People's Initiative: Amendment, Revision and the Political Question

In considering the Sigaw ng Bayan Petition that is now before the Supreme Court, and the Proposal for Unicameral Parliamentary system, I have come to a number of preliminary formulations that may have some bearing on the Supreme Court case that was the subject of yesterday's Oral Arguments at Padre Faura:

CONSTITUTIONS are coterminous with the POLITY or political regime that establishes them as the "basic law of the land" (which may be Republics or Dictatorships or other forms of government.)

REVISIONS produce new Constitutions and establish new political regimes. AMENDMENTS do not.

SUPREME COURTS are coterminous with the Constitution that creates and establishes them to be the authority that interprets its meaning as the Basic Law and decides cases brought before it.

POLITICAL QUESTIONS are NON-JUSTICIABLE cases that are beyond the jurisdiction, competence or ability of even the Supreme Court to decide. For example, Supreme Courts cannot logically question the legitimacy of the Constitution that created them. The so-called Political Question Doctrine holds that it would be a meaningless, inconsistent, contradictory and unacceptable self-referential invalidation for a Supreme Court to even take up the validity or legitimacy or Constitutionality of the revolution, coup d'etat, or other political process that established that Constitution and the Court.

I believe that as a general rule cases and controversies arising from AMENDMENTS to the Constitution are JUSTICIABLE and not POLITICAL QUESTIONS. But the circumstances, processes and politics that establish NEW Constitutions, including REVISIONS, are beyond the jurisdiction of even the Supreme Court, whose very existence is extinguished with the OLD constitution. There are other cases that are clearly nonjusticiable, such as those that involve the Separation of Powers doctrine.

In order to develop a useful distinction between the technical terms AMENDMENT and REVISION in the 1987 Constitution, I think it helps to identify each of the different Philippine Constitutions in our history and associate it with the Republic or polity it established. By my count, we have had four of them since Spain left: The Malolos Constitution and the First Philippine Republic (June 12, 1898), which was conquered and "colonized" the by United States; the Commonwealth Constitution and Second Philippine Republic (1935); the Marcos Martial Law Constitution (1973) and the "Third Republic" which featured a puppet unicameral Parliament; the Cory Constitution (1987) and the present "Fourth Republic" of the Philippines, counting by the recognized Constitutions.

Clearly, Constitutions are COTERMINOUS with readily identifiable political regimes in history. Above, I have identified four such regimes and their unique Constitutions. This identifcation is the basis of the distinction I wish to propose between AMENDMENT and REVISION.

Let me DEFINE each of the four Constitutions mentioned above as a REVISION of the Constitution that came before it, or whatever served as the "basic law of the land" in the previous political regime that each one supplanted. If we agree to this definition then we may say that an AMENDMENT is any other change to the basic law of the land that does not establish a new political regime as they did.

How useful is the above distinction?

Basic to the present controversy is the following Article of the 1987 Constitution which clearly restricts the REVISION of the Constitution to elected representative bodies: only Congress acting as a Constituent Assembly or a Constitutional Convention (Section 1)--but not for the innovative People's Initiative mode (Section 2).

ARTICLE XVII 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.

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.

Under the above terminology, the People's Initiative proposal to adopt a Unicameral Parliament is an AMENDMENT.

It has been argued that the proposal is tantamount to a REVISION of the charter and does not constitute an AMENDMENT to it because it represents such a major change in the form of government. (This of course is based on a different, UNKNOWN definition of the two terms.)

Personally, I do not support a Unicameral Parliamentary system because it diminishes the freedom of the people to choose their elected representatives and leaders. Because of that, I also do not think the proposal will ever be ratified by the people. It is a reduction of the democratic space, a reduction of the people's power and a proportional increase for the politicians.

But I also do not believe that the degree of the proposed change necessarily means it is tantamount to a REVISION of the Constitution. Consider the United States Constitution. When it was first ratified by the American people it did not contain a Bill of Rights! No Constitutionally guaranteed rights to freedom of speech and religion, or of expression, or of the Press, etc.

The First AMENDMENT to the U.S. Constitution guarantees the freedoms of speech, freedom of religion, press, petition and assembly. (I think that’s pretty major!)

The Second AMENDMENT is the right to bear arms.

The Fourth AMENDMENT forbids illegal searches and seizures.

The Fifth AMENDMENT is the right against self incrimination and to due process.

In fact, the first TEN AMENDMENTS of the U.S. Constitution are together called the BILL of RIGHTS.

The 13th AMENDMENT abolished slavery! But it cannot be denied: all 27 AMENDMENTS to the US Constitution are "major" in their own way.

When they were ratified, it was not considered a REVISION, which is contemplated but has never been done to the US Constitution. A REVISION results in a new Constitution and has only been done by the States--over two hundred times among them.

The Supreme Court has defined the issues to be decided in adjudicating the Sigaw ng Bayan petition:

1. Whether petitioners Sigaw ng Bayan, through lawyer Raul Lambino, and ULAP, through Bohol Governor Erico Aumentado, are the proper parties to file the petition in behalf of the more than six-million voters they say signed the proposal to amend the Constitution;

2. Whether the petition for a people’s initiative filed before the Comelec complied with Section 2, Article 17 of the Constitution;

3. Whether the Supreme Court's decision in Santiago v. Comelec in 1997 bars the present petition;

4. Whether the court should re-examine the ruling in Santiago v. Comelec that there exists no enabling law allowing a people's initiative to amend the Constitution;

5. Whether, assuming that Republic Act 6735 or the Initiative and Referendum Act is sufficient, the petition for initiative filed with the Comelec complied with the law’s provisions;

6. Whether proposed changes constitute an amendment or revision of the Constitution;

7. Whether the exercise of a people’s initiative to propose amendments to the Constitution is a political question to be determined by the people, and;

8. Whether the Comelec committed grave abuse of discretion in dismissing the petitions for initiative filed before it.

MLQ3 (Cabinet Wars) thinks that the "booby trap" lies in the POLITICAL QUESTION item in #7.

It is widely recognized in all jurisdictions that there exist certain issues that a Supreme Court cannot actually decide or rule upon. Such “nonjusticiable cases” arise because of the separation of powers, and in my opinion, because Supreme Courts are COTERMINOUS with Constitutions. In other words, when one Constitution is REPLACED by a new Constitution, all the INSTITUTIONS that were created and have legitimacy under the old Constitution also disappear.

Thus in cases of CHACHA, such as the Martial Law Plebiscite and Ratification cases in the early 70s, the OLD Supreme Court could not rule on the validity of such processes without BECOMING the NEW Supreme Court and thus making the original issues MOOT and ACADEMIC. It cannot uphold its own existence and legitimacy without doing the same for the new dispensation.

Why is any of this important now?

I think Questions #6 and #7 come one after another for a logical reason.

IF the people’s initiative to go Unicameral Parliamentary is an AMENDMENT (and therefore Constitutional under Section 2 Art. 17) then the 1987 Constitution will remain in force with a First Amendment attached to it, assuming it is approved on plebiscite. But since the Supreme Court is coterminous with the Constitution, IF the PI is a mere amendment, the Court CANNOT avoid ruling on Constitutional issues and cases that arise around it on the basis that it is a political question.

IF, however, the PI is a REVISION, then by definition there will be created a new Constitution, the Supreme Court disappears, and all sorts of “political questions” can arise that the Court is forced to avoid.

Which is why Question #7 actually depends on the answer to Question #6!