Con-Com 2018 Member
(10th of a series)
Q: What was it necessary to draft distinct article on initiative, plebiscite and referendum?
A: It was to remedy a shortcoming of the 1987 Constitution that engendered a series of confusing Supreme Court rulings and to strengthen the power of the people to enact law, repeal law, amend law, even to revise and to amend the Constitution.
Q: How is the draft article an improvement over the provisions of the 1987 Constitution?
A: The previous Constitution left it to Congress to legislate the details and that is exactly what caused one of the knotty problems: Whether in fact Congress had provided the legislative mechanism for the exercise of people’s initiative in respect to revisions of the Constitution. The draft sets out the operative provisions themselves and makes them constitutional provisions.
Q: What is the difference between a constitutional REVISION and a constitutional AMENDMENT?
A: Amendments are aimed at specific provisions of the Constitution, but when the change has the effect of changing the structure of government or the balance of power between branches or, as in this case, the establishment of a federal system, then one deals with a revision of the Constitution. Under the 1987 Constitution, only amendments were allowed through people’s initiative, according to the charter’s text.
Q: Is this not an attempt to return to the ideal but impractical direct democracy of the Athenian or the New England type?
A: In a sense, it is, because people themselves pass, amend or repeal laws and even the fundamental law of the land, but the whole process must still be in accordance with the terms of the Constitution and mediated by the mechanisms of State.
Q: What acts are permitted by these modes of direct participation, and what may be the objects of direct exercises of the people’s sovereignty?
A: People may propose, enact, amend or repeal laws, ordinances or resolutions passed by any legislative assembly. Therefore even regional legislation can be enacted, amended or repealed through this process. Doubtlessly, the same will apply to local legislation—such as the ordinances of the Sanggunians.
Q: So, fundamentally, what is initiative?
A: It is the process of enacting, amending or repealing law, in effect by-passing the Legislature. This is the reason that in a subsequent article on the Legislature, the draft has two paragraphs on legislative power: Legislative power exercised by the legislature and legislative power exercised directly by the people.
Q: Are the provisions of the Draft more lenient or more severe than those of the 1987 Constitution?
A: They are more lenient because the Con-Com wanted the people to be able to exercise this power more readily. Therefore the proposed legislation, amendment or repeal needs only 10 percent of votes cast in the last preceding election (not of the registered voters) and 3 percent of the federated regions. So even if one province should be bamboozled by its governor into voting against the proposal, as long as it gains at least 3 percent of the votes of the region, then it is a go for the proposal.
Q: Why is a judicial process intercalated into the flow?
A: This is a borrowing from the French system that makes use of the Constitutional Council to “preview” legislation prior to enactment. Referral by the Federal Commission on Elections to the Constitutional Court invokes what is known as the Court’s ‘advisory opinion.’
Q; What is an advisory opinion?
A: Courts in the Philippines have not had advisory opinion. In other words, they have always ruled on actual disputes and controversies only. They never answered moot, academic or hypothetical questions. In the case of proposed legislation by initiative, the Court may be asked to render its “advise”—actually a ruling—even if no one has been injured or threatened by the proposed legislation yet. This is to forestall possible objections on constitutional grounds to the legislation.
Q: Does a ruling by the Federal Constitutional Commission that the proposed legislation suffers from no infirmity foreclose any challenge to the proposed legislation?
A: No, it does not, because while a piece of legislation may be “facially valid”—which is what the Constitutional Court rules on—in implementation or execution, it may run contrary to the constitutional rights and guarantees of persons. In such a case they should be allowed to raise a constitutional challenge.