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June 22

We’re still on amendments and revisions of the Constitution – Article 17.

Under Section 1 of this Article, the Constitution may be amended or revised. Proposed amendments may be made or revisions may be made
via Constituent Assembly (Con Ass) or a Constitutional Convention (Con Con).

When we say Con Ass, this is the Congress voting by ¾ of its members, they are voting separately. You will know that by their voting, are
they exercising legislative powers? Or are they exercising another form of power?

In Section 2, amendments not revisions may be done to the Constitution proposed by the initiative by the people.

In Section 3, this provision deals with how the Con Con may be given effect. It would be by the forming of the Constitutional Convention by
a vote of 2/3 of the members of Congress with all its members; or if they can’t decide that, a majority vote of its members can call for an
election to submit the matter to the electorate if they want a convention or not. So that is how the ConCon can be formed.

Section 4 provides for the manner or when are the amendments or revisions effective. Any amendment or revision of the Constitution under
Section 1 which pertains to Con Ass or Con Con shall be valid when ratified by a majority of the votes cast in a plebiscite. So there’s a
specific plebiscite for that purpose and the period there in the plebiscite shall not be held earlier than 60 days or later than 90 days after the
approval of the amendments or revisions. So what is the purpose of the period? So that the people will be able to study the contents of the
amendments or the revisions. The people will be able to intelligently decide whether or not they will agree to the amendments or revisions.

Section 2 which is amendment via the petition for the initiative by the people. Any amendment under section 2 shall be valid when ratified by
the majority of the vote cast by plebiscite again. It should not be held earlier than 60 days or later than 90 days after the certification of the
COMELEC of the sufficiency of the petition. This is the difference between the first paragraph. So here we can read that it is the COMELEC
that determines whether or not the petition for the initiative is valid or not. The COMELEC will then after it certifies the validity of the
petition siya na ang maglihok to give this plebiscite into effect.

So we learned under Section 1 of Article 17 that amendments or revisions to the Constitution may be made by Congress through the Con Ass
or through Con Con. Now, what is the difference between an amendment and revision? When we talk about an amendment, we’re only
talking about a piecemeal or isolated change in the Constitution. It does not rewrite any basic principle in the Constitution. There is just a
specific detail or provision which does not alter the fundamental principles in the Constitution. When we talk about revision, on the other
hand, it is a revamp or rewriting of the entire Constitution, overhauling of the government. So again we talked about the two stages of the
amendment, 1st is the proposal (Con Ass, Con Con, or Petition for Initiative) and the second stage is the ratification.

When we talk about initiative, the third way by which amendments of the Constitution may be done, this way is not self-executing. There has
to be a law which implements this provision in the Constitution. The provision itself states that there has to be legislation for this to be
effective.

So the limitations by which the people can amend or propose amendments to the Constitution are as follows:
1) The petition for initiative can only introduce or propose amendments to the Constitution not revisions,
2) Only once every five years,
3) There must be an enabling law.

When we talk about ratification, this is when the people approve the amendments or the revisions to the Constitution. So there has to be a
vote to subject the people to this exercise and determine whether or not they approve the changes or amendments or the revisions.

Gonzales vs. COMELEC

Here we’re talking about the amendment. We’re talking here about the 1935 Constitution. Thus, on March 16, 1967, there were three
resolutions issued by the house. We have Resolution of Both Houses (RBH), 1) introducing an amendment to the Constitution by increasing
the membership of the House of Representatives, that’s RBH 1 (amendment); 2) RBH 2 calls for the calling of a Convention to propose
amendments to the Constitution, this is the maghimo daw ug Constitutional Convention pursuant to this resolution of both houses number 2;
3) RBH 3 proposes that a provision in the Constitution should also be amended in order to authorize senators and members of the House of
Representatives to become delegates to the Constitutional Convention. So we can now discern that RBH 1 and 3 talk about amendments to
the Constitution where as RBH 2 talks about the formation of a Constitutional Convention and these resolutions became law via R.A 4913.

Now, several parties seek to have this law declared to be unconstitutional and void for many reasons. Among others, dili pwede na sabay that
we will like to introduce amendments and then at the same time form a convention to propose amendments and revisions to the constitution.
Congress may only adopt either one of the two alternatives to propose amendments to the Constitution either by calling a convention but you
can’t at the same time introduce in the same law amendments to the Constitution itself. You can only cause the amendment or call a
convention at the same time—dapat they should not be sabay. And that also, the way by which the amendments can be ratified is via a special
election and not a general election. So the court here decided the matter, disagreed with the positions challenging the validity of the law here
and dismissed it. The court said here that the alternatives available for Congress are not exclusive with each other. Admittedly, the word used
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in the constitution is “OR”. Proposed amendments using the disjunctive term “OR”. The court said that it is a weak argument because
according to it, that could be construed as “AND”. Moreover, the court noted that subject matter RBH no. 2 is different from that of no. 1 and
no. 3. 1 and 3 again seek to propose amendments to the Constitution while no. 2 proposes the creation of the Constitutional Convention.
Moreover, the amendments proposed in 1 and 3 will be submitted for ratification several years before the proposed Constitutional Convention
in RBH no. 2 but that doesn’t mean that the resolution coming from these three matters cannot be decided in one law. There is nothing in the
Constitution that negates the authority of different Congresses to approve the contested resolutions or the same Congress can pass the same in
different sessions. May the Constitutional amendments be submitted for ratification in general election? Should it always be special? The
court said that in the 1935 Constitution, there is nothing there that indicates that the election should be special and not general. So in other
words, it can be done via a general election. Take note that this talks about the 1935 Constitution in the 1987 Constitution. Basically, when
we talk about ratifying the amendments and revisions, there has to be a plebiscite for that purpose.

Santiago vs. COMELEC

Now, the 3rd way by which amendments can be introduced in the Constitution is via a petition for initiative by the people and the law that
purportedly provides for the manner by which these amendments may be introduced to the Constitution is R.A 6735. But the court has held
that, does this law really provides for the way by which amendments to the Constitution may be done? Is it complete in itself? Does it really
provides for the proper mechanism or does it not? So here, we have a petition filed by Atty. Delfin before the COMELEC. A petition to
amend the Constitution. And what is the tenor of the amendment? Lift the term limits of elective official. So in other words our
representatives will be holding their offices in perpetuity. And so, the petition started. He went to the COMELEC with this petition and he
wanted the COMELEC to conduct a signature campaign in order to gather the 12% and 3% required votes. Remember, before the petition or
initiative can be valid it has to be supported by the 12% of the total number of registered voters in the country. And within that 12%, every
legislative district must be represented by 3% of its registered voters. Atty. Delfin wanted COMELEC to do the gathering of 12% and 3%.
The petition says, do you approve of limiting the term limits of elective government officials? He wanted to submit this petition to the people
and after it is signed by the 12% and 3% it will be formally filed in the COMELEC. So, COMELEC will gather and COMELEC after
gathering that will consider it formally filed. Now, COMELEC was forced to do what Atty. Delfin wanted it to do. And so, there are people
who questioned COMELEC in doing so. 1) Senator Defensor-Santiago questioned that the people through the initiative to amend the
Constitution can only be done with legislation and she submits that there has yet to be a law that can implement this provision. Although, it
has been recognized that there is this R.A. 6713, she argues that this law fails to provide any subtype. The law in other words is deficient in
the matter of the petition of initiative on the Constitution. 2) Sen. Roco, on the other hand, challenged also the COMELEC’s actions because
according to him, the petition itself is not the petition that the COMELEC should act on. Dapat daw before the COMELEC can act on it, it
should already have the 12% and 3% vote. Here, Atty. Delfin wanted the COMELEC to gather the 12% and 3% vote.

ISSUE:

1) Is the Law R.A. 6713 adequate to provide for the system of an initiative on the Constitution?

In deciding this case, the court said: 1) the provision in the Constitution Section 2, Article 17 on this matter is not self-executory.
Yes, there has to be a law in order to execute this provision and the limitation is that it can only propose amendments on the Constitution and
not revise it. Did the Congress provided the proper law for this? The court said that NO. While R.A. 6735 intended, there is intent, because
the word Constitution appears in the law… It however does not fully comply and does not fully give the proper mechanism by which the
petition for the initiative to the Constitution may be validly done. The Constitution pointed out several provisions in this law that is not
consistent with the Constitution itself. The court noted the inclusion of the word Constitution in the law was only a delayed afterthought. The
law talks about amendments and revisions but it included the initiative of the Constitution. Not knowing that the Constitution through a
petition for initiative all you can do about it is to amend the Constitution and not revise but the provision says to “amend or revise” the
Constitution via etc. So the court said, that cannot be done. Moreover, the law does not provide for the contents of the petition for an
initiative. No subtitle is provided for the initiative of the Constitution in the same law. There are also no details on the implementation of the
initiative on the Constitution. Take note that the court noted that the law provides for the mechanism by which local legislation as well as
national legislation can be amended via initiative. But in the matter by amending the Constitution via a petition for initiative, the law is
lacking. So the court concluded that, this law is incomplete and inadequate one thing in essential terms and commissions in so far as the
initiative on the amendments in the Constitution is concerned. So, since there is no provision and there is no valid law to effect this petition to
amend the Constitution, what the COMELEC did here is that it does not have any basis and it does not have any power under this law to do
what it started to do vis-à-vis the Atty. Delfin petition. Also, the court noted that the Delfin petition does not contain the signature of the
required number of voters. Without the required signatures, the petition cannot be deemed validly initiated. The COMELEC acquires
jurisdiction on the power of this petition only after its filing. When is it considered filed? If it already have the 12% and 3% votes and only
then can COMELEC consider that as initiatory pleading.

We already discussed how the amendments or revisions can be ratified – plebiscite.

Now let’s go into the cases that talk about the Constitutional Convention.

What is this Constitutional Convention? Is it a separate department of the government? So in the syllabus, there is a topic there about the
theories regarding the position of a Constitutional Convention in our system of government.
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Tolentino vs. COMELEC

Let’s talk about the theories discussed by the Supreme Court.

What happened in this case?

There was a Constitutional Convention that was gathered in order to propose amendments or revisions to the 1935 Constitution. Now, one of
the changes sought to be introduced by this convention was to amend Article 5 of the Constitution as to the voting age – to lower voting age
from 21 to 18. And so in order to effect that, it was approved by the convention and now they want to hold a plebiscite to have that
amendment ratified by the people. And now, several parties contested as to the action of the convention. They blame, among others, this
piecemeal ratification of an amendment to the Constitution can’t be done because there is a limitation on the Article 15 of the Constitution
that you can only do this ratification in a single election. In other words, all the amendments and revisions must already be presented to the
people in that one plebiscite for ratification. Piecemeal or one by one is not allowed. Before going to the many issues of the case, the court
discussed the nature of the Constitutional Convention.

What is the nature of this Constitutional Convention? According to the court, within the domain of its legitimate authority, this convention, as
with all departments of the government, is supreme. Constitutional conventions not called by the people directly via a revolution are
completely without restraint and are, as a rule, omnipotent in all wise.

How was this convention formed? Does it formed via revolution just like in the 1986 provisional Constitution? This convention was
persuaded pursuant to Article 15 of the 1935 Constitution allowed during that time to create a constitutional convention just like the 1987
Constitution. So what are the powers? Once convened, this convention will become endowed with extraordinary powers generally, as a rule,
beyond the control of any department of the existing government. The exception to the general rule is that this Constitutional Convention
cannot be over strained of respect. It has limitations. But the compass of the powers of this convention can only be co-extensive with the
purpose for which it was called or created which is to propose amendments to the Constitution. In other words, it is not immune from attack
on constitutional ground if it’s found out that what it creates or what it does beyond the power or authority that is granted under the
Constitution. It should not exceed in the authority given to it. In its internal operation and the performance of its tasks, it is not subject to any
degree of restraint or control but the convention or any of its officers cannot violate the constitution because it’s created via the Constitution.
It cannot go beyond the Constitution and it cannot violate the bill of rights, among other things. So again the powers of this convention are
not unlimited. Who can determine if the acts of this convention are inconsistent with the Constitution? It is the Supreme Court. His power to
do so must be lodged on some authority otherwise nothing can check this convention.

And so continuing with this case, can proposals or the amendments in the Constitution or the way by which these proposals or amendments
are done, can this be subject to Judicial Review? Can Supreme Court review this matter? Again, in the same case of Tolentino vs.
COMELEC, remember the issue, this convention wanted to amend this provision in the constitution to lower the voting age under Article 5 of
the 1935 Constitution but it did not follow the procedure under Article 15 of the 1935 Constitution because it was a single election for a
single amendment. So it was questioned before the Supreme Court. Now, the argument here against that challenge is that the Supreme Court
daw does not have the jurisdiction on that issue – it is a political issue and non-justiceable matter. Is it justiceable? When we say political
issue, the court cannot resolve that. It deals with the wisdom only the people in their sovereign capacity can resolve the issue. That is why if
it’s political, the court do not touch that. On the other hand, if we’re talking about a justiceable issue, we are talking about legal issues,
whether or not this Act is illegal or inconsistent with the Constitution. And in those matters, the courts have the power to decide.

On this matter, amending this provision in the Constitution which is not consistent daw; the manner by which the same is done is not
consistent daw with the 1935 Constitution, is that a justiceable matter? The court said that IT IS. Let’s talk about the manner or the nature by
which Congress in introducing amendment or revisions in the Constitution, how is it acting or in what capacity? The power to amend the
constitution or to propose amendments thereto is not included in the general draft of legislative powers of Congress. In other words, when the
Congress acting as a Constituent Assembly introduces amendments or revisions to the Constitution, they are not acting like they are passing a
law. It is part of the inherent powers of the people through our representatives or the Congressmen – the powers of the people as the
repository of sovereignty in the public and the State. So again, when Congress acts as the Constituent Assembly, they are not acting as
legislators but as the people themselves exercising their sovereign powers. Hence, when exercising the same, the senators and members of the
house act not as members of Congress but as component elements of the Constituent Assembly. When acting as such, the members derive the
authority from the Constitution; unlike the people in performing the same function, for their authority does not emanate from the
Constitution. The people themselves are the very source of all powers in the government including the Constitution itself.

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