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ARTICLE XVII: AMENDMENTS OR REVISIONS

Amendment, Revision, Revolution: Amendment: envisages an alteration of one or a few specific and separable provisions : the guiding original intention is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. Revision : the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions which have over-all implications for the entire document, to determine how and to what extent they should be altered.

1935 Constitution: amendments only 1973 Constitution: amendments and revisions 1987 Constitution: amendments and revisions : introduced the concept of initiative - the distinction becomes important in this case because initiative is confined to amendments only However, whether the alteration comes in the form of amendment or revision, provided it is achieved by the proper agency of change and in the manner provided in the Constitution, the alteration does not result in a completely new fundamental charter . The change made by authority of the charter would be a continuation of the old charter....not an old house partially built of old parts, but a renovated house built on the sovereign structure of the old. This sovereign structure is the constitution of sovereignty -- the amendatory and revision process prescribed in the constitution and originally sealed with the approval of the sovereign people. Through these provisions, new changes are linked to the original expression of the will of the founders of the Constitution. The amendatory provisions are called the constitution of sovereignty because they embody the sovereignty of the people. This shows that popular sovereignty is not extreme popular sovereignty. The Constitution still serves as a check on the popular will. It sets down a legal process which must be followed if the people decide to exercise their sovereign power. This limitation enables those subject to governmental authority to appeal to the sober senses of the people and keep it from being vulnerable to fickle and excitable will. The Constitution is the protector of the people from injury by the people. It can be seen, therefore, that so long as the constitutional provisions are followed, it matters little whether the resultant alteration is an amendment or revision. In the end, once submitted to the people and ratified accordingly, the validity of such cannot be denied. However, popular sovereignty is larger than constitutionally defined sovereignty. When the revision of a constitution is achieved dehors the provisions of the old constitution, the living link between the old and the new constitution is severed. A written constitution is susceptible to change in two ways: a) Revolution: action not pursuant to any provision of the constitution itself. : the result is a totally new expression of the sovereign.
b)

Revision: action pursuant to some procedural provision in the constitution : this is where constitution of sovereignty comes in

The distinction is concerned with the qua re and not with the quantum of change. In other words, the distinguishing factor is not in the degree or extent of change but in the manner by which it was carried out. Under the 1987 Constitution, distinction is not only between amendment and revision but also between amendment and revision on one hand and revolution on the other. If the change made dehors the constitution is made by the sovereign people, the resultant alteration is not unconstitutional but extra-constitutional. This is important because of the manner in which the 1973 Constitution and the Freedom Constitution of 1986 came into being. Proposal of Amendments: 1935 and 1987 methods Enacting constitutional change is different is different from enacting ordinary legislation in constitutional change, there are two distinct steps: 1. Proposal of amendments or revision 2. Ratification by the people Proposal of amendments: a) Congress acting as a Constituent Assembly- vote of of all its members b) Constitutional Convention called by Congress either i. Directly - 2/3 vote of all its members ii. Submit to the electorate the question- majority vote of all its members ( **the plebiscite can be held independently of an election) c) Directly by the electorate through an initiative - not self-executory, Congress shall provide for the implementation
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a. Congress as a Constituent Assembly (amendments and revision) 1935 Constitution (bicameral): first step: resolution calling for a joint session second step: actual joint session where a decision is made to either call a constitutional convention or propose amendments directly themselves. Either way, the two Houses vote separately, needing votes for each house. ** in this scenario, neither house can formulate amendments by themselves, they need to combine with the other house first. 1973 Constitution (unicameral i.e. Batasang Pambansa) 1987 Constitution (bicameral): there is no provision specifying about how the congress should hold their sessions (joint or separate) or how to vote (jointly or separately). The options submitted: a) separate session, voting separately ** in this scenario, each house may separately formulate amendments by a vote of of all its members, and then pass it on to the other house for a similar process b) joint session, voting separately ** this is like the one in the 1935 constitution So which one should be followed? Since the Constitution is silent about the method and the amendatory process is committed to Congress, under the political question doctrine, Congress should be free to choose which method they want. It is submitted, however, that what is essential is that both House vote

separately. This is because the power to propose amendments is given to a bicameral body and not to a unicameral one. b. constitutional convention (amendments and revision) if proposal is to be made by a constitutional convention, the convention, once organized, is free to decide the vote required to carry a proposal. **Congress decides if they want to call a con-con. They can also let the people decide through a plebiscite. But the people cannot call for a con-con by themselves, the move or invitation has to come from Congress. c. initiative and referendum ( amendment only) This is introduced for the first time in the 1987 Constitution. This allows the people to directly propose amendments. Section 2 of Article XVII of the 1987 Constitution provides the limitations to this grant of amendatory power: 1.Upon petition of atleast 12% of the total number of registered voters of which every legislative district must be represented by atleast 3% of the registered voters therein. ** the percentage requirement is higher than that for passing statutes by initiative and referendum. (which is 10%-3%) This is a recognition of the fact that the process is a constituent act and not just an ordinary legislative act. 2. no amendment under this section shall be authorized w/in 5 years following the ratification of this Constitution ** this prohibition expired on Feb 2, 1992 3. no amendment ( initiative) oftener than once every five years thereafter. **so this prohibition does not extend to other modes of amendments? In that case, it only applies to action by the people and not to action by the Congress? Can Congress propose amendments more than once every 5 years then ? 4. Congress shall provide for the implementation of the exercise of this right. **Without a law being passed by Congress, this right of initiative cannot be exercised. (no law to this effect as of yet: RA 6735 was not deemed to apply to constitutional amendments as held in Santiago vs. COMELEC) Are the actions of the Constituent Assembly (whether Congress or Con-Con) relative to the amendatory process subject to judicial review? In short, is the proposal of amendment or revision a political question or not? One must first distinguish between a) substance of what is being proposed and b) the manner of proposing. As to substance: (not subject to judicial review?) Since the effectivity of a proposal made by a constituent assembly is subject to the approval of the sovereign people, a constituent assembly may propose any change in the constitution . The only possible exception is that it may not propose anything that is inconsistent with Jus Cogens {jus cogens, or peremptory norm of international law, is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.} As to manner: ( subject to judicial review)

A constituent assembly, whether congress or constitutional convention, derives its authority from the fundamental law. Therefore, it is within the purview of the courts to check that in the exercise of such authority, it does so in accordance with such law. Gonzales vs. COMELEC (constituent assembly: Congress) the power to amend or to propose amendments to the constitution is not included in the general grant of legislative power to Congress. It is part of the inherent powers of the people-as the repository of sovereignty- to make and amend their own Fundamental Law. Congress may propose amendments to the Constitution only because the Constitution itself explicitly grants them such power. Hence, when Senators and members of House of Representatives exercise such power, they act not as members of Congress, but as component elements of a constituent assembly. When acting as a constituent assembly, members of Congress derive their authority from the Constitution, unlike the people, whose authority does not emanate from the Constitutioninstead, they are the very source of all powers of government, including the Constitution itself. Tolentino vs. COMELEC (constituent assembly: Constitutional Convention) the current Constitutional Convention of 1971 came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present 1935 Constitution. Thus, it owes its existence and derives all its authority and power from the existing Constitution. As opposed to a revolutionary convention which is called directly by the people, as to such kinds of conventions, the convention is completely without restraint and omnipotent all wise. The conclusion therefore is that the proposal of amendments is not a political but a justiciable question subject to judicial review. However, this does not fully solve the problem of the relationship between the Supreme Court and the Constitutional Assembly. The nature of a constituent assembly in Philippine constitutionalism is such that, once convened, it is endowed with extraordinary powers generally beyond the power of any department of the existing government. Hence, the initial problem for the judiciary is to segregate the reviewable from the non-reviewable pursuant to the principle in Angara vs. Electoral Commission that the judicial department is the constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral and constituent units thereof. Ratification 1987 Constitution: Article XVII, Sec4 ratified by a majority vote cast in a PLEBISCITE which shall be held not earlier than sixty (60) days nor later than ninety (90) days after: under Section 1: dealing with amendment or revision by congress or concon : AFTER approval of such amendment or revision under Section 2 : dealing with initiative by the people : AFTER certification by COMELEC of the sufficiency of the petition ** note that for both instances, the waiting time is the same but the starting pint for the waiting time are different. ** the phrase valid when ratified suggests that the date of effectivity of any amendment or revision should ordinarily be the same as the date of ratification, that is, the day on which the votes are cast. However, this does not preclude the amendments from providing otherwise.