Philippines Laws on Referendum: Implementation Experience and Challenges 1 By Dr. Cheselden George V. Carmona

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1 Philippines Laws on Referendum: Implementation Experience and Challenges 1 By Dr. Cheselden George V. Carmona I. Introduction The Philippines is a democratic and republican state. The 1987 Constitution explicitly declares that sovereignty resides in the people and all government authority emanates from them. 2 Yet, it is also a representative democracy. Fundamental state authorities are delegated to three branches of government the Executive, the Legislative, and the Judiciary. Each branch is supreme in its own sphere but with constitutional limits and guided by the principle of checks and balances. 3 The President, who is elected by a direct vote of the people every six years, is the head of the Executive Department. He represents the government as a whole and ensures that that the officials and employees of his department enforce all laws and regulations. He has control over the executive department, bureaus and offices. The Congress or the Legislative branch, on the other hand, has the authority to make, alter or repeal laws. Composed of the Senate and the House of Representatives, it is also entrusted with the power to pass the national budget. Judicial power is vested in the Supreme Court and in lower courts established by law. 4 The power of judicial review includes the authority to declare a law, ordinance, or treaty as unconstitutional or invalid and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on any part of any branch or instrumentality of Government, 5 including those of the Executive and Legislative branches. There are also independent constitutional commissions that have been mandated to carry out specific tasks. One of these is the Commission on Elections (COMELEC), which plays a crucial role in the implementation of the constitutional and statutory provisions on initiative and referendum, as discussed below. II. Constitutional Guarantee: System of Initiative and Referendum While the power to legislate is generally lodged with the Congress, the Constitution ensures that the people retain their lawmaking power through the system of initiative and referendum. 6 This inherent right, which consists of the power to directly propose, enact, approve or reject, in whole or in part, any law or 1 Paper presented in the International Workshop On Right To Referendum: A Comparative Review On Law And Practice, November 17-18, 2014, Hanoi, Viet Nam. Dr. Carmona is an international development practitioner on rule of law, governance, electoral reform and administration and public sector reform. He is also a professor at the Philippine Judicial Academy, Ateneo De Manila University School of Law and the Graduate School of Law of San Beda College Constitution, Article III, Section 1. 3 Francisco, Jr. vs. House of Representatives, G.R. No , 10 November Ibid Constitution, Art. VIII, Sec ibid, Article III, Section 1.

2 constitutional amendment, is distinctly acknowledged by the 1987 Constitution in at least three provisions. The first is with regard to the authority of the people to directly propose amendments to the Constitution through initiative, which can be initiated through a petition of at least twelve per centum (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. 7 It is worth noting that previous Philippine constitutions (1935 and 1973) recognized only two methods of proposing amendments to the Constitution (a) by Congress upon a vote of ¾ of all its members; and (b) by a constitutional convention. The present Constitution added the people initiative and referendum as a third mode for changing the Constitution. The second constitutional provision pertains to the power of the people to directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or a local legislative body. Again, this can be initiated through the submission of a petition for that purpose as long as it is signed by at least ten per centum (10%) of the total number of registered voters, of which every legislative district must be represented by at least three per centum (3%) of the registered voters in the district. 8 The third provision seeks to empower the people at the local government level by mandating Congress to enact a local government code that should provide for, among others, effective mechanisms of recall, initiative and referendum. 9 In the words of a former Chief Justice, these constitutional provisions have institutionalized people power in law-making because of their express recognition of the electorate s residual and sovereign authority to ordain legislation. 10 III. Legal Framework Since the constitutional provisions on initiative and referendum are not self-executory, Philippine Congress passed into law R.A. No (also known as the People s Initiative and Referendum Act) and R.A. No (also known as the Local Government Code of the Philippines), which seek to operationalize the constitutional mandate that empowers the people to directly propose, enact, approve or reject, in whole or in part, any law or constitutional amendment through the system of initiative and referendum. R.A. No is the principal law while the Local Government Code, enacted two years after the passage of the former, reiterates its provisions on local initiative and referendum. 7 ibid, Article XVII, Section 2. 8 Section 32, Article VI, 1987 Constitution Constitution Article X, Section Subic Bay Metropolitan Authority vs. COMELEC, et al., G.R. No September 26, 1996.

3 A. Statutory Requirements and Procedures R.A. No was enacted to affirm, recognize and guarantee the power of the people to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body. Under this law, registered voters of the country, autonomous regions, provinces, cities, municipalities and barangays may exercise the power of initiative and referendum at the national and local levels, as long as the required number of signatories to a petition and the procedures it laid down are complied with. It also makes a distinction between initiative and referendum. Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose while referendum is the power of the electorate to approve or reject legislation or congressional action through an election called for the purpose. The law contemplates three systems of initiative: Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; 2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and 3. Initiative on local legislation, which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. a. Initiative to Amend the Constitution As stated above, propose amendments to the Constitution can be made through the process of initiative. The constitution states that it must be initiated through a petition of at least twelve per centum (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. 12 The Supreme Court ruled, however, that the provisions of R.A. No on the process for proposing constitutional amendments through initiative are incomplete, inadequate, or wanting in essential terms and conditions. 13 It noted that in contrast to that of national and local legislation, the law failed to provide for the details in the implementation of initiative and referendum on amendments to the Constitution. 14 b. National Initiative Initiative at the national level refers to a petition proposing to enact, approve or reject, in whole or in part, a national statute. 15 For the public to exercise this mode of initiative, R.A. No requires that at least 10% of the total number of registered voters, of which every legislative district is represented 11 Sec. 3(a), R.A. No ibid, Article XVII, Section Lambino, et al. vs. COMELEC, et al., G.R. NO , October 25, Ibid. 15 SBMA vs. COMELEC, et al., G.R. No September 26, 1996.

4 by at least 3% of the registered voters, must sign a petition for this purpose. The petition must state and/or contain the following: 1. contents or texts of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; 2. the proposition; 3. the reason or reasons therefor; 4. that it is not one of the exceptions; 5. signatures of the petitioners or registered voters; and 6. an abstract or summary in not more than one hundred words which shall be legibly written or printed at the top of every page of the petition. Petitioners must then register their petition with the COMELEC, which is tasked to verify the authenticity of the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards that were used in the immediately preceding election. If the COMELEC determines that the petition is sufficient and compliant with the requirements of the law, it has to order the publication of the petition in newspapers of general and local circulation within 30 days from receipt of the petition. The law requires that publication must be made at least twice in Filipino and English and must set the date of the initiative or referendum not earlier than 45 days but not later than 90 days from the determination by the COMELEC of the sufficiency of the petition. Figure 1. Procedure for National Initiative The proposition (i.e. the measure proposed by the voters) will then have to

5 be submitted to and approved by the voters in an election called for that purpose. If the proposition is approved by a majority of the votes cast, the national law proposed for enactment, approval, or amendment shall become effective as a national law within 15 days after its publication in the Official Gazette or in a newspaper of general circulation in the Philippines. If the proposition is to reject or repeal a national law, which has been approved by a majority of the votes cast, the said national law shall be deemed repealed and such repeal will take effect 15 days after the completion of the publication of the proposition in the Official Gazette or in a newspaper of general circulation in the Philippines. In both instances, the certification by the COMELEC is required. If, on the other hand, the majority vote is not obtained, the national law sought to be rejected or amended shall remain in full force and effect. b. Local Initiative: R.A. No and The Local Government Code 16 To propose the adoption, enactment, repeal, or amendment of a local ordinance or resolution, the law requires that at least 2,000 registered voters in case of an autonomous region, 1,000 in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, must file a petition with the relevant local legislative body proposing the adoption, enactment, repeal, or amendment of the ordinance. The law allows proponents to submit two or more propositions in an initiative. 17 If the concerned local legislative body fails to take any favorable action on the proposal within 30 days from its submission, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative after giving notice to the legislative body. They can transform their proposal into a proposition, which will then be submitted to the electorate for approval through the initiative process. The law directs the COMELEC to extend assistance to the proponents in formulating the proposition. The law gives the proponents specific number of days - depending on the local government involved - to gather the required number of signatures. They have 120 days in case of autonomous region, 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, after notice has to the legislative body referred to above. It is also required that the petition must be signed before the election registrar and in the presence of the proponents and a representative of the concerned local legislative body. The signing must be done in a public place within the territorial jurisdiction of the concerned local government unit. For this purpose, stations for collecting signatures may be established in as many places as may be warranted. After the lapse of the number of days specified above, the field office of 16 The Local Government Code, which is a newer law, basically incorporated the provisions of R.A. No on local initiative and referendum. see Sections 120 to 127 of the Local Government Code and Sections 13 to 18 of R.A. No Sec. 13, R.A. No See also section 9 of COMELEC Resolution No

6 the COMELEC in the local government unit must issue a certification as to whether or not the required number of signatures has been obtained. If the required number of signatures is obtained, the COMELEC shall set a date for the registered voter to vote on the proposition. Such date must be within 90 days (in case of autonomous region), 60 days (in case of provinces and cities), 45 days (in case of municipalities) and 30 days (in case of barangays) from the date of the issuance of the Certificate by the COMELEC that attests to the attainment of the required number of signatures. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the COMELEC. On the other hand, failure to obtain the required number of signature means that the proposition has been defeated. In such a case, there is no need to schedule any voting. Figure 2. Procedure for Local Initiative and Referendum There are limitations to the exercise of the power of initiative in the local level. First, it cannot be exercised more than once a year. Second, initiative only extends to subjects or matters that are within the legal powers of the legislative

7 bodies to enact. For example, local initiative cannot seek to repeal a criminal law. Third, local initiative has to be cancelled if the local legislative body decides to act on the proposition and adopts it in toto. 18 The law provides safeguards to ensure that local legislative bodies cannot easily frustrate the will of the people that have been expressed through the process of initiative by the simple expedient of repealing or amending the same. It states any proposition or ordinance or resolution approved through the system of initiative and referendum cannot be repealed, modified or amended, by the local legislative body concerned within six months from the date from approval. It has to wait for three years before it can amend, modify or repeal such legislative measure and only by a vote of 3/4 of all its members. 19 Ordinary legislative action only requires majority approval. In case of barangays, the period is one year after the expiration of the first six months c. Indirect Initiative Any duly accredited people's organization may also file a petition for indirect initiative with the House of Representatives, and other legislative bodies. The petition shall contain a summary of the chief purposes and contents of the bill that the organization proposes to be enacted into law by the legislature. The procedure to be followed on the initiative bill shall be the same as the enactment of any legislative measure before the House of Representatives except that the said initiative bill shall have precedence over the pending legislative measures on the committee. d. Referendum Referendum is the power of the electorate to approve or reject legislation through an election called for the purpose. Though often used interchangeably with initiative, there are statutory and conceptual demarcations between a referendum and an initiative. 20 While initiative is entirely the work of the electorate, referendum is begun and consented to by the law-making body. There are two classes of referendum. One is the referendum on statutes, which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress. The second class is referendum on local law, which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. 21 Figure 3. Procedure for Referendum 18 Section 15, R.A. No Section 16, R.A. No SBMA vs. COMELEC, et al., G.R. No September 26, Section 3(c), R. A. No

8 From the flowchart above, referendum consists merely of the electorate approving or rejecting what has been drawn up or enacted by a legislative body. Initiative, in contrast, is a process of law-making by the people themselves without the participation and against the wishes of their elected representatives. 22 Hence, the process and the voting in a referendum, where the voters will simply write either "Yes" of "No" in the ballot, is much simpler when compared to the process involved in an initiative. It is the view of the author that the constitutional provisions on the conduct of plebiscite for the purpose of securing the approval of voters on certain political actions of the government is tantamount of the conduct of referendum. These include proposed amendments and revisions to the Constitution proposed by Congress; the creation, division, abolition, merger of local government units; 23 the creation of special metropolitan political subdivisions; 24 and the formation of autonomous regions. 25 The process for their adoption (electorate approving or rejecting what has been drawn up or enacted by a legislative body) is consistent with how R. A defines referendum. Furthermore, the constitutional provision stating, Congress can only adopt a new name for the country, a national anthem, or a national seal through a law that has been ratified by the people in a national referendum 26 is another instance that requires referendum. IV. Government Agencies Involved Aside from Congress (which, in cases of referendum has to start the process by passing first a legislative measure and then submit the same to the electorate for ratification or, in the case of initiative, it refuses to pass/amend/repeal certain laws that initiative proponents seek to change), the 22 Philippine Political Law, 1991 edition, p Constitution, Article X, Section Section 11, ibid. 25 Section 18, ibid Constitution, Article XV, Section 2.

9 other government agencies involved in the conduct of initiative and referendum are the COMELEC and the court system. a. COMELEC The COMELEC is a constitutional body with exclusive mandate to enforce and administer all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referendums and recall. In conducting initiative and referendum, the Constitution and relevant laws task the COMELEC with the following functions: 1. Receive and determine the sufficiency of the petition and, in this connection, determine and prescribe the form for instituting a petition; 2. In case of initiatives, provide assistance in the drafting of the proposition; 3. Verify the authenticity signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards; 4. Order the publication of the petition and proposition and set the date of election; 5. Conduct the election and count the votes; 6. Declare and certify the results of the election. Hence, the COMELEC plays a very crucial role when the people exercise their inherent lawmaking power through the system of initiative and referendum. The Supreme Court emphasized that the COMELEC should exercise administration and supervision of the process itself, akin to its powers over the conduct of elections. 27 It must be noted, nonetheless, that the level of COMELEC s involvement and participation in initiative, on the one hand, and referendum, on the other, are not the same. The COMELEC has to supervise an initiative more closely than a referendum. In initiative, COMELEC authority extends not only to the counting and canvassing of votes but also to seeing to it that the matter or act submitted to the people is in the proper form and language so it may be easily understood and voted upon by the electorate. This is especially true where the proposed legislation is lengthy and complicated, and should thus be broken down into several autonomous parts, each such part to be voted upon separately. Care must also be exercised that "(n)o petition embracing more than one subject shall be submitted to the electorate," although "two or more propositions may be submitted in an initiative." 28 In this connection, it passed COMELEC Resolution No prescribing The Rules and Regulations Governing the Conduct of Initiative on the Constitution and Initiative and Referendum on National and Local Laws. These rules were later on supplemented by additional rules to cure the defects cited by the Supreme Court in a case involving the conduct of initiative for amending the Constitution. 27 SBMA vs. COMELEC, et al., G.R. No September 26, Ibid.

10 The organizational capacity of the COMELEC to check/verify legal requirements given its limited resources and time is a crucial challenge that is limiting the effectiveness of the law. COMELEC, in some instances for example, had to defer or deny action on the conduct of referendum and initiatives when the same are scheduled or started very close to national and local elections, which are held every three years. According to its Deputy Executive Director for Operations (DEDO), COMELEC s priority is the preparation for, and holding of, national and local elections, which are set by the Constitution. Thus, even if Congress sets a specific date for referendum, or if the holding of election in connection with initiative is in conflict with its electoral preparations, COMELEC believes that it is not duty bound to hold referendum or proceeding with the initiative process. Likewise, inasmuch COMELEC does not have the requisite funding needed to hold a referendum or election on a proposition, it is difficult for the Commission to prepare for it. In local initiatives, it is the local government that is supposed to provide the funding. b. Courts The judiciary likewise plays an important role when the public invokes the process of initiative and referendum. Consistent with its power of judicial review, the proper courts can declare null and void any proposition that has been approved via the route of initiative and/or referendum if the same is in violation of the Constitution and/or outside the authority of the concerned legislative body. 29 As discussed below, there have been several instances where the Supreme Court had to intervene to stop the process of initiative and referendum as they were ruled to be unconstitutional. A number of cases have reached the Supreme Court, most of which arose from the conflicting interpretation of the constitutional provisions and the laws seeking to implement them. These cases have provided the Supreme Court the opportunity to clarify the intent of the Constitution and to provide guidance in the operationalization of the laws on initiative and referendum. They are discussed below. V. Implementation Experience: Issues and Challenges There had been several instances where referenda were successfully held and the voice of the people clearly heard. In a number of referendum since the adoption of the 1987 Constitution, the people was able to express their agreement (or disagreement) to a class of legislative measures which, per constitutional mandate, require the approval of the majority of the votes cast in an election called for that purpose. Legal challenges and practical issues, on the other hand, have hampered the effective use of initiative to amend the Constitution or to enact, amend or 29 Section 18, R.A. No

11 repeal national and local statutes. In a number of instances, people s initiative to amend the Constitution did not push through when the Supreme Court declared the process and the law as not compliant with the requirements of the Constitution. In other cases, practice and financial and logistical considerations have discouraged proponents from meeting the initial process of gathering the required number of signatures. a. Referendum on autonomous regions and creation of LGUs The Philippines has long years of experience in the conduct of referendum (i.e. when laws passed by Congress have to be ratified by the people pursuant to the requirements of the Constitution). For example, in November 1989, a referendum was conducted in the proposed areas of Autonomous Region of Muslim Mindanao (ARMM), which was eventually constituted into an autonomous region. 30 The referendum, which was generally considered successful in terms of implementation, resulted to the creation of the ARMM when the four provinces of Maguindanao, Lanao del Sur, Tawi-Tawi and Sulu voted to join the area of autonomy. In September 2001, the province of Basilan and the city of Marawi joined the ARMM in another referendum called for that purpose. 31 A series of referenda was also held for the purpose of ratifying the law that sought to create the Cordillera Autonomous Region (CAR). In this case, however, proponents of the CAR failed because the people of the provinces of Abra, Apayao, Benguet, Mountain Province, Ifugao and Kalinga, and the City of Baguio voted twice against it. In the first referendum on January 30, 1990, Ifugao was the only province to vote for self-rule while only the province of Apayao chose autonomy in the second plebiscite held on March 7, The conduct of referenda for the conversion of various municipalities into cities can also be considered generally successful. Under Philippine laws, a city can only be created if Congress passes a law for that purpose and the majority of the voters in the local government units (LGUs) directly affected expressed their approval through a Yes vote in referendum/plebiscite organized by COMELEC. According to the website of the Philippine Senate, the number of cities in the Philippines has substantially grown from 61 in 1977 to 143 cities in 2012, or an increase of 134 percent. 33 This means that in these referenda, the electorate generally supported Congress and voted in favor of the proposed legislative measure. Yet, there had been an instance when the Supreme Court on constitutional ground disregarded the will of the people that was expressed in a 30 Pursuant to Republic Act No. 6734, otherwise known as the Organic Act of the Autonomous Region in Muslim Mindanao, which was signed into law by then President Corazon C. Aquino on August 1, ARMM History, Official Website of the ARMM, 32 Cordillera turns back on autonomy, NEDA Website, 33 Cities in the Philippines at a Glance, Senate website (November 2013),

12 referendum. In this case, despite the overwhelming ratification by majority of the people of the creation of a new province in the ARMM area (i.e. 285,372 in favour and only 8,802 against), the same was invalidated because the body (i.e. Regional Legislative Assembly of the ARMM) that passed the law and called for its ratification in a referendum does not have the authority to do so. According to the Supreme Court, it has no power to propose a law to create, divide, merge, abolish or substantially alter the boundaries of provinces, cities, municipalities and barangays and submit the same to referendum since that power rests solely with the national legislative assembly. 34 b. Efforts to amend/revise the Constitution through initiative There had been two attempts already to amend the Constitution via initiative. The first was in 1996 when the group People s Initiative for Reforms, Modernization and Action (PIRMA) filed with COMELEC a petition to amend the Constitution to lift the term limits of elective officials through people s initiative. 35 As noted elsewhere in this paper, Section 2, Article XVII of the Constitution states that [a]mendments 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. Pursuant to the petition, COMELEC issued an order directing the publication of the petition and of the notice of hearing and thereafter set the case for hearing. The Supreme Court eventually stopped the COMELEC from entertaining the petition and held that R.A. No is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned (Defensor-Santiago, et al. vs. COMELEC). 36 In this regard, the portion of COMELEC Resolution No. 2300, insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, was also declared void. The second attempt was in 2006 when another group invoked the same provision of the Constitution to propose amendments. Its petition proposed a shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. It claimed that: (a) the petition had the support of 6,327,952 individuals constituting at least 12% of all registered voters, with each legislative district represented by at least 3% of its registered voters; and (b) COMELEC election registrars had verified the signatures of the 6.3 million individuals. The following proposition was sought to be presented to the people for ratification: Do you approve the amendment of Articles VI and VII of the 1987 Constitution, changing the form of government from the present bicameral-presidential to a unicameral-parliamentary system, and providing article XVIII as transitory 34 Sema vs. COMELEC and Dilangalen, G.R. No (July 16, 2008) 35 The term limit of the President is 6 years without re-election; vice president and senators, 2 terms of 6 years each; and 3 consecutive terms of 3 years each for barangay officials, municipal and city officials, provincial officials, and members of the House of Representatives. 36 G.R. No , March 19, 1997.

13 provisions for the orderly shift from one system to the other? Again, this proved to be unsuccessful because the COMELEC refused to entertain the petition pursuant to the Supreme Court ruling in the previous case of Defensor-Santiago vs. COMELEC. When the COMELEC s inaction was brought to the Supreme Court, the Court upheld the COMELEC and threw out the case on the following grounds: The initiative petition is not compliant with the requirements of Section 2, Article XVII of the Constitution on direct proposal by the people. The Court held that while the abovementioned provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of the Constitution clearly show that: (a) they intended to adopt the relevant American jurisprudence on peoples initiative; and (b) in particular, the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. 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 state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of 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. 2. The Constitution does not allow revision through initiatives. Although the third mode for amending the Constitution is through a people s initiative, 38 the same applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention (the other modes) can propose both amendments and revisions to the Constitution. What the petitioner was proposing was a revision of the Constitution, which 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. In contrast, 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. As things stand now, Congress has yet to pass a new law or amendment to cure the inadequacy of R.A. No. 6375, which is supposed to enable the public to propose constitutional amendments. Also, no new attempts had been made 37 Lambino, et al. vs. COMELEC, G.R. No , 25 October The other modes are (a) through Congress upon three-fourths vote of all its Members; and (b) through a constitutional convention.

14 since the Supreme Court stopped the last people s initiative to change the Constitution. It must be pointed out, however, that there was a subsequent minute Resolution issued by the Supreme Court wherein ten of its members stated that R.A. No is sufficient and adequate to amend the Constitution thru a people s initiative, which left the issue hanging. 39 c. National initiatives To date, no national law has been passed through the process of initiative. A check with the COMELEC revealed that while several groups have asked questions regarding initiative, they have been generally discouraged by the logistical and financial requirements for gathering the required number of signatures. Even if some measures were initially supported by civil society organizations, people s interests generally waver especially when new national issues crop up and grab the attention of the people. Nonetheless, there are ongoing efforts to pass crucial laws, which Congress failed or refuses to enact, through the process of initiative. These include the proposed measure to pass an anti-political dynasty bill, the bill to prohibit pork barrel in national budget and the enactment of a law on freedom of information. Whether or not these current initiatives will go beyond the signature gathering stage still remains to be seen. d. Local initiative to question a resolution There had been more successful attempts of enacting local laws through initiative at the local level. According to the COMELEC, there is a barangay ordinance that was passed through initiative. The ordinance mandated the control and prevention of the proliferation of informal settlers and mendicant, and to hold accountable erring barangay officials who coddle them, which the local legislative body apparently refused to pass. The proposition became a barangay ordinance when 465 voters approved as against 384 voters who rejected it. 40 Another initiative involves a proposition for the creation of cooperative to manage barangay funds. It is now undergoing review by the COMELEC to determine compliance with the requirements of the law. Nonetheless, people s initiatives at the local level were also fraught with challenges. One case involved a petition filed in a local legislative body seeking to annul a municipal resolution that expressed concurrence to a law passed by Congress, which created an economic zone (Subic Economic Zone) and made the municipality a part of it. The petitioners filed a petition before the local legislative body to annul or recall the municipal resolution and sought to include certain conditions if the local government were to join the special economic zone. Not satisfied with the action of the local legislative body, the petitioners subsequently invoked people s initiative under the Local Government Code. 39 See Min. Res., GR No , Lambino and Aumentado v. Comelec; GR No , Binay, et al. v. Comelec, et al.; November 21, COMELEC s Canvass of Votes and Proclamation, Initiative held on May 14, 2011.

15 When COMELEC refused to take action on the petition for initiative on the ground that its subject was a mere Resolution and not an Ordinance, petitioner then went to the Supreme Court to reverse the decision of the COMELEC. In the said case, the Supreme Court held that Resolution could be subject of a local initiative. 41 When the COMELEC scheduled the holding of the initiative, the Subic Bay Metropolitan Authority (SBMA) asked the Supreme Court to stop the same contending that a local initiative that proposes an amendment to a national law is invalid. The Supreme Court held that the COMELEC in scheduling the initiative gravely abuse its discretion since the measure being proposed is outside power of the local legislative body and, thus, cannot be a subject of people s initiative at the local level. V. Conclusions Implementing a system of initiative and referendum in a political environment that is still learning its concept and implications will not be easy. It will take time for the people to fully utilize it as a tool for pushing for laws that genuinely serve their interest. It has now been more than 25 years since the Philippine Congress passed the law on initiative and referendum. Results have been mixed with regard to its implementation. Referendum can be considered relatively more successful in the sense that the use thereof to ratify certain acts of Congress has fully empowered the people to directly express their will. The approval of the establishment of autonomous regions in Muslim Mindanao, and the rejection of the same measure in the Cordillera region by those directly affected are clear indications that this system for directly consulting the people work. The same is true with regard to the conversion of municipalities into chartered cities (generally resulted to ratification) and creation of new local government units. In contrast, people s initiative to enact national statutes has yet to produce a law although various efforts initiated by civil society organizations (CSOs) are still ongoing. Previous attempts to amend the Constitution via the system of initiative and referendum, on the other hand, failed because of legal questions - the inadequacy of R.A. No when it comes to constitutional amendments. In the local level, there had been successful people initiatives although some were challenged in the Supreme Court on various legal grounds. Those that succeeded have opened the eyes of the people regarding their power to enact laws and ordinances. As people become more aware of their rights and confident about their inherent power to directly craft laws through the system of initiative and referendum, it can be expected that more and more attempts will be made by organized groups including civil society organizations. 41 Enrique T. Garcia, et al. vs. Commission on Elections, et al., 237 SCRA 279, September 30, 1994.

16 Lesson Learned From the foregoing experience of the Philippines in the operationalization of the system of initiative and referendum, some lessons can be drawn up, which can be summarized as follows. 1. Inasmuch as the process of initiative and referendum is an exercise of an extraordinary power of the people, the law that seeks to operationalize it must be complete and unambiguous to avoid constitutional challenge. Compliance with constitutional and legal requirements is a must because any defect in the procedure followed can lead to the invalidation of the whole process. As shown by the experience of the Philippines, these omissions and/or defects are fatal: The failure of the proponents to prepare and show the draft of the proposed constitutional amendment to the people before they sign such proposal was the ground cited by the SC in saying that the process was not compliant with constitutional requirements. It said that framers envisioned that the people should sign on the proposal itself because the proponents must prepare that proposal and pass it around for signature. The failure of local election registrars to actually verify the signatures of the petitioners as required by law, and for the proponents to insist the same, was one of the issues raised against a people s initiative. According to a group of lawyers which opposed the people s initiatives, signatures that were gathered in at least nine provinces by groups pushing for a people s initiative to change the Constitution were found either to have not been properly verified or not verified at all by election officers of the Commission on Elections Politicians to advance their own interests, especially in seeking to extend their hold of power, can misuse people s initiatives. In 1996 a group calling itself Pirma, urged an amendment that would allow the reelection of the incumbent president (President Fidel Ramos), which is prohibited by the Philippine Constitution. The proponents of the initiative to amend the Constitution were known associates of the then president and were believed to be funded by his supporters. The same was true when another attempt was made to amend the Constitution in 2006 during the incumbency of another president. According to political observers, the motive for changing the form of government from the familiar presidential system to the new and untried parliamentary government was not the national interest. Rather, people s initiatives were pushed and bankrolled by the supporters of then President 42 Only names, not signatures, verified in Sigaw ng Bayan, ULAP-led initiative, The PCIJ Blog (October 12, 2006),

17 Gloria Macapagal-Arroyo to enable her to remain in power as prime minister under a parliamentary government since her term as president was about to end It takes time for the people to fully appreciate the power of initiative and referendum. Even if the Philippines has one of the most vibrant civil society organizations in Asia, it is only now that organized movements are beginning to realize the potentials of people s initiative and referendum to push for their interest. It is surprising that this realization only came recently despite the fact that Congress, for years, has failed or refused to enact crucial laws even if the same are constitutionally prescribed and acknowledged to be important to good governance. 4. One of the hindrances for the effective invocation of the people s initiative and referendum is the financial requirements to start the process, especially in gathering the required signatures. Unless there is a big political organization or private/corporation to back the effort, the chance to succeed of a people s initiative organized by ordinary citizenry can be very minimal. It is probably for this reason that no national initiative has been successfully concluded in the Philippines despite the lapse of more than 25 years, and that the only ones that were able to gather adequate signatures nationwide were those backed by politicians. Because of this, there may be a merit to suggestions that the government should provide financial assistance to an effort to pass a law to implement a constitutional mandate (e.g. prohibition against political dynasty). Of course, safeguards must be put in place to prevent politicians from abusing this financial assistance for their political interest. 5. It is crucial that the agency tasked to administer or supervise initiative and referendum is provided with sufficient resources to enable it to carry out these tasks. This is especially true for election management bodies, like the Philippine COMELEC, which has to prepare and organize national and local elections every three years. Unless it is given the required financial, technical and human resources to organize referendum and initiative related elections, this sovereign right of the people will remain illusory. 43 Abueva, Jose, Why Charter Change failed under President Arroyo ( ),