EARLIER this week, a legislator saw fit to “warn” the Commission on Elections (Comelec) against precipitately going forward with a plebiscite on Charter change. Puzzling. And it raises interesting questions. Why warn the Comelec? But, more important, from the voter education point of view, does the Comelec call for a plebiscite on a constitutional amendment or revision on its own initiative? Can it even do that?
Apparently, it can—but in only one instance.
Let’s review the conditions under which the Comelec can actually move into a plebiscite for an amendment or revision of the Charter, under all three modes provided for by the Constitution: by constituent assembly, by constitutional convention and by people’s initiative. Since there is a wealth of jurisprudence on the third mode, let’s start with that and work our way up the list from there.
According to the Supreme Court in Santiago v. Commission on Elections (GR 127325, March 19, 1997) “the only participation of the Comelec or its personnel before the filing of [a completed and Constitutionally compliant people’s initiative petition] are [1] to prescribe the form of the petition; [2] to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; [3] to assist, through its election registrars, in the establishment of signature stations; and [4] to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters affidavits and voters identification cards used in the immediately preceding election.”
A people’s initiative petition is deemed completed and Constitutionally compliant when (1) it is signed by at least 12 percent of the total number of registered voters of which every legislative district is represented by at least 3 percent of the registered voters therein; (2) when it has, for its subject mere amendment of the Constitution and not its revision; and (3) when the petition, on its face, shows the initiative was “directly proposed by the people through initiative upon a petition;” in Lambino v. Comelec (GR 174153, 25 October 2006), the Court intimated that this “proof” could have been achieved if the full text of the proposals had been attached to the signature sheets.
If, subsequently, the Comelec issues a certification on the sufficiency of the people’s initiative petition, then, and only then, can a plebiscite be called for the purpose of ratification by the electorate. As Section 4, Article XVII of the Constitution says: “Any amendment [by people’s initiative] under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite, which shall be held not earlier than 60 days nor later than 90 days after the certification by the Commission on Elections of the sufficiency of the petition.”
So there it is. The Comelec can trigger a plebiscite, but only for a constitutional amendment and only if the amendment is via a people’s initiative. Realistically speaking, however, the exercise of even that Constitutionally granted “authority” would most likely be attended by so many checks and balances—appeals and whatnot—that, in the end, it would be quite a stretch to say that the Comelec approved the holding of a plebiscite on its own.
As for the other two modes—incidentally the only two modes being considered this time around— the Comelec’s role is much reduced. Where under people’s initiative, the plebiscite would be triggered by an explicit act of the Comelec, under either a constitutional convention or a constituent assembly, the trigger will have to be pulled by another. But who?
The Constitution only provides that “any amendment to, or revision of, this Constitution [by either constitutional convention or constituent assembly] under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite, which shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision.
Insofar as a constitutional convention goes, the approval will have to come from the convention itself. This mirrors the trajectory followed by the 1987 Constitution. The draft constitution was passed by a 44-2 vote of the members of the convention that drafted it, on October 12, 1986, and was presented to then-President Corazon C. Aquino after three days. As provided for in Section 5, Article V of the 1986 [Freedom] Constitution, the president fixed the plebiscite date, February 2, 1987, where the electorate eventually ratified the new charter by an affirmative vote of 76.3 percent.
But what about an amendment of revision by way of constituent assembly—who approves the proposals so as to initiate the plebiscite? Unfortunately, there doesn’t seem to be any agreement on this question. While the Constitution makes reference to a vote by Congress of “three-fourths of all its members,” the very sparseness of that language leaves it open to interpretation.
At this point, the only thing we know for sure is that, whoever finally gets to approve the proposed amendment or revision for submission to the public in a plebiscite, it certainly won’t be the Comelec, well-meaning warnings notwithstanding.