EN BANC

Agenda for

Item No.

 

G.R. No. 174153 (Raul Lambino, et al. v. Commission on Elections, et al.) and G.R. No. 174299 (Mar-Len Abigail Binay, et al. v. Commission on Elections, et al.).

 

 

                                                          Promulgated:

 

                                                                   October 25, 2006

 

x ---------------------------------------------------------------------------------------- x

 

 

SEPARATE OPINION

 

 

AZCUNA, J.:

 

 

“Why, friends, you go to do you know not what.”

 

-- Shakespeare, Julius Caesar, Act III, Sc. 2.

 

 

Article XVII of the Constitution states:

 

 

AMENDMENTS OR REVISIONS

 

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.

 

Sec. 2.  Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered votes therein.  No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

 

The Congress shall provide for the implementation of the exercise of this right.

 

Sec. 3.  The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

 

Sec. 4.  Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

 

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

 

         

This Article states the procedure for changing the Constitution.

 

          Constitutions have three parts – the Constitution of Liberty, which states the fundamental rights of the people; the Constitution of Government, which establishes the structure of government, its branches and their operation; and the Constitution of Sovereignty, which provides how the Constitution may be changed.

 

          Article XVII is the Constitution of Sovereignty.

 

          As a result, the powers therein provided are called constituent powers.  So when Congress acts under this provision, it acts not as a legislature exercising legislative powers.  It acts as a constituent body exercising constituent powers. 

 

          The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under Article XVII.

 

          Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the people’s right directly to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent act.

 

          As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or amendments to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure, not a mere legislative one.

 

          The consequence of this special character of the enactment, insofar as it relates to proposing amendments to the Constitution, is that the requirements for statutory enactments, such as sufficiency of standards and the like, do not and should not strictly apply.  As long as there is a sufficient and clear intent to provide for the implementation of the exercise of the right, it should be sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution.

 

          Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing amendments to the Constitution, can and should be upheld, despite shortcomings perhaps in legislative headings and standards.

 

          For this reason, I concur in the view that  Santiago v. Comelec[1] should be re-examined and, after doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure to sustain a people’s initiative to amend the Constitution should be reconsidered in favor of allowing the exercise of this sovereign right.

 

          And applying the doctrine stated in Senarillos v. Hermosisima,[2] penned by Justice J.B.L. Reyes, in relation to Article 8 of the Civil Code, that a decision of this Court interpreting a law forms part of the law interpreted as of the time of its enactment, Republic Act No. 6735 should be deemed sufficient and adequate from the start.

 

          This next point to address, there being a sufficient law, is whether the petition for initiative herein involved complies with the requirements of that law as well as those stated in Article XVII of the Constitution.

 

          True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to emphasize precisely that there are instances recognized and provided for in the Constitution where our people directly exercise their sovereign powers, new features set forth in this People Power Charter, namely, the powers of recall, initiative and referendum.

 

          Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law.  This equally important point is emphasized in the very Preamble to the Constitution, which states:

 

          “. . .  the blessings of  . . .  democracy under the rule of law . . . .”

 

          Such is the case with respect to the power to initiate changes in the Constitution.  The power is subject to limitations under the Constitution itself, thus:  The power could not be exercised for the first five years after the Constitution took effect and thereafter can only be exercised once every five years; the power only extends to proposing amendments but not revisions; and the power needs an act of Congress providing for its implementation, which act is directed and mandated.

 

          The question, therefore, arises whether the proposed changes in the Constitution set forth in the petition for initiative herein involved are mere amendments or rather are revisions.

 

          Revisions are changes that affect the entire Constitution and not mere parts of it.

 

          The reason why revisions are not allowed through direct proposals by the people through initiative is a practical one, namely, there is no one to draft such extensive changes, since 6.3 million people cannot conceivably come up with a single extensive document through a direct proposal from each of them.  Someone would have to draft it and that is not authorized as it would not be a direct proposal from the people.  Such indirect proposals can only take the form of proposals from Congress as a Constituent Assembly under Article XVII, or a Constitutional Convention created under the same provision.  Furthermore, there is a need for such deliberative bodies for revisions because their proceedings and debates are duly and officially recorded, so that future cases of interpretations can be properly aided by resort to the record of their proceedings.

 

          Even a cursory reading of the proposed changes contained in the petition for initiative herein involved will show on its face that the proposed changes constitute a revision of the Constitution.  The proposal is to change the system of government from that which is bicameral-presidential to one that is unicameral-parliamentary.

 

          While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of the proposed changes themselves state, every provision of the Constitution will have to be examined to see if they conform to the nature of a unicameral-parliamentary form of government and changed accordingly if they do not so conform to it.  For example, Article VIII on Judicial Department cannot stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus the Court’s power to declare its act a grave abuse of discretion and thus void would be an anomaly.

 

          Now, who is to do such examination and who is to do such changes and how should the changes be worded?  The proposed initiative does not say who nor how.

 

          Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers from being incomplete and insufficient on its very face.

 

          It, therefore, in that form, cannot pass muster the very limits contained in providing for the power under the Constitution.

 

          Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than one subject shall be proposed as an amendment or amendments to the Constitution.  The petition herein would propose at the very least two subjects – a unicameral legislature and a parliamentary form of government.  Again, for this clear and patent violation of the very act that provides for the exercise of the power, the proposed initiative cannot lie.

 

          This does not mean, however, that all is lost for petitioners.

 

          For the proposed changes can be separated and are, in my view, separable in nature – a unicameral legislature is one; a parliamentary form of government is another.  The first is a mere amendment and contains only one subject matter.  The second is clearly a revision that affects every article and every provision in the Constitution to an extent not even the proponents could at present fully articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of which they do not as yet know exactly what.

 

          The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable.  The text of the changes needed to carry it out are perfunctory and ministerial in nature.  Once it is limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which are practically automatic and non-discretionary.

 

          As an example, I attach to this opinion an Appendix “A” showing how the Constitution would read if we were to change Congress from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives.  It only affects Article VI on the Legislative Department, some provisions on Article VII on the Executive Department, as well as Article XI on the Accountability of Public Officers, and Article XVIII on Transitory Provisions.  These are mere amendments, substantial ones indeed but still only amendments, and they address only one subject matter.

 

          Such proposal, moreover, complies with the intention and rationale behind the present initiative, which is to provide for simplicity and economy in government and reduce the stalemates that often prevent needed legislation.

 

          For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an appropriate initiative to propose amendments to the Constitution to change Congress into a unicameral body.  This is not say that I favor such a change.  Rather, such a proposal would come within the purview of an initiative allowed under Article XVII of the Constitution and its implementing Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in their sovereign capacity.  After all is said and done, this is what democracy under the rule of law is about. 

 

 

 

 

                                                                    Adolfo S. Azcuna

                                                                          Associate Justice