Initiative and Referendum | Legislative power | LEGISLATIVE DEPARTMENT

Topic: Initiative and Referendum under the Legislative Department – Philippine Political Law

Constitutional Foundation: The concepts of initiative and referendum in the Philippines are rooted in the principle of direct democracy, whereby citizens can participate in lawmaking, amending, or repealing laws without necessarily going through their representatives in Congress. The 1987 Philippine Constitution explicitly recognizes these mechanisms in Article VI, Section 32:

"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 thereto, signed by a required number of qualified voters."

This section directs Congress to create the enabling law that implements the systems of initiative and referendum.

Republic Act No. 6735 – The Initiative and Referendum Act

To comply with the mandate of the 1987 Constitution, Congress enacted Republic Act No. 6735, also known as “The Initiative and Referendum Act.” This law governs the procedures and systems by which the people can exercise their sovereign power to directly propose, enact, amend, or repeal laws through initiative or to approve or reject laws through a referendum.

I. Initiative

Definition: An initiative is the power of the people to propose amendments to the Constitution, enact, amend, or repeal laws through a direct action of the electorate. There are three types of initiative provided under RA 6735:

1. Initiative on the Constitution – Direct proposal to amend the Constitution.
2. Initiative on Statutes – Direct proposal to enact or amend national laws.
3. Initiative on Local Legislation – Direct proposal to enact or amend local ordinances.

Process of Initiative:

1. Petition – A petition must be filed, signed by the required number of registered voters. The form of the petition must contain:

   • The proposition (proposed law or amendment),
   • Signatures of registered voters,
   • An abstract of the proposed law or amendment.

   The petition must be signed by at least 10% of the total number of registered voters, of which each legislative district must be represented by at least 3% of its registered voters.

2. Verification – The Commission on Elections (COMELEC) is responsible for verifying the authenticity of the petition and the sufficiency of the signatures.

3. Public Hearing – After verification, a public hearing is conducted to discuss the proposed initiative.

4. Submission to Electorate – Upon approval of the petition, the COMELEC will schedule a national or local referendum for the electorate to vote on the proposed law or amendment.

5. Approval – The initiative is approved if a majority of the votes cast in the referendum are in favor of the proposed law or amendment.

Limitations on Initiative:

• Scope: National statutes or local ordinances can be subject to initiative. However, it cannot be used to amend the Constitution directly, unless it is a proposal to amend.
• Timing: No petition for initiative can be filed within five years after the ratification of a law and within three years after a previous initiative.
• Legislative Act Restrictions: Initiative cannot override decisions on budget appropriations, taxation, and emergency powers granted to the President.

II. Referendum

Definition: A referendum is the power of the people to approve or reject an act or law, or part of it, that has been passed by Congress or a local legislative body. A referendum can also apply to local ordinances.

Types of Referendum:

1. Referendum on Statutes – It refers to the process where the electorate approves or rejects a national law passed by Congress.
2. Referendum on Local Laws – It refers to the process where the electorate approves or rejects local laws or ordinances.

Process of Referendum:

1. Petition – Similar to an initiative, a referendum begins with a petition by the people. This must be signed by the required percentage of the electorate.

   • For a referendum on national laws, the petition must be signed by at least 10% of the total number of registered voters, with at least 3% from each legislative district.
   • For local laws, the petition must be signed by at least 10% of the total registered voters in the local government unit.

2. COMELEC Verification – The petition must be filed with the Commission on Elections (COMELEC), which verifies its authenticity and the sufficiency of the signatures.

3. Public Hearing – A public hearing is conducted to discuss the matter at issue.

4. Submission to Electorate – The COMELEC then sets the date for the referendum. The people vote whether to approve or reject the law.

5. Approval or Rejection – The law is approved or rejected based on the majority of votes cast in the referendum. If a majority votes in favor of the law, it remains valid; if a majority votes against, the law is repealed or voided.

Timing:

• A referendum cannot be held more than once a year on the same subject matter.
• The people may not use referendum within 45 days before a regular election and 90 days before a special election.

III. Jurisprudence on Initiative and Referendum

Several landmark cases have shaped the interpretation of the initiative and referendum process in the Philippines:

1. Santiago v. COMELEC (1997) – This is a pivotal case where the Supreme Court ruled that RA 6735 was insufficient to implement the system of initiative on amendments to the Constitution, because the law failed to provide adequate procedures and standards for such an initiative. As a result, initiatives to amend the Constitution through RA 6735 were effectively rendered unenforceable, pending the enactment of a more precise law. Although RA 6735 provided for initiative on statutes and local ordinances, it was found to be deficient in regard to constitutional amendments.

2. Lambino v. COMELEC (2006) – This case involved a petition for a people’s initiative to amend the 1987 Constitution to shift to a parliamentary system. The Supreme Court ruled against the petition, reiterating that RA 6735 was inadequate for initiatives to amend the Constitution. The Court emphasized that the petition failed to comply with the basic legal requirements for a valid initiative.

IV. Procedural Requirements

1. Form of Petition – The petition must contain the complete text of the proposed law or amendment.
2. Signatures – Must be signed by the requisite number of registered voters, as specified in RA 6735. These signatures must be verified by the COMELEC.
3. Sufficiency – The COMELEC determines whether the petition meets the legal requirements in terms of content and number of signatures.

V. Role of the Commission on Elections (COMELEC)

The COMELEC plays a crucial role in both initiative and referendum processes. Its primary responsibilities include:

• Verifying the authenticity and sufficiency of the petition,
• Setting the dates for the referendum or plebiscite,
• Ensuring the conduct of the voting process is fair and transparent, and
• Certifying the results of the referendum.

VI. Significance of Initiative and Referendum

These processes enhance the democratic framework in the Philippines by allowing citizens to directly participate in the legislative process. Initiative and referendum empower the people to enact laws or to challenge and repeal laws that they disagree with, ensuring that the legislative power is not monopolized by elected representatives but is retained by the people.

In conclusion, initiative and referendum are crucial aspects of direct democracy in the Philippines, mandated by the Constitution and governed by RA 6735. While legislative powers are generally vested in Congress, these mechanisms ensure that the people retain a direct role in lawmaking and constitutional change. However, there are limitations and procedural requirements that must be followed to ensure that the exercise of these powers is legal and legitimate. Jurisprudence has also placed further restrictions, especially on initiatives to amend the Constitution, highlighting the need for further legislative refinement of the system.

Principle of Non-delegability; Exceptions | Legislative power | LEGISLATIVE DEPARTMENT

Principle of Non-Delegability of Legislative Power

Legislative power, as vested in the Congress of the Philippines by the Constitution (Article VI, Section 1), is the authority to enact laws. This power is considered supreme within its sphere and cannot be delegated to any other body or agency unless authorized by the Constitution itself. This principle is known as the "Doctrine of Non-Delegability of Legislative Power."

Rationale for Non-Delegability

1. Separation of Powers: Under the constitutional doctrine of the separation of powers, the legislative, executive, and judicial branches of government have distinct and non-overlapping functions. The legislative branch creates laws, the executive enforces them, and the judiciary interprets them. Delegating legislative power to another branch or body would violate this principle.

2. Responsibility and Accountability: The Constitution vests legislative power in Congress because the people elect their representatives to legislate on their behalf. Delegating this power would dilute the accountability of lawmakers to their constituents.

Exceptions to the Principle of Non-Delegability

The rule on non-delegability is not absolute. Several exceptions have been recognized, both by the Constitution itself and by jurisprudence. These exceptions allow the delegation of certain legislative powers under limited conditions. The most notable exceptions include:

1. Delegation to Local Government Units (LGUs)

Under the Local Government Code (Republic Act No. 7160), Congress delegates certain legislative powers to local government units (LGUs). This is authorized by the Constitution itself (Article X, Section 5) and is an exception to the principle of non-delegability.

• Constitutional Basis: Article X, Section 5 of the 1987 Constitution provides that "Each local government unit shall have the power to create its own sources of revenue and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide."

• Scope: Local governments can enact ordinances, pass resolutions, and create taxes, subject to statutory limitations provided by Congress.

2. Delegation to the President (Emergency Powers)

The Constitution allows Congress to delegate certain powers to the President in times of national emergency or war. This is provided under Article VI, Section 23(2) of the Constitution, which states:

"In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy."

• Nature: The delegation of emergency powers is a temporary measure to address extraordinary situations. Congress typically enacts a law defining the scope of powers and the duration for which the President can exercise them.

3. Delegation to Administrative Agencies

Congress may delegate rule-making authority to administrative agencies, as long as it provides sufficient standards to guide the exercise of such authority. This is known as subordinate legislation and is considered an exception to the non-delegability rule.

• Tests for Valid Delegation: For the delegation to administrative agencies to be valid, two conditions must be met:

  1. Completeness Test: The law delegating the power must be complete in itself and must set out the policy to be carried out.
  2. Sufficient Standard Test: The law must prescribe adequate standards that guide the agency in implementing the legislative intent.

• Rationale: Congress recognizes that certain matters require technical expertise or detailed management (e.g., taxation, labor relations, energy regulation), which administrative agencies are better equipped to handle.

4. Tariff Powers Delegated to the President

Article VI, Section 28(2) of the Constitution provides that Congress may delegate to the President the authority to fix tariff rates, import and export quotas, and other trade restrictions, within the framework set by Congress. This exception is based on the recognition that tariff and trade matters are subject to rapid changes, necessitating swift and flexible responses.

• Limits: Congress usually provides guidelines for the exercise of this power, including the range of tariff rates that the President can impose or adjust.

5. Delegation to the People (Plebiscites and Referenda)

Congress may also delegate power directly to the people through plebiscites and referenda. This is an exception rooted in direct democracy, where citizens have the opportunity to make decisions on certain issues through a direct vote.

• Constitutional Basis: Article VI, Section 32 of the Constitution mandates that Congress shall provide for a system of initiative and referendum to allow the people to directly propose and enact laws or reject any act or law passed by Congress or the local legislative body.

6. Delegation to the Judiciary (Judicial Rule-Making Power)

Although the legislative power to create laws is non-delegable, Congress has recognized the judiciary's authority to promulgate rules concerning procedure in courts. This delegation is based on the judiciary’s constitutional power under Article VIII, Section 5(5), which grants the Supreme Court the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts.

7. Delegation to International Bodies or Treaties

Under Article VII, Section 21 of the Constitution, the President may enter into treaties or international agreements with the concurrence of the Senate. These treaties, when ratified, can have the effect of domestic law, especially in cases where the treaty is self-executing. In this sense, Congress effectively allows international bodies or treaty agreements to have legislative effects within the domestic sphere.

Illustrative Jurisprudence on Delegation of Legislative Power

1. People v. Vera (1937): This case established the principle that delegation of legislative power is generally impermissible unless exceptions are provided by the Constitution. It invalidated the delegation to the provincial boards of the authority to decide which municipalities would be subject to the probation law.

2. Abakada Guro Party List v. Ermita (2005): In this case, the Supreme Court upheld the delegation of tariff-setting power to the President, recognizing that Congress may delegate powers to adjust tariff rates, as long as it sets the parameters for their exercise.

3. Tolentino v. Secretary of Finance (1994): The Supreme Court upheld the delegation of certain tax powers to the Secretary of Finance. Congress provided clear standards on how the Secretary should implement Value Added Tax (VAT) law provisions, making the delegation valid under the sufficient standard test.

Conclusion

While legislative power is generally non-delegable under the 1987 Philippine Constitution, various exceptions to this principle exist, grounded in practicality and constitutional mandates. These include delegation to local governments, administrative agencies, the President during emergencies, and the people through referenda. For such delegations to be valid, Congress must set adequate standards and clear parameters to guide the exercise of delegated powers, ensuring that the delegating body remains accountable to the people.

Scope and Limitations | Legislative power | LEGISLATIVE DEPARTMENT

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW

IX. LEGISLATIVE DEPARTMENT

A. Legislative Power

1. Scope and Limitations

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I. Scope of Legislative Power

Legislative power is the authority vested in the legislature, which in the Philippines is the Congress, to enact laws, amend them, and repeal them. This power is essential to the functioning of a democratic government, as it provides the framework by which societal conduct is regulated. The power to legislate in the Philippines is vested in a bicameral Congress, composed of the Senate and the House of Representatives, as outlined in Article VI of the 1987 Philippine Constitution.

A. General Scope

The scope of legislative power is generally plenary, meaning it covers all subjects unless expressly or impliedly limited by the Constitution or other laws. Congress may legislate on matters affecting the public, whether they pertain to civil, political, economic, or social concerns.

1. General Powers of Congress:
   Congress has the authority to:

   • Enact laws to protect and promote public welfare.
   • Levy taxes and raise revenue.
   • Appropriate public funds for government expenditures.
   • Declare war and provide for national defense.
   • Regulate commerce and trade.
   • Maintain law and order, including the police power to ensure peace and safety.
   • Regulate the operation of public institutions and the conduct of public officials.
   • Define crimes and prescribe punishments.

2. Powers Enumerated in the Constitution:
   Article VI of the Constitution explicitly outlines some specific powers of Congress, including:

   • Imposing and collecting taxes.
   • Appropriating funds.
   • Declaring the existence of a state of war.
   • Confirming treaties.
   • Granting amnesty.
   • Exercising the power of impeachment.
   • Enacting electoral laws, such as those governing the conduct of elections.
   • Approving the national budget and bills related to tariffs, trade, or public debt.

3. Implied Powers:
   Congress also possesses implied powers, which are those not explicitly enumerated in the Constitution but are necessary for carrying out its enumerated powers effectively. This is based on the necessary and proper clause (Sec. 24, Article VI), which allows Congress to enact laws necessary to exercise the powers vested in it by the Constitution.

B. Delegation of Legislative Power

1. Non-Delegability of Legislative Power (Potestas delegata non potest delegari):
   As a general rule, legislative power is non-delegable. Congress cannot delegate its law-making function to another body, person, or entity. This principle is rooted in the separation of powers doctrine. Exceptions to this rule are provided for by the Constitution or when Congress delegates its authority to administrative agencies for the purpose of rule-making within specific, defined limits.

2. Exceptions to Non-Delegability:
   Congress may delegate legislative functions when:

   • The delegation is expressly or impliedly authorized by the Constitution.
   • The delegation pertains to administrative details necessary to implement the law (known as administrative rule-making or quasi-legislation).
   • The delegation relates to emergency powers, as when Congress grants the President temporary legislative powers in times of national emergency under Section 23(2), Article VI of the Constitution, provided certain conditions are met (e.g., such powers are for a limited period and subject to restrictions as Congress may prescribe).

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II. Limitations on Legislative Power

Although legislative power is plenary, it is not absolute. It is subject to several constitutional, statutory, and judicial limitations.

A. Constitutional Limitations

1. Substantive Limitations:
   These are restrictions imposed on the content of the laws that Congress may enact. Examples include:

   • Bill of Rights (Article III of the Constitution):
     Laws must not violate fundamental rights guaranteed by the Constitution, such as:
     • Due process and equal protection of laws.
     • Freedom of speech, press, assembly, and petition.
     • Freedom of religion.
     • Rights against unreasonable searches and seizures.
     • Right to privacy.
     • Right against self-incrimination.
     • Right to property.
   • Prohibition against Ex Post Facto Laws and Bills of Attainder:
     Congress cannot pass laws that retroactively make an act a crime (ex post facto law) or impose punishment without a trial (bill of attainder).
   • Prohibition against Double Taxation:
     Congress cannot impose double taxation, which would subject a person to pay two taxes on the same item or transaction without reasonable justification.
   • Non-Impairment Clause (Sec. 10, Article III):
     Congress cannot pass laws impairing the obligation of contracts.
   • No Religious Test:
     Congress cannot pass laws imposing a religious test for the exercise of civil or political rights.
   • Prohibition on Cruel and Unusual Punishment:
     Congress may not enact laws imposing penalties that are cruel or inhumane.

2. Procedural Limitations:
   These refer to the requirements governing the process of enacting laws:

   • Three Readings on Separate Days Rule (Sec. 26, Art. VI):
     No bill shall become a law unless it passes three readings on separate days in both the Senate and the House of Representatives. This ensures that legislation undergoes sufficient scrutiny before approval.
   • Journal Requirement (Sec. 16, Art. VI):
     The proceedings of Congress must be duly recorded in its journal, and the approval of bills must be noted therein.
   • Rule of Uniformity and Equitability in Taxation (Sec. 28, Art. VI):
     All taxes must be uniform and equitable, meaning they should apply equally to persons or things under similar circumstances.

B. Judicial Limitations

1. Judicial Review:
   The judiciary has the power to review acts of Congress to ensure their constitutionality. Under the principle of judicial review, the Supreme Court can declare laws or portions thereof unconstitutional if they conflict with the provisions of the Constitution (Sec. 1, Art. VIII). This ensures that the legislature does not overstep its bounds or infringe on fundamental rights.

2. Doctrine of Overbreadth and Vagueness:
   Laws that are too broad or too vague can be struck down by the courts. A law is considered overbroad if it restricts more speech or conduct than necessary. A law is deemed vague if a person of ordinary intelligence cannot determine what conduct is prohibited, thereby violating due process.

C. Political Limitations

1. Public Opinion and Accountability:
   Although not a formal legal limitation, the power of Congress is indirectly limited by public opinion and political accountability. Lawmakers are elected officials, and their legislative actions are often subject to the scrutiny of their constituents. They must balance their exercise of legislative power with their duty to represent the will of the people.

2. Veto Power of the President (Sec. 27, Art. VI):
   The President may veto any bill passed by Congress, effectively limiting the legislative power. However, Congress may override the veto by a two-thirds vote of all its members.

D. International Law Limitations

1. Treaty Obligations (Sec. 21, Art. VII):
   Congress cannot pass laws that violate international treaties or conventions to which the Philippines is a party. Under the doctrine of incorporation, generally accepted principles of international law form part of the law of the land, and the legislature is bound by such norms in its lawmaking function.

2. Principle of Pacta Sunt Servanda:
   This principle obliges the State to honor its international agreements and ensure that its domestic laws conform to such agreements. This serves as a limitation on Congress, as it may not pass laws contravening obligations arising from international treaties or customary international law.

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III. Conclusion

In conclusion, while Congress holds broad legislative power in the Philippines, it operates within a complex web of substantive, procedural, judicial, and political limitations. These safeguards ensure that legislative acts conform to the Constitution, respect fundamental rights, and adhere to international law obligations. Furthermore, the separation of powers doctrine ensures a balance between the executive, legislative, and judicial branches, preventing the overreach of any single branch of government.