constitution.
§
Ruling:
§
The SC sustained the authority of the President in this case.
§
Why?
§
This is because, according to the SC, the President has already assumed the
Legislative Powers of the Interim National Assembly.
§
With more reason that the President can also exercise the Power of the
Interim National Assembly to Directly Propose Changes to the
Constitution, because that power is merely an “Adjunct” to the Legislative
Power.
§
“Adjunct,” means “attach."
§
§
Gonzales vs COMELEC:
§
In this case:
§
The SC said that the Congress can only exercise the Power to Propose Amendments to the Constitution, because
the Constitution expressly provides that power.
To Reconcile:
§
The Sanidad Ruling cannot ripen into a Judicial Precedent, or basis for future cases under the Doctrine of Stare Decisis.
§
The Sanidad Ruling was decided under “Extraordinary Factual Circumstances."
§
This is because, instead of calling the Interim National Assembly, the President exercised the power
of the Interim National Assembly.
§
Which means that, at that time, there are only “Two Operating Departments,” namely:
1)
The Supreme Court, discharging Judicial Power; and
2)
The Office of the President, exercising both Executive and Legislative Powers.
§
The SC said, then, tha, the power to propose changes to the Constitution, does not belong to the Court.
§
Which means that, there is only “One Remaining Choice,” which is the President.
§
The Prevailing Doctrine remains to be the case of Gonzales vs COMELEC.
§
(Prevailing Doctrine):
§
The Power to Propose Amendments or Revisions to the Constitution, is NOT a General Legislative
Power, as it is a Constituent Power.
Amendments, and Revisions to the Constitution [JARY 2021]
3
•
Gonzales vs COMELEC
o
In this case, the SC compared the Exercise of the Power by the Congress to Propose Amendments, and Revisions to the Constitution, and the exercise of this
Power by the People Themselves.
§
(Congress)
§
The Congress can only exercise the Power to Propose Amendments to the Constitution, they are then considered as Component Parts
of a Constituent Assembly; and being Component Parts of a Constituent Assembly, they derive their Constituent Power from the
Constitution.
§
Without Express Constitutional Grant, the Congress cannot exercise their Constituent Power.
§
•
(People)
§
§
§
The People do not need a Constitution so that they can change their Constitution.
This is because, the People are the source of Sovereignty.
In its quintessential essence, sovereignty is the power to do anything without accountability, that includes, the power to disregard the
Fundamental Law.
Section 1
o
Two Modes of Proposing Amendments or Revisions to the Constitution:
a)
The Congress, acting as a Constituent Assembly, by a vote of 3/4 of all its Members; OR
b)
By a Constitutional Convention
o
Gonzales vs COMELEC
§
In this case:
§
The Senate, and the HoR passed Three Resolutions:
1.
2.
3.
Resolutions of Both Houses (RBH) 1
§
RBH 1, is a proposal to change the 1935 Constitution, by increasing the composition of HoR from 120, to 180.
RBH 2,
§
RBH 2, is a call for a Constitutional Convention.
RBH 3
§
RBH 3, is also a proposal to change the 1935 Constitution, by allowing members of the Congress, to run as
delegates in the Constitutional Convention, without forfeiting their seat.
§
In essence, the Congress exercised both at the same time:
1)
Directly Proposing Changes to the Constitution; and at the same time
2)
Calling for a Constitutional Convention.
§
According to the Amicus Curiae:
§
The Congress only has an “Alternative Choice,” either to Directly propose, or call for a Constitutional Convention, but
cannot do both.
§
If the Congress intends to call a Constitutional Convention, then it should refrain from directly proposing changes to the
Constitution, and let the Constitutional Convention to propose everything.
§
Can the Congress exercise both at the same time?
§
Answer:
§
Yes.
§
The disjunctive word “or,” under the 1935 Constitution, as well as under the, 1973 Constitution,
means “and."
§
The SC said that, often times, “or” means “and,” particularly when there is no indication in the law
that the Constitution intends the remedies as alternative.
§
The SC allowed the simultaneous exercise by the Congress, of directly proposing amendments or
revisions to the Constitution, and at the same time, calling a Constitutional Convention.
§
There is nothing that prohibits the Congress from exercising both Modes, as while the Constitution
uses the term “or,” it should be interpreted to mean “and.”
§
How did the SC rule, regarding the argument of the Amicus Curiae, that once the Congress has Called a Constitutional Convention,
the Congress should already refrain or desist from Directly Proposing Amendments or Revisions?
§
Answer:
§
§
The Congress can still Directly Propose Amendments, or Revisions, and at the same time Call a
Constitutional Convention.
§
This is because, it is within the Constitutional Power of the Congress to exercise Both powers.
§
Whether to only exercise One, is an exercise of Discretion.
§
Meaning, if the Congress only Proposes Amendments or Revisions to the Constitution,
without calling a Constitutional Convention, it is within the Constitutional Power of
the Congress to exercise Discretion.
§
Thus, if the Congress opts to exercise both Modes, it is valid as it has Discretion
whether to exercise One Mode, or Both Modes.
§
Thus, regarding the argument of the Amicus Curiae, the issue does not deal with the Legality of
the Particular Act, but the Wisdom of the exercise of the Power.
§
Which means that, the exercise of One, or Both Modes, is a Political Question,
because it goes into the exercise of a Discretion, not the Legality.
§
To Conclude, the SC said that “We Cannot Interfere,” because the Congress is Exercising a
Constitutional Power, and that is within their Discretion.
Note:
§
Whether the Congress (1) Directly Proposes Amendments or Revisions, or (2) Calls a Constitutional Convention, the Congress is NOT
acting as a Legislative Body, but it is acting as a Constituent Assembly, and thereby discharging a Constituent Power.
§
Therefore, since it is not discharging Legislative Powers, it is then NOT exercising its Law Making Powers, and it does
NOT need the approval or concurrence of the President.
§
In this case, the act that brings about the call on the Constitutional Convention, is only a “Resolution” (RBH 2), which is a Proper
way of calling a Constitutional Convention, as a law need not be enacted to Call for a Constitutional Convention.
Amendments, and Revisions to the Constitution [JARY 2021]
4
(Conversion)
§
Can the Congress Convert itself into a Constituent Assembly?
§
Answer:
§
Yes.
§
Can the Congress Convert itself into a Constitutional Convention?
§
Answer:
§
No.
§
While the Congress can convert itself into a Constitutional Assembly, the Congress CANNOT convert itself into a
Constitutional Convention.
§
Since conversion to a Constitutional Convention is a Constituent Power, that Power needs a Constitutional Conferment.
§
The Constitution does not say that the Congress can convert itself into a Constitutional Convention.
§
The Constitution only authorizes the Congress to Call a Constitutional Convention.
•
The Constitution does not authorize the Congress to Convert itself to into a Constitutional Convention.
•
But the Constitution authorizes the Congress to Convert itself into a Constituent Assembly.
•
Note:
•
A Constitutional Convention is a body that is separate and distinct from the Congress.
•
(Like):
•
Like the Congress, Delegates of the Constitutional Convention are Elected.
•
Like Members of the Congress, the Term of Office of the Delegates of the Constitutional Convention are also Fixed; only that the
Term of Office of the Delegates are not fixed by time, but the Term of Office of the Delegates is Dependent upon the Completion of
their job (Meaning, once the Constitutional Convention has already finished their proposal, then automatically, the Term of Office
of the Delegates Terminates).
“All the Members of Congress"
o
Note:
§
Under the 1987 Constitution, the required vote for Directly Proposing Amendments or Revisions to the Constitution, or Calling Constitutional Convention
provides “All the Members of Congress."
o
•
o
What does “All the Members of Congress” mean, as distinguished from “Members of the Congress?"
§
Answer:
§
The difference was discussed by the SC in Avelino vs Cuenco.
§
In this Case:
§
It involved the Senate, under the 1935 Constitution.
§
In the session held in the morning, there were Twenty-Two (22) Senators Present; while One was absent because he
was sick in the hospital, and the other is Out of the Country for Vacation.
§
During the session, 10 of the 22 members of the Senate, “walked out” leaving 12.
§
The 12 Continued their business/session, and declared all seats vacant, then they proceeded by electing the New Sets
of Officers.
§
Query:
§
Does 12 Constitute a Quorum to transact business?
§
Answer:
§
Under 1935, and 1987 Constitution, Quorum means “Majority of the House."
§
[Provisions to be Distinguished]
§
Under Section 16 (2), of Article VI of the 1987 Philippine Constitution :
§
"A majority of each House shall constitute a quorum to do business…"
§
Under Section 16 (1), of Article VI of the 1987 Philippine Constitution:
§
"The Senate shall elect its President and the House of Representatives its Speaker, by a
majority vote of all its respective Members."
§
Difference between “Majority of All the Members of the House,” and “Majority of the House."
§
§
§
Amendments, and Revisions to the Constitution [JARY 2021]
Note:
§
As held in this Avelino vs Cuenco:
§
One is Bigger, and One is Smaller;
§
One is Fixed, and one is Variable.
§
Now, among the Two Terms, which is Bigger, Smaller, Fixed, and is Variable?
§
Bigger and Fixed:
§
"Majority of All the Members of the House"
§
Smaller and Variable:
§
"Majority of the House"
§
Quorum is not “Majority of the Members Present."
§
Because, assuming, there are only Three Members present, does that mean now that Two
Members Constitute a Quorum?
§
No.
§
Quorum means “Majority of the House."
§
When we say “Majority of the House,” it means “Majority of:
1)
The Incumbent Composition of the House, AND
2)
Those within the Coercive Jurisdiction of the House."
Ruling in this case:
§
According to the SC, to determine the Quorum, as what is required is only “Majority of the House" it must
be "1/2 + 1” of 23.
§
NOT “1/2 + 1” of 24, because One is outside the Coercive Jurisdiction of the Philippines.
§
It is also NOT “1/2 + 1” of 22, because the One who is absent may be compelled to attend
the session.
Again:
§
“Majority of the House” depends on the composition of the house, and the members who are within the
coercive jurisdiction of the house.
§
As distinguished from “Majority of All the Members of the House” which is a Fixed number.
§
When we apply it to the Senate, “Majority of all the Members of the Senate,” it is ALWAYS
13, regardless whether there is a vacant seat.
§
Even if there is One Vacant Seat, and there are only 23 Senators, to elect a Senate
President, the Senate needs 13 because “Majority of all the Members of the
House” is a Fixed Number.
5
•
(In Depth Discussion) Two Modes of Proposing Amendments or Revisions to the Constitution:
1)
The Congress, acting as a Constituent Assembly, by a vote of 3/4 of all its Members; or
§
Comment:
§
Quorum
(For the Senate)
§
3/4 of all the Members of the Senate, is 3/4 of 24.
§
In other words, what is required is 13.
§
Regardless of the composition, or even if there is vacancy, or even if some are outside of the
Philippines.
§
It is fixed and permanent.
§
(For the HoR)
§
3/4 of all the Members of the House, is 3/4 of 280 (or whatever may be the composition of HoR)
§
Regardless of the composition, or even if there is vacancy, or even if some are outside of the
Philippines.
§
It is fixed and permanent.
Manner of Voting
§
The 1987 Constitution, was patterned after the 1935 Constitution, not the 1973 Constitution.
§
§
§
§
Amendments, and Revisions to the Constitution [JARY 2021]
(1935 Constitution)
§
Under Article XV of the 1935 Constitution, the Constitution is very specific, and it provides
that:
§
"The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representatives voting separately,
may propose amendments to this Constitution or call a convention for that
purpose."
(1987 Constitution)
§
The Controversy, insofar as the 1987 Constitution is concerned is:
§
Whether the Congress, acting as a Constituent Assembly, shall vote Separately or
Jointly.
§
Does it mean
1.
3/4 of all the members of the Senate, and 3/4 of all the
members of Congress, voting separately; OR
2.
3/4 of the Composition of the Senate, plus Composition of
HoR [(24 + 280) then 3/4 of that]
§
Answer:
•
No.
o
Ut Magis Valeat Quam Pereat
§
Applying Ut Magis Valeat Quam
Pereat, if a Constitutional Provision
can be interpreted in Two Ways:
1.
One which will render
inoperative
other
provisions
of
the
Constitution; and
2.
One
which
will
harmonize the entire
document,
§
The courts shall always use the
second approach (Harmonize).
§
If we will interpret Sections 1, and 3
of Article XVII to mean as
“Jointly,” would that result in a part
of the Constitution being considered
ineffective or nugatory?
§
Yes, particularly Section
1, of Article XI, which
mandates a Bicameral
Congress.
§
Under a Bicameral
System of Congress, one
is
co-equal,
and
independent.
§
Meaning,
the
24
Senators shall be equal
to the 280 members of
HoR.
§
Therefore, the HoR
alone, even if they have
that number, cannot
directly
propose
amendments
or
revisions
to
the
Constitution.
6
§
o
(Statutory Construction Rule of Copying from an
Old Law is NOT Applicable)
§
When a new law is copied from an old
law, but the new law did not copy
everything from the old law, the
presumption is that the new law is
intended to be applied differently.
§
This is because, if the presumption is,
if the congress intended the same
application, then the Congress could
have copied everything in the old law.
§
Again, the 1987 Constitution, was
copied from the 1935 Constitution;
and the 1935 Constitution is very
specific that the Manner of voting
shall be Separate, but it was not copied
verbatim by the 1987 Constitution.
§
But, this rule cannot be applied in this
case, because the proper tool to
construct the Section 1, and 3 of
Article XVII is Ut Magis Valeat Quam
Pereat.
o
Historical Basis
§
The Constitutional Commission was
time bound, as they had a deadline to
submit the proposal.
§
Initially, the intention of the
Constitutional Commission was to
establish a Unicameral Congress.
§
But they changed their mind later on,
and split the congress into two houses:
Senate, and HoR, but they failed to
revisit other provisions of the 1987
Constitution, particularly, Article
XVII.
§
It was just by inadvertence, that the
Constitutional Commission did not
revisit Article XVII, but the intention,
as well as the 1935 Constitution
application, is to make the Manner of
Voting Separately.
Imbong vs Ferrer
§
When the Congress acts as a Constituent Assembly, it may provide for Rules and Regulations for the call of the
Constitutional Convention.
§
Can the Congress, acting as Constituent Assembly, Call for a Constitutional Convention?
§
Answer:
§
Yes.
§
In this case:
§
The petitioner challenges the Constitutional Convention Act of 1971, or RA 6132, which calls for the
Constitutional Convention, and intends to implement, RBH 2, and 4, on the ground that, the Congress, acting
as a Constituent Assembly, cannot pass Implementing Legislation.
§
Ruling:
§
No, the challenge of the Petitioner is wrong.
§
Congress acting as a Constituent Assembly, can also provide for the “Implementing Rules and
Regulations” in calling the Constitutional Convention.
§
This is based on the Doctrine of Necessary Implication.
§
Under this Doctrine, the grant of power to the Congress, to call the Constitutional
Convention, carries with ex necessitate rei, or by Necessary Implication, all the powers
which are necessary to discharge that express power.
§
The basis of the Exercise of the Power by the Congress, acting as a Constituent Assembly, is
Doctrine of Necessary Implication.
§
Therefore, the Congress acting as a Constituent Assembly can provide for the "Implementing Rules
and Regulations."
§
“Implementing Legislation" or “Implementing Details of the Constitutional Convention”
§
Now, supposing the Congress, acting as a Constituent Assembly, calls the Constitutional Convention.
§
Can the Congress, acting as a Legislative Body, provide for “Supplemental Details?"
§
Answer:
§
Yes.
§
The Congress, acting as a Legislative Body, can provide for the "Implementing
§
§
§
To Sum:
§
§
Amendments, and Revisions to the Constitution [JARY 2021]
Legislation,” because “Implementing Legislation” is inherently legislative.
The basis of the Congress, acting as a Legislative Body, to provide for the
Implementing Details or Guideline is Included in the Grant of General Legislative
Power to the Congress, meaning, it is Inherent to the Congress.
Therefore, the swirls of the power of the Congress, acting as a Legislative Body, to
provide for the Implementing Legislation, is the grant of legislative power to it,
because that is an Inherently Legislative Power.
The Basis of the Congress, acting as a Legislative Body, to provide for the Implementing Details or Guideline is Included in
the Grant of General Legislative Power to the Congress, meaning, it is Inherent to the Congress; while
It is only supported by the Doctrine of Necessary Implication when the Congress acts as a Constituent Assembly.
7
2)
By a Constitutional Convention
§
A Constitutional Convention can be called, in accordance with Section 3 of Article XVII, in Two Ways:
1.
2.
§
By 2/3 Vote of all the Members of Congress; and
By a Majority Vote of all the Members of Congress, by submitting the Question of Calling the Constitutional
Convention to the People
Comment:
§
Intro:
§
§
A Constitutional Convention is a Body, that is Separate and Distinct from the Congress.
Like the Congress, the Constitutional Convention is a Collegial Body, meaning, it consists of Several
Delegates.
§
Section 3 of Article XVII
§
The Congress can call a Constitutional Convention in Two Ways:
a) 2/3 Vote of All the Members of the Congress; or
b) Majority Vote of All the Members of the Congress, voting Separately, submit to the People the
Question of Calling a Constitutional Convention.
§
Hypo:
§
§
§
Supposing the Constitutional Convention, already convened.
Supposing the Constitutional Convention, consists of 100 Delegates.
What is the required vote for the Convention to approve a Proposal?
§
(This question was answered in Occena vs COMELEC wherein the SC said that):
§
§
§
Acting as a Constituent Assembly, or a Constitutional Convention, the Constitutional
Convention only needs “Majority Vote of the Delegates.”
Meaning, not 2/3, and 3/4, but Majority of All the Members of the Constitutional
Convention is the only vote required to approve a Proposal.
Unfortunately, in Occena vs COMELEC, the SC did not provide the Constitutional or Legal
Basis of their ruling why “Majority Vote of the Delegates,” and why not 2/3 or 3/4. What do you
think is the Constitutional or Legal Basis for the rule that only “Majority Vote of the Members
of the Members of the Constitutional Convention” is enough to approve a Proposal? Meaning, if
the Constitutional Convention consists of 100 Delegates, the only needed vote is 51. What is the
basis?
§
Answer:
§
§
§
§
§
Note:
a)
b)
The Philippines Democratic Republican State in accordance with Section 1
of Article II.
One of the Characteristics or Manifestations of a Democratic Government
is that, it is Governed by the Rule of Majority.
Therefore, when the Constitution establishes a Collegial Body, and this
Collegial Body needs to vote, but the Constitution does not provide the
Required Vote for them to decide, the default is Majority, because we have
a Democratic Government.
Note:
§
If you read Article XVII, there is nothing in Article XVII that says how the Constitutional Convention should
vote.
§
Article XVII only provides for the required vote for the Congress in Calling a Constitutional
Convention, and the required vote for the Congress in Directly Proposing Amendments, or
Revisions to the Constitution.
§ But Article XVII does not provide for the Constitutional Convention to Approve a Proposal.
§
But with regard to the number of sufficient number of votes in a Constitutional
Convention to Approve a Proposal, the SC said in Occena vs COMELEC that only
“Majority Vote is Required.”
§
Again, there’s a difference between “Majority of All its Members” and “Majority of the Body”
§ The default vote for a Collegial Body established by the Constitution is “Majority Vote” only.
If the Congress can accumulate 3/4 Vote of All its Members, then it is advised that they exercise their Constituent
Power to Directly Propose Amendments or Revisions;
If the Congress cannot accumulate 3/4 Vote of All its Members, as it can only accumulate 2/3 Vote of All its Members,
then it may opt to choose to Call for a Constitutional Convention instead; but
Amendments, and Revisions to the Constitution [JARY 2021]
8
c)
•
If the Congress still cannot accumulate 2/3 Vote, as it can only accumulate Majority Vote of All its Members, then it
may still opt to choose to Submit to the People the Question whether to Call for a Constitutional Convention.
(Role of the President)
o
Can the President Propose Amendments or Revisions to the Constitution? In the Case of Sanidad vs COMELEC, the SC sustained the power of
President Marcos to Directly Propose Amendments or Revisions to the Constitution, as already discussed above, that Decision is just Pro Hac Vice.
Now, under the present set-up, can the President Propose Amendments and Revisions to the Constitution?
§
o
(This Question was answered in Province of N. Cotabato vs GRPP):
§
In this case:
§
Under the Original MOA-AD, the Government Peace Panel agreed that the President will undertake the Necessary
Changes in the Constitution, in order to implement the terms and conditions of the MOA-AD.
§
Ruling:
§
The SC struck down as Unconstitutional the entire MOA-AD, for different reasons; but insofar as to the Authority
of the President to Guaranty, the SC said that the President CANNOT guaranty that a change to the Constitution
will be effected.
§
This is because, in the first place, the President cannot propose changes to the Constitution.
§
Therefore, with more reason that the President cannot guaranty changes to the Constitution.
What then is the extent of Participation allowed to the President, in the Amendment or Revision Process?
§
(This Question was answered in Province of N. Cotabato vs GRPP):
§
The SC laid down the Parameters of the Participation of the President insofar as the Amendment or Revision Process:
1)
The President can Recommend to the Congress the needed change to the Constitution, so that the Congress, acting
as a Constituent Assembly, can Propose the Changes, in the exercise of its Constituent Power.
§
Comment:
§
This can be done by the President, particularly during the SONA.
2)
The President can also Recommend to the People to exercise their Right of Initiative to Propose Amendments to
the Constitution.
§
Comment:
§
But it is only up to that extent (Recommendation to the People), that the President can make
the Recommendation.
§
The SC noted the ruling in Lambino vs COMELEC, wherein, it previously held that:
§
To be considered as an initiative, it must be Independent Act of the People.
§
The people should not be under Supervision or Control of the Government.
§
The participation should not be so extensive, that can be considered as an Act of the
Government.
§
Illustration:
§
As discussed, the President can only Recommend changes to the Constitution, under the 1987 Constitution.
§
Sometime in 2018, President Duterte formed a “Constitutional Committee” in order to prepare Draft for the Desired Changes
to the Constitution.
§
When the Constitutional Committee finished its Draft, they submitted the Draft to the President.
§
The President then submitted the Draft to the Congress.
§
Is that allowed?
§
Answer:
§
Yes, this is allowed as the President can Recommend Changes to the Constitution, to the Congress.
§
But, at the end of the day, it is discretionary upon the Congress whether to Adopt, or Reject
the Recommendation of the President.
§
The Congress can consider, or reject the recommendation.
§
In that regard, the submission of the work of the Constitutional Committee to the Congress, is a Valid
Recommendation.
§
2018 Midterm Exam Question:
§
President Duterte declared the creation of a Consultative Committee to study and recommend Congress proposals for the
amendments or revision to the Constitution. The Petitioner, a concerned citizen and a taxpayer, assailed this arguing the only
the Congress can propose amendments or revision to the Constitution. Is the creation of a Consultative Committee
constitutional?
§
Answer:
§
Yes.
a)
As to its Creation, it is Constitutional.
§
b)
As to its Power to Study, Conduct Consultation and Recommendations for the Amendment
and Revision to the Constitution, it is Constitutional.
§
Amendments, and Revisions to the Constitution [JARY 2021]
In the case of Biraogo v PTC, the president has the power to create a fact-finding
committee and lay down the powers granted to the committee.
This power is like the recommendatory powers of the president as stated in the case
of Province of Cotabato v The Govt of the RP Peace Panel. Also, such
recommendations will not automatically become proposals to amend or revise the
Constitution. Such recommendations must be adopted by the Congress.
9
•
Section 2
o
Under Section 2 of Article 17, can the People Exercise the Right of Initiative to Directly Propose Any Change to the Constitution?
§
Answer:
§
Yes.
§
But, this “People’s Initiative” is only limited to Direct Proposal of Amendments (it does not include Revision).
§
In other words, this is the “Right of Initiative of the People to Directly Propose Amendments to the
Constitution.”
o
Not Conferred by the Constitution
§
Can we say that, Section 2 of Article XVII, the Right of Initiative, is a Grant of Power to the People? Meaning, when we say “Grant of
Power,” it is the Constitution that gives that power to the People; thus without section 2 of Article XVII, the People cannot propose any
change to their Fundamental Law. Is this premise correct?
§
Answer:
No.
§
§
Section 2 of Article XII is not a Grant of Power to the People because the People already possess that
power.
§
Not only that, the People, do not only have the Power to Propose Amendments to the Constitution, but
they can change the Constitution altogether.
§
That Power, in the first place, belongs to the People.
§
The Power that belongs to the People is more than mere Proposal of Amendments to the
Constitution, as the Power that belongs to the People is the Power of Sovereignty, which
includes the power to disregard the Constitution.
§
Which means that Section 2 of Article XVII is more of a Limitation on the Power of the People, not a
Grant of Power to the People.
§
Because, otherwise, the People have the Unlimited Power to Change the Constitution.
§
Section 2 Limits it by only allowing the People to exercise the Right of Initiative to Propose
Amendments.
§
It is more of a Limitation, than a Grant of Power.
Section 2 of Article XVII is More of a Limitation, Not a Grant
§
o
§
(Atty. G’s Story About “How the People Have Decided To Form a Community”):
§
Let’s imagine that the people are in the initial stage of forming organized communities.
§
Before the organization of communities, every individual is a repository if Sovereignty; meaning, every
individual is sovereign.
§
Since every individual is sovereign, every individual is supreme.
§
One cannot assert supremacy over another, as everybody is co-equal, and all of them are supreme.
§
Overtime, the people have realized that they cannot co-exist with one another when all of them are supreme.
§
They then decided to be governed by certain rules.
§
In the collective wisdom of the people, they have decided to surrender attributes of their sovereignty, and they
have agreed to create a container of their sovereign powers.
§
Now, let’s imagine that, the Sovereign Powers that belong to the People are represented by “Marbles.”
§
So, every individual have marbles; and these marbles represent their Sovereign Powers.
§
Let’s now say that the “jar” that the People decided to create is the “Constitution.”
§
It is that “jar” where they have decided to put all their “marbles,” which are the attributes of their sovereignty.
§
So, they have decided to create a “jar,” and that “jar” is the “Constitution;” that “jar” is the confinement of all
the Sovereign Powers of the People.
§
But before the People have surrendered all their “Marbles,” one of them stood up, and he said that “if we will
surrender all our marbles, then we are left with nothing. We will have no power.”
§
So, the people have decided to retain some of their marbles.
§
Section 2 of Article XVII is one of those “marbles” retained by the People, thus they did not surrender
everything to the Constitution.
§
Otherwise, if the people have not surrendered everything, they can change the Constitution altogether, because
this is the essence of Sovereignty; and the quintessential essence of Sovereignty, is the power to do anything
without accountability.
Non Self-Executing Right
§
We have learned in Manila Prince Hotel vs GSIS, whenever there is a conflict as to the character of a Constitutional Provision whether it is
Self-Executing, or Non Self-Executing, the SC said that the rule is that the doubt shall be resolved in favor of the Self-Executing Character of
the Provision.
§
Why do we now say that Section 2 of Article XVII is a Non Self-Executing Provision, notwithstanding the rule in Manila Prince Hotel vs
GSIS?
§
Answer:
§
This is because, the Constitution itself expressly provides the need for the enactment of Implementing Details for
the exercise of this Constitutional Right.
§
The rule in interpreting doubtful provisions in Manila Prince Hotel vs GSIS, only provides that if there is nothing
in the Constitution itself that says that the Constitution Provision needs implementing details, the rule shall be
interpreted to mean as Self-Executing Provision, but the Second Paragraph of Section 2 of Article XVII expressly
requires an Implementing Legislation.
Amendments, and Revisions to the Constitution [JARY 2021]
10
o
o
(Brief Enumeration) [Requirements to Exercise Right of Initiative to Propose Amendments to the Constitution]
§
Constitutional Requirements:
1) The Petition must be Signed by 12% of all the Registered Voters, of which, every legislative district must be
represented by at least 3% of the Registered Voters in that Legislative District.
2) There must be an Implementing Legislation.
§
Additional Requirements:
3) The Petition must be Personally Signed by the People.
4) [The Petition Must]:
a) (Primary Procedure)
§
The Petition must Embody the Proposal itself.
b) (Alternative Procedure)
§
If the Proposal cannot be embodied in the Petition itself, then they can incorporate, by
reference, by attaching to the Petition, the Proposed Changes to the Constitution.
What are the Constitutional Requirements in order for the People to Exercise their Right of Initiative to Directly Propose
Amendments to the Constitution?
§
Answer:
1)
Initiative on the Constitution can be exercised by Filing a Petition. In order to exercise the Right of
Initiative to Propose Amendments to the Constitution, the Petition must be Signed by 12% of all the
Registered Voters, of which, every legislative district must be represented by at least 3% of the
Registered Voters in that Legislative District (Section 2 of Article XVII) [Constitutional
Requirement];
2)
The Petition must be Personally Signed by the People (Lambino vs COMELEC) [Additional
Requirement]; and
3)
(The Petition must):
a) (Primary Procedure)
§
The Petition must Embody the Proposal itself.
b) (Alternative Procedure)
§
If the Proposal cannot be embodied in the Petition itself, then they can incorporate,
by reference, by attaching to the Petition, the Proposed Changes to the
Constitution. (Lambino vs COMELEC) [Additional Requirement];
4)
There must be an Implementing Legislation [Constitutional Requirement]
§
Comment:
§
Query:
§
Amendments, and Revisions to the Constitution [JARY 2021]
Today, or now, is there a sufficient enabling legislation to implement
the exercise of the Right of Initiative to Propose Amendments to the
Constitution?
§
Answer:
§
Yes.
§
Republic Act No. 6735 is a sufficient
implementing legislation as held in the
Lambino Resolution dated November
21, 2006.
§
10 members of the SC (more
than the majority) reiterate their
position that RA 6735 is
sufficient and adequate to
amend the constitution thru
people’s initiative.
§
It reversed their previous ruling in
Santiago vs. COMELEC where they
held that RA 6735 was insufficient,
inadequate, and incomplete as regard to
initiative to the constitution.
§
10 is more than the requirement
to overturn the controlling
doctrine, therefore, it has the
effect of superseding the
Santiago Ruling.
11
§
History:
§
Santiago vs COMELEC
§
Ruling (March 19, 1997):
§
RA 6735 is an Insufficient law to implement the Right of
Initiative to Propose Amendments to the Constitution.
§
RA 6735 allows Three Kinds of Initiatives:
1)
2)
3)
§
§
§
§
§
SC sustained the validity of RA 6735 only as to Statutes,
and Local Legislations, but not as to the Constitution.
The reason, according to the SC, why Initiative on the
Constitution under RA 6735 is insufficient to be
implemented is because, unlike the Two Other Initiatives,
initiatives on the Constitution does not have a Title, and
unlike the Two Other Initiatives, initiatives on the
Constitution does not provide when should the Initiative
be Applicable.
As to the Statutes, and Local Legislations, the law itself
provides when the initiatives shall be effective; but there
is nothing insofar as initiatives on the Constitution is
concerned.
On those points, the SC declared RA 6735 as Not
Sufficient in order to implement the Right of Initiative to
Propose Amendments to the Constitution.
Lambino vs COMELEC
§
Ruling (October 25, 2006):
§
The ponente of the Majority Decision said that “there is no
need to revisit the Santiago Ruling, insofar as the
Sufficiency of RA 6735.”
§
This is in line with the requirements of Judicial Inquiry.
§
Under the Rules on Judicial Inquiry, the courts of Justice
can only determine the Constitutionality of a Particular
Act if the 4 Requisites of Judicial Inquiry are Present (1.
Actual Case or Controversy; 2. Raised by a Proper Party;
3. Raised at the Earliest Possible Opportunity; and 4. The
Constitutional Question is the Lis Mota of the
Controversy).
§
The SC, in the decision of the Ponente of the Majority
Opinion, said that the Controversy can be resolved without
revisiting Santiago; the controversy can be resolved by
determining the nature of the Proposed Changes, as the
Constitution only allows, Proposed Amendments, but the
proposals of the Lambino group are Revisions.
§
(Decision)
i.
While the decision of the Ponente of the
Majority Opinion reflected the view that the
Two Proposals are in the concept of a Revision,
the ponente indicated that RA 6735 is an
Insufficient Law;
ii.
But 10 Justices believes otherwise that, “we
have to Revisit the Santiago Ruling, as RA
6735
is
a
Sufficient
Implementing
Legislation.”
§
To sum, the Ponente said that there is no need to Revisit
the Santiago Ruling, as what is involved clearly is a
Revision; but 10 Justices said that we need to revisit it
because RA 6735 is a sufficient law.
§
Thus, without Revisiting Santiago, the SC said that “we
can already resolve the controversy.”
§
Amendments, and Revisions to the Constitution [JARY 2021]
Initiative on the Constitution;
Initiative on the Statute; and
Initiative on Local Legislation/Ordinance.
Resolution Ruling (November 21, 2006):
§
The SC noted in this Resuolution, that 10 Justices of the
SC, in their Separate Opinions, have concluded that RA
6735 is a sufficient law.
§
Which means that, in the Resolution for a Motion for
Reconsideration, the SC incorporated by reference, the
Opinion of 10 Justices, that they have concluded that RA
6735 is a Sufficient Law.
§
Which means that today, the People can exercise their
Right to Initiative to Propose Amendments to the
Constitution, through RA 6735.
12
o
Justice Puno’s Push For the Exercise of the Right of Initiative to Propose Amendments
§
Comment:
§
If you remember, several years ago, before the Belgica vs Ochoa case, Justice Puno was pushing for the exercise of Right of
Initiative for the people, in order to expressly disallow the implementation of “Pork Barrel System.”
§
Justice Puno pushed for the exercise of this Right, because this right is available, and because there was already an enabling
law as pronounced in the Lambino Resolution.
o
Constitutional Limitations of the Exercise of the Right of Initiative to Propose Amendments to the Constitution
§
What are the Constitutional Limitations in the Exercise of Right of Initiative?
1)
2)
3)
§
§
Note:
§
Hypo:
§
§
The soonest possible time that the people can exercise their Right of Initiative to Propose Amendments is 5-Years after February
2, 1987; and
Right of Initiative to Propose Amendments can only be Exercised once every 5-Years.
Right of Initiative can only be exercised to Propose Amendments, not Revisions.
When we say “Constitutional Limitations,” it is the Constitution itself that provides for the things that cannot be done; while,
“Constitutional Requirements” are the things that must be complied in order to validly exercise a Right.
Supposing, the Congress, acting as a Constituent Assembly, amended Article I in 2010.
Within 5-Years from the Amendment of Article I in 2010, can the Right of Initiative be exercised to further change Article I?
§
Answer:
§
The Right of Initiative cannot be exercised within 5-Years following the Plebiscite for the Ratification of
the Amendment.
§
Meaning, the Right of Initiative can only be exercised by the People, “Once” in a period of 5-Years.
Lambino Proposal as a “Gigantic Fraud”
o
§
In this case:
§
In the absence of the “Additional Requirements” in a “People’s Initiative,” the SC characterized such Initiative as a “Gigantic
Fraud” because, according to the SC:
§
“Obviously, what the petitioner did was to circulate “blank” pieces of paper in order to gather signatures.
§
Then they collated these signature sheets, and then attached the signature sheets to the Petition.”
§
It was a “Gigantic Fraud,” because those signing did not see the Proposal.
§
Assuming, for the sake of argument, the SC said that:
§
“Even if were to believe Lambino that they have distributed a copy of the proposal, the copy is only limited.
§
If we will say that every copy has 10 signatures, then it will not comply with the requirement of 12% under
the Constitution.”
§
This is the reason why the SC said that the Lambino Proposal was a “Gigantic Fraud.”
Initiative on the Constitution Must be “By the People”
o
§
In the case Lambino vs COMELEC, the SC said that an Initiative on the Constitution must be an “Initiative By the People.”
§
Thus, the SC provided the “Two Additional Requirements.”
§
Lambino vs COMELEC
§
In this case:
§
(Oral Argument)
§
SC: Did the People read the proposals before they signed the signature sheet?
§
Atty. Lambino: Yes, your Honor. They read it.
§
SC: What is your proof that the People read the proposals?
§
Atty. Lambino: Because we re-produced copies of the Proposals, your Honor.
§
SC: How many copies?
§
Atty. Lambino: I can only assure the Court that we have re-produced 100k copies of the Petition. When
I/We distributed the Signature Sheets, these 100k copies of the Petition are also distributed to those who
signed the Signature Sheet.
§
SC: How many people per Signature Sheet?
§
Atty. Lambino: 10.
§
SC: 10 x 100k = 1M. That’s only just 1M. In the signature sheet, 6.3M signed the petition.
§
§
§
§
o
Ruling:
§
According to the SC, Atty. Lambino is not candid, and Atty. Lambino is lying.
Assuming that he distributed the 100k Copies, only a Maximum of 1M have read the petition.
Which means that, the 5.3M who signed the attendance sheet, did not read the petition.
This is the reason why, the SC provided for the “Two Additional Requirements.”
Can the People sign, for and in behalf of another? Like, for example: “Barangay Captain A, signing for and behalf of his 100 Constituents,” meaning
when the signature of Brgy. Captain A, it shall be counted as 101, because he is signing for himself, and for his 100 Constituents.
§
Answer:
§
No.
§
The People must personally sign the Petition.
§
Representative Agents are not allowed.
Amendments, and Revisions to the Constitution [JARY 2021]
13
o
o
•
What is Indirect Initiative?
§
Answer:
§
Under Section 3B of RA 6735, “Indirect Initiative” is exercise of initiative by the People through a proposition sent to Congress or
the local legislative body for action.
“Initiative” vs “Referendum”
§
Initiative
§
An Initiative is the power of the people to propose amendments to the Constitution or to Propose and enact Legislations through an
election called for the purpose.
§
Referendum
§
A Referendum is the power of the electorate to approve or reject legislation through an election called for that purpose [RA 6735,
Sec. 3(c)]
Ratification
o
Intro:
o
Who may exercise the Power of Initiative?
§
§
§
This is the Second Step of the Amendment or Revision Process.
Answer:
§
Note:
§
§
o
As of 2019, COMELEC data shows that there are 61, 843, 750 registered voters in the Philippines.
Special Registration
§
The COMELEC shall set a Special Registration day at least 3 weeks before a Scheduled Initiative or Referendum (Section 6, RA 6735)
§
Any registered person may then register and sign a Petition for Initiative.
How Proposed Changes to the Constitution Are Ratified
§
Votes Required
§
They are Ratified by a Majority of the Votes Cast in a Plebiscite Called for That Purpose.
§
Hypo 1:
§
§
§
§
§
Supposing there are 100M Registered Voters.
To validly ratify a Proposal, how many Registered Voters do we need?
§
Answer:
§
Any number will do, because what is required by the Constitution is Majority of the Votes Casted, not
Majority of the Registered Voters.
Hypo 2:
§
§
§
§
Supposing, the Proposals are submitted to the People, in a Plebiscite called for that purpose.
But because of lack of interest, there was a low turnout of election; not all of the Registered Voters participated.
Only 50% of the Registered voters participated, meaning, only 50M participated.
The 50% Registered voters argued that, they are patriotic citizens who took time and participated in an electoral protest, could be easily
defeated by the apathetic ones, those who do not care, and those who just stayed at home and watched television.
Supposing, 50% voted to ratify, is that enough? Meaning, since only 50% of the Registered Voters Participated, there is no need for the
COMELEC to canvass the votes. There is no need for the COMELEC to canvass to votes because, the COMELEC can just say that “we
will not waste time, because even if all of you ratified the proposal, we still need One more vote.”
§
Answer:
§
If 50M participated, then “50% + 1” of 50M is what is needed; NOT “50% + 1” of the Registered Voters.
§
This is because, for all we know, arguendo, of the 100M Registered Voters, 25M are already dead.
To sum:
§
o
The Power of Initiative and Referendum may be exercised by all registered voters of the country, autonomous regions, provinces,
cities, municipalities, and barangays. (Section 4, RA 6735)
Only “50% + 1” of the Valid Votes During the Plebiscite.
When Plebiscite Should be Held
§
When should Plebiscite be held?
§
Answer:
§
(Section 4, Article XVII)
§
§
After Submission, the proposed changes shall be valid when ratified by the Majority of the votes Cast in a
Plebiscite, held not earlier than 60 days, nor later than 90 days:
a)
After Approval by Congress or Constitutional Convention of the Proposed Amendment(s), or
Revision; or
b)
After Certification by the COMELEC of the Sufficiency of the Petition by the People
Can the COMELEC “Disapprove?” Can the COMELEC say “Approve,” or “Disapprove,” the Petition or initiative to Propose Amendments to the
Constitution? Meaning, it is only when the COMELEC “Approves” the Petition, when the 60- 90-Period will be counted?
§
Answer:
§
No.
§
The 60-90-Day-Period shall be Counted from the Time that the COMELEC Certified that the Petition is
Sufficient.
§
From the time that it is Certified, not Approved, because the COMELEC does not Approve the
petition.
Amendments, and Revisions to the Constitution [JARY 2021]
14
§
The COMELEC will only Certify whether the Petition is sufficient in accordance with Section
2 of Article XVII.
Can the Proposed Changes to the Constitution, be Submitted to the People, Simultaneously with a General Election?
o
§
(The SC answered this question in the case of Gonzales vs COMELEC):
§
There is nothing in the Constitution that Prohibits it.
§
Under the Last Sentence of Article XV of the 1935 Constitution, it expressly provided that:
§
"Such amendments shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the people for their ratification."
§
Ruling:
§
The SC said that the Constitution used the word “election” without any qualification, whether it is
General or Special.
§
Since there is no Qualifier under the Constitution, the Proposal can be submitted, at the Discretion of
the Congress, in a:
a) General Election; or
b) Special Election.
Remember that, Gonzales vs COMELEC was decided under the 1935 Constitution. Can we still apply that principle in Gonzales,
that since the Constitution does not make a qualification as to the nature of the Election, when the proposal is submitted to the people
for their Ratification, then it can be submitted simultaneously with a General Election. Can we still apply that principle under the
1987 Constitution? Under the 1987 Constitution, it did not use the word “Election,” instead, it used the word “Plebiscite” in Section
4. Can we still apply the Principle in Gonzales?
§
Answer:
o
§
Yes.
§
Notwithstanding the use of the word “Plebiscite,” the term “Plebiscite” under Section 4, does not refer
to the day, but to a process.
§
“Plebiscite” is the Process where the question is, whether the Proposal is Submitted to the People for
their Ratification.
§
Note that, on the same day there CAN be Two Processes:
1) General Election; and
2) Plebiscite for the Ratification of the Proposal.
§
(If Submitted Simultaneously)
§
§
o
If the Proposal is submitted to the People Simultaneously with the General Election, each
voter shall receive Two Ballots, to wit:
1)
For the Election of their Representatives, in the Exercise of the General Election;
and
2)
For the Plebiscite for the Ratification of the Proposed Changes to the Constitution.
To conclude, notwithstanding the use of the word “Plebiscite” instead of “Election,” the 1987
Constitution still allows the submission of the Proposal, whether amendment or revision to the people,
simultaneously in a General Election.
Who will verify the Authenticity of the Signatures
§
Answer:
§
The Election Registrar in each Municipality or City shall verify the signatures on the basis of the registry list of
voters, voters’ affidavits, and voters’ identification cards used in the immediately preceding election. (Section
7, RA 6735)
§
This is to ensure that only registered voters have signed the petition and the signatures are genuine.
Amendments, and Revisions to the Constitution [JARY 2021]
15
o
(Piecemeal Submission of Proposal)
§
Can there be a Piecemeal Submission of the Proposals to the People?
§
(This question was answered in Tolentino vs COMELEC):
§
In this case:
§
The First Resolution approved by the Constitutional Convention, was “Organic Resolution no. 1,”
lowering the voting age from 21 to 18.
§
What the Constitutional Convention did, after approving Organic Resolution no. 1, was to submit to the
President, with a request that the President will submit it to the COMELEC, so that it may be included
in the upcoming General Election.
§
The Constitutional Convention said that “while we are still deliberating on other proposals, can you
submit the First Proposal For Ratification?"
§
Is that allowed?
§
Ruling:
§
No.
§
§
§
Hypo:
§
§
§
There can be NO Piecemeal Submission, this is under the Doctrine of Proper Submission.
Two Aspects of Doctrine of Proper Submission:
1)
All the proposals shall be submitted to the people for Ratification, all at once, so
that they will be given a proper frame of mind, whether to accept or reject the
proposal.
2)
Also, note that the second aspect of this doctrine has already been
Constitutionalized.
§
Under the 2nd Par. of Section 4, of Article XVII, that is, the people
should be given reasonable time in order to study the proposal; and
§
Under the Constitution, that time is already fixed by the Constitution
itself (which is not earlier than 60-Days, but not later than 90-Days).
Supposing all the Proposals are Submitted to the People for their Ratification, in a Plebiscite called for that purpose.
Supposing, there are 10 proposed changes to the Constitution, can the people say “we only ratify 1 to 6, and we reject 7 to 10."
Can the People choose what Proposal to Ratify, and what Proposal to reject?
§
Answer:
§
It depends on the Nature of the Proposed Changes.
§
There are Two Kinds of Changes that may be Introduced into the Fundamental Law:
1) Amendment; or
2) Revision.
§
(In Depth Discussion, as ruled in Tolentino vs COMELEC)
1)
Amendment
§
Definition:
•
•
§
2)
Which means that:
•
Since Amendment is a Piecemeal Isolated Change to the
Constitution, if the proposed Changes are in the Nature of
an Amendment, the People can choose what proposal to
ratify, and what proposal to reject.
•
If the proposals are just amendments, the people can
choose whether they Ratify, and Reject the others.
Revision
§
Definition:
•
§
Amendments, and Revisions to the Constitution [JARY 2021]
Amendment is a Piecemeal Change to the Constitution.
An Amendment only intends to Add, or Subtract, or to
Delete, or Improve a Provision, without Affecting without
affecting the Organization of the Government, and the
General Principles underlying the Constitution.
Revision is a Total Overhaul of the Constitution.
Which means that:
•
If the changes are in the Nature of a Revision, the people
can only accept all, or reject all.
•
This is because, in a Revision, every proposal is
interconnected.
•
One cannot choose what proposal to approve, and to reject.
16
§
Power to Submit to the People the Proposal for Ratification
§
Tolentino vs COMELEC:
§
In this case:
§
When the Constitutional Convention Approved “Organic Resolution no. 1,” the Convention submitted
“Organic Resolution no. 1” to the President, with the request that the President will submit it to the
COMELEC; so that COMELEC will submit it to the People for their Ratification in the upcoming
election.
§
Question Raised by the SC:
§
“Who has the power to submit to the People the Proposal for their Ratification? Is it the Convention? Is
it the President? Is it the COMELEC? Or is it any other body?
§
Answer:
§
It is the Congress, as a Legislative body, that can submit the Proposal.
§
The proposed changes to the Constitution are submitted to the People in
a Plebiscite called for that purpose.
§
That plebiscite shall be scheduled under the 60-90 Day Rule.
§
The Congress has the Power to Call for a Plebiscite.
§
There is a need to enact a Special Law calling for a
Plebiscite, and that law can only be enacted by the Congress.
§
Plebiscite is an Electoral Process that requires budget.
§
The Congress has the power to Appropriate Funds for the
Conduct of Plebiscite.
§
It is the Congress that can set the Date of the Plebiscite, and
it is the Congress that can provide funds for the Plebiscite.
§
Therefore, it is the Congress that has the Power to Submit
the Proposal to the People for their Ratification.
§
§
Without the Congress, there can be no plebiscite,
and without the Congress, there can be no budget
for the plebiscite.
Justiciable Review of Proposals
§
Query:
§
§
Is a Question, involving a Validity of a Proposal a Justiciable Controversy, or a Political Question? (This is One
of the questions in Sanidad vs COMELEC.)
Sanidad vs COMELEC
§
In this case:
§
The Solicitor General contends that the Questions on the Constitutionality of a Proposal is a Political
Question, therefore, the courts of justice cannot adjudicate.
§
Ruling:
§
No, they are Justiciable, but only for a limited period.
§
Controversies involving the Constitutionality of a Proposal is a Justiciable Controversy until
they are Ratified.
§
Meaning, once the Proposals are Ratified, any defect attendant in the Proposal Stage are
already cured by the Sovereign Will of the People.
§
That’s why the SC said here that, the Questions must be raised:
§
§
§
Amendments, and Revisions to the Constitution [JARY 2021]
Prior to the Plebiscite;
NOT after the Plebiscite.
It should be raised, Prior to the Plebiscite, because once the proposals is ratified, it is
already considered as Political Question.
17
•
Note #1:
o
There may be Questions on Amendment or Revisions, particularly so because the President has intimated his desire to Propose Changes to the
Constitution (but again, definitely, the President cannot do that, but the Congress can propose amendments to the Constitution).
o
But how about the threat of the President to convert itself, into a Revolutionary Government, is that allowed under the Constitution? Is that the
same as what President Aquino did in 1986 when issued Proclamation no. 1, declaring herself as a Revolutionary Government?
§
Answer:
§
No.
§
Under the 1987 Constitution, that is not allowed.
§
The President has Special Powers, under the 1987 Constitution:
1)
2)
3)
4)
§
•
He may call out the Armed Forces under Section 18 of Article VII;
He may declare Martial Law;
He may suspend the privilege of Habeas Corpus;
(Ancillary to his Military Powers) He may also declare a State of Rebellion, and a State of
National Emergency,
But the President, CANNOT convert the Government into a Revolutionary Government, as this is an
Extra-Constitutional Act that is outside of the Constitution.
§
The President, under Section 5 of Article VII (The Oath of Office of the President, he is bound to defend, and to
protect the Constitution.
§
Which means that, the President CANNOT perform any act outside the Constitution because of his oath.
Note #2 (National Law):
o
What are Excluded from the Power of Initiative on a National Law?
§
Answer:
§
(RA 6735) Section 10 Prohibited Measures – The following cannot be the subject of an Initiative or Referendum Petition:
a)
No petition embracing more than 1-Subject shall be submitted to the Electorate; and
b)
Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the
Constitution, cannot be subject to Referendum until 90-Days after its effectivity.
o
Can a Private Bill, like the Franchise of ABS-CBN, be allowed in a People’s Initiative?
§
Answer:
§
Yes.
§
If the Constitution allows the use of People’s Initiative to introduce Amendments to the Constitution, the Supreme
Law of the Land, there is no logical reason to exclude a mere private bill from the coverage of People’s Initiative.
§
Congress did not include this in the exclusions under Section 10 of RA 6735.
§
Sovereignty resides in the people and all government authority emanates from them.
o
Article VI, Section 24 states that Private Bills must originate exclusively from the House of Representatives. So how can a Private Bill, like the
Franchise of ABS-CBN be allowed in a People’s Initiative?
§
Answer:
§
Article VI, Section 24 is a Limitation on Congress in enacting a law. It does not apply to the exercise of People’s Initiative.
§
Sovereignty resides in the people, and all government authority emanates from them.
§
Article VI, Section 1, the power of Congress to legislate is limited by the reservation of the People’s Exercise of Initiative.
o
A People’s Initiative will require a National Referendum that needs Billions of Pesos. Can this push thru even without a budget allocation?
§
Answer:
§
(Mamerto vs COMELEC ; September 26, 2017).
§
Yes.
§
Initiative and referendum are the means by which the sovereign people exercise their legislative power,
and the valid exercise thereof should not be easily defeated by claiming lack of specific budgetary
appropriation for their conduct.
§
The SC reiterated that the grant of a Line Item in the Annual Budget of COMELEC for the Conduct
of Supervision of Elections constitutes as sufficient authority for the COMELEC to use the amount for
elections and other political exercises, including Initiative and Recall, and to augment this amount from
the COMELEC’s Existing Savings.
o
When will the LAW enacted by People’s Initiative take effect?
§
Answer:
§
If as certified by the COMELEC, the proposition is approved by a Majority Votes cast, the National Law proposed for
enactment, approval or amendment shall become effective 15-Days following completion of its publication in the Official
Gazette or in a Newspaper of General Circulation in the Philippines.
§
This is NOT subject to Veto by the President, or Repeal or Amendment by Congress.
Amendments, and Revisions to the Constitution [JARY 2021]
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