of Representatives," 1 "and that any other details relating to the
IMBONG VS FERRER Case Digest
MANUEL B. IMBONG VS. JAIME FERRER AS CHAIRMAN
OF THE COMELEC
G.R. NO. L-32432
SEPTEMBER 11, 1970
FACTS:
These two separate but related petitions for declaratory relief
were filed pursuant to Sec. 19 of R.A. No. 6132 by petitioners
Manuel B. Imbong and Raul M. Gonzales to impugn the
constitutionality of R.A. No. 6132, claiming during the oral
argument that it prejudices their rights as such candidates.
On March 16, 1967, the Congress acting as a Constituent
Assembly passed Resolution No. 2 which called for a
Constitutional Convention to propose constitutional
amendments to be composed of two delegates from each
representative district who shall have the same qualifications as
those of Congressmen.
After the adoption of said Res. No. 2 in 1967 but before the
November elections of that year Congress, acting as a
Legislative Body, enacted Republic Act No. 4914 implementing
the aforesaid Resolution No. 2 and practically restating in toto
the provisions of said Resolution No. 2.On June 17, 1969,
Congress, also acting as a Constituent Assembly, passed
Resolution No. 4 amending the aforesaid Resolution No. 2 of
March 16, 1967 by providing that the convention "shall be
composed of 320 delegates apportioned among the existing
representative districts according to the number of their
respective inhabitants: Provided, that a representative district
shall be entitled to at least two delegates, who shall have the
same qualifications as those required of members of the House
specific apportionment of delegates, election of delegates to,
and the holding of, the Constitutional Convention shall be
embodied in an implementing legislation: Provided, that it shall
not be inconsistent with the provisions of this Resolution."
On August 24, 1970, Congress, acting as a Legislative Body,
enacted Republic Act No. 6132, implementing Resolutions Nos.
2 and 4, and expressly repealing R.A. No. 4914.
ISSUE:
1. Whether or not RA No. 6132 is constitutional?
2. Whether or not Section 2, 5, and 8 is valid and does not
prejudice the rights of individual embodied in the constitution?
HELD:
Issue 1: In sustaining the constitutionality of R.A. No. 4914 and
R.A. No. 6132, the court explained the following:
1. Congress, when acting as a Constituent Assembly pursuant
to Art. XV of the Constitution, has full and plenary authority to
propose Constitutional amendments or to call a convention for
the purpose, by a three-fourths vote of each House in joint
session assembled but voting separately. Resolutions Nos. 2
and 4 calling for a constitutional convention were passed by the
required three-fourths vote.
2. The grant to Congress as a Constituent Assembly of such
plenary authority to call a constitutional convention includes,
by virtue of the doctrine of necessary implication, all other
powers essential to the effective exercise of the principal power
granted, such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates as well as
appropriation of funds to meet the expenses for the election of
delegates and for the operation of the Constitutional
Convention itself, as well as all other implementing details
indispensable to a fruitful convention. Resolutions Nos. 2 and 4
already embody the above-mentioned details, except the
appropriation of funds.
3. While the authority to call a constitutional convention is
vested by the present Constitution solely and exclusively in
Congress acting as a Constituent Assembly, the power to enact
the implementing details, which are now contained in
Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not
exclusively pertain to Congress acting as a Constituent
Assembly. Such implementing details are matters within the
competence of Congress in the exercise of its comprehensive
legislative power, which power encompasses all matters not
expressly or by necessary implication withdrawn or removed
by the Constitution from the ambit of legislative action. And as
lone as such statutory details do not clash with any specific
provision of the constitution, they are valid.
4. Consequently, when Congress, acting as a Constituent
Assembly, omits to provide for such implementing details after
calling a constitutional convention, Congress, acting as a
legislative body, can enact the necessary implementing
legislation to fill in the gaps, which authority is expressly
recognized in Sec. 8 of Res No. 2 as amended by Res. No. 4.
Issue 2 – Validity of Section 2, 5 and 8
Section 2: Apportionment of delegates
Petitioner Raul M. Gonzales asserts that Sec. 2 on the
apportionment of delegates is not in accordance with
proportional representation and therefore violates the
Constitution and the intent of the law itself, without
pinpointing any specific provision of the Constitution with
which it collides.
The apportionment provided for in Sec. 2 of R.A. No. 6132
cannot possibly conflict with its own intent expressed therein;
for it merely obeyed and implemented the intent of Congress
acting as a Constituent Assembly expressed in Sec. 1 of Res. No.
4, which provides that the 320 delegates should be apportioned
among the existing representative districts according to the
number of their respective inhabitants, but fixing a minimum of
at least two delegates for a representative district. The
presumption is that the factual predicate, the latest available
official population census, for such apportionment was
presented to Congress, which, accordingly employed a formula
for the necessary computation to effect the desired proportional
representation.
Section 5: Deprivation of Liberty
Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue
deprivation of liberty without due process of law and denies
the equal protection of the laws. Said Sec. 5 disqualifies any
elected delegate from running "for any public office in any
election" or from assuming "any appointive office or position in
any branch of the government until after the final adjournment
of the Constitutional Convention."
As observed by the Solicitor General in his answer, the
overriding objective of the challenged disqualification,
temporary in nature, is to compel the elected delegates to serve
in full their term as such and to devote all their time to the
convention, pursuant to their representation and commitment
to the people; otherwise, his seat in the convention will be
vacant and his constituents will be deprived of a voice in the
convention. The inhibition is likewise "designed to prevent
popular political figures from controlling elections or positions.
Also it is a brake on the appointing power, to curtail the latter's
desire to 'raid' the convention of "talents" or attempt to control
the convention." (p. 10, Answer in L-32443.)
Thus the challenged disqualification prescribed in Sec. 5 of R.A.
No. 6132 is a valid limitation on the right to public office
pursuant to state police power as it is reasonable and not
arbitrary.
The discrimination under Sec. 5 against delegates to the
Constitutional Convention is likewise constitutional; for it is
based on a substantial distinction which makes for real
differences, is germane to the purposes of the law, and applies
to all members of the same class. A delegate shapes the
fundamental law of the land which delineates the essential
nature of the government, its basic organization and powers,
defines the liberties of the people, and controls all other laws.
Unlike ordinary statutes, constitutional amendments cannot be
changed in one or two years. No other public officer possesses
such a power, not even the members of Congress unless they
themselves, propose constitutional amendments when acting as
a Constituent Assembly pursuant to Art. XV of the
Constitution. The classification, therefore, is neither whimsical
nor repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object
of the law, which is to insure that the proposed amendments
are meaningful to the masses of our people and not designed
for the enhancement of selfishness, greed, corruption, or
injustice.
Section 8: Prohibition from organization and political party
support
Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both
petitioners as violative of the constitutional guarantees of due
process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association.
This Court ruled last year that the guarantees of due process,
equal protection of the laws, peaceful assembly, free
expression, and the right of association are neither absolute nor
illimitable rights; they are always subject to the pervasive and
dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests.
Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:
1. any candidate for delegate to the convention
(a) from representing, or
(b) allowing himself to be represented as being a candidate of
any political party or any other organization; and
2. any political party, political group, political committee, civic,
religious, professional or other organizations or organized
group of whatever nature from
(a) intervening in the nomination of any such candidate or in
the filing of his certificate, or

(b) from giving aid or support directly or indirectly, material or
otherwise, favorable to or against his campaign for election.
While it may be true that a party's support of a candidate is not
wrong per se it is equally true that Congress in the exercise of
its broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One
such act is the party or organization support proscribed in Sec.
8(a) which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that "equality of chances may be
better attained by banning all organization support."
We likewise concur with the Solicitor General that the equal
protection of the laws is not unduly subverted in par. I of Sec.
8(a); because it does not create any hostile discrimination
against any party or group nor does it confer undue favor or
privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political
parties or social, civic, religious, or professional associations.
The ban is germane to the objectives of the law, which are to
avert the debasement of the electoral process, and to attain real
equality of chances among individual candidates and thereby
make real the guarantee of equal protection of the laws.
The freedom of association also implies the liberty not to
associate or join with others or join any existing organization. A
person may run independently on his own merits without need
of catering to a political party or any other association for
support. And he, as much as any candidate whose candidacy
does not evoke sympathy from any political party or organized
group, must be afforded equal chances. As emphasized by
Senators Tolentino and Salonga, this ban is to assure equal
chances to a candidate with talent and imbued with patriotism
as well as nobility of purpose, so that the country can utilize
their services if elected.
Javellana vs Executive Secretary
Plebiscite; Comelec; Justiciable Question
JAVELLANA VS. EXECUTIVE SECRETARY
G.R. NO. 36142. March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF JUSTICE
AND THE SECRETARY OF FINANCE, respondents.
Facts:
 The Plebiscite Case
1. On March 16, 1967, Congress of the Philippines
passed Resolution No. 2, which was amended by
Resolution No. 4 of said body, adopted on June 17, 1969,
calling a Convention to propose amendments to the
Constitution of the Philippines.
2. Said Resolution No. 2, as amended, was
implemented by Republic Act No. 6132, approved on
August 24, 1970, pursuant to the provisions of which the
election of delegates to the said Convention was held on
November 10, 1970, and the 1971 Constitutional
Convention began to perform its functions on June 1,
1971.
3. While the Convention was in session on
September 21, 1972, the President issued Proclamation
No. 1081 placing the entire Philippines under Martial
Law.
4. On November 29, 1972, the Convention approved
its Proposed Constitution of the Republic of the
Philippines. The next day, November 30, 1972, the
President of the Philippines 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, and appropriating funds therefor,” as well
as setting the plebiscite for said ratification or rejection
of the Proposed Constitution on January 15, 1973.
5. On December 7, 1972, Charito Planas filed a case
against the Commission on Elections, the Treasurer of
the Philippines and the Auditor General, to enjoin said
“respondents or their agents from implementing
Presidential Decree No. 73, in any manner, until further
orders of the Court,” upon the grounds, inter alia, that
said Presidential Decree “has no force and effect as law
because the calling … of such plebiscite, the setting of
guidelines for the conduct of the same, the prescription
of the ballots to be used and the question to be answered
by the voters, and the appropriation of public funds for
the purpose, are, by the Constitution, lodged exclusively
in Congress …,” and “there is no proper submission to
the people of said Proposed Constitution set for January
15, 1973, there being no freedom of speech, press and
assembly, and there being no sufficient time to inform
the people of the contents thereof.”
6. On December 17, 1972, the President had issued
an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution.
7. On December 23, the President announced the
postponement of the plebiscite for the ratification or
rejection of the Proposed Constitution. No formal action
to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing “that the
plebiscite scheduled to be held on January 15, 1978, be
postponed until further notice.” Said General Order No.
20, moreover, “suspended in the meantime” the “order
of December 17, 1972, temporarily suspending the
effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.”
8. Because of these events relative to the
postponement of the aforementioned plebiscite, the
Court deemed it fit to refrain, for the time being, from
deciding the aforementioned cases, for neither the date
nor the conditions under which said plebiscite would be
held were known or announced officially. Then, again,
Congress was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January 22,
1973, and since the main objection to Presidential Decree
No. 73 was that the President does not have the
legislative authority to call a plebiscite and appropriate
funds therefor, which Congress unquestionably could
do, particularly in view of the formal postponement of
the plebiscite by the President reportedly after
consultation with, among others, the leaders of Congress
and the Commission on Elections the Court deemed it
more imperative to defer its final action on these cases.
9. “In the afternoon of January 12, 1973, the
petitioners in Case G.R. No. L-35948 filed an “urgent
motion,” praying that said case be decided “as soon as
possible, preferably not later than January 15, 1973.”
10. The next day, January 13, 1973, which was a
Saturday, the Court issued a resolution requiring the
respondents in said three (3) cases to comment on said
“urgent motion” and “manifestation,” “not later than
Tuesday noon, January 16, 1973.” Prior thereto, or on
January 15, 1973, shortly before noon, the petitioners in
said Case G.R. No. L-35948 riled a “supplemental
motion for issuance of restraining order and inclusion of
additional respondents,” praying: “… that a restraining
order be issued enjoining and restraining respondent
Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roño;
the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo
de Vega; their deputies, subordinates and substitutes,
and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing
and reporting to the President or other officials
concerned, the so-called Citizens’ Assemblies
referendum results allegedly obtained when they were
supposed to have met during the period comprised
between January 10 and January 15, 1973, on the two
questions quoted in paragraph 1 of this Supplemental
Urgent Motion.”
11. On the same date January 15, 1973 the Court
passed a resolution requiring the respondents in said
case G.R. No. L-35948 to file “file an answer to the said
motion not later than 4 P.M., Tuesday, January 16, 1973,”
and setting the motion for hearing “on January 17, 1973,
at 9:30 a.m.” While the case was being heard, on the date
last mentioned, at noontime, the Secretary of Justice
called on the writer of this opinion and said that, upon
instructions of the President, he (the Secretary of Justice)
was delivering to him (the writer) a copy of
Proclamation No. 1102, which had just been signed by
the President. Thereupon, the writer returned to the
Session Hall and announced to the Court, the parties in
G.R. No. L-35948 inasmuch as the hearing in connection
therewith was still going on and the public there present
that the President had, according to information
conveyed by the Secretary of Justice, signed said
Proclamation No. 1102, earlier that morning.
 The Ratification Case
1. On January 20, 1973, just two days before the
Supreme Court decided the sequel of plebiscite cases,
Javellana filed this suit against the respondents to
restrain them from implementing any of the provisions
of the proposed Constitution not found in the present
1935 Constitution. This is a petition filed by him as a
Filipino citizen and a qualified and registered voter and
as a class suit, for himself and in behalf of all citizens
and voters similarly situated. Javellana also alleged that
the President had announced the immediate
implementation of the new constitution, thru his
Cabinet, respondents including.
2. Respondents are acting without or in excess of
jurisdiction in implementing the said proposed
constitution upon ground that the President as
 Commander-in-Chief of the AFP is without authority to
create the Citizens Assemblies; without power to
approve proposed constitution; without power to
proclaim the ratification by the Filipino people of the
proposed constitution; and the election held to ratify the
proposed constitution was not a free election, hence null
and void.
3. Following that, petitioners prayed for the
nullification of Proclamation No. 1102 and any order,
decree, and proclamation which have the same import
and objective.
Issues:
1. Whether or not the issue of the validity of Proclamation
No. 1102 is a justiciable question.
2. Whether or not the constitution proposed by the 1971
Constitutional Convention has been ratified validly
conforming to the applicable constitutional and statutory
provisions.
3. Whether or not the proposed Constitution has been
acquiesced in (with or without valid ratification) by the
people.
4. Whether or not the petitioners are entitled for relief.
5. Whether or not the proposed Constitution by the
1971 Constitutional Convention in force.
Rulings:
1. It is a justiciable and a non-political question.
1. To determine whether or not the new constitution
is in force depends upon whether or not the said new
constitution has been ratified in accordance with the
requirements of the 1935 Constitution. It is well settled
that the matter of ratification of an amendment to the
constitution should be settled applying the provisions of
the constitution in force at the time of the alleged
ratification of the old constitution.
2. The issue whether the new constitution proposed
has been ratified in accordance with the provisions of
Article XV of the 1935 Constitution is justiciable as
jurisprudence here and in the US (from whom we
patterned our 1935 Constitution) shall show.
2. The Constitution was not validly ratified as held by six
(6) members of the court.
1. The Constitution does not allow Congress or
anybody else to vest in those lacking the qualifications
and having the disqualifications mentioned in the
Constitution the right of suffrage.
2. The votes of persons less than 21 years of age
render the proceedings in the Citizen’s assemblies void.
Proceedings held in such Citizen’s Assemblies were
fundamentally irregular, in that persons lacking the
qualifications prescribed in Article V Section 1 of the
1935 Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the
invalid votes of those less than 21 years of age can be
separated or segregated from those of the qualified
 voters, the proceedings in the Citizen’s Assemblies must
be considered null and void.
3. Viva voce voting for the ratification of the
constitution is void. Article XV of the 1935 Constitution
envisages with the term “votes cast” choices made on
ballots – not orally or by raising hands – by the persons
taking part in plebiscites. This is but natural and logical,
for, since the early years of the American regime, we
had adopted the Australian Ballot System, with its major
characteristics, namely, uniform official ballots prepared
and furnished by the Government and secrecy in the
voting, with the advantage of keeping records that
permit judicial inquiry, when necessary, into the
accuracy of the election returns.
4. The plebiscite on the constitution not having been
conducted under the supervision of COMELEC is void.
The point is that, such of the Barrio Assemblies as were
held took place without the intervention of the
COMELEC and without complying with the provisions
of the Election Code of 1971 or even of those of
Presidential Decree No. 73. The procedure therein
mostly followed is such that there is no reasonable
means of checking the accuracy of the returns filed by
the officers who conducted said plebiscites. This is
another patent violation of Article X of the 1935
Constitution which form part of the fundamental
scheme set forth in the 1935 Constitution, as amended,
to insure the “free, orderly, and honest” expression of
the people’s will. For this, the alleged plebiscite in the
Citizen’s Assemblies is null and void, insofar as the
same are claimed to have ratified the revised
Constitution
3. No majority vote has been reached by the Court.
1. Four (4) of its members, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that “the people
have already accepted the 1973 Constitution.”
2. 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. Justice
Fernando states that “(I)f it is conceded that the doctrine
stated in some American decisions to the effect that
independently of the validity of the ratification, a new
Constitution once accepted acquiesced in by the people
must be accorded recognition by the Court, I am not at
this stage prepared to state that such doctrine calls for
application in view of the shortness of time that has
elapsed and the difficulty of ascertaining what is the
mind of the people in the absence of the freedom of
debate that is a concomitant feature of martial law.”
3. Three (3) members of the Court express their lack
of knowledge and/or competence to rule on the
question. Justices Makalintal and Castro are joined by
Justice Teehankee in their statement that “Under a
regime of martial law, with the free expression of
opinions through the usual media vehicle restricted,
(they) have no means of knowing, to the point of judicial
certainty, whether the people have accepted the
Constitution.”
4. The Court is not prepared to concede that the acts the
officers and offices of the Executive Department, in line
with Proclamation No. 1102, connote recognition of or
acquiescence to the proposed Constitution.
2. A department of the Government cannot
“recognize” its own acts. Recognition normally connotes
the acknowledgment by a party of the acts of another.
Individual acts of recognition by members of Congress
do not constitute congressional recognition, unless the
members have performed said acts in session duly
assembled. This is a well-established principle of
Administrative Law and of the Law of Public Officers.
The compliance by the people with the orders of martial
law government does not constitute acquiescence to the
proposed Constitution. Neither does the Court prepared
to declare that the people’s inaction as regards
Proclamation No. 1102, and their compliance with a
number of Presidential orders, decrees and/or
instructions, some or many of which have admittedly
had salutary effects, issued subsequently thereto,
amounts to a ratification, adoption or approval of said
Proclamation No. 1102. The intimidation is there, and
inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or
acquiescence.
3. As regards the applicability to these cases of the
“enrolled bill” rule, it is well to remember that the same
refers to a document certified to the President for his
action under the Constitution by the Senate President
and the Speaker of the House of Reps, and attested to by
the respective Secretaries of both Houses, concerning
legislative measures approved by said Houses. Whereas,
Proclamation No. 1102 is an act of the President
declaring the results of a plebiscite on the proposed
Constitution, an act which Article X of the 1935
Constitution denies the executive department of the
Government.
4. In all other respects and with regard to the other
respondent in said case, petitions therein should be
given due course, there being more than prima facie
showing that the proposed Constitution has not been
ratified in accordance with Article XV of the 1935
Constitution, either strictly, substantially, or has been
acquiesced in by the people or majority thereof; that said
proposed Constitution is not in force and effect; and that
the 1935 Constitution is still the Fundamental Law of the
Land, without prejudice to the submission of said
proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X
and XV of the 1935 Constitution and the provisions of
the Revised Election Code in force at the time of such
plebiscite.
2. Being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force
and effect.
1. Four (4) members of the Court, namely, Justices Barredo,
Makasiar, Antonio and Esguerra hold that it is in force
by virtue of the people’s acceptance thereof; 4 members
of the Court, namely, Justices Makalintal, Castro,
Fernando and Teehankee 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 2 members of the Court, voted that the Constitution
proposed by the 1971 Constitutional Convention is not
 in force; with the result, there are not enough votes to  Whether or not the initiative petition is sufficient
declare that the new Constitution is not in force. compliance with the constitutional requirement on
direct proposal by the people
LAMBINO vs. COMELEC

G.R. No. 174153, Oct. 25, 2006

(CARPIO, J.) RULING:

Initiative petition does not comply with Sec. 2, Art. XVII on

direct proposal by people
 Requirements for Initiative Petition
 Constitutional Amendment vs. Constitutional Revision Sec. 2, Art. XVII...is the governing provision that allows a
people’s initiative to propose amendments to the Constitution.
 Tests to determine whether amendment or revision While this provision does not expressly state that the petition
must set forth the full text of the proposed amendments, the
deliberations of the framers of our Constitution clearly show
FACTS: that: (a) the framers intended to adopt relevant American
jurisprudence on people’s initiative; and (b) in particular, the
The Lambino Group commenced gathering signatures for people must first see the full text of the proposed
an initiative petition to change the 1987 Constitution and then amendments before they sign, and that the people must sign on
filed a petition with COMELEC to hold a plebiscite for a petition containing such full text.
ratification under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The
proposed changes under the petition will shift the present The essence of amendments “directly proposed by the people
Bicameral-Presidential system to a Unicameral-Parliamentary through initiative upon a petition” is that the entire proposal on
form of government. COMELEC did not give it due course for its face is a petition by the people. This means two essential
lack of an enabling law governing initiative petitions to elements must be present.
amend the Constitution, pursuant to Santiago v. Comelec
ruling. 2 elements of initiative

ISSUES: 1. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their
 Whether or not the proposed changes constitute an behalf.
amendment or revision
 2. Second, as an initiative upon a petition, the proposal
must be embodied in a petition.
These essential elements are present only if the full text of
the proposed amendments is first shown to the people who
express their assent by signing such complete proposal in a
petition. The full text of the proposed amendments may be
either written on the face of the petition, or attached to it. If so
attached, the petition must stated the fact of such attachment.
This is an assurance that everyone of the several millions of
signatories to the petition had seen the full textof the proposed
amendments before – not after – signing.
Moreover, “an initiative signer must be informed at the time of
signing of the nature and effect of that which is proposed” and
failure to do so is “deceptive and misleading” which renders
the initiative void.
In the case of the Lambino Group’s petition, there’s not a single
word, phrase, or sentence of text of the proposedchanges in the
signature sheet. Neither does the signature sheet state that the
text of the proposed changes is attached to it. The
signature sheet merely asks a question whether the people
approve a shift from the Bicameral-Presidential to the
Unicameral- Parliamentary system of government. The
signature sheet does not show to the people the draft of the
proposed changes before they are asked to sign the
signature sheet. This omission is fatal.
An initiative that gathers signatures from the people without
first showing to the people the full text of the proposed
amendments is most likely a deception, and can operate as a
gigantic fraud on the people. That’s why the
Constitutionrequires that an initiative must be “directly
proposed by the people x x x in a petition” - meaning that the
people must sign on a petition that contains the full text of
the proposed amendments. On so vital an issue as amending
the nation’s fundamental law, the writing of the text of
the proposed amendments cannot be hidden from the people
under a general or special power of attorney to unnamed,
faceless, and unelected individuals.
The initiative violates Section 2, Article XVII of the
Constitution disallowing revision through initiatives
Article XVII of the Constitution speaks of three modes of
amending the Constitution. The first mode is through Congress
upon three-fourths vote of all its Members. The second mode is
through a constitutional convention. The third mode is through
a people’s initiative.
Section 1 of Article XVII, referring to the first and second
modes, applies to “any amendment to, or revision of, this
Constitution.” In contrast, Section 2 of Article XVII, referring to
the third mode, applies only to “amendments to this
Constitution.” This distinction was intentional as shown by the
deliberations of the Constitutional Commission. A
people’sinitiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In
contrast, Congress or a constitutional convention can propose
both amendments and revisions to the Constitution.
Does the Lambino Group’s initiative constitute a revision of the
Constitution?
Yes. By any legal test and under any jurisdiction, a shift from a
Bicameral-Presidential to a Unicameral-Parliamentary system,
involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a
revision, not a mere amendment.
Amendment vs. Revision
Courts have long recognized the distinction between an
amendment and a revision of a constitution. Revision broadly
implies a change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the system
of checks-and-balances. There is also revision if the change
alters the substantial entirety of the constitution, as when the
change affects substantial provisions of the constitution. On the
other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle
involved. Revision generally affects several provisions of the
constitution, while amendment generally affects only the
specific provision being amended.
Where the proposed change applies only to a specific provision
of the Constitution without affecting any other section or
article, the change may generally be considered an amendment
and not a revision. For example, a change reducing the voting
age from 18 years to 15 years is an amendment and not a
revision. Similarly, a change reducing Filipino ownership of
mass media companies from 100% to 60% is an amendment and
not a revision. Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an
amendment and not a revision.
The changes in these examples do not entail any modification
of sections or articles of the Constitution other than the specific
provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances
among or within the three branches.
However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one
sentence of the Constitution may be a revision and not an
amendment. For example, the substitution of the word
“republican” with “monarchic” or “theocratic” in Section 1,
Article II of the Constitution radically overhauls the entire
structure of government and the fundamental ideological basis
of the Constitution. Thus, each specific change will have to be
examined case-by-case, depending on how it affects other
provisions, as well as how it affects the structure ofgovernment,
the carefully crafted system of checks-and-balances, and the
underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or
several provisions of a constitution, a deliberative body with
recorded proceedings is best suited to undertake a revision. A
revision requires harmonizing not only several provisions, but
also the altered principles with those that remain unaltered.
Thus, constitutions normally authorize deliberative bodies like
constituent assemblies or constitutional conventions to
undertake revisions. On the other hand, constitutions allow
people’s initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake only
amendments and not revisions.
Tests to determine whether amendment or revision
In California where the initiative clause allows amendments
but not revisions to the constitution just like in our
Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test
asks whether the proposed change is so extensive in its
provisions as to change directly the substantial entirety of the
constitution by the deletion or alteration of numerous existing
provisions. The court examines only the number of provisions
affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the
proposed change in the constitution. The main inquiry is
whether the change will accomplish such far reaching changes
in the nature of our basic governmental plan as to amount to a
revision. Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, a change in the
nature of [the] basic governmental plan includes change in its
fundamental framework or the fundamental powers of its
Branches. A change in the nature of the basic governmental
plan also includes changes that jeopardize the traditional form
of government and the system of check and balances.
Under both the quantitative and qualitative tests, the Lambino
Group’s initiative is a revision and not merely an amendment.
Quantitatively, the Lambino Group’s proposed changes
overhaul two articles - Article VI on the Legislature and Article
VII on the Executive - affecting a total of 105 provisions in the
entire Constitution. Qualitatively, the proposed changes alter
substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral
legislature.
A change in the structure of government is a revision
A change in the structure of government is a revision of the
Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two.
This alters the separation of powers in the Constitution. A shift
from the present Bicameral-Presidential system to a
Unicameral-Parliamentary system is a revision of the
Constitution. Merging the legislative and executive branches is
a radical change in the structure of government. The abolition
alone of the Office of the President as the locus of Executive
Power alters the separation of powers and thus constitutes a
revision of the Constitution. Likewise, the abolition alone of
one chamber of Congress alters the system of checks-and-
balances within the legislature and constitutes a revision of the
Constitution.
The Lambino Group theorizes that the difference between
amendment and revision is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative
body drafts and proposes changes to the Constitution,
substantive changes are called revisions because members of
the deliberative body work full-time on the changes. The same
substantive changes, when proposed through an initiative, are
called amendments because the changes are made by ordinary
people who do not make an occupation, profession, or vocation
out of such endeavor. The SC, however, ruled that the express
intent of the framers and the plain language of the Constitution
contradict the Lambino Group’s theory. Where the intent of the
framers and the language of the Constitution are clear and
plainly stated, courts do not deviate from such categorical
intent and language.
Constitutional interpretation in Canada is dominated by the
metaphor of the “living tree”. Living tree constitutional
interpretation is usually defined in terms of its incompatibility
with what is understood in Canada to be the central
commitment of originalist interpretation: that the constitution
is, in some sense, “frozen at the moment of adoption. But the
tenets of originalism that are used as a definitional contrast are
not widely held by originalist constitutional scholars today, and
are in fact expressly rejected in the new originalist theories that
have been developed principally (but not exclusively) in the
United States over the past 20 years. There has not been a
meaningful engagement in Canada with contemporary schools
of originalist interpretation. The originalism rejected by the
Supreme Court of Canada in 1985 (and periodically reaffirmed
thereafter), is not the new originalism, and a rejection of this
new family of interpretive theories does not necessarily follow
from the fact of the Supreme Court of Canada’s rejection of
original intent originalism. Unfortunately, the Canadian courts
have continued to affirm living tree constitutional doctrine and
denounce originalism without providing much of an account of
what they are accepting or rejecting. This paper is a prefatory
study to an engagement with new originalist scholarship. I
attempt a statement of the current commitments in Canadian
living constitutional doctrine (pausing to engage with
theoretical arguments that have been made in its defence) and,
in passing, note the Supreme Court’s attitudes towards
originalism. My purpose is to determine what the central
commitments of living tree constitutional doctrine are, as a
preliminary step towards a later study to determine the extent
to which Canadian doctrine is truly incompatible with
orginalist interpretation. I explore what I observe to be the four
central commitments to living tree constitutionalism in Canada:
(1) the doctrine of progressive interpretation; (2) the use of a
purposive methodology in progressive interpretation; (3) the
absence of any necessary role for the original intent or meaning
of framers in interpreting the constitution; and (4) the presence
of other constraints on judicial interpretation.