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THE SOVEREIGN POWER OF THE PEOPLE TO PASS A LAW:
Can only be amended or repealed by the People Themselves

By Bayan Muna Rep. Neri Colmenares
August 25, 2014

Introduction

Section 10 of the proposed bill of the peoples initiative provides that:

SEC. 10. Amendment or repeal of this Act. This Act may
only be repealed, modified or amended by a law that has
been approved by the people under the system of initiative
and referendum enshrined in the 1987 Constitution

Certain concerns were raised on whether Section 10 could withstand a
constitutional challenge thereby endangering the peoples initiative. The
concern is once the Comelec grants the petition and schedules a
referendum, the constitutionality of the bill is ripe for adjudication by the
Supreme Court who in turn, may strike down Section 10 and declare that
the law abolishing the pork barrel system may be repealed by Congress in
its ordinary exercise of legislative powers.

Section 10 is constitutional as explained below, and even if, in the unlikely
event that it is declared unconstitutional, the law passed through peoples
initiative remains valid, since the procedural provision on how the law can
be repealed has no relation at all with the substantive provisions of the law
prohibiting pork barrel.

The traditional concept in the Philippine Constitution, and in probably all
Constitutions of representative governments throughout the world, is that
the power to legislate belongs to the legislature, whether a Congress or a
Parliament. The legal notion of a direct democracy type of legislation
through a peoples initiative has not achieved widespread practice in many
countries today. While there are initiative laws that allow for legislation at a
state, provincial or cantonal level, such as the United States or Switzerland,
there is probably no country other than the Philippines that allows for a
peoples initiative to pass a national legislation. Many lawyers, therefore,
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find it difficult to automatically apply the traditional legal principles and
jurisprudence they are familiar with on such a novel legal notion that
possibly sprung from the direct democracy that was practiced in the early
days of the Greek states but was abandoned a long time ago.

The power of the people to pass a national law is a new provision in the
Philippine Constitution. None of the previous Constitutions, including the
Malolos Constitution, provided for the power of initiative. There is no
existing jurisprudence applicable on the conduct of a peoples initiative to
pass a national legislation especially on whether Congress can repeal a
law passed through a peoples initiative. The existing jurisprudence such as
the Lambino and Santiago cases did not touch on the issue of
congressional repeal of a law passed by the peoples initiative. While no
one can certainly predict how this issue would be resolved by the Supreme
Court, the proponents of the initiative are quite confident that the Court will
rule in favor of the letter, purpose and intent of the constitutional provision,
and therefore rule in favor of the peoples initiative.

Issue: Can a national legislation passed through a peoples initiative
be vetoed by the President? No, it cannot be vetoed by the President.

The Constitution while allowing two kinds of legislation, a law passed by
Congress and a law passed through a peoples initiative, only allows veto in
cases of laws passed by Congress under Article VI, Section 27. Otherwise,
the intent of the Constitution of granting the people the power of initiative
will be defeated especially since there is no way for the people to override
the veto. A presidential veto cannot be exercised in the case of a
legislative power to amend or repeal a law directly passed by the people. It
is not countenanced under the Constitution. Besides, the Constitution
expressly vested in Congress the provision of the procedure for a peoples
initiative. In the absence of a provision on presidential veto, none can be
used to nullify the exercise of peoples initiative.

Issue: Can Congress repeal a national legislation passed through a
peoples initiative ? No, Congress cannot repeal a national legislation
passed through a peoples initiative as it will violate the letter and
spirit of the constitutional provision on initiative.

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Ordinary or Plain Meaning (Textual) Approach

Firstly, the Constitution took out from congressional power the right
reserved for the people to pass national legislation as provided under
Section 1, Article VI which defined and limited the powers of Congress:
Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.

The legislative power of Congress includes the power to pass, amend or
repeal laws and Section 1 practically carved out from this legislative power
of Congress the power of the people through initiative. To legislate means
to enact statutes; it includes by necessary implication the power to
amend or repeal them. To except is to exclude. Hence, excluded from
the power of congressional legislation, in all this powers aspects, are
the national statutes enacted through the peoples initiative. This
express exception directly tells Congress that the power reserved for the
people through initiative is outside the penumbra of its legislative powers.
The Constitution is consistent with its constitutional intent of granting the
people the power to directly enact laws deemed necessary by the people or
repeal laws which the people consider unjust or against the interest of the
people.

Purpose and Scheme Approach

In the broader constitutional scheme, the congressional power to legislate
is a delegated power. The sovereign people have the sole power to craft
the Constitution and the laws that will govern a political entity. The people,
however, delegated such power to Congress so that Congress may protect
the peoples interest through legislation. But the people did not delegate
that power totally, as the Constitution shows. Once the people believe that
Congress failed to live up to this mandate, the people have all the right to
override this delegated legislative power of Congress. The delegate cannot
be empowered to simply override the powers exercised by its principal.
This is the reason why members of Congress are called representatives,
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and it is absurd if the Representatives are allowed to subvert the will of
those it represents.
A perusal of the cases involving people power shows that the acts of the
sovereign have been recognized by the Supreme Court even if the same is
not expressly provided in the Constitution. With more reason, the Supreme
Court should recognize this sovereign power which is expressly declared in
the Constitution.

The basis of the constitutional framers for the novel and unique provision
on initiative was the experience of the people during martial law when the
Batasang Pambansa which was under the control of the dictator Pres.
Ferdinand Marcos, passed anti people laws to prop up the martial law
regime. This was and remains the grand mischief that the 1987
Constitution seeks to address. This constitutional imperative asserts that
when the people want to repeal a law passed by Congress or want to pass
a law which Congress refuses to pass, the people have the power to repeal
or pass a law without any intervention from Legislature and the Executive.

The above-quoted Section 10 is thus in response to very serious concerns
raised by the people themselves about congressional circumvention of the
peoples power to pass laws. During the campaign for signatures, there will
be people who will ask whether Congress can simply nullify a law passed
by the peoples initiative after all the months of difficult campaign and the
millions of signature gathered. The people certainly have the right to ask if
their signatures will have an important impact in the struggle for reforms or
will be just another act of futility. If Congress is allowed to repeal the law
passed by a peoples initiative, then the entire exercise may already be
deemed a failure by many of those who support it. After all, the very
reason why the people resorted to an initiative to abolish the pork barrel
system is because Congress refuses and cannot be expected to pass such
a law and will surely repeal such a law if passed.

The fact that Pres. Benigno Aquino in an innocuous provision in the
proposed 2015 Budget redefined savings practically transforming the
entire budget into DAP, only highlights the antagonism of both the
executive and the legislative to the bill that seeks to abolish pork barrel in
the likes of DAP. The entire peoples initiative could be rendered useless
by the mere insertion of provisions in the annual General Appropriations
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Law that repeal the law passed by the people. This is totally unacceptable
and there is no way that the people will not put in Section 10 in its proposed
law. There is no way for the people to accept congressional repeal of a law
passed by the people through hard work and extreme sacrifice. We might
as well take out the constitutional provision on peoples initiative if this is
the case.

Presumption against Absurdity

If Congress passes an unjust law and the people decide to repeal it, it is
absurd if Congress is granted the power to revive that law resoundingly
repealed by the people. If Congress is allowed to subvert a law passed
through initiative, then the constitutional intent is subverted by the very
institution which passed a law deemed unjust by the people. This absurdity
practically makes the constitutional provision on the initiative a useless
surplusage because an anti-people law which the people repealed is simply
reinstated by Congress through a subsequent law. The constitutional
provision on initiative is a tool not only to empower the people to override
congressional legislation but also to serve as a warning to Congress that
the people will override the delegated power given by the people to
Congress if it fails to carry the interest of the people in the exercise of its
legislative function. A law passed by the people is not irrepealable but it
can not be repealed by its representatives in Congress but by the the very
power that promulgated itthe people.

Conclusion

We seek to reiterate that a law passed through a peoples initiative is not an
irrepealable law as it can be repealed by the another law also passed
through a peoples initiative. What is prohibited is that Congress simply
repeals a law passed by those it represents using its traditional powers of
ordinary legislation. We have all been used to the traditional concept of a
legislative power solely lodged in Congress, failing to recognize the
significance of the unique power given by the Constitution to the people.
Some will focus on the assertion that it is an attack on the traditional
legislative power of Congress, if Congress is prohibited from amending or
repealing a law passed through peoples initiative. Others will focus on the
assertion that, on the contrary, it is an attack on the power of the people to
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pass a law if Congress is given the power to repeal it. The concern raised
is legitimate, but the answer is clearthe people cannot put into the bill a
provision that would surrender its rights and powers to Congress. It has to
assert and defend its power to directly pass a law and the power to repeal
it.

While tradition plays an important role in a legal system, it cannot be the
recourse in the face of a novel legal notion that directly empowers the
people to institute reforms. After all, as an esteemed criminal law professor
once said, There has got to be a better reason than tradition.