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THE LEGAL REGIME FOR INITIATIVES TO CHANGE THE CONSTITUTION

The Constitution is considered as the written expression of the sovereign will of


the people. Since the people made the Constitution, it is also the people who have the
power to unmake it.1 This power is found in Article XVII of the 1987 Constitution. The
presence of the special provision on Amendments or Revisions indicates that the
Filipino people willed to adopt a rigid type of Constitution. It means that the organic law
itself determines the manner and procedure by which it can be modified, altered or
substituted. Also, it identifies legal sovereignty as residing in the people, since only a
direct act of the people can finally effect a change in the Constitution. 2
By adopting the article on Amendments or Revisions, the Filipino people have
imposed upon themselves a constitutional limitation to effect changes to the
fundamental charter of the land. This necessarily reflects the intention to establish an
orderly manner in which any Constitutional change could be accomplished.Therefore,
the procedures enumerated in Article XVII must be construed to be mandatory and
exclusive, and must be strictly followed. 3 The reason for this strict application is to save
the people from the consequences of their impulses, while the provisions for its orderly
amendment would enable them to give effect to their deliberately formed opinions. 4
The 1987 Constitution, in its Article XVII, provides:
Section 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or

1 DEFENSOR-SANTIAGO, MIRIAM, Constitutional Law: Text and Cases. Vol. 1, 2 nd


Ed. Central Professional Books, 2000. (hereinafter, DEFENSOR-SANTIAGO)
2 BERNAS, JOAQUIN G., SJ., The 1987 Philippine Constitution: A Comprehensive
Reviewer. Rex Bookstore, Inc., 2006. (hereinafter BERNAS, 2006)
3 DEFENSOR-SANTIAGO, supra.
4 State ex rel. Karlinger v. Deputy State Suprs, 80 Ohio St 471 cited in DefensorSantiago, ibid.

(2) A constitutional convention.


Sec. 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.
Sec. 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.
Sec. 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.

Considering the above-cited constitutional provisions, the following are the


required steps which are to be taken before a constitutional change may be effected
through amendment or revision: (1) there must be a proposal of amendments or
revision; (2) submission of the proposed amendments or revision to the people; and (3)
ratification by the people.5
Like the 1935 and 1973 Constitutions, the present fundamental charter
recognizes two constituent assemblies which are empowered to propose constitutional
amendmentsthey are: (1) the Congress acting as a constituent assembly; 6 and (2) the
Constitutional Convention, which is either called by Congress or called by direct vote of
the electorate.7 The 1987 Constitution, however, has provided for a third and final
method of proposing constitutional amendments. This peculiar innovation is called the
5 BERNAS, 2006, supra.
6 CONST., art. XVII, sec. 1(1).

(peoples) initiative where the people, acting as a constituent body, directly and actively
participate in the amendatory process of the Constitution. 8
Peoples initiative is a method whereby the people themselves can directly
propose amendments to the Constitution. 9 Accordingly, the reason for introducing this
new provision in the amendatory process of the Constitution is to constitutionalize the
significance of direct action of the people as dramatically exemplified in the February
1986 event.10 Recognizing the impact of people power as an expression of popular
sovereignty, the Commissioners who drafted the present fundamental law deemed it
appropriate to codify a method in the amendatory process whereby the people
themselves can directly propose amendments to the Constitution.
Looking closely at Article XVII, Section 2, the amendatory process of (peoples)
initiative is seen to be both an extraordinary and cumbersome process. 11 There are
several built-in limitations to its exercise as incorporated in the constitutional text itself.
For one, the provision is not self-executory, viz: The Congress shall provide for the
implementation of the exercise of this right. Thus, without any implementing law, the
power of initiative cannot be validly exercised. Indeed, the very first stumbling block to
the exercise of initiative as a method of effecting constitutional change is the need for an
implementing legislation. In the words of Mr. Chief Justice Davide, Jr., the right of the
people to directly propose amendments to the Constitution through the system of

7 CONST., art. XVII, sec. 1(2) and sec. 3.


8 CONST., art. XVII, sec. 2.
9 BERNAS, JOAQUIN G., SJ., The 1987 Constitution of the Republic of the
Philippines: A Commentary. 2003 Ed. Rex Bookstore, Inc., 2003 (hereinafter
BERNAS, 2003).
10 Ibid., at 1300.
11 Ibid.

initiative would remain entombed in the cold niche of the Constitution until Congress
provides for its implementation.12
In response to the constitutional mandate, Congress has enacted Republic Act
No. 6735 (RA 6735) in 1989, also known as the Initiative and Referendum Law. RA
6735 was intended to lay down the details in the implementation of and exercise by the
people of the power of initiative and referendum on three levels: (1) in local
legislation; (2) in national legislation; and (3) in constitutional change. However, while
RA 6735 provided for detailed sub-titles for National Initiative and Referendum in
Subtitle II and for Local Initiative and Referendum in Subtitle III, no similar subtitle was
provided for Initiative on the Constitution. Instead, RA 6735, out of all its twenty-three
sections, perfunctorily relates to initiative on the Constitution merely in the following
manner:13
(a) In Section 2, the word Constitution is mentioned;
(b) In Section 3, there is a definition for initiative on the Constitution and
includes it in the three systems of initiatives adopted in the Act;
(c) There is mention of a plebiscite as the process by which an initiative on the
Constitution may be approved or rejected by the people;
(d) It reiterates the constitutional requirements in Art. XVII, Sec. 2 as to the
number of voters who should sign the petition; and
(e) It provides for the date of effectivity of the approved proposition.

Hence, in the landmark case of Defensor-Santiago vs. COMELEC14, the Supreme


Court has ruled that RA 6735 is incomplete, inadequate, or wanting in essential terms
and conditions insofar as initiative on amendments the Constitution is concerned. 15
According to the Court, RA 6735s conspicuous silence as to initiatives on the
Constitution simply means that the main thrust of the Act is initiative and referendum on
national and local laws.16 The glaring lacunae in RA 6735 with respect to the
implementation of Article XVII, Section 2 was deemed by the Court as a humiliating
12 Defensor-Santiago v. COMELEC, GR No. 127325, March 19, 1997.
13 Ibid.
14 Ibid.
15 Ibid.

blow to the system of initiative on amendments to the Constitution 17 in light of the fact
that the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws. 18
With the ruling in Defensor-Santiago, there remains to be no existing law which
implements Article XVII, Section 2 of the 1987 Constitution. In the more recent case of
Lambino, et al. vs. COMELEC 19, the Supreme Court was petitioned to revisit DefensorSantiago but the Court refused to do so. Therefore, the ruling in the latter case stands.
RA 6735 is not applicable to implement peoples initiative on amendments to the
Constitution.
Aside from the need for an implementing legislation, other built-in limitations are
found in the text of Article XVII, Section 2. For instance, for the proposal to amend be
considered valid, it must have the support 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. 20 Notably, the numbers and
percentages under the Constitution are higher than those required in initiatives for local
and national laws.21 On top of the numbers and percentages requirement, Article XVII,
Section 2 further contains a time/frequency constraint as expressed in the following
proscription, viz: 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. This safeguards the public from a possible abuse of the cumbersome

16 Ibid.
17 Ibid.
18 Ibid.
19 GR No. 174153, October 25, 2006.
20 CONST., art. XVII, sec. 2.
21 BERNAS, 2003, supra.

process of initiative, which, if too frequently used or exercised will surely prejudice
government operation.
Significantly, it must be pointed out that the constitutional change authorized in
Article XVII, Section 2 through (peoples) initiative can only be amendment.22 It does not
allow a revision of the Constitution by initiative. This matter has been squarely put in
issue in the Lambino case, where the petitioners sought to change the government
system enshrined in the 1987 Constitution from Bicameral-Presidential to a UnicameralParliamentary system. The Supreme Court, in this case, held that the proposed
constitutional change which would require the abolition of the Office of the President
and the fusion of both chambers of Congress is beyond a doubt a revision, not a mere
amendment.23
Contrary to the Lambino, et al.s assertion, the Court held that difference between
revision and amendment is not merely of procedure. The Court, instead, provided the
following distinction, viz:24
Revision broadly implies a change that alters a basic principle in the
constitution, like altering the principle of separation of powers or the system
of checks-and-balances. There is also revision if the change alters the
substantial entirety of the constitution, as when the change affects substantial
provisions of the constitution.
On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved.

Notwithstanding the above definitions, the Court was not quick to fix a hard and fast
rule when it comes to determining whether a change in law or the constitution is to be
characterized as a revision or a mere amendment. Instead, the Court ruled that
each specific change will have to be examined case-by-case, depending on how it
affects other provisions, as well as how it affects the structure of government, the

22 BERNAS, 2006, supra.


23 Lambino, et al. vs. COMELEC, GR No. 174153, October 25, 2006.
24 Ibid.

carefully crafted system of checks-and-balances, and the underlying ideological basis of


the existing Constitution.
The reason behind limiting initiative to mere amendments of the Constitution is
very simple and practical. Accordingly, it would be practically impossible to have an
over-all review of the Constitution through action by the entire electoral population. 25
Verily, revising a Constitution would entail a lot of cooperation, debate and deliberation
as it entails looking into several provisions of the Constitution. A revision requires
harmonizing not only several provisions, but also the altered principles with those that
remain unaltered.26 This is the reason why constitutional revisions are normally done
through deliberative bodies like a constituent assembly or a constitutional convention.
The same rigorous exercise is impossible to achieve in the open, with the whole
electorate participating. With no fixed deliberation mechanism or recorded proceedings,
the system of initiative for revising the Constitution is just patently unthinkable.
Therefore, the only viable constitutional change that can be done by peoples initiative is
an amendment of the Constitution.
Considering the totality of relevant laws and jurisprudence on the subject matter at
hand, it would appear that the implementation and exercise of peoples initiative is far
from becoming the tool of empowerment and democracy that the framer envisioned it to
be. The main stumbling block to the implementation of peoples initiative, as mentioned,
is the absence of any implementing law providing for the details of how the right shall be
exercised. Until and unless the Congress musters the right amount of political will to
truly give flesh and blood to the system of initiative on the Constitution by enacting the
proper implementing legislation, the people will have to rely on the legislature to take
lead on the matter of instituting positive and needed changes to the fundamental law of
the land.

25 BERNAS, 2003, supra.


26 Lambino, supra.