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C. Amendments and revisions

1. CONCEPTS

a. Amendment

The significance of the term “amendment” implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. (Lambino v. COMELEC, En Banc, G.R. No. 174153, 25 October 2006)

An amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. (Ibid.)

b. Revision

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. (Ibid.)

c. Comparisons

1) General rule

a) Revision if several provisions

b) Amendment if specific provision

Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. (Ibid.)

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. (Ibid.)

For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. (Ibid.)

2) Exception

a) Revision if modification of specific provision results in substantial change

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. (Ibid.)

For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. (Ibid.)

Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. (Ibid.)

3) Tests whether amendment or revision

a) Quantitative test

The quantitative test asks whether the proposed change is “so extensive in its provisions as to change directly the ‘substantial entirety’ of the constitution by the deletion or alteration of numerous existing provisions.” The court examines only the number of provisions affected and does not consider the degree of the change. (Ibid.)

b) Qualitative test

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.” Whether there is an alteration in the structure of government is a proper subject of inquiry. (Ibid.)

Thus, “a change in the nature of [the] basic governmental plan” includes “change in its fundamental framework or the fundamental powers of its Branches.” A change in the nature of the basic governmental plan also includes changes that “jeopardize the traditional form of government and the system of check and balances.” (Ibid.)

d. Constituent Powers

The powers provided in Article XVIII on Amendments or Revisions are called constituent powers. So when Congress acts under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent body exercising constituent powers. (J. Azcuna, Separate Opinion in Lambino v. COMELEC, G.R. No. 174153, 25 October 2006)

The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under Article XVII. (Ibid.)

Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the people’s right directly to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent act. (Ibid.)

As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or amendments to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure, not a mere legislative one. (Ibid.)

2. PROCEDURE

The following is the procedure for amending or revising the Constitution:

1) Proposal for amendment or revision; and,

2) Ratifictaion via plebiscite. (Sections 1, 2, and Section 4, Article XVII, 1987 Constitution)

a. Proposal for amendment or revision

Any amendment to, or revision of, this Constitution may be proposed by:

1) The Congress, upon a vote of three-fourths of all its Members;

2) A constitutional convention; or

3) People’s initiative. (Section 1 and 2, Article XVII, 1987 Constitution)

The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. (Section 3, Article XVII, Ibid.)

1) Congress as a Constituent Assembly

a) 3/4 vote

Where the Constitution says three-fourths (3/4) of all the members of the Senate and of the House of Representatives voting separately, it means an exact number, not susceptible of any more or less. All the members means that no single member should be excluded in the counting. It means not excluding three Senators and eight Representatives as respondents want us to do in order not to cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who had the boldness of certifying that the three-fourth (3/4) rule had been complied within the adoption of the resolution in question, when such a certification is as false as any falsehood can be. (Mabanag v. Vito, En Banc, G.R. No. L-1123, 05 March 1947)

2) Constitutional Convention

The Constitutional convention may be formed by either:

1) Congress through a 2/3 vote; or

2) The electorate through a referendum called by Congress through a majority vote.

It is contrary to the “settled and well-understood parliamentary law (which requires that the) two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other,” (Cooley, Constitutional Limitations, 7th ed., p. 187). (Miller v. Mardo, G.R. No. L-15138, 31 July 1961)

3) People’s initiative

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. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. (Section 2, Article XVII, 1987 Constitution)

a) Not self-executory

The people’s initiative under Section 2, Article XVII of the 1987 Constitution is not self-executory. (Santiago v. COMELEC, G.R. No. 127325, 19 March 1997)

R.A. No. 6735 (or “The Initiative and Referendum Act”) is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC “to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act.” (Ibid.)

b) When a deliberative body and when a people’s initiative

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people’s initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. (Ibid.)

NB: For more discussions, see: Part V. Legislative Department > I. Initiative and Referendum

b. Ratification via plebiscite

1) Required number of votes

a) Congress as a Constituent Assembly, or a Constitutional Convention

Any amendment to, or revision of, this Constitution under Section 1 (i.e. via Congress as a Constituent Assembly or Constitutional Convention) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety days after the approval of such amendment or revision. (Section 4, Article XVII, 1987 Constitution)

b) People’s Initiative

Any amendment under Section 2 (i.e. People’s Initiaitive) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. (Paragraph 2, Section 4, Article XVII, 1987 Constitution)

2) Single election only

It is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single “election” or plebiscite. (Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1971)

The language of the constitutional provision says distinctly that either Congress sitting as a constituent assembly or a convention called for the purpose “may propose amendments to this Constitution,” thus placing no limit as to the number of amendments that Congress or the Convention may propose. (Ibid.)

The same provision also as definitely provides that “such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification,” thus leaving no room for doubt as to how many “elections” or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocably says “an election” which means only one. (Ibid.)

a) No piecemeal amendments

Since only one plebiscite/election is allowed, there can be no piecemeal amendments and them submit each to a plebiscite/election for ratification. (Ibid.)

3) Proper submission

In order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. (Ibid.)

[A]mendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. The word “submitted” can only mean that the government, within its maximum capabilities, should strain every effort to inform citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. (J. Sanchez, Dissent in Gonzales v. COMELEC, G.R. No. L-28224, 09 November 1967, cited in Tolentino v. COMELEC, supra.)

3. LIMITATIONS

a. Jus Cogens The Convention was legally free to postulate any amendment it may deem fit to propose – save perhaps what is or may be inconsistent with what is now known, particularly in international law, as Jus Cogens – not only because the Convention exercised sovereign powers delegated thereto by the people – although insofar only as the determination of the proposals to be made and formulated by said body is concerned – but, also, because said proposals cannot be valid as part of our Fundamental Law unless and until “approved by the majority of the votes cast at an election at which” said proposals “are submitted to the people for their ratification,” as provided in Section 1 of Art. XV of the 1935 Constitution. (Planas v. COMELEC, G.R. No. L-35925, 22 January 1973)

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