Q. No. 5 | Political Law | Suggested Answer | Bar 2023

 Q. No. 5 | Political Law | Suggested Answer | Bar 2023

Q. No. 5 | Political Law

“1. Section 1, Article IV on Bangsamoro Parliament Electoral Tribunal of the Proposed Electoral Code of the Bangsamoro Autonomous Region for Muslim Mindanao states: “Section 1. Creation and Jurisdiction. – The Bangsamoro Parliament shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of the members of the Parliament.” 

Is the proposed provision constitutional? Explain. 

SUGGESTED ANSWER:

NO, Section 1, Article IV of the Bangsamoro Parliament Electoral Tribunal of the Proposed Electoral Code of the Bangsamoro Autonomous Region for Muslim Mindanao is NOT constitutional because it is contrary to the 1987 Constitution. 

The said proposed provision impliedly revised the fundamental government structure of the existing government that requires Revision of the 1987 Constitution.

 Mere legislation to create the Bangsamoro Parliament Electoral Tribunal under the Bangsamoro Parliament shall affect and violate the following important Constitutional provisions, to wit:

• Article II, Declaration of Principles and State Policies, Section 1 
• Article VI, The Legislation Department, Section 1.
• Article VII, Executive Department, Section 1
• Article IX, Constitutional Commissions, Section 1-C.
• Article X, Local Government, Autonomous Region, Section 15.
• Article XVII, Amendments or Revisions, Sections 1, 3, and 4,

Jurisprudence |

LAMBINO et al. vs. THE COMMISSION ON ELECTIONS, G.R. No. 174153, October 25, 2006

“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. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended[.]” (Lambino vs. The COMELEC, G.R. No. 174153, October 25, 2006).

‘’[…] A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution[.] (Lambino vs. The COMELEC, G.R. No. 174153, October 25, 2006).

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:

"It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied)[.]”

RE: AMENDMENT VS. REVISION

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner:

“[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, 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[.]”[Livermore v. Waite, 102 Cal. 113, 118-119 (1894)].

RE: Tests applied by the Court to determine whether the proposed change sought is an amendment or a revision to the Constitution; The quantitative test and the qualitative test.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative 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."³⁶ The court examines only the number of provisions affected and does not consider the degree of the change.

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."³⁷ Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches."³⁸ A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of checks and balances."³⁹ (Lambino vs. The COMELEC, G.R. No. 174153, October 25, 2006.)

Read the full text at 

https://www.lawphil.net/judjuris/juri2006/oct2006/gr_174153_2006.html

FOOTNOTES

³⁶ Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286 (1978).

³⁷ Id.

³⁸ Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).

³⁹ California Association of Retail Tobacconists v. State, 109 Cal.App.4^th 792, 836 (2003).