K. Initiative and referendum

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

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1.  Concept

The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten 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 thereof. (Section 32, Article VI, 1987 Constitution)

Amendments 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. (Section 2, Article XVII, Ibid.)

Thru an initiative, the people were given the power to amend the Constitution itself. Likewise, thru an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. (Garcia v. COMELEC, En Banc, G.R. No. 111230, 30 September 1994)

a. Original legislation v. Derivative legislation

Section 1 of Article VI of the Constitution recognizes the distinction between original and derivative legislative power by declaring that “legislative power shall be vested in the Congress… except to the extent reserved to the people by the provision on initiative and referendum.” The italicized clause pertains to the original power of legislation which the sovereign people have reserved for their exercise in matters they consider fit. Considering that derivative legislative power is merely delegated by the sovereign people to its elected representatives, it is deemed subordinate to the original power of the people. (Marmeto v. COMELEC, En Banc, G.R. No. 213953, 26 September 2017)

b. Requirements

The power of initiative and referendum may be exercised by all registered voters of the country, autonomous regions, provinces, cities, municipalities and barangays. (Section 4, Ibid.)

1) Required votes

IN GENERAL – 10% and 3%: To exercise the power of initiative or referendum, at least ten per centum (10%) of the total number of the registered voters, of which every legislative district is represented by at least three per centum (3%) of the registered voters thereof, shall sign a petition for the purpose and register the same with the Commission. (Section 5[a], Ibid.)

INITIATIVE ON THE 1987 CONSTITUTION – 12% and 3%: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein.

LIMITATION: Initiative on the Constitution is confined only to proposals to amend. The people are not accorded the power to “directly propose, enact, approve, or reject, in whole or in part, the Constitution” through the system of initiative. They can only do so with respect to “laws, ordinances, or resolutions.” (Santiago v. COMELEC, En Banc, G.R. No. 127325, 19 March 1997)

SAME; 5-YEAR WINDOW: Initiative on the Constitution may be exercised only once every five (5) years thereafter. (Section 5[b], Ibid.)

SAME; PETITIONERS AS SIGNATORIES: R.A. 6735 requires that the “petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories.” Further, Section 5(b) of RA 6735 requires that the people must sign the “petition… as signatories.” (Lambino v. COMELEC, supra.)

REFERENDUM/INITIATIVE ON LOCAL LAWS/RESOLUTION/ORDINANCE BY AUTONOMOUS REGION/PROVINCE/CITY – 10% and 3%: A referendum or initiative affecting a law, resolution or ordinance passed by the legislative assembly of an autonomous region, province or city is deemed validly initiated if the petition thereof is signed by at least ten per centum (10%) of the registered voters in the province or city, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein; Provided, however, That if the province or city is composed only of one (1) legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least three per centum (3%) of the registered voters therein. (Section 5[d], R.A. 6735)

REFERENDUM/INITIATIVE ON LOCAL ORDINANCE BY MUNICIPALITY – 10% and 3%: A referendum of initiative on an ordinance passed in a municipality shall be deemed validly initiated if the petition therefor is signed by at least ten per centum (10%) of the registered voters in the municipality, of which every barangay is represented by at least three per centum (3%) of the registered voters therein. (Section 5[e], Ibid.)

REFERENDUM/INITIATIVE ON BARANGAY RESOLUTION/ORDINANCE BY BARANGAY – 10%: A referendum or initiative on a barangay resolution or ordinance is deemed validly initiated if signed by at least ten per centum (10%) of the registered voters in said barangay. (Section 5[f], Ibid.)

2) Petition

The petition shall state the following:

1) Contents or text 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 provided herein;

5) Signatures of the petitioners or registered voters; and

6) An abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Section 5[c], Ibid.)

Petition – is the written instrument containing the proposition and the required number of signatories. It shall be in a form to be determined by and submitted to the Commission on Elections, hereinafter referred to as the Commission. (Section 3[f], Ibid.)

Proposition – is the measure proposed by the voters. (Section 3[d], Ibid.)

3) Special Registration

The Commission on Election shall set a special registration day at least three (3) weeks before a scheduled initiative or referendum. (Section 6, Ibid.)

4) Verification of Signatures

The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters’ affidavits and voters identification cards used in the immediately preceding election. (Section 7, Ibid.)

2. Procedure

a. National Initiative and Referendum

1) Conduct and date of Initiative or Referendum

The Commission shall call and supervise the conduct of initiative or referendum. Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining the sufficiency of the petition, publish the same in Filipino and English at least twice in newspapers of general and local circulation and set the date of the initiative or referendum which shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination by the Commission of the sufficiency of the petition. (Section 8, Ibid.)

INITIATIVE: 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. (Section 3[a], R.A. 6735, The Initiative and Referendum Act)

SAME: Initiative has been described as an instrument of direct democracy whereby the citizens directly propose and legislate laws. As it is the citizens themselves who legislate the laws, direct legislation through initiative (along with referendum) is considered as an exercise of original legislative power, as opposed to that of derivative legislative power which has been delegated by the sovereign people to legislative bodies such as the Congress. (Marmeto v. COMELEC, En Banc, supra.)

SAME: 3 SYSTEMS OF INITIATIVE:

1) 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. (Section 3[a], R.A. 6735)

REFERENDUM: Referendum – is the power of the electorate to approve or reject a legislation through an election called for the purpose. (Section 3[c], Ibid.)

SAME: 2 CLASSES OF REFERENDUM:

1) Referendum on statutes – which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and

2) Referendum on local laws – which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (Ibid.)

PLEBISCITE: Plebiscite – is the electoral process by which an initiative on the Constitution is approved or rejected by the people. (Section 3[e], Ibid.)

INDIRECT INITIATIVE: Indirect initiative – is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. (Section 3[b], Ibid.)

SAME; WHO MAY FILE: Any duly accredited people’s organization, as defined by law, may 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. (Section 11, Ibid.)

SAME; PROCEDURE 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. (Paragraph 2, Section 11, Ibid.)

2) Majority vote

The Proposition of the enactment, approval, amendment or rejection of a national law shall be submitted to and approved by a majority of the votes cast by all the registered voters of the Philippines. (Section 9, Ibid.)

If, as certified to by the Commission, the proposition is approved by a majority of the votes cast, the national law proposed for enactment, approval, or amendment shall become effective fifteen (15) days following completion of its publication in the Official Gazette or in a newspaper of general circulation in the Philippines. If, as certified by the Commission, the proposition to reject a national law is approved by a majority of the votes cast, the said national law shall be deemed repealed and the repeal shall become effective fifteen (15) days following the completion of publication of the proposition and the certification by the Commission in the Official Gazette or in a newspaper of general circulation in the Philippines. (Paragraph 2, Section 9[a], Ibid.)

However, if the majority vote is not obtained, the national law sought to be rejected or amended shall remain in full force and effect. (Paragraph 3, Section 9[a], Ibid.)

3) Effectivity of Initiative or Referendum Proposition

1987 CONSTITUTION – EFFECTIVE AS OF DATE OF PLEBISCITE: The proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (Section 9[b], Ibid.)

NATIONAL OR LOCAL INITIATIVE – 15 DAYS AFTER CERTIFICATION AND PROCLAMATION: A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation by the Commission. (Section 9[c], Ibid.)

4) Appeal

The decision of the Commission on the findings of the sufficiency or insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice thereof. (Section 12, Ibid.)

5) Prohibited Measures

The following cannot be the subject of an initiative or referendum petition:

1) No petition embracing more than one (1) subject shall be submitted to the electorate; and

2) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after its effectivity. (Section 10, Ibid.)

b. Local Initiative and Referendum

1) Required votes

Not less than two thousand (2,000) registered voters in case of autonomous regions, one thousand (1,000) in case of provinces and cities, one hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution. (Section 13[a], Ibid.)

2) Legislative action; Power of initiative

If no favorable action thereon is made by local legislative body within (30) days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concerned. (Section 13[b], Ibid.)

NUMBERED SERIALLY: The proposition shall be numbered serially starting from one (1). The Secretary of Local Government or his designated representative shall extend assistance in the formulation of the proposition. (Section 13[c], Ibid.)

TWO OR MORE PROPOSITIONS: Two or more propositions may be submitted in an initiative. (Section 13[d], Ibid.)

3) Period to collect required number of signatures

Proponents shall have one hundred twenty (120) days in case of autonomous regions, ninety (90) days in case of provinces and cities, sixty (60) days in case of municipalities, and thirty (30) days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures. (Section 13[e], Ibid.)

4) Signed before Election Registrar

The petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the autonomous region or local government unit, as the case may be. Signature stations may be established in as many places as may be warranted. (Section 13[f], Ibid.)

5) COMELEC Certification on required number of votes

Upon the lapse of the period herein provided, the Commission on Elections, through its office in the local government unit concerned shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number is a defeat of the proposition. (Section 13[g], Ibid.)

IF VOTES ARE OBTAINED: If the required number of the signatures is obtained, the Commission shall then set a date for the initiative at which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within ninety (90) days from the date of certification by the Commission, as provided in subsection (g) hereof, in case of autonomous regions, sixty (60) days in case of the provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Commission on Elections. (Section 13[h], Ibid.)

6) Effectivity of Local Propositions

If the proposition is approved by a majority of the votes cast, it shall take effect fifteen (15) days after certification by the Commission as if affirmative action thereon had been made by the local legislative body and local executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated. (Section 14, Ibid.)

7) Limitations on Local Initiatives

1) The power of local initiative shall not be exercised more than once a year. (Section 15[a], Ibid.)

2) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact. (Section 15[b], Ibid.)

3) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. (Section 15[c], Ibid.)

8) Limitations Upon Local Legislative Bodies

Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom, and may be amended, modified or repealed by the local legislative body within three (3) years thereafter by a vote of three-fourths (3/4) of all its members: Provided, however, that in case of barangays, the period shall be one (1) year after the expiration of the first six (6) months. (Section 16, Ibid)

NB: Similar provision is found in Section 125, R.A. 7160, Local Government Code.

9) Local Referendum

Notwithstanding the provisions of Section 4 hereof, any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved. (Section 17, Ibid.)

Said referendum shall be held under the control and direction of the Commission within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. (Paragraph 2, Section 17, Ibid.)

The Commission shall certify and proclaim the results of the said referendum. (Paragraph 3, Section 17, Ibid.)

10) Authority of Courts

Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. (Section 18, Ibid.)

3. COMELEC

a. Conduct election

The COMELEC cannot defeat the exercise of the people’s original legislative power for lack of budgetary allocation for its conduct. (Marmeto v. COMELEC, supra.)

b. Power to review

The COMELEC has the power to review whether the propositions in an initiative petition are within the power of the concerned Sanggunian to enact. (Marmeto v. COMELEC, supra.)

It is the COMELEC which has the power to determine whether the propositions in an initiative petition are within the powers of a concerned Sanggunian to enact. (Ibid.)

While regular courts may take jurisdiction over “approved propositions” per said Sec. 18 of R.A. 6735, the COMELEC in the exercise of its quasi-judicial and administrative powers may adjudicate and pass upon such proposals insofar as their form and language are concerned and it may be added, even as to content, where the proposals or parts thereof are patently and clearly outside the “capacity of the local legislative body to enact.” (Subic Bay Metropolitan Authority v. Commission on Elections, En Banc, G.R. No. 125416, 26 September 1996)

The COMELEC’s power to review the substance of the propositions is also implied in Section 12 of RA No. 6735, which gives this Court appellate power to review the COMELEC’s “findings of the sufficiency or insufficiency of the petition for initiative or referendum.” (Marmeto v. COMELEC, supra.)”

Nothing in the LGC allows the creation of another local legislative body that will enact, approve, or reject local laws either through the regular legislative process or through initiative or referendum. (Ibid.)

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