RETHINKING THE PEOPLE’S INITIATIVE

Prospero de Vera, PhD  is associate professor at the UP National College of Public Administration and Governance. This article was published in the Opinion Section, Yellow Pad Column of BusinessWorld, October 23, 2006 edition, page S1/5.

The framers of the 1987 Constitution conceptualized the people’s initiative as a mechanism to allow citizens to by-pass Congress and go straight to the public and place an issue for the approval (or disapproval) of voters (J. Bernas, 1988). Direct participation in law making includes the power to pass or amend a law, the Constitution, or an ordinance/resolution passed by local legislative councils. The procedure to carry out this form of “direct democracy” was left to Congress to enact through a law. (Record of the ConCom, p. 386)

The concept appears to have been copied from the American model of direct initiative, which started in the state of South Dakota in 1898 in the early 1900s. It is now a fixture in at least 24 states (www.iandrinstitute.org) including California, Oregon, Colorado, Ohio, Arizona, Florida, and Arkansas.

Citizens groups in the US have used the direct initiative on issues where their elected representatives fail to enact critical or controversial legislation. In California alone, at least 99 ballot initiatives (22 constitutional amendments and 57 statute amendments) were approved by voters producing such landmark laws as mandatory term limits for politicians, medical use of marijuana, and definition of marriage. Since 1997, 18 states have raised their minimum wage above the federal level using the initiative process (www.americanprogress.org).

Defective Legislation

The Philippine version of the direct initiative (Article XVII, Sec. 2 of the Philippine Constitution and RA 6735) is defective not only because it is “incomplete, inadequate or wanting in essential terms and conditions” for amending the Constitution (Santiago vs. COMELEC, 1997) but also because it restricts direct democracy and fails to ensure citizens’ informed choice.

Easy to Initiate but Difficult to Pass

The initiative process in the US makes it easy for citizens groups to participate in law making. An Initiative Petition to amend the Constitution needs to be signed by only eight percent of the votes cast for governor in the last election in California, Washington, and Ohio (ten percent in Michigan and Arkansas; five percent of votes cast for Secretary of State in Colorado), and there is no requirement to get a percentage of the votes (or voters) in each legislative district. Any qualified elector (a person eligible to be a registered voter even if he/she is not a registered voter) can launch or support an initiative.

As a result, citizens groups have successfully put initiatives on a wide range of issues in the ballot. In California alone, 17 initiatives have qualified for the forthcoming November 17, 2006 ballot. Launching an initiative may be easy, but convincing voters on your issues is another matter. From 1912-2006 only 99 of the 290 qualified initiatives in California became law.

Our 1987 Constitution architects, on the other hand, intentionally made the process difficult in the belief that changing the fundamental law of the land should be made very rigorous. The gargantuan task of convincing 12 percent of all registered voters and three percent of voters in each legislative district to support an initiative requires resources and political linkages beyond the capacity of most citizens groups. Thus, initiatives become captive of vested political interests and concentrate on big issues such as term limits (PIRMA) and changing the form of government (Sigaw ng Bayan).

Informed Choice

The other major weakness of the initiative process in the Philippines is the lack of informed choice for the citizens. The initiative process in the US consists of five major steps: (1) preliminary filing of a proposed petition with a designated state official; (2) review of the petition for conformance with statutory requirements and, in several states, a review of the language of the proposal; (3) preparation of a ballot title and summary; (4) circulation of the petition to obtain the required number of signatures of registered voters, and (5) submission of the petitions to the state elections official, who must verify the number of signatures.  If enough valid signatures are obtained, the question goes on the ballot or, in states with the indirect process, is sent to the legislature.

Proponents are allowed to submit their ideas to the Legislative Counsel or Attorney General who helps draft the language of the initiative and makes sure that it stands on firm legal ground. The Secretary of State sets the ballot title and summary, holds public hearings, conducts verification, and certifies the initiative measure for the ballot. The legislature holds public hearings to ensure extensive information dissemination on the pros and cons of the proposal.

The initiative document used in gathering signatures often contains an analysis of the fiscal impact of the proposed amendment, summary of the arguments for and against the petition, and even a list of groups that support and oppose the proposal. These requirements and procedures ensure informed choice for both the citizens who sign the petition and those who vote on it during elections.

In contrast, R.A. 6735 fails to provide a mechanism to ensure informed choice. The law is unclear on even the most basic procedures, such as who prepares the wording of the initiative, the requirements for information dissemination, and the procedure for validation. The law also does not require petitioners, the legislature, or the COMELEC to ensure informed choice in the contents of the petition, in public hearings, or require disclosure of groups supporting or financing an initiative.

What is most ironic in the whole process is that while the Supreme Court decided that the law was inadequate to amend the Constitution in 1997, Congress has not enacted a new initiative law that will correct the problems cited by the Supreme Court a decade ago.

What Can be Done?

Congress must now enact a new initiative law that contains the following provisions to ensure transparency, accountability and informed choice by the citizens:

1. Detailed procedures that will identify how the initiative petition will be drafted, including the involvement of the Senate or House legislative counsel in determining the constitutionality and wording of the initiative;

2. An independent legal opinion on the constitutionality of an initiative before it appears on the ballot, if there are questions on the partiality of the Legislative Counsel;

3. A “fiscal note” showing the impact of an initiative on public spending. Initiatives that will increase public spending must identify the sources of revenue (new taxes or fees, public borrowing, transfers from current programs, etc.) needed for implementation;

4. The names and affiliation of those pushing for the initiative, the pros and cons of the issue, and the list of individuals and groups funding it;

5. Submission of the initiative proposals to a representative citizens review panel, whose views would appear in the Voters Pamphlet; and

6. Requirement that paid signature gatherers publicly identify themselves as such, perhaps with a sign or lapel button when going around local communities.

Without a new initiative law, all Sigaw ng Bayan's (or is it Singaw ng Bayan's?) efforts have no legal basis. They might as spare themselves more wasted efforts. In the meantime, the people simply have to scrap the whole show.