Sie sind auf Seite 1von 24

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: organic law, statute,


decree, ordinance

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).

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 and functions of


government

Functions

1. 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.

iii) provision for


amendment

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).

• 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 self-
executing. 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

• 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

• 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).

• 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. Effectivity of the 1987


Constitution

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. By
Congress

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 Con-Con Proposal by People


Congress

For both For both amendments For amendments


amendments and and revisions. only
revisions.

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

• 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).