Paper presented in the International Workshop On Right To Referendum: A Comparative Review On Law
And Practice, November 17-18, 2014, Hanoi, Viet Nam. Dr. Carmona is an international development
practitioner on rule of law, governance, electoral reform and administration and public sector reform. He is
also a professor at the Philippine Judicial Academy, Ateneo De Manila University School of Law and the
Graduate School of Law of San Beda College.
2
1987 Constitution, Article III, Section 1.
3
Francisco, Jr. vs. House of Representatives, G.R. No. 160261, 10 November 2003.
4
Ibid.
5
1987 Constitution, Art. VIII, Sec. 1.
6
ibid, Article III, Section 1.
by at least 3% of the registered voters, must sign a petition for this purpose. The
petition must state and/or contain the following:
1. contents or texts of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
2. the proposition;
3. the reason or reasons therefor;
4. that it is not one of the exceptions;
5. signatures of the petitioners or registered voters; and
6. an abstract or summary in not more than one hundred words which shall
be legibly written or printed at the top of every page of the petition.
Petitioners must then register their petition with the COMELEC, which is
tasked to verify the authenticity of the signatures on the basis of the registry list
of voters, voters' affidavits and voters identification cards that were used in the
immediately preceding election. If the COMELEC determines that the petition is
sufficient and compliant with the requirements of the law, it has to order the
publication of the petition in newspapers of general and local circulation within 30
days from receipt of the petition. The law requires that publication must be made
at least twice in Filipino and English and must set the date of the initiative or
referendum not earlier than 45 days but not later than 90 days from the
determination by the COMELEC of the sufficiency of the petition.
Figure 1. Procedure for National Initiative
The proposition (i.e. the measure proposed by the voters) will then have to
be submitted to and approved by the voters in an election called for that purpose.
If the proposition is approved by a majority of the votes cast, the national law
proposed for enactment, approval, or amendment shall become effective as a
national law within 15 days after its publication in the Official Gazette or in a
newspaper of general circulation in the Philippines. If the proposition is to reject
or repeal a national law, which has been approved by a majority of the votes
cast, the said national law shall be deemed repealed and such repeal will take
effect 15 days after the completion of the publication of the proposition in the
Official Gazette or in a newspaper of general circulation in the Philippines. In
both instances, the certification by the COMELEC is required. If, on the other
hand, the majority vote is not obtained, the national law sought to be rejected or
amended shall remain in full force and effect.
b. Local Initiative: R.A. No. 6735 and The Local Government Code16
To propose the adoption, enactment, repeal, or amendment of a local
ordinance or resolution, the law requires that at least 2,000 registered voters in
case of an autonomous region, 1,000 in case of provinces and cities, 100 in case
of municipalities, and 50 in case of barangays, must file a petition with the
relevant local legislative body proposing the adoption, enactment, repeal, or
amendment of the ordinance. The law allows proponents to submit two or more
propositions in an initiative.17
If the concerned local legislative body fails to take any favorable action on
the proposal within 30 days from its submission, the proponents, through their
duly authorized and registered representatives, may invoke their power of
initiative after giving notice to the legislative body. They can transform their
proposal into a proposition, which will then be submitted to the electorate for
approval through the initiative process. The law directs the COMELEC to extend
assistance to the proponents in formulating the proposition.
The law gives the proponents specific number of days - depending on the
local government involved - to gather the required number of signatures. They
have 120 days in case of autonomous region, 90 days in case of provinces and
cities, 60 days in case of municipalities, and 30 days in case of barangays, after
notice has to the legislative body referred to above. It is also required that the
petition must be signed before the election registrar and in the presence of the
proponents and a representative of the concerned local legislative body. The
signing must be done in a public place within the territorial jurisdiction of the
concerned local government unit. For this purpose, stations for collecting
signatures may be established in as many places as may be warranted.
After the lapse of the number of days specified above, the field office of
16
The Local Government Code, which is a newer law, basically incorporated the provisions of R.A. No. 6735
on local initiative and referendum. see Sections 120 to 127 of the Local Government Code and Sections 13
to 18 of R.A. No. 6735.
17
Sec. 13, R.A. No. 6735. See also section 9 of COMELEC Resolution No. 2300.
There are limitations to the exercise of the power of initiative in the local
level. First, it cannot be exercised more than once a year. Second, initiative only
extends to subjects or matters that are within the legal powers of the legislative
bodies to enact. For example, local initiative cannot seek to repeal a criminal law.
Third, local initiative has to be cancelled if the local legislative body decides to
act on the proposition and adopts it in toto.18
The law provides safeguards to ensure that local legislative bodies cannot
easily frustrate the will of the people that have been expressed through the
process of initiative by the simple expedient of repealing or amending the same.
It states any proposition or ordinance or resolution approved through the system
of initiative and referendum cannot be repealed, modified or amended, by the
local legislative body concerned within six months from the date from approval. It
has to wait for three years before it can amend, modify or repeal such legislative
measure and only by a vote of 3/4 of all its members.19 Ordinary legislative action
only requires majority approval. In case of barangays, the period is one year after
the expiration of the first six months
c. Indirect Initiative
Any duly accredited people's organization may also file a petition for
indirect initiative with the House of Representatives, and other legislative bodies.
The petition shall contain a summary of the chief purposes and contents of the
bill that the organization proposes to be enacted into law by the legislature. The
procedure to be followed on the initiative bill shall be the same as the enactment
of any legislative measure before the House of Representatives except that the
said initiative bill shall have precedence over the pending legislative measures on
the committee.
d. Referendum
Referendum is the power of the electorate to approve or reject legislation
through an election called for the purpose. Though often used interchangeably
with initiative, there are statutory and conceptual demarcations between a
referendum and an initiative. 20 While initiative is entirely the work of the
electorate, referendum is begun and consented to by the law-making body.
There are two classes of referendum. One is the referendum on statutes,
which refers to a petition to approve or reject an act or law, or part thereof,
passed by Congress. The second class is referendum on local law, which refers
to a petition to approve or reject a law, resolution or ordinance enacted by
regional assemblies and local legislative bodies.21
Figure 3. Procedure for Referendum
18
the
the
to
the
SBMA vs. COMELEC, et al., G.R. No. 125416 September 26, 1996.
Ibid.
Pursuant to Republic Act No. 6734, otherwise known as the Organic Act of the Autonomous Region in
Muslim Mindanao, which was signed into law by then President Corazon C. Aquino on August 1, 1989.
31
ARMM History, Official Website of the ARMM, http://armm.gov.ph/history/.
32
Cordillera turns back on autonomy, NEDA Website, http://car.neda.gov.ph/cordillera-turns-back-onautonomy/
33
Cities in the Philippines at a Glance, Senate website (November 2013),
https://www.senate.gov.ph/publications/AAG%20on%20cities_FINAL_nov%20%2028.pdf
Sema vs. COMELEC and Dilangalen, G.R. No. 177597 (July 16, 2008)
The term limit of the President is 6 years without re-election; vice president and senators, 2 terms of 6
years each; and 3 consecutive terms of 3 years each for barangay officials, municipal and city officials,
provincial officials, and members of the House of Representatives.
36
G.R. No. 127325, March 19, 1997.
35
provisions for the orderly shift from one system to the other?
As things stand now, Congress has yet to pass a new law or amendment to
cure the inadequacy of R.A. No. 6375, which is supposed to enable the public to
propose constitutional amendments. Also, no new attempts had been made
37
since the Supreme Court stopped the last peoples initiative to change the
Constitution. It must be pointed out, however, that there was a subsequent
minute Resolution issued by the Supreme Court wherein ten of its members
stated that R.A. No. 6735 is sufficient and adequate to amend the Constitution
thru a peoples initiative, which left the issue hanging. 39
c. National initiatives
To date, no national law has been passed through the process of initiative.
A check with the COMELEC revealed that while several groups have asked
questions regarding initiative, they have been generally discouraged by the
logistical and financial requirements for gathering the required number of
signatures. Even if some measures were initially supported by civil society
organizations, peoples interests generally waver especially when new national
issues crop up and grab the attention of the people.
Nonetheless, there are ongoing efforts to pass crucial laws, which
Congress failed or refuses to enact, through the process of initiative. These
include the proposed measure to pass an anti-political dynasty bill, the bill to
prohibit pork barrel in national budget and the enactment of a law on freedom of
information. Whether or not these current initiatives will go beyond the signature
gathering stage still remains to be seen.
d. Local initiative to question a resolution
There had been more successful attempts of enacting local laws through
initiative at the local level. According to the COMELEC, there is a barangay
ordinance that was passed through initiative. The ordinance mandated the
control and prevention of the proliferation of informal settlers and mendicant, and
to hold accountable erring barangay officials who coddle them, which the local
legislative body apparently refused to pass. The proposition became a barangay
ordinance when 465 voters approved as against 384 voters who rejected it.40
Another initiative involves a proposition for the creation of cooperative to manage
barangay funds. It is now undergoing review by the COMELEC to determine
compliance with the requirements of the law.
Nonetheless, peoples initiatives at the local level were also fraught with
challenges. One case involved a petition filed in a local legislative body seeking
to annul a municipal resolution that expressed concurrence to a law passed by
Congress, which created an economic zone (Subic Economic Zone) and made
the municipality a part of it. The petitioners filed a petition before the local
legislative body to annul or recall the municipal resolution and sought to include
certain conditions if the local government were to join the special economic zone.
Not satisfied with the action of the local legislative body, the petitioners
subsequently invoked peoples initiative under the Local Government Code.
39
See Min. Res., GR No. 174153, Lambino and Aumentado v. Comelec; GR No. 174299, Binay, et al. v.
Comelec, et al.; November 21, 2006
40
COMELECs Canvass of Votes and Proclamation, Initiative held on May 14, 2011.
When COMELEC refused to take action on the petition for initiative on the
ground that its subject was a mere Resolution and not an Ordinance, petitioner
then went to the Supreme Court to reverse the decision of the COMELEC. In the
said case, the Supreme Court held that Resolution could be subject of a local
initiative.41
When the COMELEC scheduled the holding of the initiative, the Subic Bay
Metropolitan Authority (SBMA) asked the Supreme Court to stop the same
contending that a local initiative that proposes an amendment to a national law is
invalid. The Supreme Court held that the COMELEC in scheduling the initiative
gravely abuse its discretion since the measure being proposed is outside power
of the local legislative body and, thus, cannot be a subject of peoples initiative at
the local level.
V. Conclusions
Implementing a system of initiative and referendum in a political
environment that is still learning its concept and implications will not be easy. It
will take time for the people to fully utilize it as a tool for pushing for laws that
genuinely serve their interest. It has now been more than 25 years since the
Philippine Congress passed the law on initiative and referendum. Results have
been mixed with regard to its implementation. Referendum can be considered
relatively more successful in the sense that the use thereof to ratify certain acts
of Congress has fully empowered the people to directly express their will. The
approval of the establishment of autonomous regions in Muslim Mindanao, and
the rejection of the same measure in the Cordillera region by those directly
affected are clear indications that this system for directly consulting the people
work. The same is true with regard to the conversion of municipalities into
chartered cities (generally resulted to ratification) and creation of new local
government units.
In contrast, peoples initiative to enact national statutes has yet to produce
a law although various efforts initiated by civil society organizations (CSOs) are
still ongoing. Previous attempts to amend the Constitution via the system of
initiative and referendum, on the other hand, failed because of legal questions the inadequacy of R.A. No. 6735 when it comes to constitutional amendments.
In the local level, there had been successful people initiatives although
some were challenged in the Supreme Court on various legal grounds. Those
that succeeded have opened the eyes of the people regarding their power to
enact laws and ordinances. As people become more aware of their rights and
confident about their inherent power to directly craft laws through the system of
initiative and referendum, it can be expected that more and more attempts will be
made by organized groups including civil society organizations.
41
Enrique T. Garcia, et al. vs. Commission on Elections, et al., 237 SCRA 279, September 30, 1994.
Lesson Learned
From the foregoing experience of the Philippines in the operationalization
of the system of initiative and referendum, some lessons can be drawn up, which
can be summarized as follows.
1. Inasmuch as the process of initiative and referendum is an exercise of an
extraordinary power of the people, the law that seeks to operationalize it
must be complete and unambiguous to avoid constitutional challenge.
Compliance with constitutional and legal requirements is a must because
any defect in the procedure followed can lead to the invalidation of the
whole process. As shown by the experience of the Philippines, these
omissions and/or defects are fatal:
The failure of the proponents to prepare and show the draft of the
proposed constitutional amendment to the people before they
sign such proposal was the ground cited by the SC in saying that
the process was not compliant with constitutional requirements. It
said that framers envisioned that the people should sign on the
proposal itself because the proponents must prepare that proposal
and pass it around for signature.
The failure of local election registrars to actually verify the
signatures of the petitioners as required by law, and for the
proponents to insist the same, was one of the issues raised against
a peoples initiative. According to a group of lawyers which opposed
the peoples initiatives, signatures that were gathered in at least
nine provinces by groups pushing for a peoples initiative to
change the Constitution were found either to have not been
properly verified or not verified at all by election officers of the
Commission on Elections.42
43
Abueva,
Jose,
Why
Charter
Change
failed
under
President
Arroyo (2003-2008),
http://joseabueva.wordpress.com/2012/10/21/why-charter-change-failed-under-president-arroyo-2003-2008/