The people’s initiative case: Revision vs amendment (Part 3)

The Constitution, in Section 2, Article XVII, says that "amendments" thereto may be directly proposed by the people through initiative, while Section 1 of the same Article allows any "amendment... or revision" to be proposed by a three-fourths vote of Congress or by a Constitutional Convention.

Does the Constitution thus make a distinction between amendments and revisions, and limit proposed changes through a people’s initiative only to amendments? A majority of 8 Justices in Lambino et al. vs. The Commission on Elections says that the initiative violated the constitutional provision "disallowing revision thorough initiatives." On the other hand, 7 dissenters insist that the same proposals, "albeit substantial," were "mere amendments" that could be undertaken through people’s initiative.

Apparently, while the dissenters do not dispute that the Constitution does make a distinction between a revision and an amendment, they do differ radically with the majority as to what that distinction is.

The dissenters stress that the Charter does not prohibit proposals of substantial amendments. It only prohibits revisions which denote wholesale changes in the entire document. This is not a pointless argument over mere semantics, as we shall see.

Further, the majority ruling on prohibited revisions is not what lawyers call obiter dictum. Black’s Law Dictionary defines the term as: "A judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive)."

Since it was not mere obiter, the majority ruling on the distinction between revision and amendment must be deemed the law of the land.

That the proposed Charter changes embodied in the initiative petition were "revisions," not mere amendments, was one of the Constitutional violations the majority noted. The other, explained in another column, was the failure to show to the ostensible signatories of the petition the "full text of the proposed amendments."

Thus, regardless of whether the sufficiency of R.A. 6735 should be reviewed or not – the majority held that revisiting the Santiago ruling was not necessary – the petition would still fall since Constitutional requirements on initiative were not complied with.

So, how did the majority define a constitutional "revision," and how does it differ from an "amendment"?

Citing American jurisprudence, Justice Antonio Carpio, in his ponencia said: "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." (Emphasis the decision’s)

Justice Carpio applied the "quantitative" and "qualitative" tests supplied by a California case. The quantitative test asks, generally, whether the proposed change is so extensive as to change the "substantial entirety" of the Constitution. The focus is only on the number of changes, not the degree of the change.

In the qualitative test, the main inquiry is whether the proposal effects such far-reaching changes in the nature of the basic plan of government as to amount to a revision.

On both counts, the initiative petition in question was deemed a revision. Quantitatively, the petition affected 105 provisions of the Constitution. Qualitatively, the petition would "alter substantially the plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature."

The initiative, the majority opinion noted, sought "a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution." Still, "there can be no fixed rule on whether a change is an amendment or a revision." "[E]ach specific change" has to be "examined case-by-case."

Writing for the minority, Justice Puno began by debunking the "quantitative" and "qualitative" tests. Using the same tests, he said, it can also be argued that only two out of 18 articles of the Constitution would be affected, but that the "bulk of the 1987 Constitution" would remain unchanged.

Neither does the "qualitative" test help, since the proposed changes, including the conversion into a unicameral-parliamentary form of government, does not change the fundamental nature of our State as "democratic and republican."

Using a familiar model of a "well-regarded political scientist" on the three sets of provisions which a "good Constitution should contain," the proposals would affect only the "constitution of government" which describes the framework of government. Neither the "Constitution of liberty," setting forth fundamental rights of the people and limiting the powers of government, nor the "constitution of sovereignty" prescribing the modes of amending the constitution, would in any way be affected.

The Constitution does not provide that "substantial" amendments are beyond the power of the people to propose. Citing leading legal dictionaries, "one of the most authoritative constitutionalists of his time" (Dean Vicente Sinco), and even the proceedings of the constitutional convention itself, Justice Puno concludes that the Constitution carried the "traditional distinction" between amendment and revision.

This traditional distinction defines "amendment" to include change, including complex change, while "revision" means complete change, including the adoption of an entirely new document. (Itals. ours)

"[T]he argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty on its head," said Justice Puno.

But, it must be pointed out, there is sovereignty, and there is sovereignty. Both sides considered what sovereignty of the people entails, and came out with different conclusions. This extremely interesting aspect of the decision, we consider next time.

(To be continued)