How to Change a Constitution

Amending the Constitution, which is the highest law of the land, is an issue that comes alive in every term of recent Presidents. Terms such as “Cha-Cha” (charter change), “con-ass” and “concon” are thrown around with regularity. Some sectors argue that there’s a need to amend the Constitution now. Others say that while there’s a need to amend the Constitution, it should be done in a time when the people are comfortable with our leaders. Still others simply don’t care. So, how do you amend the Constitution?

What are the ways of changing the Constitution?

The 1987 Constitution (Article XVII) provides for three modes of changing the Constitution:

  1. Congress upon three-fourths vote of all its Members (Congress acting as a Constituent Assembly, fondly called “Con-Ass”).
  2. A constitutional convention (fondly called “ConCon”).
  3. People’s initiative.

The transition from the 1973 Constitution to the 1987 Constitution was “extra-constitutional” in nature.

What is the nature of Congress acting as a constituent assembly?

The power to amend the Constitution or to propose amendments is not included in the general grant of legislative powers to Congress. It is part of the inherent right of the people. Congress may propose amendments to the Constitution because the Constitution explicitly grants that power. Hence, when exercising that power, it is said that members of Congress act not as members of Congress, but as component elements of a constituent assembly.

The members of Congress, acting as a constituent assembly, propose the amendments or revisions. A respected Constitutionalist, Fr. Joaquin Bernas, points to the record of the Constitutional Convention that “the two houses of Congress vote separately” in reaching the required 3/4 vote. (Incidentally, the House of Representatives issued House Resolution No. 1109 to test if the Supreme Court would rule on whether the three-fourths vote of the Senate and House of Representatives should be done separately.)

How is a Constitutional Convention created?

The Congress may call a constitutional convention by a vote of 2/3 of all its members. Congress may also submit to the electorate the question of calling such a convention by a majority vote of all its members.

The members of the Constitutional Convention, not the members of Congress, propose the amendments or revisions.

What is people’s initiative?

Amendments to the Constitution may be directly proposed by the people through initiative upon a petition of: (1) at least 12% of the total number of registered voters; AND (2) every legislative district must be represented by at least 12% of the registered votes therein. No amendment is allowed more often than once every 5 years thereafter.

The essence of amendments through people’s initiative is that the entire proposal on its face is a petition by the people. This means two essential elements must be present: (1) the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf; and (2) the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition.

The Constitution, however, directs the Congress to enact a law to implement the provisions on people’s initiative. While the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

In 1989, Congress passed Republic Act No. 6735 (also known as the “People’s Initiative and Referendum Act”), which is intended to cover initiative to propose amendments to the Constitution. However, the Supreme Court declared that this law is “incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.” In other words, there is yet no law which effectively provides for the exercise of people’s initiative to amend the Constitution.

Is there a difference between “amendment” and “revision”?

Yes. 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. It generally affects several provisions of the Constitution. Congress or a constitutional convention can propose both amendments and revisions to the Constitution. A “revision” through people’s initiative is not allowed.

Amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. It generally affects only the specific provision being amended. 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. 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% to 60% 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. The people, directly through a people’s initiative, may change the Constitution through an “amendment”.

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. 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. 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.

When shall the amendment or revision become valid?

Any amendment or revision of shall be valid only when ratified by a majority of the votes cast in a plebiscite. In other words, the proposed amendments/revisions that come out of the Con-Ass, ConCon or people’s  initiative, as the case may be, must be ratified by the people through a plebiscite. This is ideally done through a special election, although this is not required under the Constitution.

Sources: Gonzales vs. COMELEC; Sanidad vs. COMELEC; Defensor-Santiago vs. COMELEC; Lambino vs. COMELEC.

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