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In the interest of clarifying concerns regarding the constitutionality of the proposed PI bill abolishing the pork barrel system, I’m posting Bayan Muna Rep. Neri Colmenares’ memo on the controversial Section 10 of the said bill.

THE SOVEREIGN POWER OF THE PEOPLE TO PASS A LAW: Beyond Congressional Power of Repeal and Presidential Power of Veto

By Bayan Muna Rep. Neri Colmenares
(Draft: August 25, 2014)

Introduction

Section 10 of the proposed bill of the peoples initiative provides that:

SEC. 10. Amendment or repeal of this Act. This Act may only be repealed, modified or amended by a law that has been approved by the people under the system of initiative and referendum enshrined in the 1987 Constitution

Certain concerns were raised on whether Section 10 could withstand a constitutional challenge thereby endangering the peoples initiative. The concern is once the Comelec grants the petition and schedules a referendum, the constitutionality of the bill is ripe for adjudication by the Supreme Court who in turn, may strike down Section 10 and declare that the law abolishing the pork barrel system may be repealed by Congress in its ordinary exercise of legislative powers.

Section 10 is constitutional as explained below, and even if, in the unlikely event that it is declared unconstitutional, the law passed through people’s initiative remains valid, since the procedural provision on how the law can be repealed has no relation at all with the substantive provisions of the law prohibiting pork barrel.

The traditional concept in the Philippine Constitution, and in probably all Constitutions of representative governments throughout the world, is that the power to legislate belongs to the legislature, whether a Congress or a Parliament. The legal notion of a direct democracy type of legislation through a peoples initiative has not achieved widespread practice in many countries today. While there are initiative laws that allow for legislation at a state, provincial or cantonal level, such as the United States or Switzerland, there is probably no country other than the Philippines that allows for a peoples initiative to pass a national legislation. Many lawyers, therefore, find it difficult to automatically apply the traditional legal principles and jurisprudence they are familiar with on such a novel legal notion that possibly sprung from the direct democracy that was practiced in the early days of the Greek states but was abandoned a long time ago.

The power of the people to pass a national law is a new provision in the Philippine Constitution. None of the previous Constitutions, including the Malolos Constitution, provided for the power of initiative. There is no existing jurisprudence applicable on the conduct of a people’s initiative to pass a national legislation especially on whether Congress can repeal a law passed through a peoples initiative. The existing jurisprudence such as the Lambino and Santiago cases did not touch on the issue of congressional repeal of a law passed by the people’s initiative. While no one can certainly predict how this issue would be resolved by the Supreme Court, the proponents of the initiative are quite confident that the Court will rule in favor of the letter, purpose and intent of the constitutional provision, and therefore rule in favor of the peoples initiative.

Issue: Can a national legislation passed through a people’s initiative be vetoed by the President? No, it cannot be vetoed by the President.

The Constitution while allowing two kinds of legislation, a law passed by Congress and a law passed through a peoples initiative, only allows veto in cases of laws passed by Congress under Article VI, Section 27. Otherwise, the intent of the Constitution of granting the people the power of initiative will be defeated especially since there is no way for the people to override the veto. A presidential veto cannot be exercised in the case of a legislative power to amend or repeal a law directly passed by the people. It is not countenanced under the Constitution. Besides, the Constitution expressly vested in Congress the provision of the procedure for a people’s initiative. In the absence of a provision on presidential veto, none can be used to nullify the exercise of people’s initiative.

Issue: Can Congress repeal a national legislation passed through a peoples initiative ? No, Congress cannot repeal a national legislation passed through a people’s initiative as it will violate the letter and spirit of the constitutional provision on initiative.

Ordinary or Plain Meaning (Textual) Approach

Firstly, the Constitution took out from congressional power the right reserved for the people to pass national legislation as provided under Section 1, Article VI which defined and limited the powers of Congress:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

The legislative power of Congress includes the power to pass, amend or repeal laws and Section 1 practically carved out from this legislative power of Congress the power of the people through initiative. To legislate means to enact statutes; it includes by necessary implication the power to amend or repeal them. To except is to exclude. Hence, excluded from the power of congressional legislation, in all this power’s aspects, are the national statutes enacted through the people’s initiative. This express exception directly tells Congress that the power reserved for the people through initiative is outside the penumbra of its legislative powers. The Constitution is consistent with its constitutional intent of granting the people the power to directly enact laws deemed necessary by the people or repeal laws which the people consider unjust or against the interest of the people.

Purpose and Scheme Approach

In the broader constitutional scheme, the congressional power to legislate is a “delegated power”. The sovereign people have the sole power to craft the Constitution and the laws that will govern a political entity. The people, however, delegated such power to Congress so that Congress may protect the people’s interest through legislation. But the people did not delegate that power totally, as the Constitution shows. Once the people believe that Congress failed to live up to this mandate, the people have all the right to override this delegated legislative power of Congress. The delegate cannot be empowered to simply override the powers exercised by its principal. This is the reason why members of Congress are called representatives, and it is absurd if the “Representatives” are allowed to subvert the will of those it represents.
A perusal of the cases involving people power shows that the acts of the sovereign have been recognized by the Supreme Court even if the same is not expressly provided in the Constitution. With more reason, the Supreme Court should recognize this sovereign power which is expressly declared in the Constitution.

The basis of the constitutional framers for the novel and unique provision on initiative was the experience of the people during martial law when the “Batasang Pambansa” which was under the control of the dictator Pres. Ferdinand Marcos, passed anti people laws to prop up the martial law regime. This was and remains the “grand mischief” that the 1987 Constitution seeks to address. This constitutional imperative asserts that when the people want to repeal a law passed by Congress or want to pass a law which Congress refuses to pass, the people have the power to repeal or pass a law without any intervention from Legislature and the Executive.

The above-quoted Section 10 is thus in response to very serious concerns raised by the people themselves about congressional circumvention of the people’s power to pass laws. During the campaign for signatures, there will be people who will ask whether Congress can simply nullify a law passed by the people’s initiative after all the months of difficult campaign and the millions of signature gathered. The people certainly have the right to ask if their signatures will have an important impact in the struggle for reforms or will be just another act of futility. If Congress is allowed to repeal the law passed by a peoples initiative, then the entire exercise may already be deemed a failure by many of those who support it. After all, the very reason why the people resorted to an initiative to abolish the pork barrel system is because Congress refuses and cannot be expected to pass such a law and will surely repeal such a law if passed.

The fact that Pres. Benigno Aquino in an innocuous provision in the proposed 2015 Budget redefined “savings” practically transforming the entire budget into DAP, only highlights the antagonism of both the executive and the legislative to the bill that seeks to abolish pork barrel in the likes of DAP. The entire people’s initiative could be rendered useless by the mere insertion of provisions in the annual General Appropriations Law that repeal the law passed by the people. This is totally unacceptable and there is no way that the people will not put in Section 10 in its proposed law. There is no way for the people to accept congressional repeal of a law passed by the people through hard work and extreme sacrifice. We might as well take out the constitutional provision on people’s initiative if this is the case.

Presumption against Absurdity

If Congress passes an unjust law and the people decide to repeal it, it is absurd if Congress is granted the power to revive that law resoundingly repealed by the people. If Congress is allowed to subvert a law passed through initiative, then the constitutional intent is subverted by the very institution which passed a law deemed unjust by the people. This absurdity practically makes the constitutional provision on the initiative a useless surplusage because an anti-people law which the people repealed is simply reinstated by Congress through a subsequent law. The constitutional provision on initiative is a tool not only to empower the people to override congressional legislation but also to serve as a warning to Congress that the people will override the delegated power given by the people to Congress if it fails to carry the interest of the people in the exercise of its legislative function. A law passed by the people is not “irrepealable” but it can not be repealed by its representatives in Congress but by the the very power that promulgated it—the people.

Conclusion

We seek to reiterate that a law passed through a peoples initiative is not an irrepealable law as it can be repealed by the another law also passed through a peoples initiative. What is prohibited is that Congress simply repeals a law passed by those it represents using its traditional powers of ordinary legislation. We have all been used to the traditional concept of a legislative power solely lodged in Congress, failing to recognize the significance of the unique power given by the Constitution to the people. Some will focus on the assertion that it is an attack on the traditional legislative power of Congress, if Congress is prohibited from amending or repealing a law passed through peoples initiative. Others will focus on the assertion that, on the contrary, it is an attack on the power of the people to pass a law if Congress is given the power to repeal it. The concern raised is legitimate, but the answer is clear—the people cannot put into the bill a provision that would surrender its rights and powers to Congress. It has to assert and defend its power to directly pass a law and the power to repeal it.

While tradition plays an important role in a legal system, it cannot be the recourse in the face of a novel legal notion that directly empowers the people to institute reforms. After all, as an esteemed criminal law professor once said, ‘There has got to be a better reason than tradition”.

2 thoughts on “Legal memo on Section 10 of PI bill

  1. Reblogged this on Random Thoughts and commented:
    ‘Issue: Can Congress repeal a national legislation passed through a peoples initiative ? No, Congress cannot repeal a national legislation passed through a people’s initiative as it will violate the letter and spirit of the constitutional provision on initiative.’

  2. Reblogged this on Random Thoughts and commented:
    ‘Issue: Can Congress repeal a national legislation passed through a peoples initiative ? No, Congress cannot repeal a national legislation passed through a people’s initiative as it will violate the letter and spirit of the constitutional provision on initiative.’

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