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SPECIAL REMINDERS FOR 2024 BAR EXAMINATION (CONSTITUTIONAL LAW) By Judge ESTELA ALMA A. SINGCO-CARUSO INTRODUCTION The 1987 Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held (February 2, 1987) for the purpose and shall supersede all previous Constitutions. * Approved by the Constitutional Commission of the twelfth day of October 1986 * Proclamation No. 58, February 11, 1987-Proclaimed the ratification of the 1987 Constitution * De Leon vs. Esguerra (153 SCRA 602, August 31, 1987- The record of the proceedings and debates of the constitutional commission fully supports the court's judgment. It shows that the clear, unequivocal and express intent of the constitutional commission in unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of Transitory Article XVIII of the 1987 constitution was that "the act of ratification is the act of voting by the people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the president is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the constitution when they cast their votes on the date of the plebiscite." *Supremacy of the 1987 Philippine Constitution. The 1987 Philippine Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however noble its intentions are, if it conflicts with the 1987 Philippine Constitution. The 1987 Philippine Constitution must ever remain supreme. All must bow to the mandate of this law. Right or wrong, the 1987 Philippine Constitution must be upheld as long as the sovereign people have not changed it (Cruz, Philippine Political Law, 1991 Ed., p.11). Amendments and Revisions Revision Amendment A change that alters a basic principle in the Constitution, i.e., the separation of powers or the system of checks and balances. There is also revision if the change alters the substantial entirety of the Constitution. A change that adds, reduces, deletes, without altering the basic principle involved. Generally affects several provisions of Generally affects only the specific
the Constitution. provisions being amended. Case: Lambino v. COMELEC, GR No. 174153, October 25, 2006 Courts have developed a two-part test: the quantitative test and the qualitative test: a. The quantitative test asks whether the proposed change is "ʺso extensive in its provisions as to change directly the 'ʹsubstantial entirety'ʹ of the constitution by the deletion or alteration of numerous existing provisions."ʺ The court examines only the number of provisions affected and does not consider the degree of the change. b. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. 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.ʺ Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "ʺa change in the nature of [the] basic governmental planʺ includes "change in its fundamental framework or the fundamental powers of its Branches.ʺ A change in the nature of the basic governmental plan also includes changes that ʺjeopardize the traditional form of government and the system of check and balances". STEPS IN THE AMENDATORY PROCESS The constituent power is exercised by Congress (by special constitutional conferment), by a constitutional convention or commission, by the people though initiative and referendum, and ultimately by the sovereign electorate. Does not ordinarily need the approval of the Chief Executive, except when done through initiative and referendum. (Adapted from Sanidad v. COMELEC, 73 SCRA 333). I. PROPOSAL Manner Requirements/Procedure 1. Congress (Constituent Assembly- by a vote of 3⁄4 of all its members (Sec. 1 (1), Art. XVII). Notes: a. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution (now Art. XVII), has full and plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a three fourths vote of each House in joint session assembled but voting separately (Imbong v. COMELEC, 35 SCRA 28). b. Since the effectivity of a proposal made by a constitutent assembly depends upon the approval by the sovereign people, a constituent assembly may propose any change in the constitution. The only possible exception is that a constituent assembly may not propose anything that is “inconsistent with what is known particularly in international law as Jus Cogens (Planas v. COMELEC, 59 SCRA 105, cited in Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 2011 Ed., p. 545).
c. The choice as to whether to propose amendments or to call a constitutional convention for that purpose or to do both was a question of wisdom and not of authority and hence was a political question not subject to review by the Courts (Gonzales v. COMELEC, 21 SCRA 774). ------------------------------------------------------------------------------------------------ 2. Constitutional Convention- a. by a 2/3 vote of all the members of Congress, b. by a majority vote of all the members of Congress with a question of whether or not to call a Convention to be resolved by the people in a plebiscite (Sec. 3, Art. XVII). Notes: a. The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for voting requirements. b. If Congress, acting as a ConAss, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress in accordance with the Constitution, for example: • Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly). • Whether the approved proposals were properly submitted to the people for ratification. exercising its ordinary legislative power may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 544-545, 2011). c. Congress, as a ConAss and the ConCon, has no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law. However, the constitutional convention is free to dispose the funds appropriated by Congress for the Convention's operation (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer, 545, 2011). ------------------------------------------------------------------------------------------------ 3. People’s Initiative- A petition of at least 12% of the total number of registered voters of which every legislative district must be represented by at least 3% of the registered voters therein (Sec. 2, Art. XVII). Notes: a. People’s initiative applies only to an amendment, not a revision of the Constitution (Lambino v. COMELEC, supra).
b. No amendment through a People's Initiative shall be authorized within 5 years following the ratification of the 1987 Constitution (Feb. 2, 1987) nor more often than once every 5 years. Congress shall provide for the implementation of the exercise of this right. (Art. XVII, Sec.2) c. Revision of the Constitution cannot be effected through initiative and referendum. Formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body. (BERNAS) d. Section 2 of Article XVII of the Constitution is not self-executory. In his book, Joaquin Bernas, a member of the 1986 Constitutional Commission, stated: Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action. Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation (Defensor-Santiago v. COMELEC, 270 SCRA 106). e. The essence of amendments "directly proposed by the people through initiative upon a petitionʺ is that the entire proposal on its face is a petition by the people. This means two essential elements must be present: 1. The people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. 2. As an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "ʺdirectly proposed by the people through initiative upon a petition"ʺ only if the people sign on a petition that contains the full text of the proposed amendments (Lambino v. COMELEC, supra). f. Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the following: 1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; 2. The proposition; 3. The reason or reasons therefor; 4. That it is not one of the exceptions provided herein; 5. Signatures of the petitioners or registered voters; and 6. An abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition.