PROYECTO TRANSVERSAL

Facts: The Lambino group gathered signatures for a petition to initiate a change in the 1987 Consti. Afterwards, they filed a petition with the Comelec to hold a plebiscite so that their initiative petition can be ratified under the Initiative and Referendum Act.

It is claimed by the Lambino group that their petition is supported by at least 12% of all registered voters with each legislative district represented by at least 3% of its registered voters. In fact, it is alleged that Comelec election registrars had already verified these signatures.

The changes proposed by the initiative petition would affect the articles on the legislative, executive and transitory provisions. The changes will shift the bicameral-presidential system to a unicameral-parliamentary form of government.

Comelec issued a resolution denying the petition for lack of an enabling law governing initiative petitions to amend the constitution. Comelec cited Santiago vs Comelec wherein it was declared that the Initiative and Referendum Act was inadequate to implement the initiative clause on proposals to amend the constitution./

Issue: Whether Comelec should give due course to the petition? NO!

Held: 1) A people’s initiative to change the Consti applies only to an amendment of the constitution and not to its revision. In contrast, Congress or a consti convention can propose both amendments and revisions to the consti.

(Compare sec1 and 2 of art17)

Sec1, art17 refers to an amendment or revision of the consti through congress or a consti convention.

Compare this to sec2 which applies only to amendments of the consti through initiatives. The deliberations is clear that the system of initiative should be limited to amendments to the Consti and should not extend to the revision of the entire Consti. Whereas revisions to the consti (and amendments) may only be done through congress and a consti convention.

US jurisprudence is clear that the initiatve power reserved by the people applies only to the proposing and adopting or rejecting of laws and amendments of the Consti and does not extend to a consti revision. Just like in the Philippine jurisdiction, there is no dispute that a people’s initiative can only propose amendments since the

consti itself limits initiatives to amendments. A US case stated: it is a fundamental principle that a consti can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a consti in a manner other than that provided in the consti itself is extra-constitutional.

The difference between revision and amendment is that revision alters a basic principle in the constitution, or alters the substantial entirety of the consti (such as when it affects substantial provisions). Amendment refers to a change that adds, reduces, or deletes without altering the basic principle involved.

In California, there is the 2-part test. The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the consti. The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the Consti. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.

Under these 2tests, the Lambino group’s initiative is a revision and not merely an amendment.

Quantitatively, the proposed changes overhaul art6 and 7 affecting a total of 105 provisions in the entire consti.

Qualitatively, the proposed changes substantially alter the basic plan of government from presidential to parliamentary, and from bicameral to unicameral.

Fr. B wrote, “a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral to a unicameral system because of its effect on other important provisions of the consti.”

The Lambino group argues that the difference between revision and amendment is merely procedural.

According to them, there is a revision of a deliberative body works full time on the changes and there is only an amendment when changes are made by ordinary people who do not make an occupation, profession or vocation out of such endeavour. This theory of the Lambino group has been rejected in the American jurisdiction.

There is no fixed rule on whether a change is an amendment or a revision. 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 the government, the checks and balances and the underlying ideological basis of the existing constitution.

OTHER ISSUES: sec2 art17 interpretation. - It provides, “amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition...”

The deliberations of the ConCom explain what

“directly proposed by the people through initiative upon a

petition (I’ll call this direct proposal)” entails. The mechanics for this is that the draft of the proposed amendment to the consti should be ready and shown to the people before they sign the proposal. It was plainly stated by the framers that “before they sign, there is already a draft shown to them.” It was envisioned that the people should sign the proposal itself because the proponents (the people) must prepare the proposal and pass it around for signature.

The elements of direct proposal is that: 1) the people must author and sign the entire proposal – no agent or representative can sign in their behalf; and 2) the proposal must be embodied in a petition. Thus, there can be a valid direct proposal only if the people sign on a petition that already contains the full text of the proposed amendments.

The framers borrowed the concept of people’s initiative from the US. The unbending requirement is that the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed amendments.

US jurisprudence elucidates on the reason for requiring that the people should sign the petition only after seeing the proposed amendments: The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition.

Moreover, a person who signs an initiatve must be informed at the time of the signing of the nature and effect of the proposal because failure to do so is deceptive and misleading which renders the initiative void. Although our consti does not expressly state that the petition must set forth the full text of the proposed, the deliberations of the ConCom explicitly reveal the intention of the framers to require this. Besides, the Initiative and Referendum Act which the Lambino group invokes as valid actually requires that the people must sign the petition as signatories.

There is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that the petition contained, or incorporated by attachment, the full text of the proposed amendments.

In this case, the Lambino group submitted a signature sheet. And in this sheet, there is not a single word, phrase of sentence of the text of the proposed changes. Neither does the signature sheet state that the text of the proposed changes was attached to it. The signature sheet merely asked the people whether they approve a shift from the bicameral-presidential to the unicameral-parliamentary.

(so many other facts: basically before the Comelec decided on the petition, Lambino group submitted an amended petition. But neither the amended

nor the original petition contained the proponents. And even if the Lambino group alleged that the circulated copies of the proposal, it was not proven that all those who signed had a copy of the proposal before they signed it).

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.

RAMON GONZALES V. COMELEC, DIRECTOR OF PRINTING, AUDITOR GENERAL

This is a consolidated petition made by Gonzales (as citizen and taxpayer) and PHILCONSA (non-profit organization that defends the constitution).

In March 1967, the Senate and House of Representatives jointly passed the following resolutions:

#1: proposing the amendment of Sec 5 Art VI to increase the membership of the House from a maximum of 120 to 180

#2: calling a convention to propose such amendment. The convention will be composed of 2 delegates from each district and will be elected in the upcoming general elections (1967)

#3: amendment of Sec 16 Art VI to authorize Senators and members of the House of Reps to become delegates in the constitution convention without forfeiting their seats in congress.

Then RA 4913 was enacted which provided that the proposed amendments in Reso # 1 and 3 be submitted for approval by the people at the general elections.

This case was thereafter filed praying that the COMELEC be restrained from enforcing RA 4913 or from performing any act for the plebiscite to ratify the amendments; that the Director of Printing be restrained from printing ballots and that the Auditor General be restrained from auditing disbursements for funds made under RA 4931. Petitioners also pray that the RA be declared unconstitutional.

It is argued that while the passage of the Resolutions were done in compliance with the constitutional requirements¹ they are still void because:

1The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of the House of Representatives

1. The members of the congress that approved the resolutions are de facto congressmen.

It is argued that the constitution provides that as regards the composition of Congress, there has to be an apportionment within 3 years after the return of every census. Since the last census was in 1960 pa, the election of the members of the Congress is illegal, and at best they are merely de facto congressmen/ it is a de facto congress. Therefore, the resolutions they passed, as well as the RA, are null and void.

2. Congress may only adopt of 2 alternatives – either propose an amendment or call a conventions, but not both at the same time Note that Reso 1 and 3 propose amendments to congress, to be submitted for ratification by the people, whereas #2 calls for a convention.

3. The election to ratify the amendments to the constitution must be a special election, not a general election where national and local officers are chosen

ISSUES and RULING

1. Is the congress merely de facto? – NO

The provision states that “until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law….” This means that upon the expiration of the period to make an apportionment, Congress shall continue to function with the districts existing at that time. Moreover, it is not true that there was no apportionmentwithin 3 years after the last census in 1960. Congress passed RA 3040 purporting to make the apportionment. (it was declared unconstitutional, though). Finally, even assuming that the congress is a de facto one, it would not follow that the resolutions and RA 4913 are void. There is after all, a doctrine that acts of persons holding an office created by a valid law, under color of title, are valid. And title of a de facto officer cannot be raised collaterally like here in this case.

2. Alternatives available to congress – it was argued that the constitution states that the Congress may either propose amendments OR call a convention, so dapatisa lang. – NO

voting separately, may propose amendments to this Constitution or call a convention for that purpose. 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.

SC said the basis of this argument is weak. The 2 alternatives are indeed separated by the word OR, but “or”

has sometimes been held to mean “and” or vice versa when the spirit of the law warrants it.

In connection to this, it was also raised: merong convention, merong proposed amendments, bakithindinalang convention nalangparataposna? SC said this is a political issue.

3. General v. Special Elections – EITHER!

The 1935 consti provides: 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 ratification.

There is nothing in said provision that indicates that the election should be a special one. While it is true that the 3 previous amendments to the constitution had been submitted to the people for ratification in special elections, it does not follow that it is required. Congress only did so under the circumstances then. It does not negate its authority to submit proposed amendments to be ratified in general elections.

It is admitted that it is better to have it ratified independently of the general elections of public officials, since the adequate appraisal of the merits of the proposal will be overshadowed by the election personalities.

However, this already goes into the wisdom of the plebiscite. This consideration does not deny the congress to choose either general or special elections since the word “election” was without qualification in the constitution.

4. Minor issue: does the court have jurisdiction over the case? - YES

It was argued that this was a political issue. SC said indeed, power to amend the constitution or propose the amendments is not included in the general grant of legislative powers to congress. Such power is inherent in the people as the repository of sovereignty in a republican state. The power of congress to propose amendments is derived from the constitution itself and when senators and congressmen exercise such power, they do so as component elements of a constituent assembly. It necessarily follows, therefore, that they do not have final say as to whether their acts are within the limits of the constitution.

TOLENTINO V. COMELEC

(Note that this case was decided in 1971, and the Constitutional Convention herein referred to was for the purpose of amending the 1935² Constitution.)

FACTS: Congress approved the creation of a Constitutional Convention of 1971 by virtue of two resolutions. Congress approved such resolutions in its capacity as a constituent assembly convened for the purpose of calling a convention to propose amendments to the Constitution.

The Convention approved Organic Resolution No. 1 which seeks to amend the Constitutional provision thereby lowering the voting age to 18 y/o. Its Section 3 also provides that “This partial amendment, which refers only to the age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution.” Later, President D. Macapagal called upon Comelec to help the convention implement the said resolution.

ISSUE/S:

W/N the validity of the resolution is subject to judicial review? YES. Convention and the Court are still ubject to the Constitution and the rule of law.

W/N the proposed amendment in question may be presented to the people for ratification separately from each and all of the other amendments to be drafted and proposed by the Convention? NO. The 1935 Constitution expressly said “an election” thereby saying that there should one be one election for all the amendments intended.

Is it within the powers of the Constitutional Convention of 1971 to order the holding of a plebiscite for the ratification of the proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution and the subsequent implementing acts and resolution of the Convention? NO, because

2 Art. XV, Section 1 of the 1935 Constitution provides that:

Section 1. 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. 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.

there was no sufficient time given to the people to study the matter.

HELD: Said resolution is null and void.

The Courts has jurisdiction not because the Court is superior to the Convention or that the Convention is subject to the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and the rule of law.

The Convention came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the (1935) Constitution. As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people,

The Convention came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the (1935) Constitution. As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people,