Constitutional Law 1 - File No. 4

CONSTITUTIONAL LAW I FILE No. 4

II. CONSTITUTIONS AND CONSTITUTIONAL LAW 1.

CONCEPTS, PURPOSE OF a.

Definition, purpose of

Constitution – the document which serves as the fundamental law of the state; that written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. Constitutional Law -designates the law embodied in the Constitution and the legal principles growing out of the interpretation and application of its provisions by the courts in specific cases. b.

Distinguished from: decree, ordinance

organic

law,

statute,

Organic law – a fundamental law. Organic statute. Statute – is a formal written enactment of a legislative authority that governs a country, state, city or country. Decree – is an order made by a head of the State or government and having the force of law. Ordinance – a law made by a colony, or a municipality or other local authority. Local Ordinance – is a law usually found in a municipal code or an act passed by the local legislative body in the exercise of its law making authority. c.

Classified:

i) written and unwritten

written – conventional or enacted unwritten – cumulative or evolved ii) rigid and flexible iii) democratic and monarchical The Philippine Constitution is written and rigid (Art. XVII).

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d. Qualities of a good written Constitution: brevity, clarity, comprehensive e.

Essential parts:

1. bills of rights 2. organization and functions of government 3. provision for amendment i)

bills of rights

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Significance of the Bill of Rights Government is powerful. When unlimited, it becomes tyrannical. The Bill of Rights is a guarantee that there are certain areas of a person’s life, liberty, and property which governmental power may not touch. Powers of Government 

All the powers of government are limited by the Bill of Rights.

 The totality of governmental power is contained in three great powers: police power, power of eminent domain, and power of taxation.

 These powers are considered inherent powers because they belong to the very essence of government and without them no government can exist. Distinction between the guarantees of the Bill of Rights (Art. III) and the guarantees on Social Justice (Art. XIII) Bill of Rights (Art. III)

Social Justice (Art. XIII)

Focuses on civil and political rights. Focuses on social and economic rights. The guarantees in the Bills of Rights are generally self- The social and economic rights implementing, i.e., they cab be guaranteed generally require appealed to even in the absence of implementing legislation. implementing legislation.

ii)

organization government

and

functions

of

Functions constituent – compulsory because constitutive of the society; 2. ministrant – undertaken to advance the general interest of the society (Bacani v. NACOCO, 100 Phil, 468); merely optional. 1.

iii) amendment

provision

for

f. Preamble: We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

i)

identifies the authority who makes it and the expression of its will ii) enunciates the great principles and ultimate objectives iii) identifies on whom it is binding Deliberations on the Committee Report The change from “general welfare” to “common good” was intended to project the idea of a social order that enables every citizen to attain his or her fullest development economically, politically, culturally and spiritually. The phrase “Almighty God” was chosen as being more personal than “Divine Providence” and therefore more consonant with Filipino religiosity. The phrase “ a just and humane society,” The phrase added the notion that a constitution not merely sets up a government but is also an instrument for building the larger society of which government is merely a part. Function of the Preamble Preamble is not a source of rights or of obligations, it is useful as an aid in ascertaining the meaning of ambiguous provisions in the body of the Constitutions. Origin of the Preamble Its origin, or authorship, is the will of the “sovereign Filipino people. The identification of the Filipino people as the author of the constitution calls attention to an important principle: that the document is not just the work of representatives of the people but of the people themselves who put their mark of approval by ratifying it in a plebiscite. Scope and Purpose “to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

“the rule of law” – this expresses the concept that government officials have only the authority given them by law and defined by law … The statement is: “Ours is a rule of law and not of men.” 2. RATIFICATION / POLITICAL VS. JUSTICIABLE QUESTION Political Question - has two (2) aspects: 1.

Those questions which, under the Constitution are to be decided by the people in their sovereign capacity or

2.

In regard to which full discretionary authority has been delegated to the legislature or executive branches of government (Tanada v. Cuenco, 100 Phil 1101).

Justiciable Question – a definite and concrete dispute touching on the legal interest which may be resolved by a court of law through the application of a law (Cataran v. DENR, GR No. 134958, January 3, 2001). CASES •

1. On the first issue involving the political-question doctrine, six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. 2. On the second question of validity of the ratification, six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters." Under the 1935 Constitution, the three elements of valid ratification of amendments are: (1) it must be held in an election conducted under the election law; (2) supervised by the independent Commission on Election; and (3) where only franchised voters take part. 3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has

been reached by the Court. Four (4) of its members hold that "the people have already accepted the 1973 Constitution." Two (2) members of the Court hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. "Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 4. On the fourth question of relief, six (6) members of the Court voted to DISMISS the petition. 5. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. While majority of the Supreme Court held that whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was a justiceable question, a majority also held that whether or not the 1973 Constitution was already in effect, with or without constitutional ratification, was a political question. The Court accepted the glaring fact simply that “there is no further judicial obstacle to the new Constitution being considered in force and in effect (Javellana vs. Executive Secretary, 50 SCRA 33).

3. CONSTITUTIONAL CONSTRUCTION A Constitution is a system of fundamental law for the governance and administration of a nation. It is supreme, imperious, absolute, and unalterable except by the authority from which it emanates. Under the doctrine of constitutional supremacy, If a law or contract violates any norm of the constitution, that law or contract whether

promulgated by the legislative, or by the executive branch or entered into by private persons for private purpose is null and void and without any force or effect. A doubtful provision shall be examined in the light of the history of the times and the conditions and circumstances under which the Constitution was framed (Civil Liberties Union v. Executive Secretary, 194 SCRA 317). CASES •

Issue: Whether the imposition of an income tax upon the salary of a member of the judiciary amount to a dimunition thereof, and thus violate Art. VIII, Sec. 9 of the 1935 Constitution. The Court held that nets to permanency in office, nothing can contribute more to the independence of judges than a fixed provision for their support. The independence of the judges as of far greater importance than any revenue that could come from taxing their salaries. The undertaking has its own particular value to the citizens in securing the independence of the judiciary in crises; and in the establishment of the compensation upon a permanent foundation whereby judicial preferment may be prudently accepted by those who are qualified by talent, knowledge, integrity and capacity, and are not possessed of such a private fortune as to make an assured salary an object of personal concern (Perfecto vs. Meer, 85 Phil 552).

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The Legislature cannot lawfully declare the collection of income tax on the salary of a public official, specially a judicial officer, not a decrease of his salary, after the Supreme Court has found and decided otherwise. The interpretation and application of the Constitution and of statutes is within the exclusive province and jurisdiction of the judicial department, and that in enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task of later interpreting said statute, specially when the interpretation sought and provided in said statute runs counter to a previous interpretation already given in a case by the highest court of the land as in the case of Perfecto vs. Meer. This act of interpreting the Constitution or any part thereof by the Legislature is an invasion of the well-defined and established province and jurisdiction of the Judiciary. The Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the

basic law, the Constitution, which is not within the sphere of the Legislative department. Allowing the legislature to interpret the law would bring confusion and instability in judicial processes and court decisions (Endencia vs. David, 93 Phil 696). •

The 1987 Constitution authorizes Congress to pass a law fixing another rate of compensation of Justices and Judges . The ruling that "the imposition of income tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs. Meer, 13 as affirmed in Endencia vs. David 14 is declared discarded. The framers of the fundamental law, as the alter ego of the people, have expressed in clear and unmistakable terms the meaning and import of Section 10, Article VIII, of the 1987 Constitution that they have adopted. Their clear intent was to delete the proposed express grant of exemption from payment of income tax to members of the judiciary, so as to “give substance to equality among the three branches of the government (Nitafan vs. Commissioner of Internal Revenue, 152 SCRA 284).

4. SELF-EXECUTING PROVISIONS General rule: All provisions of the constitution are self-executing; Exceptions: Some constitutions are merely declarations of policies. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens.  Thus, a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself.  Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of constitutional are self executing.  Non- self-executing provisions would give the legislature discretion to determine when, or whether, they shall be effective, subordinated to the will of the law-making body.

 In case of doubt, the provisions should be considered self-executing; mandatory rather than directory; and prospective rather than retroactive (Nachura, Reviewer in Political Law, 2005 ed., p. 3). CASES •

Issue: Whether the provisions of the Constitution, particularly Article XII Section 10, are self-executing. The Court held that a provision which lays down a general principle, such as those found in Article II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be selfexecuting. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional

conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. In fine, Section 10, second paragraph, Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation (Manila Prince Hotel vs. GSIS, GR 122156, Feb. 03, 1997). 5. PHILIPPINES CONSTITUTIONAL HISTORY a. Pre-1935 Constitution: Schurman Commission; Taft Commission; Spooner Amendment; Philippine Bill of 1902, Jones Law of 1916; Tydings -McDuffie Act of 1934 b.

1935 Constitution



By authority of the Tydings – McDuffie Law, A Constitutional Convention was called.



On November 15, 1935, the Commonwealth Government established by the Constitution became operative.



Many felt a certain unease in that an independent republic should continue to operate under a Constitution that had been fashioned under colonial auspices.



Gradually, the agitation for a thorough overhaul of the 1935 Constitution gathered momentum. c.

Declaration of Martial Law

Martial law was imposed on the entire Philippines on September 21, 1972.

CASES •

The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."

1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No. 1081. Stated more concretely, is the existence of conditions claimed to justify the exercise of the power to declare martial law subject to judicial inquiry? Is the question political or justiciable in character? Five (5) justices hold that the question is political and therefore its determination is beyond the jurisdiction of this Court. They hold that there is no dispute as to the existence of a state of rebellion in the country, and on that premise emphasizes the factor of necessity for the exercise by the President of his power under the Constitution to declare martial law, holding that the decision as to whether or not there is such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his responsibility being directly to the people. Four (4) other justices who is on the side of justiciability hold that the constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The Court added that implicit in a state of martial law is the suspension of the said privilege with respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to suppress invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The preservation of society and national survival take precedence. On

this particular point, that is, that the proclamation of martial law automatically suspends the privilege of the writ as to the persons referred to, the Court is practically unanimous (Aquino v. Enrile, 59 SCRA 183).

d.

1973 Constitution

 On March 16, 1967, the Philippines Congress, pursuant to the authority given to it by the 1935 Constitution, passed Resolution No. 2 calling a Convention to propose amendments to the Constitution. The 1971 Constitutional Convention began on June 1, 1971.  Before the Constitutional Convention could finish its work, martial law was imposed on the entire Philippines on September 21, 1972.  On November 30, 1972, the President issued Presidential Decree No. 73, “submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention.’  Meanwhile, the Citizens Assemblies, organized by Presidential Decree No. 86, were being asked to answer certain questions, among which was” “Do you approve of the New Constitution?” Then, suddenly, on January 17, 1973 , while the Supreme Court was hearing arguments on petitions to enjoin the holding of a plebiscite, the President, by Proclamation No. 1102, announced that the proposed Constitution had been ratified by an overwhelming vote of the members of the Citizens Assemblies.

CASES •

1. On the first issue involving the political-question doctrine, six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. 2. On the second question of validity of the ratification, six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or

plebiscite held in accordance with law and participated in only by qualified and duly registered voters." Under the 1935 Constitution, the three elements of valid ratification of amendments are: (1) it must be held in an election conducted under the election law; (2) supervised by the independent Commission on Election; and (3) where only franchised voters take part. 3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members hold that "the people have already accepted the 1973 Constitution." Two (2) members of the Court hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. "Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 4. On the fourth question of relief, six (6) members of the Court voted to DISMISS the petition. 5. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. While majority of the Supreme Court held that whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was a justiceable question, a majority also held that whether or not the 1973 Constitution was already in effect, with or without constitutional ratification, was a political question. The Court accepted the glaring fact simply that “there is no further judicial obstacle to the new Constitution being considered in force and in effect (Javellana vs. Executive Secretary, 50 SCRA 33).

e.

1986 Snap Presidential Election CASES

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Pres. Marcos’ term was supposed to end on June 30, 1987. However, he submitted a letter of conditional resignation claiming that he would vacate his position effective only when election’s held & after winner’s proclaimed & qualified as Pres by taking his oath of office 10 days after his proclamation. He claims that he is calling for the new elections to seek a new mandate to assess his policies & programs as demanded by the opposition. He further stressed that his term will be shortened but in the name of public accountability he believes that the final settlement of these issues can only be done thru a presidential election. B.P. Blg. 883: enacted by the Batasang Pambansa calling for special national elections on Feb. 7, 1986 for Pres & VP. Different sectors were against the special elections. Among the contentions are: 1.

Such is unconstitutional because there was no vacancy in the presidency thus there’s no need to call for a special election. This is pursuant to Art. VII, Sec. 9 of the Constitution which requires an actual vacancy before an special election can be called and in such cases, the Speaker of the House will be the Acting Pres until a new one has been elected.

2.

Unconstitutional because it allows the Pres to continue holding office after calling of the special election. Cutting his term short is valid but he should actually vacate the office. The Supreme Court voted 7 to dismiss petitions and deny prayer for issuance of injunction restraining respondents from holding election and 5 declared BP 883 unconstitutional & voted to grant the injunction. Since there are less than the required 10 votes to declare BP 883 unconstitutional, petitions are considered dismissed & writs prayed for denied. Justices filed separate opinions since only a resolution was issued.

The Supreme Court voted 7 to dismiss petitions & deny prayer for issuance of injunction restraining respondents from holding election and 5 declared BP 883 unconstitutional & voted to grant

the injunction. Since there are less than the required 10 votes to declare BP 883 unconstitutional, petitions are considered dismissed & writs prayed for denied. Justices filed separate opinions since only a resolution was issued (PBA vs. COMELEC, 140 SCRA 455). f.

People Power Revolt

Proclamation No. 1, Feb. 25, 1986 

On the morning of February 25, 1986, Corazon C.Aquino, in defiance of the provisions of the 1973 Constitution and without the sanction of the Batasan Pambansa which had chosen to give the presidency to Mr. Marcos, was proclaimed first woman President of the Philippines.



She turned her back on the 1973 Constitution whose officials had denied her the presidency. She chose instead to govern under a Provisional Constitution designed to enable her to meet the people’s challenge. The document of revolutionary defiance was Proclamation No. 3. Proclamation No. 3 became popularly known as the “Freedom Constitution.” CASES

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The legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment, they have accepted the government of Pres. Corazon C. Aquino, not merely a de facto government but in fact and in law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government (Lawyers League vs. Aquino, GR 73748, May 22, 1986).

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In a petition for declaratory relief impleading, the petitioner quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, claiming that the said provision "is not clear" as to whom it refers. He then asks the Court who, among the present incumbent President Corazon Aquino and Vice President Salvador Laurel and the elected President Ferdinand E. Marcos and Vice President Arturo M. Tolentino being referred to under the said

Section. The Court held that mutatis mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice President of the Republic of the Philippines (In re: Bermudez, 145 SCRA 160). g. 1987 Constitution 

Article VI of Proclamation No. 3 said:

Adopting a New Constitution Section 1. Within sixty (60) days from the date of this Proclamation, a Commission shall be appointed by the President to draft a New Constitution. The Commission shall be composed of not less than thirty (30) nor more than fifty (50) natural-born citizens of the Philippines.  The 1986 Constitutional Commission convened on June 1, 1986 and finished its work on October 15, 1986. a plebiscite, held on February 2, 1987, overwhelmingly ratified the new Constitution. CASES •

The government under Cory Aquino and the Freedom Constitution is a de jure government. It was established by authority of the legitimate sovereign, the people. It was a revolutionary government in defiance of the 1973 Constitution (In re: Letter of Reynato Puno, June 29, 1992, 210 SCRA 589, 598). h. Constitution

Effectivity of the 1987

CASES •

The 1987 Constitution took effect on February 2, 1987, the day the ratification, that is, the day on which the votes of the people were cast to signify their acceptance of the draft ( De Leon vs Esguerra, 153 SCRA 602).

6.

AMENDMENT – Art. XVII

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 (2) 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. a)

Amendment vs. Revision

Amendment – an alteration of one or a few specific provisions of the Constitution. Its main purpose is to improve specific provisional of the Constitutions. The changes brought about by amendment will not affect the other provisions of the Constitutions.

Revision - Reexamination of the entire Constitution or an important cluster of provisions in the Constitution. b)

Procedure 1.

Proposal a. Congress

By

Acting as Constituent Assembly by a vote of ¼ of all its members. b. By a Constitutional Convention Theories on Position of Constitutional Convention called either by: 1. 2/3 vote of all the members of the Congress, or 2. A majority vote of all the members of Congress with the question of whether or not to call a constitutional convention to be resolved by the people in a plebiscite (Sec. 3, Art XVII) •

If Congress acting as a Constituent Assembly omits to provide for the implementing details, Congress acting as a Legislative Assembly this time can enact the necessary legislation to fill in the gaps (Imbong v. Ferrrer, GR No. L-32432, Sept. 11, 1970). c. By the People thru Initiative

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. Note: No amendment in this manner shall be authorized within 5 years following the ratification of this Constitution (Feb. 2, 1987) nor more often than once every 5 years. RA 6735 (System of Initiative and Referendum) - does not authorize a system of intiative to amend the Constitution. The law was deemed sufficient to cover only the systems of initiative on national and local legislation because:

 Sec. 2 on the Statement of Policies of the Act does not suggest an initiative on the amendments to the Constitution.  Sec. 5 of the Act does not provide for the contents of the provision for initiative on the Constitutions. That the Act does not provide a sub-title for initiative on the Constitution simply means that the main thrust of the Act is initiative and referendum on National and Local Laws (Defensor-Santiago v. Comelec, GR 127325, March 19, 1997). Proposal by Congress For both amendments and revisions.

Con-Con For both amendments and revisions.

Proposal by People For amendments only

CASES •

Issue: Is R.A. No. 6735 sufficient to enable amendment of the Constitution by people’s initiative? The Court held that R.A. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. Under the said law, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" denotes that R.A. No. 6735 excludes initiative on amendments to the Constitution. Also, while the law provides subtitles for National Initiative and Referendum and for Local Initiative and Referendum, no subtitle is provided for initiative on the Constitution. This means that the main thrust of the law is initiative and referendum on national and local laws. If R.A. No. 6735 were intended to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose

amendments to the Constitution is far more important than the initiative on national and local laws. While R.A. No. 6735 specially detailed the process in implementing initiative and referendum on national and local laws, it intentionally did not do so on the system of initiative on amendments to the Constitution (Defensor-Santiago vs. COMELEC, GR. 127325, March 19, 1997). c)

Ratification

Proposed amendments (s) shall be submitted to the people and shall be deemed 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 of the proposal by Congress or Concon, or b. after certification by the COMELEC of sufficiency of petition of the people. Doctrine of Proper Submission Plebiscite may be held on the same day as regular election (Gonzales v. Comelec, 21 SCRA 774) provided the people are sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. Submission of piece-meal amendments is unconstitutional. All the amendments must be submitted for ratification at one plebiscite only. The people have to be given a proper frame or reference in arriving at their decision. They have no idea yet of what the rest of the amended constitution would be (Tolentino v. Comelec, G.R. No. L-341150, October 16, 1971). CASES •

Is there any limitation or condition in Section 1 of Article XV of the Constitution which is violated by the act of the ConsConvention of calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. It being indisputable that the amendment now proposed to be submitted to a plebiscite is only the first amendment the Convention will propose We hold that the plebiscite being called for the purpose of submitting the same for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the

Convention and the respondent Comelec in that direction are null and void (Tolentino vs. Comelec, 73 SCRA 333). d)

Judicial Review of Amendments CASES

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1. On the first issue involving the political-question doctrine, six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. 2. On the second question of validity of the ratification, six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters." Under the 1935 Constitution, the three elements of valid ratification of amendments are: (1) it must be held in an election conducted under the election law; (2) supervised by the independent Commission on Election; and (3) where only franchised voters take part. 3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members hold that "the people have already accepted the 1973 Constitution." Two (2) members of the Court hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. "Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 4. On the fourth question of relief, six (6) members of the Court voted to DISMISS the petition.

5. On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. While majority of the Supreme Court held that whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was a justiceable question, a majority also held that whether or not the 1973 Constitution was already in effect, with or without constitutional ratification, was a political question. The Court accepted the glaring fact simply that “there is no further judicial obstacle to the new Constitution being considered in force and in effect (Javellana vs. Executive Secretary, 50 SCRA 33). •

It is now an ancient rule that the valid source of a statute — Presidential Decrees are of such nature — may be contested by one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. The interest of the petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. The amending process both as to proposal and ratification, raises a judicial question. This is especially true in cases where the power of the Presidency to initiate the amending process by proposals of amendments, a function normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments to the Constitution resides in the interim National Assembly during the period of transition (Sec. 15, Transitory Provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been followed. Rather than calling the interim National Assembly to constitute itself into a constituent assembly, the incumbent President undertook the proposal of

amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2) Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. . . .." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself. The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authority to determine whether that power has been discharged within its limits. Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely he a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. Whether, therefore, that constitutional provision has been followed or not is indisputably a proper subject of inquiry, not by the people themselves — of course — who exercise no power of judicial review, but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a priori not a posteriori, i.e., before the submission to and ratification by the people.

As to the question on whether or not the Pres. Marcos may propose amendments to the Constitution in the absence of a grant of such constituent power to the President, the Court held that he could. If the President has been legitimately discharging the legislative functions of the Interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is an adjunct, although peculiar, to its gross legislative power (Sanidad vs. COMELEC, 73 SCRA 333).