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FIRST DIVISION[G.R. No. L-26702. October 18, 1979.]JUAN AUGUSTO B. PRIMICIAS, plaintiff-appellee, vs. THE

MUNICIPALITY OF URDANETA, PANGASINAN, ET AL., defendants-appellants.

Ambrosio Padilla Law Offices for appellee.Primicias, Castillo & Macaraeg for appellants.D E C I S I O N

DE CASTRO, J p:The main issue in this appeal is the validity of Ordinance No. 3,Series of 1964, enacted on March 13, 1964 by the Municipal Council of Urdaneta, Pangasinan, which was declared null and void by the Court of FirstInstance of Lingayen, Pangasinan, in its decision dated June 29, 1966, thedispositive portion of which reads as follows: LexLib

"WHEREFORE, this Court renders decision declaring Ordinance No.3, Series of 1964, to be null and void; making the writ of preliminaryinjunction heretofore issued against the defendant, Felix D. Soriano, definiteand permanent; and further restraining the defendants, Amadeo R. Perez,Jr., Lorenzo G. Suyat and Estanislao Andrada, from enforcing the saidordinance all throughout Urdaneta; and ordering the said defendants toreturn to the plaintiff his drivers (sic) license CPN 017644, a copy of which isExhibit D-1, and to pay the costs of suit." 1

From the aforecited decision, defendants appealed to this Court. Theantecedent facts of this case are as follows: 2

On February 8, 1965, Juan Augusto B. Primicias, plaintiff-appellee,was during his car within the jurisdiction of Urdaneta when a member of Urdaneta's Municipal Police asked him to stop. He was told, upon stopping,that he had violated Municipal Ordinance No. 3, Series of 1964, "and moreparticularly, for overtaking a truck." The policeman then asked for plaintiff'slicense which he surrendered, and a temporary operator's permit was issuedto him. This incident took place about 200 meters away from a schoolbuilding, at Barrio Nancamaliran, Urdaneta.

Thereafter, a criminal complaint was filed in the Municipal Court of Urdaneta against Primicias for violation of Ordinance No. 3, Series of 1964.Due to the institution of the criminal case, plaintiff Primicias initiated an actionfor the annulment of said ordinance with prayer for the issuance of preliminary injunction for the purpose of restraining defendants Municipalityof Urdaneta, Mayor Perez, Police Chief Suyat, Judge Soriano and PatrolmanAndrada from enforcing the ordinance. The writ was issued and JudgeSoriano was enjoined from further proceeding in the criminal case. Cdpr

After trial, the Court of First Instance rendered the questioneddecision holding that the ordinance was null and void and had been repealedby Republic Act No. 4136, otherwise known as the Land Transportation andTraffic Code. Now, defendants, appellants herein, allege that the lower courterred in: 3

"1. declaring that Municipal Ordinance No. 3 (Series of 1964) of Urdaneta is null and void;

"2. requiring the municipal council of Urdaneta in the enactmentof said ordinance to give maximum allowable speed and to makeclassification of highways;

"3. holding that said ordinance is in conflict with section 35 par.b(4) of Republic Act 4136;

"4. requiring that said ordinance be approved by the Land

Transportation Commissioner;"5. holding that said ordinance is not clear and definite in itsterms;

"6. issuing ex-parte a writ of injunction to restrain theproceedings in criminal case No. 3140.

The ordinance in question provides: 4"SECTION 1 — That the following speed limits for vehicular traffic

along the National Highway and the Provincial Roads within the territoriallimits of Urdaneta shall be as follows:

a. Thru crowded streets approaching intersections at blindcorners, passing school zones or thickly populated areas, duly marked withsign posts, the maximum speed limit allowable shall be 20 kph.

"SECTION 2 — That any person or persons caught driving anymotor vehicle violating the provisions of this ordinance shall be fined P10.00for the first offense; P20.00 for the second offense; and P30.00 for the thirdand succeeding offenses, the Municipal Judge shall recommend thecancellation of the license of the offender to the Motor Vehicle's Office(MVO); or failure to pay the fine imposed, he shall suffer a subsidiaryimprisonment in accordance with law."

Appellants contend that the Ordinance is valid, being "patterned after and based on Section 53, 5 par. 4 of Act No. 3992, as amended (RevisedMotor Vehicle Law). In so arguing, appellants fail to note that Act No. 3992has been superseded by Republic Act No. 4136, the Land Transportationand Traffic Code, which became effective on June 20, 1964, about threemonths after the questioned ordinance was approved by Urdaneta'sMunicipal Council. The explicit repeal of the aforesaid Act is embodied inSection 63, Republic Act No. 4136, to wit:

"Act Numbered thirty-nine hundred ninety-two (3992) as amended,and all laws, executive orders, ordinance, resolutions, regulations, or partsthereof in conflict with the provisions of this Act are repealed."

By this express repeal, and the general rule that a later law prevailsover an earlier law, 6 appellants are in error in contending that "a later enactment of the law relating to the same subject matter as that of an earlier statute is not sufficient to cause an implied repeal of the original law."Pursuant to Section 63, Republic Act No. 4136, the ordinance at bar is thusplaced within the ambit of Republic Act No. 4136, and not Act No. 3992. Thevalidity of Ordinance No. 3, Series of 1964, must therefore be determinedvis-a-vis Republic Act No. 4136, the "mother statute" so to speak, which was



in force at the time the criminal case was brought against Primicias for theviolation of the said ordinance. llcd

An essential requisite for a valid ordinance is, among others, that is"must not contravene . . . the statute," 7 for it is a "fundamental principle thatmunicipal ordinances are inferior in status and subordinate to the laws of thestate." 8 Following this general rule, whenever there is a conflict between anordinance and a statute, the ordinance "must give way." 9

Since the Ordinance is aimed at regulating traffic, Chapter IV Traffic

Rules), Article I (Speed Limits and Keeping to the Right), consisting of sections 35, to 38 of Republic Act No. 4136, particularly Sections 35, 36, 38contain the provisions material to its validity. Section 35 (b), Republic Act No.4136, which took the place of Section 53, par. (4), Act No. 3992, providesrestrictions as to speed thus:

MAXIMUM ALLOWABLE SPEEDSPassenger cars and Motor trucksmotorcycles and buses

1. On open country roads, with"blind corners" not closely borderedby habitation. 80 km. 50 km.

per hour per hour 2. On through streets or boulevards, clear of traffic, with "noblind corners" when so designated. 40 km. 30 km.

per hour per hour 3. On city and municipalstreets, with light traffic, when notdesignated "through streets." 30 km. 30 km.

per hour per hour 4. Through crowded streetsapproaching intersection at "blindcorners," passing school zones, passingother vehicles which are stationary, or for similar circumstances. 20 km. 20 km.

per hour per hour A look at the aforecited section and Section 1, par. (a) of the

Ordinance shows that the latter is more or less a restatement only of number (4), par. (b), Section 35. As observed by the trial court, the Ordinance "refersto only one of the four classifications mentioned in paragraph (b), Section35." 10 limiting the rates of speed for. cdrep

"vehicular traffic along the national highway and the provincial roadswithin the territorial limits of Urdaneta to 20 kilometers per hour withoutregard to whether the road is an open country roads (six), or through streetsor boulevards, or city or municipal streets with light traffic. 11

As also found correctly by the lower court, the Municipal Council of Urdaneta did not make any classification of its thoroughfares, contrary to the

explicit requirement laid down by Section 38, Republic Act No. 4136, whichprovides:

"Classification of highways. — Public highways shall be properlyclassified for traffic purposes by the provincial board or city council having

jurisdiction over them, and said provincial board, municipal board or citycouncil shall provide appropriate signs therefor, subject to the approval of theCommissioner. It shall be the duty of every provincial, city and municipalsecretary to certify to the Commissioner the names, locations, and limits of

all "through streets" designated as such by the provincial board, municipalboard or council."Under this section, a local legislative body intending to control traffic

in public highways 12 is supposed to classify, first, and then mark them withproper signs, all to be approved by the Land Transportation Commissioner.To hold that the provisions of Section 38 are mandatory is sanctioned by aruling 13 that

"statutes which confer upon a public body or officer .. power toperform acts which concern the public interests or rights of individuals, aregenerally regarded as mandatory although the language is permissive onlysince they are construed as imposing duties rather than conferringprivileges."

The classifications which must be based on Section 35 arenecessary in view of Section 36 which states that "no provincial, city or municipal authority shall enact or enforce any ordinance or resolutionspecifying maximum allowable speeds other than those provided in this Act."In this case, however, there is no showing that the marking of the streets andareas falling under Section 1, par. (a), Ordinance No. 3, Series of 1964, wasdone with the approval of the Land Transportation Commissioner. Thus, onthis very ground alone, the Ordinance becomes invalid. Since it lacks therequirement imposed by Section 38, the provincial, city, or municipal board or council is enjoined under Section 62 of the Land Transportation and TrafficCode from "enacting or enforcing any ordinance or resolution in conflict withthe provisions of this Act."

Regarding the contention that the lower court erred in holding thatsaid "Ordinance is not clear and definite in its terms," We agree with theCourt a quo that when the Municipal Council of Urdaneta used the phrase"vehicular traffic" (Section 1, Ordinance) it "did not distinguish betweenpassenger cars and motor vehicles and motor trucks and buses. 14 Thisconclusion is bolstered by the fact that nowhere in the Ordinance is"vehicular traffic" defined. Considering that this is a regulatory ordinance, itsclearness, definiteness and certainty are all the more important so that "anaverage man should be able with due care, after reading it, to understandand ascertain whether he will incur a penalty for particular acts or courses of conduct." 15 In comparison, Section 35(b), Republic Act No. 4136 on whichSection 1 of the Ordinance must be based, stated that the rates of speedenumerated therein refer to motor vehicle, 16 specifying the speed for each



kind of vehicle. At the same time, to avoid vagueness, Art. II, Section 3defines what a motor vehicle is and passenger automobiles are. LexLib

On the issue of whether a writ of injunction can restrain theproceedings in Criminal Case No. 3140, the general rule is that "ordinarily,criminal prosecution may not be blocked by court prohibition or injunction."17 Exceptions however are allowed in the following instances:

"1. for the orderly administration of justice;"2. to prevent the use of the s trong arm of the law in an

appressive and vindictive manner;"3. to avoid multiplicity of actions;"4. to afford adequate protection to constitutional rights;"5. in proper cases, because the statute relied upon is

unconstitutional or was held invalid." 18The local statute or ordinance at bar being invalid, the exception just

cited obtains in this case. Hence, the lower court did not err in issuing the writof injunction against defendants. Moreover, considering that "our law onmunicipal corporations is in principle patterned after that of the UnitedStates," 19 it would not be amiss for us to adopt in this instance the rulingthat to enjoin the enforcement of a void ordinance, "injunction has frequentlybeen sustained in order to prevent a multiplicity of prosecutions under it." 20

In view of the foregoing, the appealed decision is hereby affirmed.Cdpr

SO ORDERED.Teehankee, (Acting C.J.,) Barredo, Makasiar, Concepcion Jr.,

Santos, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.Antonio, J., is on leave.Aquino, J., did not take part.Separate OpinionsABAD SANTOS, J., concurring:I concur. The ordinance in question was in effect a speed trap for

unwary motorists for which Urdaneta had become notorious.EN BANC[G.R. No. 127255. August 14, 1997.]JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R.

OSMEÑA, WIGBERTO E. TAÑADA, AND RONALDO B. ZAMORA,petitioners, vs. JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO,THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, ANDTHE COMMISSIONER OF INTERNAL REVENUE, respondents.

Azcuna, Yorac, Sarmiento, Arroyo & Chua and Rene A.V. Saguisagfor petitioners.

Cesar A. Sevilla & Associates for De Venecia.SYNOPSISThis is a petition for certiorari and prohibition challenging the validity

of Republic Act No. 8240, which amends certain provisions of the NationalInternal Revenue Code by imposing so-called sin taxes on the manufacture

and sale of beer and cigarettes. Petitioners brought this suit against herein

respondents claiming that the latter violated Rule VIII, Section 35, Rule XVII,Section 103, Rule XIX, Section 112, Rule XVI, Section 97, Rule XX Section121-122, Rule XXI Section 123 and Rule XVIII Section 109 of the HouseRules. For this matter, petitioners assert that violation of the House Rules isa violation of the Constitution thereof. AEDISC

In its decision, the Supreme Court finds no ground for holding thatcongress committed grave abuse of discretion in enacting Republic Act 8240.It is clear from the facts of the case that what is alleged to have been violated

in the enactment of R.A. 8240 are merely internal rules of procedure of theHouse rather than the constitutional requirement for the enactment of a law,that is, Article VI, Section 26-27 of the 1987 Constitution, pertaining to theexistence of the quorum. The established rule is that courts cannot declarean act of the legislature void on account merely of noncompliance with rulesof procedure made by itself. Verily, it follows that the case at hand does notpresent a situation in which a branch of the government has gone beyond theconstitutional limit of its jurisdiction so as to call for the exercise of Article VIII,Section I.

Moreover, under the enrolled bill doctrine, the signing of House No.7198 by speaker of the House and President of the Senate and certificationby secretaries of both Houses of Congress that it was passed on November 21, 1996 are conclusive of its due enactment. In view of the foregoing, thepetition for certiorari and prohibition is dismissed. TAacCE

SYLLABUS1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT;

PARLIAMENTARY RULES ARE MERELY PROCEDURAL AND COURTSHAVE NO CONCERN WITH THEIR OBSERVANCE; FAILURE TOCONFORM THEREWITH WILL NOT INVALIDATE ACTION WHEN THEREQUISITE NUMBER OF MEMBERS HAVE AGREED THERETO. —Cases, both here and abroad, in varying forms of expression, all deny to thecourts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing thatthere was a violation of a constitutional provision or the rights of privateindividuals. In Osmeña v. Pendatun, it was held: "At any rate, courts havedeclared that 'the rules adopted by deliberative bodies are subject torevocation, modification or waiver at the pleasure of the body adopting them.'And it has been said that 'Parliamentary rules are merely procedural, andwith their observance, the courts have no concern. They may be waived or disregarded by the legislative body.' Consequently, 'mere failure to conformto parliamentary usage will not invalidate the action (taken by a deliberativebody) when the requisite number of members have agreed to a particular measure.'"

2. ID.; ID.; ID.; ID.; RULES MUST NOT IGNORECONSTITUTIONAL RESTRAINTS OR VIOLATE FUNDAMENTAL RIGHTS.— In United States v. Ballin, Joseph & Co., the rule was stated thus: "TheConstitution empowers each house to determine its rules of proceedings. It

may not by its rules ignore constitutional restraints or violate fundamental



rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is soughtto be attained. But within these limitations all matters of method are open tothe determination of the House, and it is no impeachment of the rule to saythat some other way would be better, more accurate, or even more just. It isno objection to the validity of a rule that a different one has been prescribedand in force for a length of time. The power to make rules is not one whichonce exercised is exhausted. It is a continuous power, always subject to be

exercised by the House, and within the limitations suggested, absolute andbeyond the challenge of any other body or tribunal." CIHAED3. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — In this case no rights

of private individuals are involved but only those of a member who, instead of seeking redress in the House, chose to transfer the dispute to this Court. Wehave no more power to look into the internal proceedings of a House thanmembers of that House have to look over our shoulders, as long as noviolation of constitutional provisions is shown. Petitioners must realize thateach of the three departments of our government has its separate spherewhich the others may not invade without upsetting the delicate balance onwhich our constitutional order rests. Due regard for the working of our systemof government, more than mere comity, compels reluctance on our part toenter upon an inquiry into an alleged violation of the rules of the House. Wemust accordingly decline the invitation to exercise our power.

4. REMEDIAL LAW; COURTS; CANNOT DECLARE AN ACTOF LEGISLATURE VOID FOR NONCOMPLIANCE WITH ITS OWN RULESOF PROCEDURE. — If, then, the established rule is that courts cannotdeclare an act of the legislature void on account merely of noncompliancewith rules of procedure made by itself, it follows that such a case does notpresent a situation in which a branch of the government has "gone beyondthe constitutional limits of its jurisdiction" so as to call for the exercise of our Art. VIII, §1 power.

5. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT;HOUSE OF REPRESENTATIVES; THERE IS NO RULE REQUIRING THATTHE CHAIR MUST RESTATE THE MOTION AND CONDUCT A VIVAVOCE OR NOMINAL VOTING. — No rule of the House of Representativeshas been cited which specifically requires that in cases such as this involvingapproval of a conference committee report, the Chair must restate the motionand conduct a viva voce or nominal voting. On the other hand, as theSolicitor General has pointed out, the manner in which the conferencecommittee report on H. No. 7198 was approved was by no means a uniqueone. It has basis in legislative practice. It was the way the conferencecommittee report on the bills which became the Local Government Code of 1991 and the conference committee report on the bills amending the Tariff and Customs Code were approved. Indeed, it is no impeachment of themethod to say that some other way would be better, more accurate and evenmore just. The advantages or disadvantages, the wisdom or folly of a method

do not present any matter for judicial consideration. In the words of the U.S.

Circuit Court of Appeals, "this Court cannot provide a second opinion on whatis the best procedure. Notwithstanding the deference and esteem that isproperly tendered to individual congressional actors, our deference andesteem for the institution as a whole and for the constitutional command thatthe institution be allowed to manage its own affairs precludes us from evenattempting a diagnosis of the problem."

6. ID.; ID.; ID.; NO CONSTITUTIONAL PROVISIONREQUIRING THAT THE YEAS AND NAYS OF THE MEMBERS BE TAKEN

EVERYTIME A HOUSE HAS TO VOTE; EXCEPTIONS. — Nor does theConstitution require that the yeas and the nays of the Members be takenevery time a House has to vote, except only in the following instances: uponthe last and third readings of a bill, at the request of one-fifth of the Memberspresent, and in repassing a bill over the veto of the President. Indeed,considering the fact that in the approval of the original bill the votes of theMembers by yeas and nays had already been taken, it would have beensheer tedium to repeat the process.

7. ID.; ID.; ID.; PARLIAMENTARY RULES; QUESTIONREGARDING MOTION TO APPROVE AND RATIFY CONFERENCECOMMITTEE REPORT, NOT A QUESTION OF PRIVILEGE ENTITLED TOPRECEDENCE. — Petitioners claim that they were prevented from seekingreconsideration allegedly as a result of the precipitate suspension andsubsequent adjournment of the session. It would appear, however, that thesession was suspended to allow the parties to settle the problem, becausewhen it resumed at 3:40 p.m. on that day Rep. Arroyo did not say anythinganymore. While it is true that the Majority Leader moved for adjournment until4 p.m. of Wednesday of the following week, Rep. Arroyo could at least haveobjected if there was anything he wanted to say. It is thus apparent thatpetitioners' predicament was largely of their own making. Instead of submitting the proper motions for the House to act upon, petitioners insistedon the pendency of Rep. Arroyo's question as an obstacle to the passage of the bill. But Rep. Arroyo's question was not, in form or substance, a point of order or a question of privilege entitled to precedence. And even if Rep.Arroyo's question were so, Rep. Albano's motion to adjourn would haveprecedence and would have put an end to any further consideration of thequestion.

8. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI;GRAVE ABUSE OF DISCRETION, DEFINED. — The phrase "grave abuseof discretion amounting to lack or excess of jurisdiction" has a settledmeaning in the jurisprudence of procedure. It means such capricious andwhimsical exercise of judgment by a tribunal exercising judicial or quasi

judicial power as to amount to lack of power. As Chief Justice Concepcionhimself said in explaining this provision, the power granted to the courts byArt. VIII, §1 extends to cases where "a branch of the government or any of itsofficials has acted without jurisdiction or in excess of jurisdiction, or socapriciously as to constitute an abuse of discretion amounting to excess of

jurisdiction."



9. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT;HOUSE OF REPRESENTATIVES; CONTINUED INTERPELLATION OFSPONSOR, AN ACKNOWLEDGMENT OF PRESENCE OF QUORUM. —Here, the matter complained of concerns a matter of internal procedure of the House with which the Court should not be concerned. To repeat, theclaim is not that there was no quorum but only that Rep. Arroyo waseffectively prevented from questioning the presence of a quorum. Rep.Arroyo's earlier motion to adjourn for lack of quorum had already beendefeated, as the roll call established the existence of a quorum. The questionof quorum cannot be raised repeatedly — especially when the quorum isobviously present — for the purpose of delaying the business of the House.Rep. Arroyo waived his objection by his continued interpellation of thesponsor for in so doing he in effect acknowledged the presence of a quorum.CTEaDc

10. ID.; ID.; ENROLLED BILL DOCTRINE; SIGNING OFHOUSE BILL BY THE SPEAKER OF THE HOUSE AND PRESIDENT OFTHE SENATE AND CERTIFICATION BY THE SECRETARIES OF BOTHHOUSES, CONCLUSIVE OF ITS DUE ENACTMENT. — Under the enrolledbill doctrine, the signing of H. No. 7198 by the Speaker of the House and thePresident of the Senate and the certification by the secretaries of bothHouses of Congress that it was passed on November 21, 1996 areconclusive of its due enactment. The enrolled bill doctrine, as a rule of evidence, is well established. It is cited with approval by text writers here andabroad. The enrolled bill rule rests on the following considerations: . . . As thePresident has no authority to approve a bill not passed by Congress, anenrolled Act in the custody of the Secretary of State, and having the officialattestations of the Speaker of the House of Representatives, of the Presidentof the Senate, and of the President of the United States, carries, on its face,a solemn assurance by the legislative and executive departments of thegovernment, charged, respectively, with the duty of enacting and executingthe laws, that it was passed by Congress. The respect due to coequal andindependent departments requires the judicial department to act upon thatassurance, and to accept, as having passed Congress, all bills authenticatedin the manner stated; leaving the court to determine, when the questionproperly arises, whether the Act, so authenticated, is in conformity with theConstitution. To overrule the doctrine now, as the dissent urges, is torepudiate the massive teaching of our cases and overthrow an establishedrule of evidence.

11. ID.; ID.; JOURNAL; CONCLUSIVE WITH RESPECT TOMATTERS THAT ARE REQUIRED BY THE CONSTITUTION TO BERECORDED THEREIN. — The Journal is regarded as conclusive withrespect to matters that are required by the Constitution to be recordedtherein. With respect to other matters, in the absence of evidence to thecontrary, the Journals have also been accorded conclusive effect. Thus, inUnited States v. Pons, this Court spoke of the imperatives of public policy for

regarding the Journals as "public memorials of the most permanent

character," thus: "They should be public, because all are required to conformto them; they should be permanent, that rights acquired today upon the faithof what has been declared to be law shall not be destroyed tomorrow, or atsome remote period of time, by facts resting only in the memory of individuals." As already noted, the bill which became R.A. No. 8240 is shownin the Journal. Hence its due enactment has been duly proven.

12. ID.; SUPREME COURT; WITHOUT JURISDICTION TO SETASIDE LEGISLATIVE ACTION AS VOID BECAUSE THE COURT THINKSTHE HOUSE DISREGARDED ITS OWN RULES. — It would be anunwarranted invasion of the prerogative of a coequal department for thisCourt either to set aside a legislative action as void because the Court thinksthe House has disregarded its own rules of procedure, or to allow thosedefeated in the political arena to seek a rematch in the judicial forum whenpetitioners can find their remedy in that department itself. The Court has notbeen invested with a roving commission to inquire into complaints, real or imagined, of legislative skullduggery. It would be acting in excess of its power and would itself be guilty of grave abuse of its discretion were it to do so. Thesuggestion made in a case may instead appropriately be made here:petitioners can seek the enactment of a new law or the repeal or amendmentof R.A. No. 8240. In the absence of anything to the contrary, the Court mustassume that Congress or any House thereof acted in the good faith belief that its conduct was permitted by its rules, and deference rather thandisrespect is due the judgment of that body.

ROMERO, J., separate opinion:1. POLITICAL LAW; LEGISLATIVE DEPARTMENT;

ENROLLED BILL DOCTRINE; APPLICATION MUST BE LIMITED TOMINOR MATTERS RELATING TO FORM AND FACTUAL ISSUES WHICHDO NOT MATERIALLY ALTER THE ESSENCE AND SUBSTANCE OF THELAW. — Reliance on the enrolled bill theory is not to be discontinued but itsapplication must be limited to minor matters relating more to form and factualissues which do not materially alter the essence and substance of the lawitself.

2. ID.; ID.; BILL; INTRODUCTION OF SEVERAL PROVISIONSIN THE BICAMERAL CONFERENCE COMMITTEE REPORT VIOLATEDTHE CONSTITUTIONAL PROSCRIPTION AGAINST ANY AMENDMENTUPON THE LAST READING. — The introduction of several provisions in theBicameral Conference Committee Report did not only violate the pertinentHouse and Senate Rules defining the limited power of the conferencecommittee but that the Constitutional proscription against any amendmentupon the last reading of a bill was likewise breached. Hence, in view of theselapses, I thought that judicial review would have been proper in order touphold the Constitution. This the majority, however, disregarded invoking thesame principle which should have justified the Court in questioning theactuations of the legislative branch.

PUNO; J.; concurring and dissenting opinion:



1. REMEDIAL LAW; SUPREME COURT; POWER OFJUDICIAL REVIEW OF CONGRESSIONAL RULES; BOUNDARIES. — Inthe 1891 case of US. v. Ballin, (144 US 1 [1891]) the US Supreme Court firstdefined the boundaries of the power of the judiciary to review congressionalrules. Ballin clearly confirmed the jurisdiction of courts to pass upon thevalidity of congressional rules, i.e., whether they are constitutional. Ballin wasfollowed in 1932 by the case of US v. Smith (286 US 6 [1932]). The Court,speaking thru Mr. Justice Brandeis, assumed jurisdiction over the disputerelying on Ballin. It exercised jurisdiction although "the question primarily atissue relates to the construction of the applicable rules, not to their constitutionality." Smith, of course, involves the right of a third person and itsruling falls within the test spelled out in Ballin. Smith was followed by the1948 case of Christoffel v. United States (338 US 89 [1948]). A majority of the Court, with Mr. Justice Murphy, as ponente, defined the issue as "whatrules the House had established and whether they have been followed." TheUS Supreme Court pursued the same line in 1963 in deciding the case of Yellin v. United States (374 US 109 [1963]). In the benchmark case of Baker v. Carr, (369 US 186 [1962]), the US Supreme Court assumed jurisdiction tohear a petition for re-appointment of the Tennessee legislature ruling that"the political question doctrine, a tool for maintenance of government order,will not be so applied as to promote only disorder" and that "the courtscannot reject as 'no law suit,' a bona fide controversy as to whether someaction denominated 'political' exceeds constitutional authority." THEDCA

2. ID.; ID.; ID.; ID. — In the Philippine setting, there is morecompelling reason for courts to categorically reject the political questiondefense when its interposition will cover up abuse of power. For Section 1,Article VIII of our Constitution was intentionally cobbled to empower courts". . . to determine whether or not there has been a grave abuse of discretionamounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted toour courts in the 1935 and 1972 Constitutions. It was not also xeroxed fromthe US Constitutional or any foreign state constitution. In Tolentino, Iendorsed the view of former, Senator Salonga that this novel provisionstretching the latitude of judicial power is distinctly Filipino and itsinterpretation should not be depreciated by undue reliance on inapplicableforeign jurisprudence. In resolving the case at bar, the lessons of our ownhistory should provide us the light and not the experience of foreigners.

3. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT;LAW-MAKING POWER; ENROLLED BILL, DEFINED. — An enrolled bill isone which has been duly introduced, finally enacted by both Houses, signedby the proper officers of each House and approved by the President. It is adeclaration by the two Houses, through their presiding officers, to thePresident that a bill, thus attested, has received in due the sanction of thelegislative branch of the government, and that it is delivered to him inobedience to the constitutional requirement that all bills which pass Congress

shall be presented to him.

4. ID.; ID.; ID.; ENROLLED BILL DOCTRINE; RULES. — Theenrolled bill originated in England where there is no written Constitutioncontrolling the legislative branch of the government, and the acts of Parliament, being regarded in their nature as judicial — as emanating fromthe highest tribunal in the land — are placed on the same footing andregarded with the same veneration as the judgment of the courts whichcannot be collaterally attacked. In England, the conclusiveness of the bill waspremised on the rationale that "an act of parliament thus made is theexercise of the highest authority that this kingdom acknowledges upon earth.And it cannot be altered, amended, dispensed with, suspended or repealed,but in the same forms and by the same authority of parliament; for it is amaxim in law that it requires the same strength to dissolve as to create anobligation. Over the years, the enrolled bill theory has undergone importantmutations. Some jurisdictions have adopted the modified entry or affirmativecontradiction rule. Under this rule, the presumption in favor of the enrolled billis not conclusive. The rule concedes validity to the enrolled bill unless thereaffirmatively appears in the journals of the legislature a statement that therehas not been compliance with one or more of the constitutional requirements.Other jurisdictions have adopted the Extrinsic Evidence Rule which holdsthat an enrolled bill is only prima facie evidence that it has been regularlyenacted. The prima facie presumption, however, can be destroyed by clear,satisfactory and convincing evidence that the constitutional requirements inenacting a law have been violated. For this purpose, journals and other extrinsic evidence are allowed to be received. Some limit the use of extrinsicevidence to issues of fraud or mistakes.

5. ID.; ID.; ID.; ID.; MODERN RATIONALE. — The modernrationale for the enrolled bill theory was spelled out in Field v. Clark, viz.: . . ."The signing by the Speaker of the House of Representatives, and, by thePresident of the Senate, in open session, of an enrolled bill, is an officialattestation by the two houses of such bill as one that has passed Congress.It is a declaration by the two Houses, through their presiding officers, to thePresident, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him inobedience to the constitutional requirement that all bills which pass Congressshall be presented to him. And when a bill, thus attested, receives hisapproval, and is deposited in the public archives, its authentication as a billthat has passed Congress should be deemed complete and unimpeachable.As the President has no authority to approve a bill not passed by Congress,an enrolled Act in the custody of the Secretary of State, and having theofficial attestations of the Speaker of the House of Representatives, of thePresident of the Senate, and of the President of the United States, carries,on its face, a solemn assurance by the legislative and executive departmentsof the government, charged, respectively, with the duty of enacting andexecuting the laws, that it was passed by Congress. The respect due tocoequal and independent departments requires the judicial department to act

upon the assurance, to accept, as having passed Congress, all bills



authenticated in the manner stated; leaving the courts to determine, whenthe question properly arises, whether the Act, so authenticated, is inconformity with the Constitution.

6. ID.; ID.; ID.; ID; CONCLUSIVE PRESUMPTION RULESHOULD BE ABANDONED. — The enrolled bill doctrine no longer enjoys itsonce unassailable respectability in United States. Sutherland reveals thatstarting in the 1940's, ". . . the tendency seems to be toward theabandonment of the conclusive presumption rule and the adoption of thethird rule leaving only a prima facie presumption of validity which may beattacked by any authoritative source of information." It is high time we re-examine our preference for the enrolled bill doctrine. It was in the 1947 caseof Mabanag v. Lopez Vito, (78 Phil. 1 [1947]) that this Court, with three (3)Justices dissenting, first embraced the rule that a duly authenticated bill or resolution imports absolute verity and is binding on the courts. In the 1969case of Morales v. Subido, (27 SCRA 131, 134-135) we reiterated our fidelityto the enrolled bill doctrine. Significantly, however, Morales diluted theconclusiveness rule of the enrolled bill doctrine. The ponencia stressed: "Allwe hold is that with respect to matters not expressly required to be enteredon the journal, the enrolled bill prevails in the event of any discrepancy." Inthe 1974 case of Astorga v. Villegas, (56 SCRA 714) we further diluted theenrolled bill doctrine when we refused to apply it after the Senate Presidentdeclared his signature on the bill as invalid. We ruled: As far as Congressitself is concerned, there is nothing sacrosanct in the certification made bythe presiding officers. It is merely a mode of authentication. The law-makingprocess in Congress ends when the bill is approved by both Houses, and thecertification does not add to the validity of the bill or cure any defect alreadypresent upon its passage. In other words it is the approval by Congress andnot the signatures of the presiding officers that is essential. Finally in 1994came the case of Tolentino v. Secretary of Finance, et al., and its companioncases. These cases show that we have not blindly accepted theconclusiveness of the enrolled bill. Even in Tolentino, Mr. Justice Mendozawas cautious enough to hold that "no claim is here made that the enrolled billis absolute." I respectfully submit that it is now time for the Court to make adefinitive pronouncement that we no longer give our unqualified support tothe enrolled bill doctrine. There are compelling reasons for this suggestedchange in stance. For one, the enrolled bill is appropriate only in Englandwhere it originated because in England there is no written Constitution andthe Parliament is supreme. For another, many of the courts in the UnitedStates have broken away from the rigidity and unrealism of the enrolled bill inlight of contemporary developments in lawmaking. And more important, our uncritical adherence to the enrolled bill is inconsistent with our Constitution,laws and rules. In Mabanag, we relied on Section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 as a principal reason inembracing the enrolled bill. This section, however has long been repealed byour Rules of Court. A half glance at our Rules will show that its section on

conclusive presumption does not carry the conclusive presumption we give

to an enrolled bill. But this is not all. The conclusiveness of an enrolled billwhich all too often results in the suppression of truth cannot be justified under the 1987 Constitution. The Preamble of our Constitution demands that welive not only under a rule of law but also under a regime of truth. Our Constitution also adopted a national policy requiring full public disclosure of all state transactions involving public interest. Any rule which will defeat thispolicy on transparency ought to be disfavored. And to implement thesepolicies, this Court was given the power to pry open and to strike down anyact of any branch or instrumentality of government if it amounts to graveabuse of discretion amounting to lack or excess of jurisdiction. It is time tobury the enrolled bill for its fiction of conclusiveness shuts off truth in manylitigations. We cannot dispense justice based on fiction for the search for

justice is the search for truth. I submit that giving an enrolled bill a mereprima facie presumption of correctness will facilitate our task of dispensing

justice based on truth. DHSCTI7. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI;

GRAVE ABUSE OF DISCRETION; NEGATED IN CASE AT BAR. — I do notfind any grave abuse of discretion committed by the public respondents to

justify granting petition. As the ponencia points out, the petition merelyinvolves the complaint that petitioner was prevented from raising the questionof quorum. The petition does not concern violation of any rule mandated bythe Constitution. Nor does it involve the right of a non-member of the Housewhich requires constitutional protection. The rules on how to question theexistence of a quorum are procedural in character. They are malleable bynature for they were drafted to help the House enact laws. As well stated,these rules are servants, not masters of the House. Their observance or non-observance is a matter of judgment call on the part of our legislators and it isnot the business of the Court to reverse this judgment when untainted bygrave abuse of discretion amounting to lack or excess of jurisdiction.

VITUG, J., concurring opinion:1. CONSTITUTIONAL LAW; SUPREME COURT; WITH

POWER TO DETERMINE WHETHER OR NOT THERE IS GRAVE ABUSEOF DISCRETION ON ANY BRANCH OF GOVERNMENT; GRAVE ABUSEOF DISCRETION, CONSTRUED. — When the 1987 Constitution hasembodied, in its circumscription of judicial power under Section 1, Article VIII,of the Constitution, the determination of whether or not there is grave abuseof discretion on the part of any branch or instrumentality of government, theSupreme Court, upon which that great burden has been imposed, could nothave been thought of as likewise being thereby tasked with the awesomeresponsibility of overseeing the entire bureaucracy. The term grave abuse of discretion has long been understood in our jurisprudence as, and confined to,a capricious and whimsical or despotic exercise of judgment as amounting tolack or excess of jurisdiction.

2. ID.; ID.; ID.; CASE AT BAR. — Absent a clear case of graveabuse of discretion, like the patent disregard of a Constitutional proscription, I

would respect the judgment of Congress under whose province the specific



responsibility falls and the authority to act is vested. To do otherwise wouldbe an unwarranted intrusion into the internal affairs of a co-equal,independent and coordinate branch of government. At no time, it would seemto me, has it been intended by the framers of the fundamental law to cause asubstantial deviation, let alone departure, from the time-honored andaccepted principle of separation, but balanced, powers of the three branchesof government. There is, of course, a basic variant between the old rule andthe new Charter on the understanding of the term "judicial power." Now, theCourt is under mandate to assume jurisdiction over, and to undertake judicialinquiry into, what may even be deemed to be political questions provided,however, that grave abuse of discretion — the sole test of justiciability onpurely political issues — is shown to have attended the contested act.DEICTS

D E C I S I O NMENDOZA, J p:This is a petition for certiorari and/or prohibition challenging the

validity of Republic Act No. 8240, which amends certain provisions of theNational Internal Revenue Code by imposing so-called "sin taxes" (actuallyspecific taxes) on the manufacture and sale of beer and cigarettes.

Petitioners are members of the House of Representatives. Theybrought this suit against respondents Jose de Venecia, Speaker of theHouse of Representatives, Deputy Speaker Raul Daza, Majority Leader Rodolfo Albano, the Executive Secretary, the Secretary of Finance, and theCommissioner of Internal Revenue, charging violation of the rules of theHouse which petitioners claim are "constitutionally mandated" so that their violation is tantamount to a violation of the Constitution. cdphil

The law originated in the House of Representatives as H. No. 7198.This bill was approved on third reading on September 12, 1996 andtransmitted on September 16, 1996 to the Senate which approved it withcertain amendments on third reading on November 17, 1996. A bicameralconference committee was formed to reconcile the disagreeing provisions of the House and Senate versions of the bill.

The bicameral conference committee submitted its report to the

House at 8 a.m. on November 21, 1996. At 11:48 a.m., after a recess, Rep.Exequiel Javier, chairman of the Committee on Ways and Means, proceededto deliver his sponsorship speech, after which he was interpellated. Rep.Rogelio Sarmiento was first to interpellate. He was interrupted when Rep.Arroyo moved to adjourn for lack of quorum. Rep. Antonio Cuenco objectedto the motion and asked for a head count. After a roll call, the Chair (DeputySpeaker Raul Daza) declared the presence of a quorum. 1 Rep. Arroyoappealed the ruling of the Chair, but his motion was defeated when put to avote. The interpellation of the sponsor thereafter proceeded.

Petitioner Rep. Joker Arroyo registered to interpellate. He was fourthin the order, following Rep. Rogelio Sarmiento, Rep. Edcel C. Lagman andRep. Enrique Garcia. In the course of his interpellation, Rep. Arroyo

announced that he was going to raise a question on the quorum, although

until the end of his interpellation he never did. What happened thereafter isshown in the following transcript of the session on November 21, 1996 of theHouse of Representatives, as published by Congress in the newspaper issues of December 5 and 6, 1996:

MR. ALBANO. Mr. Speaker, I move that we now approve and ratifythe conference committee report.

THE DEPUTY SPEAKER (Mr. Daza). Any objection to the motion?MR. ARROYO. What is that, Mr. Speaker?THE DEPUTY SPEAKER (Mr. Daza). There being none, approved.(Gavel)MR. ARROYO. No, no, no, wait a minute, Mr. Speaker, I stood up. I

want to know what is the question that the Chair asked the distinguishedsponsor.

THE DEPUTY SPEAKER (Mr. Daza). There was a motion by theMajority Leader for approval of the report, and the Chair called for themotion.

MR. ARROYO. Objection, I stood up, so I wanted to object.THE DEPUTY SPEAKER (Mr. Daza). The session is suspended for

one minute.(It was 3:01 p.m.)(3:40 p.m., the session was resumed)THE DEPUTY SPEAKER (Mr. Daza). The session is resumed.MR. ALBANO. Mr. Speaker, I move to adjourn until four o'clock,

Wednesday, next week.THE DEPUTY SPEAKER (Mr. Daza). The session is adjourned until

four o'clock, Wednesday, next week.(It was 3:40 p.m.)On the same day, the bill was signed by the Speaker of the House of

Representatives and the President of the Senate and certified by therespective secretaries of both Houses of Congress as having been finallypassed by the House of Representatives and by the Senate on November 21, 1996. The enrolled bill was signed into law by President Fidel V. Ramoson November 22, 1996.

Petitioners claim that there are actually four different versions of thetranscript of this portion of Rep. Arroyo's interpellation: (1) the transcript of audio-sound recording of the proceedings in the session hall immediatelyafter the session adjourned at 3:40 p.m. on November 21, 1996, whichpetitioner Rep. Edcel C. Lagman obtained from the operators of the soundsystem; (2) the transcript of the proceedings from 3:00 p.m. to 3:40 p.m. of November 21, 1996, as certified by the Chief of the Transcription Division onNovember 21, 1996, also obtained by Rep. Lagman; (3) the transcript of theproceedings from 3:00 p.m. to 3:40 p.m. of November 21, 1996 as certifiedby the Chief of the Transcription Division on November 28, 1996, alsoobtained by Rep. Lagman; and (4) the published version abovequoted.According to petitioners, the four versions differ on three points, to wit: (1) in

the audio-sound recording the word "approved," which appears on line 13 in



the three other versions, cannot be heard; (2) in the transcript certified onNovember 21, 1996 the word "no" on line 17 appears only once, while in theother versions it is repeated three times; and (3) the published version doesnot contain the sentence "(Y)ou better prepare for a quorum because I willraise the question of the quorum," which appears in the other versions.

Petitioners' allegations are vehemently denied by respondents.However, there is no need to discuss this point as petitioners haveannounced that, in order to expedite the resolution of this petition, they admit,without conceding, the correctness of the transcripts relied upon by therespondents. Petitioners agree that for purposes of this proceeding the word"approved" appears in the transcripts.

Only the proceedings of the House of Representatives on theconference committee report on H. No. 7198 are in question. Petitioners'principal argument is that R.A. No. 8240 is null and void because it waspassed in violation of the rules of the House; that these rules embody the"constitutional mandate" in Art. VI, §16(3) that "each House may determinethe rules of its proceedings" and that, consequently, violation of the Houserules is a violation of the Constitution itself. They contend that the certificationof Speaker De Venecia that the law was properly passed is false andspurious.

More specifically, petitioners charge that (1) in violation of Rule VIII,§35 and Rule XVII, §103 of the rules of the House, 2 the Chair, in submittingthe conference committee report to the House, did not call for the yeas or nays, but simply asked for its approval by motion in order to preventpetitioner Arroyo from questioning the presence of a quorum; (2) in violationof Rule XIX, §112, 3 the Chair deliberately ignored Rep. Arroyo's question,"What is that . . . Mr. Speaker?" and did not repeat Rep. Albano's motion toapprove or ratify; (3) in violation of Rule XVI, §97, 4 the Chair refused torecognize Rep. Arroyo and instead proceeded to act on Rep. Albano'smotion and afterward declared the report approved; and (4) in violation of Rule XX, §§121-122, Rule XXI, §123, and Rule XVIII, §109, 5 the Chair suspended the session without first ruling on Rep. Arroyo's question which, itis alleged, is a point of order or a privileged motion. It is argued that Rep.

Arroyo's query should have been resolved upon the resumption of thesession on November 28, 1996, because the parliamentary situation at thetime of the adjournment remained upon the resumption of the session.

Petitioners also charge that the session was hastily adjourned at3:40 p.m. on November 21, 1996 and the bill certified by Speaker Jose DeVenecia to prevent petitioner Rep. Arroyo from formally challenging theexistence of a quorum and asking for a reconsideration.

Petitioners urge the Court not to feel bound by the certification of theSpeaker of the House that the law had been properly passed, consideringthe Court's power under Art. VIII, §1 to pass on claims of grave abuse of discretion by the other departments of the government, and they ask for areexamination of Tolentino v. Secretary of Finance, 6 which affirmed the

conclusiveness of an enrolled bill, in view of the changed membership of theCourt.

The Solicitor General filed a comment in behalf of all respondents. Inaddition, respondent De Venecia filed a supplemental comment.Respondents' defense is anchored on the principle of separation of powersand the enrolled bill doctrine. They argue that the Court is not the proper forum for the enforcement of the rules of the House and that there is no

justification for reconsidering the enrolled bill doctrine. Although theConstitution provides in Art. VI, §16(3) for the adoption by each House of itsrules of proceedings, enforcement of the rules cannot be sought in the courtsexcept insofar as they implement constitutional requirements such as thatrelating to three readings on separate days before a bill may be passed. Atall events, respondents contend that, in passing the bill which became R.A.No. 8240, the rules of the House, as well as parliamentary precedents for approval of conference committee reports on mere motion, were faithfullyobserved.

In his supplemental comment, respondent De Venecia denies thathis certification of H. No. 7198 is false and spurious and contends that under the journal entry rule, the judicial inquiry sought by the petitioners is barred.Indeed, Journal No. 39 of the House of Representatives, covering thesessions of November 20 and 21, 1996, shows that "On Motion of Mr.Albano, there being no objection, the Body approved the ConferenceCommittee Report on House Bill No. 7198." 7 This Journal was approved onDecember 2, 1996 over the lone objection of petitioner Rep. Lagman. 8

After considering the arguments of the parties, the Court finds noground for holding that Congress committed a grave abuse of discretion inenacting R.A. No. 8240. This case is therefore dismissed.

First. It is clear from the foregoing facts that what is alleged to havebeen violated in the enactment of R.A. No. 8240 are merely internal rules of procedure of the House rather than constitutional requirements for theenactment of a law, i.e., Art. VI, §§26-27. Petitioners do not claim that therewas no quorum but only that, by some maneuver allegedly in violation of therules of the House, Rep. Arroyo was effectively prevented from questioning

the presence of a quorum. cdrepPetitioners contend that the House rules were adopted pursuant to

the constitutional provision that "each House may determine the rules of itsproceedings" 9 and that for this reason they are judicially enforceable. Tobegin with, this contention stands the principle on its head. In the decidedcases, 10 the constitutional provision that "each House may determine therules of its proceedings" was invoked by parties, although not successfully,precisely to support claims of autonomy of the legislative branch to conductits business free from interference by courts. Here petitioners cite theprovision for the opposite purpose of invoking judicial review.

But the cases, both here and abroad, in varying forms of expression,all deny to the courts the power to inquire into allegations that, in enacting a

law, a House of Congress failed to comply with its own rules, in the absence



of showing that there was a violation of a constitutional provision or the rightsof private individuals. In Osmeña v. Pendatun, 11 it was held: "At any rate,courts have declared that 'the rules adopted by deliberative bodies aresubject to revocation, modification or waiver at the pleasure of the bodyadopting them.' And it has been said that 'Parliamentary rules are merelyprocedural, and with their observance, the courts have no concern. Theymay be waived or disregarded by the legislative body.' Consequently, 'merefailure to conform to parliamentary usage will not invalidate the action (takenby a deliberative body) when the requisite number of members have agreedto a particular measure.'"

In United States v. Ballin, Joseph & Co., 12 the rule was stated thus:"The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violatefundamental rights, and there should be a reasonable relation between themode or method of proceeding established by the rule and the result which issought to be attained. But within these limitations all matters of method areopen to the determination of the House, and it is no impeachment of the ruleto say that some other way would be better, more accurate, or even more

just. It is no objection to the validity of a rule that a different one has beenprescribed and in force for a length of time. The power to make rules is notone which once exercised is exhausted. It is a continuous power, alwayssubject to be exercised by the House, and within the limitations suggested,absolute and beyond the challenge of any other body or tribunal."

In Crawford v. Gilchrist, 13 it was held: "The provision that eachHouse shall determine the rules of its proceedings does not restrict thepower given to a mere formulation of standing rules, or to the proceedings of the body in ordinary legislative matters; but in the absence of constitutionalrestraints, and when exercised by a majority of a constitutional quorum, suchauthority extends to a determination of the propriety and effect of any actionas it is taken by the body as it proceeds in the exercise of any power, in thetransaction of any business, or in the performance of any duty conferredupon it by the Constitution."

In State ex rel. City Loan & Savings Co. v. Moore, 14 the Supreme

Court of Ohio stated: "The provision for reconsideration is no part of theConstitution and is therefore entirely within the control of the GeneralAssembly. Having made the rule, it should be regarded, but a failure toregard it is not the subject-matter of judicial inquiry. It has been decided bythe courts of last resort of many states, and also by the United StatesSupreme Court, that a legislative act will not be declared invalid for noncompliance with rules."

In State v. Savings Bank, 15 the Supreme Court of Errors of Connecticut declared itself as follows: "The Constitution declares that eachhouse shall determine the rules of its own proceedings and shall have allpowers necessary for a branch of the Legislature of a free and independentstate. Rules of proceedings are the servants of the House and subject to its

authority. This authority may be abused, but when the House has acted in a

matter clearly within its power, it would be an unwarranted invasion of theindependence of the legislative department for the court to set aside suchaction as void because it may think that the House has misconstrued or departed from its own rules of procedure."

In McDonald v. State, 16 the Wisconsin Supreme Court held: "Whenit appears that an act was so passed, no inquiry will be permitted to ascertainwhether the two houses have or have not complied strictly with their ownrules in their procedure upon the bill, intermediate its introduction and finalpassage. The presumption is conclusive that they have done so. We think nocourt has ever declared an act of the legislature void for non-compliance withthe rules of procedure made by itself , or the respective branches thereof,and which it or they may change or suspend at will. If there are any suchadjudications, we decline to follow them."

Schweizer v. Territory 17 is illustrative of the rule in these cases. The1893 Statutes of Oklahoma provided for three readings on separate daysbefore a bill may be passed by each house of the legislature, with the provisothat in case of an emergency the house concerned may, by two-thirds vote,suspend the operation of the rule. Plaintiff was convicted in the district courtof violation of a law punishing gambling. He appealed contending that thegambling statute was not properly passed by the legislature because thesuspension of the rule on three readings had not been approved by therequisite two-thirds vote. Dismissing this contention, the State SupremeCourt of Oklahoma held:

We have no constitutional provision requiring that the legislatureshould read a bill in any particular manner. It may, then, read or deliberateupon a bill as it sees fit, either in accordance with its own rules, or in violationthereof, or without making any rules. The provision of section 17 referred tois merely a statutory provision for the direction of the legislature in its actionupon proposed measures. It receives its entire force from legislativesanction, and it exists only at legislative pleasure. The failure of thelegislature to properly weigh and consider an act, its passage through thelegislature in a hasty manner, might be reasons for the governor withholdinghis signature thereto; but this alone, even though it is shown to be a violation

of a rule which the legislature had made to govern its own proceedings, couldbe no reason for the court's refusing its enforcement after it was actuallypassed by a majority of each branch of the legislature, and duly signed bythe governor. The courts cannot declare an act of the legislature void onaccount of noncompliance with rules of procedure made by itself to govern itsdeliberations. McDonald v. State, 80 Wis. 407, 50 N.W. 185; In re Ryan, 80Wis. 414, 50 N.W. 187; State v. Brown, 33 S.C. 151, 11 S.E. 641; RailwayCo. v. Gill, 54 Ark. 101, 15 S.W. 18.

We conclude this survey with the useful summary of the rulings byformer Chief Justice Fernando, commenting on the power of each House of Congress to determine its rules of proceedings. He wrote:

Rules are hardly permanent in character. The prevailing view is that

they are subject to revocation, modification or waiver at the pleasure of the



body adopting them as they are primarily procedural. Courts ordinarily haveno concern with their observance. They may be waived or disregarded by thelegislative body. Consequently, mere failure to conform to them does nothave the effect of nullifying the act taken if the requisite number of membershave agreed to a particular measure. The above principle is subject,however, to this qualification. Where the construction to be given to a ruleaffects persons other than members of the legislative body the questionpresented is necessarily judicial in character. Even its validity is open toquestion in a case where private rights are involved. 18

In this case no rights of private individuals are involved but onlythose of a member who, instead of seeking redress in the House, chose totransfer the dispute to this Court. We have no more power to look into theinternal proceedings of a House than members of that House have to lookover our shoulders, as long as no violation of constitutional provisions isshown.

Petitioners must realize that each of the three departments of our government has its separate sphere which the others may not invade withoutupsetting the delicate balance on which our constitutional order rests. Dueregard for the working of our system of government, more than mere comity,compels reluctance on our part to enter upon an inquiry into an allegedviolation of the rules of the House. We must accordingly decline the invitationto exercise our power.

Second. Petitioners, quoting former Chief Justice RobertoConcepcion's sponsorship in the Constitutional Commission, contend thatunder Art. VIII, §1, "nothing involving abuse of discretion [by the other branches of the government] amounting to lack or excess of jurisdiction isbeyond judicial review." 19 Implicit in this statement of the former Chief Justice, however, is an acknowledgment that the jurisdiction of this Court issubject to the case and controversy requirement of Art. VIII, §5 and,therefore, to the requirement of a justiciable controversy before courts canadjudicate constitutional questions such as those which arise in the field of foreign relations. For while Art. VIII, §1 has broadened the scope of judicialinquiry into areas normally left to the political departments to decide, such as

those relating to national security, 20 it has not altogether done away withpolitical questions such as those which arise in the field of foreign relations.As we have already held, under Art. VIII, §1, this Court's function is merely[to] check whether or not the governmental branch or agency has gonebeyond the constitutional limits of its jurisdiction, not that it erred or has adifferent view. In the absence of a showing . . . [of] grave abuse of discretionamounting to lack of jurisdiction, there is no occasion for the Court toexercise its corrective power. . . . It has no power to look into what it thinks isapparent error. 21

If, then, the established rule is that courts cannot declare an act of the legislature void on account merely of noncompliance with rules of procedure made by itself, it follows that such a case does not present a

situation in which a branch of the government has "gone beyond the

constitutional limits of its jurisdiction" so as to call for the exercise of our Art.VIII, §1 power. prcd

Third. Petitioners claim that the passage of the law in the House was"railroaded." They claim that Rep. Arroyo was still making a query to theChair when the latter declared Rep. Albano's motion approved.

What happened is that, after Rep. Arroyo's interpellation of thesponsor of the committee report, Majority Leader Rodolfo Albano moved for the approval and ratification of the conference committee report. The Chair called out for objections to the motion. Then the Chair declared: "There beingnone, approved." At the same time the Chair was saying this, however, Rep.Arroyo was asking, "What is that . . . Mr. Speaker?" The Chair and Rep.Arroyo were talking simultaneously. Thus, although Rep. Arroyosubsequently objected to the Majority Leader's motion, the approval of theconference committee report had by then already been declared by theChair, symbolized by its banging of the gavel.

Petitioners argue that, in accordance with the rules of the House,Rep. Albano's motion for the approval of the conference committee reportshould have been stated by the Chair and later the individual votes of theMembers should have been taken. They say that the method used in thiscase is a legislator's nightmare because it suggests unanimity when the factwas that one or some legislators opposed the report.

No rule of the House of Representatives has been cited whichspecifically requires that in cases such as this involving approval of aconference committee report, the Chair must restate the motion and conducta viva voce or nominal voting. On the other hand, as the Solicitor Generalhas pointed out, the manner in which the conference committee report on H.No. 7198 was approved was by no means a unique one. It has basis inlegislative practice. It was the way the conference committee report on thebills which became the Local Government Code of 1991 and the conferencecommittee report on the bills amending the Tariff and Customs Code wereapproved.

In 1957, the practice was questioned as being contrary to the rules of the House. The point was answered by Majority Leader Arturo M. Tolentino

and his answer became the ruling of the Chair. Mr. Tolentino said:Mr. TOLENTINO. The fact that nobody objects means a unanimous

action of the House. Insofar as the matter of procedure is concerned, this hasbeen a precedent since I came here seven years ago, and it has been theprocedure in this House that if somebody objects, then a debate follows andafter the debate, then the voting comes in.

xxx xxx xxxMr. Speaker, a point of order was raised by the gentleman from

Leyte, and I wonder what his attitude is now on his point of order. I should just like to state that I believe that we have had a substantial compliance withthe Rules. The Rule invoked is not one that refers to statutory or constitutional requirement, and a substantial compliance, to my mind, is

sufficient. When the Chair announces the vote by saying "Is there any



objection?" and nobody objects, then the Chair announces "The bill isapproved on second reading." If there was any doubt as to the vote, anymotion to divide would have been proper. So, if that motion is not presented,we assume that the House approves the measure. So I believe there issubstantial compliance here, and if anybody wants a division of the House hecan always ask for it, and the Chair can announce how many are in favor andhow many are against. 22

Indeed, it is no impeachment of the method to say that some other way would be better, more accurate and even more just. 23 The advantagesor disadvantages, the wisdom or folly of a method do not present any matter for judicial consideration. 24 In the words of the U.S. Circuit Court of Appeals, "this Court cannot provide a second opinion on what is the bestprocedure. Notwithstanding the deference and esteem that is properlytendered to individual congressional actors, our deference and esteem for the institution as a whole and for the constitutional command that theinstitution be allowed to manage its own affairs precludes us from evenattempting a diagnosis of the problem." 25

Nor does the Constitution require that the yeas and the nays of theMembers be taken every time a House has to vote, except only in thefollowing instances: upon the last and third readings of a bill, 26 at therequest of one-fifth of the Members present, 27 and in repassing a bill over the veto of the President. 28 Indeed, considering the fact that in the approvalof the original bill the votes of the Members by yeas and nays had alreadybeen taken, it would have been sheer tedium to repeat the process.

Petitioners claim that they were prevented from seekingreconsideration allegedly as a result of the precipitate suspension andsubsequent adjournment of the session. 29 It would appear, however, thatthe session was suspended to allow the parties to settle the problem,because when it resumed at 3:40 p.m. on that day Rep. Arroyo did not sayanything anymore. While it is true that the Majority Leader moved for adjournment until 4 p.m. of Wednesday of the following week, Rep. Arroyocould at least have objected if there was anything he wanted to say. The fact,however, is that he did not. The Journal of November 21, 1996 of the House

shows:ADJOURNMENT OF SESSIONOn motion of Mr. Albano, there being no objection, the Chair

declared the session adjourned until four o'clock in the afternoon of Wednesday, November 27, 1996.

It was 3:40 p.m. Thursday, November 21, 1996. (Emphasis added)This Journal was approved on December 2, 1996. Again, no one

objected to its approval except Rep. Lagman.It is thus apparent that petitioners' predicament was largely of their

own making. Instead of submitting the proper motions for the House to actupon, petitioners insisted on the pendency of Rep. Arroyo's question as anobstacle to the passage of the bill. But Rep. Arroyo's question was not, in

form or substance, a point of order or a question of privilege entitled to

precedence. 30 And even if Rep. Arroyo's question were so, Rep. Albano'smotion to adjourn would have precedence and would have put an end to anyfurther consideration of the question. 31

Given this fact, it is difficult to see how it can plausibly be contendedthat in signing the bill which became R.A. No. 8240, respondent Speaker of the House acted with grave abuse of his discretion. Indeed, the phrase"grave abuse of discretion amounting to lack or excess of jurisdiction" has asettled meaning in the jurisprudence of procedure. It means such capriciousand whimsical exercise of judgment by a tribunal exercising judicial or quasi

judicial power as to amount to lack of power. As Chief Justice Concepcionhimself said in explaining this provision, the power granted to the courts byArt. VIII, §1 extends to cases where "a branch of the government or any of itsofficials has acted without jurisdiction or in excess of jurisdiction, or socapriciously as to constitute an abuse of discretion amounting to excess of

jurisdiction." 32Here, the matter complained of concerns a matter of internal

procedure of the House with which the Court should not be concerned. Torepeat, the claim is not that there was no quorum but only that Rep. Arroyowas effectively prevented from questioning the presence of a quorum. Rep.Arroyo's earlier motion to adjourn for lack of quorum had already beendefeated, as the roll call established the existence of a quorum. The questionof quorum cannot be raised repeatedly — especially when the quorum isobviously present — for the purpose of delaying the business of the House.33 Rep. Arroyo waived his objection by his continued interpellation of thesponsor for in so doing he in effect acknowledged the presence of a quorum.34

At any rate it is noteworthy that of the 111 members of the Houseearlier found to be present on November 21, 1996, only the five, i.e.petitioners in this case, are questioning the manner by which the conferencecommittee report on H. No. 7198 was approved on that day. No one exceptRep. Arroyo, appears to have objected to the manner by which the reportwas approved. Rep. John Henry Osmeña did not participate in the bicameralconference committee proceedings. 35 Rep. Lagman and Rep. Zamora

objected to the report 36 but not to the manner it was approved; while it issaid that, if voting had been conducted, Rep. Tañada would have voted infavor of the conference committee report. 37

Fourth. Under the enrolled bill doctrine, the signing of H. No. 7198 bythe Speaker of the House and the President of the Senate and thecertification by the secretaries of both Houses of Congress that it was passedon November 21, 1996 are conclusive of its due enactment. Much energyand learning is devoted in the separate opinion of Justice Puno, joined byJustice Davide, to disputing this doctrine. To be sure, there is no claim either here or in the decision in the EVAT cases [Tolentino v. Secretary of Finance]that the enrolled bill embodies a conclusive presumption. In one case 38 we"went behind" an enrolled bill and consulted the Journal to determine



whether certain provisions of a statute had been approved by the Senate.Cdpr

But, where as here there is no evidence to the contrary, this Courtwill respect the certification of the presiding officers of both Houses that a billhas been duly passed. Under this rule, this Court has refused to determineclaims that the three-fourths vote needed to pass a proposed amendment tothe Constitution had not been obtained, because "a duly authenticated bill or resolution imports absolute verity and is binding on the courts." 39 This Courtquoted from Wigmore on Evidence the following excerpt which embodiesgood, if old-fashioned democratic theory:

The truth is that many have been carried away with the righteousdesire to check at any cost the misdoings of Legislatures. They have setsuch store by the Judiciary for this purpose that they have almost made thema second and higher Legislature. But they aim in the wrong direction. Insteadof trusting a faithful Judiciary to check an inefficient Legislature, they shouldturn to improve the Legislature. The sensible solution is not to patch andmend casual errors by asking the Judiciary to violate legal principle and to doimpossibilities with the Constitution; but to represent ourselves withcompetent, careful, and honest legislators, the work of whose hands on thestatute-roll may come to reflect credit upon the name of popular government.40

This Court has refused to even look into allegations that the enrolledbill sent to the President contained provisions which had been"surreptitiously" inserted in the conference committee:

[W]here allegations that the constitutional procedures for thepassage of bills have not been observed have no more basis than another allegation that the Conference Committee "surreptitiously" insertedprovisions into a bill which it had prepared, we should decline the invitation togo behind the enrolled copy of the bill. To disregard the "enrolled bill" rule insuch cases would be to disregard the respect due the other two departmentsof our government. 41

It has refused to look into charges that an amendment was madeupon the last reading of a bill in violation of Art. VI, §26(2) of the Constitution

that "upon the last reading of a bill, no amendment shall be allowed." 42In other cases, 43 this Court has denied claims that the tenor of a bill

was otherwise than as certified by the presiding officers of both Houses of Congress.

The enrolled bill doctrine, as a rule of evidence, is well established. Itis cited with approval by text writers here and abroad. 44 The enrolled billrule rests on the following considerations:

. . . As the President has no authority to approve a bill not passed byCongress, an enrolled Act in the custody of the Secretary of State, andhaving the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of theUnited States, carries, on its face, a solemn assurance by the legislative and

executive departments of the government, charged, respectively, with the

duty of enacting and executing the laws, that it was passed by Congress.The respect due to coequal and independent departments requires the

judicial department to act upon that assurance, and to accept, as havingpassed Congress, all bills authenticated in the manner stated; leaving thecourt to determine, when the question properly arises, whether the Act, soauthenticated, is in conformity with the Constitution. 45

To overrule the doctrine now, as the dissent urges, is to repudiatethe massive teaching of our cases and overthrow an established rule of evidence.

Indeed, petitioners have advanced no argument to warrant adeparture from the rule, except to say that, with a change in the membershipof the Court, the three new members may be assumed to have an open mindon the question of the enrolled bill rule. Actually, not three but four (Cruz,Feliciano, Bidin, and Quiason, JJ .) have departed from the Court since our decision in the EVAT cases and their places have since been taken by four new members (Francisco, Hermosisima, Panganiban, and Torres, JJ .)Petitioners are thus simply banking on the change in the membership of theCourt.

Moreover, as already noted, the due enactment of the law inquestion is confirmed by the Journal of the House of November 21, 1996which shows that the conference committee report on H. No. 7198, whichbecame R.A. No. 8240, was approved on that day. The keeping of theJournal is required by the Constitution. Art. VI, §16(4) provides:

Each House shall keep a Journal of its proceedings, and from time totime publish the same, excepting such parts as may, in its judgment, affectnational security; and the yeas and nays on any question shall, at the requestof one-fifth of the Members present, be entered in the Journal.

Each House shall also keep a Record of its proceedings.The Journal is regarded as conclusive with respect to matters that

are required by the Constitution to be recorded therein. 46 With respect toother matters, in the absence of evidence to the contrary, the Journals havealso been accorded conclusive effect. Thus, in United States v. Pons, 47 thisCourt spoke of the imperatives of public policy for regarding the Journals as

"public memorials of the most permanent character," thus: "They should bepublic, because all are required to conform to them; they should bepermanent, that rights acquired today upon the faith of what has beendeclared to be law shall not be destroyed tomorrow, or at some remoteperiod of time, by facts resting only in the memory of individuals." As alreadynoted, the bill which became R.A. No. 8240 is shown in the Journal. Henceits due enactment has been duly proven.

xxx xxx xxxIt would be an unwarranted invasion of the prerogative of a coequal

department for this Court either to set aside a legislative action as voidbecause the Court thinks the House has disregarded its own rules of procedure, or to allow those defeated in the political arena to seek a rematch

in the judicial forum when petitioners can find their remedy in that department



itself. The Court has not been invested with a roving commission to inquireinto complaints, real or imagined, of legislative skullduggery. It would beacting in excess of its power and would itself be guilty of grave abuse of itsdiscretion were it to do so. The suggestion made in a case 48 may insteadappropriately be made here: petitioners can seek the enactment of a new lawor the repeal or amendment of R.A. No. 8240. In the absence of anything tothe contrary, the Court must assume that Congress or any House thereof acted in the good faith belief that its conduct was permitted by its rules, anddeference rather than disrespect is due the judgment of that body. 49 cdtech

WHEREFORE, the petition for certiorari and prohibition isDISMISSED.

SO ORDERED.Narvasa, C .J ., Padilla, Melo, Kapunan, Francisco and

Hermosisima, Jr., JJ ., concur.Regalado, J ., concurs in the result.Bellosillo, J ., took no part due to relationship to parties.Panganiban, J ., took no part; former counsel of a party.Torres, Jr., J ., took no part; on leave during deliberations.Separate OpinionsROMERO, J ., concurring:In filing this separate opinion for the dismissal of the instant petition, I

am not backtracking from the dissent which I expressed in Tolentino v.Secretary of Finance. 1 I am somewhat bothered that if I do not elaborate,the vote which I cast today might be wrongly construed as an impliedabandonment of, and inconsistent with, my firm stance in Tolentino.

The landmark case of Tolentino, just like the one under consideration, involved a similar challenge to the constitutionality of asignificant tax measure namely, Republic Act No. 7716, otherwise known asthe Expanded Value-Added Tax (EVAT) Law. There, a number of issues,both substantive and procedural, were posed by petitioners, each of whichwas discussed by the majority opinion of Mr. Justice Vicente V. Mendozawho, incidentally, is also the ponente of instant decision. At any rate, it isworth noting that I did not entirely disagree with each and every argument of

the opinion, most especially those touching upon substantive issues. Mymain objection in Tolentino, it will be recalled, focused instead on what Iperceived was a substantial breach and disregard by the Legislature of vitalconstitutional requirements ordaining the procedures to be followed in thepassage of a bill which, in my opinion, the majority seemed to have cavalierlyput to rest by hiding under the cloak of the enrolled bill theory 2 and theprecept that the Court is not the proper forum for the enforcement of internallegislative rules allegedly violated. 3 To me, the position then taken by themajority exhibited blind adherence to otherwise sound principles of law whichdid not, however, fit the facts as presented before the Court. Hence, Iobjected, not so much because I found these principles unwise or obsolete,but rather because they were applied, or misapplied, to a case which I

believe did not call for their application. cdtai

When I differed from the majority opinion which applied the enrolledbill theory, I was very careful to emphasize that reliance thereon is not to bediscontinued but that its application must be limited to minor matters relatingmore to form and factual issues which do not materially alter the essenceand substance of the law itself. Thus:

"As applied to the instant petition, the issue posed is whether or notthe procedural irregularities that attended the passage of House Bill No.11197 and Senate Bill No. 1630, outside of the reading and printingrequirements which were exempted by the Presidential certification, may nolonger be impugned, having been 'saved' by the conclusiveness on us of theenrolled bill. I see no cogent reason why we cannot continue to placereliance on the enrolled bill, but only with respect to matters pertaining to theprocedure followed in the enactment of bills in Congress and their subsequent engrossment, printing errors, omission of words and phrasesand similar relatively minor matters relating more to form and factual issueswhich do not materially alter the essence and substance of the law itself .

Certainly, courts cannot claim greater ability to judge procedurallegitimacy, since constitutional rules on legislative procedure are easilymastered. Procedural disputes are over facts — whether or not the bill hadenough votes, or three readings, or whatever — not over the meaning of theconstitution. Legislators, as eyewitnesses, are in a better position than a

court to rule on the facts. The argument is also made that legislatures wouldbe offended if courts examined legislative procedure.

Such a rationale, however, cannot conceivably apply to substantivechanges in a bill introduced towards the end of its tortuous trip throughCongress, catching both legislators and the public unawares and altering thesame beyond recognition even by its sponsors.

This issue I wish to address forthwith." 4As regards the principle that the Court is not the proper forum for the

enforcement of internal legislative rules, both the majority and I were actuallyof one mind such that I was quick to qualify the extent of the Court's reviewpower in respect of internal procedures in this wise:

"I wish to consider this issue in light of Article VIII, Sec. 1 of the

Constitution which provides that '(j)udicial power includes the duty of thecourts of justice . . . to determine whether or not there has been a graveabuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.' We are also guided by theprinciple that a court may interfere with the internal procedures of itscoordinate branch only to uphold the Constitution." 5

I differed, however, from the majority insofar as that principle wasapplied. In this respect, I showed that the introduction of several provisions inthe Bicameral Conference Committee Report did not only violate thepertinent House and Senate Rules defining the limited power of theconference committee but that the Constitutional proscription against anyamendment upon the last reading of a bill was likewise breached. Hence, in

view of these lapses, I thought that judicial review would have been proper in



order to uphold the Constitution. This the majority, however, disregardedinvoking the same principle which should have justified the Court inquestioning the actuations of the legislative branch.

At this juncture, I wish to reiterate my continuing adherence to theaforesaid reasons I cited in the Tolentino dissent. At the same time, I realizethat the arguments I raised in my dissent would not hold true in the instantpetition.

For one thing, unlike in Tolentino, the rules of the House of Representatives allegedly violated by respondents in the instant petition arepurely internal rules designed for the orderly conduct of the House'sbusiness. They have no direct or reasonable nexus to the requirements andproscriptions of the Constitution in the passage of a bill which wouldotherwise warrant the Court's intervention. Likewise, the petitioners are not inany way complaining that substantial alterations have been introduced inRepublic Act No. 8240. The thrust of petitioners' arguments in attacking thevalidity of the law is merely with respect to the fact that Rep. Joker Arroyowas effectively prevented from invoking the question of quorum and not thatthe substance thereof offends constitutional standards. This being the case, Ido not now feel called upon to invoke my previous argument that the enrolledbill theory should not be conclusive as regards "substantive changes in a billintroduced towards the end of its tortuous trip through Congress," when it is

palpably unwarranted under the circumstances of instant petition.PUNO, J ., concurring and dissenting:I concur in the result. I do appreciate the fine legal disquisition of Mr.

Justice Mendoza to justify the dismissal of the case at bar. Nevertheless, Ihave to express my views on the alleged non-justiciability of the issue posedby the petitioner as well as the applicability of the archaic enroll bill doctrinein light of what I perceive as new wrinkles in our law brought about by the1987 Constitution and the winds of changing time.

IWith due respect, I do not agree that the issues posed by the

petitioner are non-justiciable. Nor do I agree that we will trivialize the principleof separation of power if we assume jurisdiction over the case at bar. Even in

the United States, the principle of separation of power is no longer animpregnable impediment against the interposition of judicial power on casesinvolving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v. Ballin, 1 as awindow to view the issues before the Court. It is in Ballin where the USSupreme Court first defined the boundaries of the power of the judiciary toreview congressional rules. 2 It held:

"xxx xxx xxx"The Constitution, in the same section, provides, that each house

may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of theSpeaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the

journal, and reported to the Speaker with the names of the members voting,and be counted and announced in determining the presence of a quorum todo business. (House Journal, 230, Feb. 14, 1890) cdll

The action taken was in direct compliance with this rule. Thequestion, therefore, is as to the validity of this rule, and not what methods theSpeaker may of his own motion resort to for determining the presence of aquorum, nor what matters the Speaker or clerk may of their own volitionplace upon the journal. Neither do the advantages or disadvantages, thewisdom or folly, of such a rule present any matters for judicial consideration.With the courts the question is only one of power. The Constitutionempowers each house to determine its rules of proceedings. It may not by itsrules ignore constitutional restraints or violate fundamental rights, and thereshould be a reasonable relation between the mode or method of proceedingsestablished by the rule and the result which is sought to be attained. Butwithin these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other waywould be better, more accurate, or even more just. It is no objection to thevalidity of a rule that a different one has been prescribed and in force for a

length of time. The power to make rules is not one which once exercised isexhausted. It is a continuous power, always subject to be exercised by theHouse, and within the limitations suggested, absolute and beyond thechallenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon thevalidity of congressional rules, i.e., whether they are constitutional. Rule XVwas examined by the Court and it was found to satisfy the test: (1) that it didnot ignore any constitutional restraint; (2) it did not violate any fundamentalright; and (3) its method has a reasonable relationship with the result soughtto be attained. By examining Rule XV, the Court did not allow its jurisdictionto be defeated by the mere invocation of the principle of separation of powers.

Ballin was followed in 1932 by the case of US v. Smith. 3 In Smith,the meaning of sections 3 and 4 of Rule XXXVIII of the US Senate was inissue, viz.:

"xxx xxx xxx"3. When a nomination is confirmed or rejected, any Senator

voting in the majority may move for a reconsideration on the same day onwhich the vote was taken, or on either of the next two days of actualexecutive session of the Senate; but if a notification of the confirmation or rejection of a nomination shall have been sent to the President before theexpiration of the time within which a motion to reconsider may be made, themotion to reconsider shall be accompanied by a motion to request thePresident to return such notification to the Senate. Any motion to reconsider



the vote on a nomination may be laid on the table without prejudice to thenomination, and shall be a final disposition of such motion.

4. Nominations confirmed or rejected by the Senate shall notbe returned by the Secretary to the President until the expiration of the timelimited for making a motion to reconsider the same, or while a motion toreconsider is pending, unless otherwise ordered by the Senate."

It appears that the nomination of Mr. Smith as member of theFederal Power Commission has been confirmed by the US Senate. Theresolution of confirmation was sent to the US President who then signed theappointment of Mr. Smith. The Senate, however, reconsidered theconfirmation of Mr. Smith and requested the President to return its resolutionof confirmation. The President refused. A petition for quo warranto was filedagainst Mr. Smith. The Court, speaking thru Mr. Justice Brandeis, assumed

jurisdiction over the dispute relying on Ballin. It exercised jurisdictionalthough "the question primarily at issue relates to the construction of theapplicable rules, not to their constitutionality." Significantly, the Court rejectedthe Senate interpretation of its own rules even while it held that it must beaccorded the most sympathetic consideration.

"xxx xxx xxx"Sixth. To place upon the standing rules of the Senate a construction

different from that adopted by the Senate itself when the present case was

under debate is a serious and delicate exercise of judicial power. TheConstitution commits to the Senate the power to make its own rules; and it isnot the function of the Court to say that another rule would be better. A ruledesigned to ensure due deliberation in the performance of the vital functionof advising and consenting to nominations for public office, moreover, shouldreceive from the Court the most sympathetic consideration. But the reasons,above stated, against the Senate's construction seem to us compelling. Weare confirmed in the view we have taken by the fact, since the attemptedreconsideration of Smith's confirmation, the Senate itself seems uniformly tohave treated the ordering of immediate notification to the President astantamount to authorizing him to proceed to perfect the appointment.

Smith, of course, involves the right of a third person and its ruling

falls within the test spelled out in Ballin.Smith was followed by the 1948 case of Christoffel v. United States.

4 Christoffel testified before the Committee on Education and Labor of theHouse of Representatives. He denied he was a communist and was chargedwith perjury in the regular court. He adduced evidence during the trial that thecommittee had no quorum when the perjurious statement was given.Nonetheless, he was convicted in view of the judge's charge to the membersof the jury that to find Christoffel guilty, they had to find beyond a reasonabledoubt that —

"xxx xxx xxx". . . the defendant Christoffel appeared before a quorum of at least

thirteen members of the said Committee, and that at least that number must

have been actually and physically present . . . If such a Committee so met,

that is, if thirteen members did meet at the beginning of the afternoonsession of March 1, 1947, and thereafter during the progress of the hearingsome of them left temporarily or otherwise and no question was raised as tothe lack of a quorum, then the fact that the majority did not remain therewould not affect, for the purposes of this case, the existence of thatCommittee as a competent tribunal provided that before the oath wasadministered and before the testimony of the defendant was given therewere present as many as 13 members of that Committee at the beginning of the afternoon session . . ."

Christoffel objected to the charge on the ground that it allowed the jury to assume there was a continuous quorum simply because it waspresent at the start of the meeting of the Committee. Under the House rules,a quorum once established is presumed to continue until the lack of quorumis raised. Again, the court assumed jurisdiction over the case. A majority of the Court, with Mr. Justice Murphy, as ponente, defined the issue as "whatrules the House had established and whether they have been followed." Itheld:

"xxx xxx xxx"Congressional practice in the transaction of ordinary legislative

business is of course none of our concern, and by the same token theconsiderations which may lead Congress as a matter of legislative practice to

treat as valid the conduct of its committees do not control the issue beforeus. The question is neither what rules Congress may establish for its owngovernance, nor whether presumptions of continuity may protect the validityof its legislative conduct. The question is rather what rules the House hasestablished and whether they have been followed. It of course has the power to define what tribunal is competent to exact testimony and the conditionsthat establish its competency to do so. The heart of this case is that by thecharge that was given it the jury was allowed to assume that the conditions of competency were satisfied even though the basis in fact was not establishedand in face of a possible finding that the facts contradicted the assumption.llcd

We are measuring a conviction of crime by the statute which defined

it. As a consequence of this conviction, petitioner was sentenced toimprisonment for a term of from two to six years. An essential part of aprocedure which can be said fairly to inflict such a punishment is that all theelements of the crime charged shall be proved beyond a reasonable doubt.An element of the crime charged in the instant indictment is the presence of a competent tribunal, and the trial court properly so instructed the jury. TheHouse insists that to be such a tribunal a committee must consist of aquorum, and we agree with the trial court's charge that to convict, the juryhad to be satisfied beyond a reasonable doubt that there were 'actually andphysically present' a majority of the committee.

Then to charge, however, that such requirement is satisfied by afinding that there was a majority present two or three hours before the

defendant offered his testimony, in the face of evidence indicating the



contrary, is to rule as a matter of law that a quorum need not be presentwhen the offense is committed. This not only seems to us contrary to therules and practice of the Congress but denies petitioner a fundamental right.That right is that he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunal that is not competent is no tribunal,and it is unthinkable that such a body can be the instrument of criminalconviction."

The minority complained that the "House has adopted the rule andpractice that a quorum once established is presumed to continue unless anduntil a point of no quorum is raised. By this decision, the Court, in effect,invalidates that rule . . ." The minority view commanded only the vote of three(3) justices.

The US Supreme Court pursued the same line in 1963 in decidingthe case of Yellin v. United States. 5 Yellin was indicted on five counts of willfully refusing to answer questions put to him by a sub-committee of theHouse Committee on Un-American Activities. He was convicted by theDistrict Court of contempt of Congress on four counts. The conviction wasaffirmed by the Court of Appeals for the 7th Circuit. On certiorari, he assailedhis conviction on the ground that the Committee illegally denied his requestto be heard in executive session. He alleged there was a violation of Committee Rule IV which provides that "if a majority of the Committee or

sub-committee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a publichearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate suchwitness in an executive session for the purpose of determining the necessityor admissibility of conducting such interrogation thereafter in a publichearing." In a 5-4 decision, the Court, speaking thru Mr. Chief JusticeWarren, held:

"xxx xxx xxx"Yellin should be permitted the same opportunity for judicial review

when he discovers at trial that his rights have been violated. This isespecially so when the Committee's practice leads witnesses to misplaced

reliance upon its rules. When reading a copy of the Committee's rules, whichmust be distributed to every witness under Rule XVII, the witness' reasonableexpectation is that the Committee actually does what it purports to do,adhere to its own rules. To foreclose a defense based upon those rules,simply because the witness was deceived by the Committee's appearance of regularity, is not fair. The Committee prepared the groundwork for prosecution in Yellin's case meticulously. It is not too exacting to require thatthe Committee be equally meticulous in obeying its own rules."

It additionally bears stressing that in the United States, the judiciaryhas pruned the "political thicket." In the benchmark case of Baker v. Carr, 6the US Supreme Court assumed jurisdiction to hear a petition for re-apportionment of the Tennessee legislature ruling that "the political question

doctrine, a tool for maintenance of government order, will not be so applied

as to promote only disorder" and that "the courts cannot reject as 'no lawsuit,' a bona fide controversy as to whether some action denominated'political' exceeds constitutional authority."

In the Philippine setting, there is a more compelling reason for courtsto categorically reject the political question defense when its interposition willcover up abuse of power. For section 1, Article VIII of our Constitution wasintentionally cobbled to empower courts ". . . to determine whether or notthere has been a grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of any branch or instrumentality of the government."This power is new and was not granted to our courts in the 1935 and 1972Constitutions. It was not also xeroxed from the US Constitution or any foreignstate constitution. The CONCOM granted this enormous power to our courtsin view of our experience under martial law where abusive exercises of statepower were shielded from judicial scrutiny by the misuse of the politicalquestion doctrine. Led by the eminent former Chief Justice RobertoConcepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law andsuspension of the privilege of habeas corpus, it is now beyond dubiety thatthe government can no longer invoke the political question defense. Section18 of Article VII completely eliminated this defense when it provided:

"xxx xxx xxx"The Supreme Court may review, in an appropriate proceeding filed

by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extensionthereof, and must promulgate its decision thereon within thirty days from itsfiling.

A state of martial law does not suspend the operation of theConstitution, nor supplant the functioning of the civil courts or legislativeassemblies, nor authorize the conferment of jurisdiction on military courtsand agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ."

The CONCOM did not only outlaw the use of the political question

defense in national security cases. To a great degree, it diminished its use asa shield to protect other abuses of government by allowing courts topenetrate the shield with the new power to review acts of any branch or instrumentality of the government ". . . to determine whether or not there hasbeen a grave abuse of discretion amounting to lack or excess of jurisdiction."In Tolentino v. Secretary of Finance, 7 I posited the following postulates:

"xxx xxx xxx"Section 1. The judicial power shall be vested in one Supreme

Court and in such lower courts as may be established by law.Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a grave abuse



of discretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentality of the Government."

Former Chief Justice Roberto R. Concepcion, the sponsor of thisprovision in the Constitutional Commission explained the sense and thereach of judicial power as follows:

'xxx xxx xxx'. . . In other words, the judiciary is the final arbiter on the question of

whether or not a branch of government or any of its officials has actedwithout jurisdiction or in excess of jurisdiction, or so capriciously as toconstitute an abuse of discretion amounting to excess of jurisdiction. This isnot only a judicial power but a duty to pass judgment on matters of thisnature.

This is the background of paragraph 2 of Section 1, which meansthat the courts cannot hereafter evade the duty to settle matters of thisnature, by claiming that such matters constitute political question.'

The Constitution cannot be any clearer. What it granted to this Courtis not a mere power which it can decline to exercise. Precisely to deter thisdisinclination, the Constitution imposed it as a duty of this Court to strikedown any act of a branch or instrumentality of government or any of itsofficials done with grave abuse of discretion amounting to lack or excess of

jurisdiction. Rightly or wrongly, the Constitution has elongated the checking

powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being electedby the people.

It is, however, theorized that this provision is nothing new. I beg todisagree for the view misses the significant changes made in our constitutional canvass to cure the legal deficiencies we discovered duringmartial law. One of the areas radically changed by the framers of the 1987Constitution is the imbalance of power between and among the three greatbranches of our government — the Executive, the Legislative and theJudiciary. To upgrade the powers of the Judiciary, the ConstitutionalCommission strengthened some more the independence of courts. Thus, itfurther protected the security of tenure of the members of the Judiciary by

providing 'No law shall be passed reorganizing the Judiciary when itundermines the security of tenure of its Members.' It also guaranteed fiscalautonomy to the Judiciary.

More, it depoliticalized appointments in the judiciary by creating theJudicial and Bar Council which was tasked with screening the list of prospective appointees to the judiciary. The power of confirmingappointments to the judiciary was also taken away from Congress. ThePresident was likewise given a specific time to fill up vacancies in the

judiciary — ninety (90) days from the occurrence of the vacancy in case of the Supreme Court and ninety (90) days from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in thelower courts. To further insulate appointments in the judiciary from the virus

of politics, the Supreme Court was given the power to 'appoint all officials

and employees of the Judiciary in accordance with the Civil Service Law.'And to make the separation of the judiciary from the other branches of government more watertight, it prohibited members of the judiciary to be '. . .designated to any agency performing quasi judicial or administrativefunctions.' While the Constitution strengthened the sinews of the SupremeCourt, it reduced the powers of the two other branches of government,especially the Executive. Notable of the powers of the President clipped bythe Constitution is his power to suspend the writ of habeas corpus and toproclaim martial law. The exercise of this power is now subject to revocationby Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be reviewed by this Court in an appropriate proceeding filedby any citizen. cdt

The provision defining judicial power as including the 'duty of thecourts of justice . . . to determine whether or not there has been a graveabuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of thiscourt vis-a-vis the other branches of government. This provision was dictatedby our experience under martial law which taught us that a stronger andmore independent judiciary is needed to abort abuses in government. . . .

xxx xxx xxx

In sum, I submit that in imposing to this Court the duty to annul actsof government committed with grave abuse of discretion, the newConstitution transformed this Court from passivity to activism. Thistransformation, dictated by our distinct experience as a nation, is not merelyevolutionary but revolutionary. Under the 1935 and 1973 Constitutions, thisCourt approached constitutional violations by initially determining what itcannot do; under the 1987 Constitution, there is a shift in stress — this Courtis mandated to approach constitutional violations not by finding out what itshould not do but what it must do. The Court must discharge this solemnduty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious considerationto this new constitutional provision as the case at bar once more calls us to

define the parameters of our power to review violations of the rules of theHouse. We will not be true to our trust as the last bulwark againstgovernment abuses if we refuse to exercise this new power or if we wield itwith timidity. To be sure, it is this exceeding timidity to unsheath the judicialsword that has increasingly emboldened other branches of government todenigrate, if not defy, orders of our courts. In Tolentino, 8 I endorsed the viewof former Senator Salonga that this novel provision stretching the latitude of

judicial power is distinctly Filipino and its interpretation should not bedepreciated by undue reliance on inapplicable foreign jurisprudence. Inresolving the case at bar, the lessons of our own history should provide usthe light and not the experience of foreigners.

II



Again with due respect, I dissent from the majority insofar as it reliedon the enrolled bill doctrine to justify the dismissal of the petition at bar.

An enrolled bill is one which has been duly introduced, finallyenacted by both Houses, signed by the proper officers of each House andapproved by the President. 9 It is a declaration by the two Houses, throughtheir presiding officers, to the President that a bill, thus attested, has receivedin due form the sanction of the legislative branch of the government, and thatit is delivered to him in obedience to the constitutional requirement that allbills which pass Congress shall be presented to him.

The enrolled bill originated in England where there is no writtenConstitution controlling the legislative branch of the government, and the actsof Parliament, being regarded in their nature as judicial — as emanating fromthe highest tribunal in the land — are placed on the same footing andregarded with the same veneration as the judgment of the courts whichcannot be collaterally attacked. 10 In England, the conclusiveness of the billwas premised on the rationale that "an act of parliament thus made is theexercise of the highest authority that this kingdom acknowledges upon earth.And it cannot be altered, amended, dispensed with, suspended or repealed,but in the same forms and by the same authority of parliament; for it is amaxim in law that it requires the same strength to dissolve as to create anobligation. 11

Over the years, the enrolled bill theory has undergone importantmutations. Some jurisdictions have adopted the modified entry or affirmativecontradiction rule. Under this rule, the presumption in favor of the enrolled billis not conclusive. The rule concedes validity to the enrolled bill unless thereaffirmatively appears in the journals of the legislature a statement that therehas not been compliance with one or more of the constitutional requirements.12 Other jurisdictions have adopted the Extrinsic Evidence Rule which holdsthat an enrolled bill is only prima facie evidence that it has been regularlyenacted. The prima facie presumption, however, can be destroyed by clear,satisfactory and convincing evidence that the constitutional requirements inenacting a law have been violated. For this purpose, journals and other extrinsic evidence are allowed to be received. 13 Some limit the use of

extrinsic evidence to issues of fraud or mistakes. 14These variants developed after a re-examination of the rationale of

the enrolled bill. The modern rationale for the enrolled bill theory was spelledout in Field v. Clark, 15 viz.:

xxx xxx xxx"The signing by the Speaker of the House of Representatives, and,

by the President of the Senate, in open session, of an enrolled bill, is anofficial attestation by the two houses of such bill as one that has passedCongress. It is a declaration by the two Houses, through their presidingofficers, to the President, that a bill, thus attested, has received, in due form,the sanction of the legislative branch of the government, and that it isdelivered to him in obedience to the constitutional requirement that all bills

which pass Congress shall be presented to him. And when a bill, thus

attested, receives his approval, and is deposited in the public archives, itsauthentication as a bill that has passed Congress should be deemedcomplete and unimpeachable. As the President has no authority to approve abill not passed by Congress, an enrolled Act in the custody of the Secretaryof State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of theUnited States, carries, on its face, a solemn assurance by the legislative andexecutive departments of the government, charged, respectively, with theduty of enacting and executing the laws, that it was passed by Congress.The respect due to coequal and independent departments requires the

judicial department to act upon the assurance, and to accept, as havingpassed Congress, all bills authenticated in the manner stated; leaving thecourts to determine, when the question properly arises, whether the Act, soauthenticated, is in conformity with the Constitution.

The principle of separation of powers is thus the principal prop of theenrolled bill doctrine. The doctrine is also justified as a rule of convenience.Supposedly, it avoids difficult questions of evidence. 16 It is also believedthat it will prevent the filing of too many cases which will cast a cloud of uncertainty on laws passed by the legislature. As explained in Ex Pacte Wren17 "if the validity of every act published as law is to be tested by examiningits history, as shown by the journals of the two houses of the legislature,

there will be an amount of litigation, difficulty, and painful uncertaintyappalling in its contemplation, and multiplying a hundredfold the allegeduncertainty of the law." The conclusiveness of the enrolled bill is also justifiedon the ground that journals and other extrinsic evidence are conducive tomistake, if not fraud.

These justifications for the enrolled bill theory have been rejected invarious jurisdictions in the United States. In his Dissenting Opinion inTolentino v. Secretary of Finance, and its companion cases, 18 Mr. JusticeRegalado cited some of the leading American cases which discussed thereasons for the withering, if not demise of the enrolled bill theory, viz.:

"xxx xxx xxx"Even in the land of its source, the so-called conclusive presumption

of validity originally attributed to that doctrine has long been revisited andqualified, if not altogether rejected. On the competency of judicial inquiry, ithas been held that "(u)nder the 'enrolled bill rule' by which an enrolled bill issole expository of its contents and conclusive evidence of its existence andvalid enactment, it is nevertheless competent for courts to inquire as to whatprerequisites are fixed by the Constitution of which journals of respectivehouses of Legislature are required to furnish the evidence.

In fact, in Gwynn vs. Hardee, etc., et al., the Supreme Court of Florida declared:

(1) While the presumption is that the enrolled bill, as signed bythe legislative offices and filed with the secretary of state, is the bill as itpassed, yet this presumption is not conclusive, and when it is shown from the

legislative journals that a bill though engrossed and enrolled, and signed by



the legislative officers, contains provisions that have not passed both houses,such provisions will be held spurious and not a part of the law. As was saidby Mr. Justice Cockrell in the case of Wade vs. Atlantic Lumber Co., 51 Fla.628, text 633, 41 So. 72, 73:

'This Court is firmly committed to the holding that when the journalsspeak they control, and against such proof the enrolled bill is not conclusive.'

More enlightening and apropos to the present controversy is thedecision promulgated on May 13, 1980 by the Supreme Court of Kentucky inD & W Auto Supply, et al. vs. Department of Revenue, et al., pertinent

excerpts wherefrom are extensively reproduced hereunder.. . . In arriving at our decision we must, perforce, reconsider the

validity of a long line of decisions of this court which created and nurtured theso-called 'enrolled bill' doctrine.

xxx xxx xxx[1] Section 46 of the Kentucky Constitution sets out certain

procedures that the legislature must follow before a bill can be considered for final passage. . . .

xxx xxx xxx. . . Under the enrolled bill doctrine as it now exists in Kentucky, a

court may not look behind such a bill, enrolled and certified by theappropriate officers, to determine if there are any defects. cdta

xxx xxx xxx. . . In Lafferty, passage of the law in question violated this provision,

yet the bill was properly enrolled and approved by the governor. In decliningto look behind the law to determine the propriety of its enactment, the courtenunciated three reasons for adopting the enrolled bill rule. First, the courtwas reluctant to scrutinize the processes of the legislature, an equal branchof government. Second, reasons of convenience prevailed, whichdiscouraged requiring the legislature to preserve its records and anticipatedconsiderable complex litigation if the court ruled otherwise. Third, the courtacknowledged the poor record-keeping abilities of the General Assembly andexpressed a preference for accepting the final bill as enrolled, rather thanopening up the records of the legislature. . . .

xxx xxx xxxNowhere has the rule been adopted without reason, or as a result of

judicial whim. There are four historical bases for the doctrine. (1) An enrolledbill was a 'record' and, as such, was not subject to attack at common law. (2)Since the legislature is one of the three branches of government, the courts,being coequal, must indulge in every presumption that legislative acts arevalid. (3) When the rule was originally formulated, record-keeping of thelegislatures was so inadequate that a balancing of equities required that thefinal act, the enrolled bill, be given efficacy. (4) There were theories of convenience as expressed by the Kentucky court in Lafferty.

The rule is not unanimous in the several states, however and it hasnot been without its critics. From an examination of cases and treaties, we

can summarize the criticism as follows: (1) Artificial presumptions, especially

conclusive ones, are not favored. (2) Such a rule frequently (as in the presentcase) produces results which do not accord with facts or constitutionalprovisions. (3) The rule is conducive to fraud, forgery, corruption and other wrongdoings. (4) Modern automatic and electronic record-keeping devicesnow used by legislatures remove one of the original reasons for the rule. (5)The rule disregards the primary obligation of the courts to seek the truth andto provide a remedy for a wrong committed by any branch of government. Inlight of these considerations, we are convinced that the time has come to re-examine the enrolled bill doctrine.

[2] This court is not unmindful of the admonition of the doctrineof stare decisis. The maxim is "Stare decisis et non quieta movere," whichsimply suggests that we stand by precedents and to disturb settled points of law. Yet, this rule is not inflexible, nor is it of such a nature as to requireperpetuation of error or logic. As we stated in Daniel's Adm'r v. Hoofnel, 287Ky 834, 155 S.W.2d 469, 471-72 (1941)."

The force of the rule depends upon the nature of the question to bedecided and the extent of the disturbance of rights and practices which achange in the interpretation of the law or the course of judicial opinions maycreate. Cogent considerations are whether there is clear error and urgentreasons 'for neither justice nor wisdom requires a court to go from onedoubtful rule to another,' and whether or not the evils of the principle that has

been followed will be more injurious than can possibly result from a change.'Certainly, when a theory supporting a rule of law is not grounded on

facts, or upon sound logic, or is unjust, or has been discredited by actualexperience, it should be discarded, and with it the rule it supports.

[3] It is clear to us that the major premise of the Laffertydecision, the poor record-keeping of the legislature, has disappeared.Modern equipment and technology are the rule in record-keeping by our General Assembly. Tape recorders, electric typewriters, duplicatingmachines, recording equipment, printing presses, computers, electronicvoting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records.

It is also apparent that the 'convenience' rule is not appropriate in

today's modern and developing judicial philosophy. The fact that the number and complexity of lawsuits may increase is not persuasive if one is mindfulthat the overriding purpose of our judicial system is to discover the truth andsee that justice is done. The existence of difficulties and complexities shouldnot deter this pursuit and we reject any doctrine or presumption that soprovides.

Lastly, we address the premise that the equality of the variousbranches of government requires that we shut our eyes to constitutionalfailing and other errors of our copartners in government. We simply do notagree. Section 26 of the Kentucky Constitution provides that any law contraryto the constitution is 'void.' The proper exercise of judicial authority requiresus to recognize any law which is unconstitutional and to declare it void.

Without elaborating the point, we believe that under section 228 of the



Kentucky Constitution it is our obligation to 'support . . . the Constitution of the commonwealth.' We are sworn to see that violations of the constitution —by any person, corporation, state agency or branch or government — arebrought to light and corrected. To countenance an artificial rule of law thatsilences our voices when confronted with violations of our constitution is notacceptable to this court.

We believe that a more reasonable rule is the one which Professor Sutherland describes as the 'extrinsic evidence.' . . . Under this approachthere is a prima facie presumption that an enrolled bill is valid, but such

presumption may be overcome by clear, satisfactory and convincingevidence establishing that constitutional requirements have not been met.

We therefore overrule Lafferty v. Huffman and all other casesfollowing the so-called enrolled bill doctrine, to the extent that there is nolonger a conclusive presumption that an enrolled bill is valid. . . ."

Clearly, the enrolled bill doctrine no longer enjoys its onceunassailable respectability in United States. Sutherland reveals that startingin the 1940's, ". . . the tendency seems to be toward the abandonment of theconclusive presumption rule and the adoption of the third rule leaving only aprima facie presumption of validity which may be attacked by anyauthoritative source of information." 19

It is high time we re-examine our preference for the enrolled bill

doctrine. It was in the 1947 case of Mabanag v. Lopez Vito, 20 that thisCourt, with three (3) justices dissenting, first embraced the rule that a dulyauthenticated bill or resolution imports absolute verity and is binding on thecourts. In 1963, we firmed up this ruling in Casco Philippine Chemical Co. v.Gimenez, 21 thus:

"xxx xxx xxx"Hence, 'urea formaldehyde' is clearly a finished product which is

patently distinct and different from 'urea' and 'formaldehyde,' as separatearticles used in the manufacture of the synthetic resin known as 'ureaformaldehyde.' Petitioner contends, however, that the bill approved inCongress contained the copulative conjunction 'and' between the term 'urea'and 'formaldehyde,' and that the members of Congress intended to exempt

'urea' and 'formaldehyde' separately as essential elements in themanufacture of the synthetic resin glue called 'urea formaldehyde,' not thelatter as a finished product, citing in support of this view the statements madeon the floor of the Senate, during the consideration of the bill before saidHouse, by members thereof. But said individual statements do notnecessarily reflect the view of the Senate. Much less do they indicate theintent of the House of Representatives (see Song Kiat Chocolate Factory vs.Central Bank, 54 Off Gaz. 615; Mayor Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. vs.Games and Amusement Board, L-12727 [February 19, 1960]). Furthermore,it is well settled that enrolled bill — which uses the term 'urea formaldehyde'instead of 'urea and formaldehyde' — conclusive upon the courts as regards

the tenor of the measure passed by Congress and approved by the President

(Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil.1; Macias vs. Comm. on Elections, L-18684, Sept. 14, 1961). If there hasbeen any mistake in the printing of the bill before it was certified by theofficers of Congress and approved by the Executive — on which we cannotspeculate without jeopardizing the principle of separation of powers andundermining one of the cornerstones of our democratic system — theremedy is by amendment or curative legislation, not by judicial decree." cdti

In the 1969 case of Morales v. Subido, 22 we reiterated our fidelity tothe enrolled bill doctrine, viz.:

". . . We cannot go behind the enrolled Act to discover what reallyhappened. The respect due to the other branches of the Governmentdemands that we act upon the faith and credit of what the officers of the saidbranches attest to as the official acts of their respective departments.Otherwise we would be cast in the unenviable and unwanted role of a sleuthtrying to determine what actually did happen in the labyrinth of law-making,with consequent impairment of the integrity of the legislative process. Theinvestigation which the petitioner would like this Court to make can be better done in Congress. After all, House cleaning — the immediate and imperativeneed for which seems to be suggested by the petitioner — can best beeffected by the occupants thereof . Expressed elsewise, this is a matter worthy of the attention not of an Oliver Wendell Holmes but of a Sherlock

Holmes."Significantly, however, Morales diluted the conclusiveness rule of the

enrolled bill doctrine. The ponencia stressed:"By what we have essayed above we are not of course to be

understood as holding that in all cases the journals must yield to the enrolledbill. To be sure there are certain matters which the Constitution expresslyrequires must be entered on the journal of each house. To what extent thevalidity of a legislative act may be affected by a failure to have such mattersentered on the journal, is a question which we do not now decide. All we holdis that with respect to matters not expressly required to be entered on the

journal, the enrolled bill prevails in the event of any discrepancy."In the 1974 case of Astorga v. Villegas, 23 we further diluted the

enrolled bill doctrine when we refused to apply it after the Senate Presidentdeclared his signature on the bill as invalid. We ruled:

"xxx xxx xxx"Petitioner's argument that the attestation of the presiding offices of

Congress is conclusive proof of a bill's due enactment, required, it is said, bythe respect due to a co-equal department of the government, is neutralized inthis case by the fact that the Senate President declared his signature on thebill to be invalid and issued a subsequent clarification that the invalidation for his signature meant that the bill he had signed had never been approved bythe Senate. Obviously this declaration should be accorded even greater respect than the attestation it invalidated, which it did for a reason that isundisputed in fact and indisputable in logic.



As far as Congress itself is concerned, there is nothing sacrosanct inthe certification made by the presiding officers. It is merely a mode of authentication. The law-making process in Congress ends when the bill isapproved by both Houses, and the certification does not add to the validity of the bill or cure any defect already present upon its passage. In other words itis the approval by Congress and not the signatures of the presiding officersthat is essential. Thus the (1935) Constitution says that "[e]very bill passedby the Congress shall, before it becomes law, be presented to the President."In Brown vs. Morris, supra, the Supreme Court of Missouri, interpreting a

similar provision in the State Constitution, said that the same "makes it clear that the indispensable step is the final passage and it follows that if a bill,otherwise fully enacted as a law, is not attested by the presiding officer, theproof that it has 'passed both houses' will satisfy the constitutionalrequirement."

Petitioner agrees that the attestation in the bill is not mandatory butargues that the disclaimer thereof by the Senate President, granting it tohave been validly made, would only mean that there was no attestation at all,but would not affect the validity of the statute. Hence, it is pointed out,Republic Act No. 4065 would remain valid and binding. This argument begsthe issue. It would limit the court's inquiry to the presence or absence of theattestation and to the effect of its absence upon the validity of the statute.

The inquiry, however, goes farther. Absent such attestation as a result of thedisclaimer, and consequently there being no enrolled bill to speak of, whatevidence is there to determine whether or not the bill had been duly enacted.In such a case the entries in the journal should be consulted.

The journal of the proceedings of each House of Congress is noordinary record. The Constitution requires it. While it is true that the journal isnot authenticated and is subject to the risk of misprinting and other errors,the point is irrelevant in this case. This Court is merely asked to inquirewhether the text of House Bill No. 9266 signed by the Chief Executive wasthe same text passed by both Houses of Congress. Under the specific factsand circumstances of this case, this Court can do this and resort to theSenate journal for the purpose. The journal discloses that substantial and

lengthy amendments were introduced on the floor and approved by theSenate but were not incorporated in the printed text sent to the President andsigned by him. This Court is not asked to incorporate such amendments intothe alleged law, which admittedly is a risky undertaking, but to declare thatthe bill was not duly enacted and therefore did not become law. This We do,as indeed both the President of the Senate and the Chief Executive did,when they withdrew their signatures therein. In the face of the manifest error committed and subsequently rectified by the President of the Senate and bythe Chief Executive, for this Court to perpetuate that error by disregardingsuch rectification and holding that the erroneous bill has become law wouldbe to sacrifice truth to fiction and bring about mischievous consequences notintended by the law-making body."

In 1993, the enrolled bill doctrine was again used as a secondaryrationale in the case of Philippine Judges Association v. Prado. 24 In thiscase, the judges claimed that the pertinent part of section 35 of R.A. No.7354 repealing the franking privilege of the judiciary appeared only in theConference Committee Report. In rejecting this contention, this Court ruled:

"While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is notlimited in its jurisdiction to this question. Its broader function is describedthus:

'A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the twohouses. Even where the conference committee is not by rule limited in its

jurisdiction, legislative custom severely limits the freedom with which newsubject matter can be inserted into the conference bill. But occasionally aconference committee produces unexpected results, results beyond itsmandate. These excursions occur even where the rules impose strictlimitations on conference committee jurisdiction. This is symptomatic of theauthoritarian power of conference committee (Davies, Legislative Law andProcess: In a Nutshell, 1986 Ed., p. 81).' prcd

It is a matter of record that the Conference Committee Report on thebill in question was returned to and duly approved by both the Senate and

the House of Representatives. Thereafter, the bill was enrolled with itscertification by Senate President Neptali A. Gonzales and Speaker Ramon V.Mitra of the House of Representatives as having been duly passed by bothHouses of Congress. It was then presented to and approved by PresidentCorazon C. Aquino on April 3, 1992.

Under the doctrine of separation of powers, the Court may notinquire beyond the certification of the approval of a bill from the presidingofficers of Congress. Casco Philippine Chemical Co. v. Gimenez laid downthe rule that the enrolled bill is conclusive upon the Judiciary (except inmatters that have to be entered in the journals like the yeas and nays on thefinal reading of the bill). The journals are themselves also binding on theSupreme Court, as we held in the old (but still valid) case of U.S. vs. Pons,

where we explained the reason thus:'To inquire into the veracity of the journals of the Philippine

legislature when they are, as we have said, clear and explicit, would be toviolate both the letter and spirit of the organic laws by which the PhilippineGovernment was brought into existence, to invade a coordinate andindependent department of the Government, and to interfere with thelegitimate powers and functions of the Legislature.'

Applying these principles, we shall decline to look into the petitioners'charges that an amendment was made upon the last reading of the bill thateventually became R.A. No. 7354 and that copies thereof in its final formwere not distributed among the members of each House. Both the enrolledbill and the legislative journals certify that the measure was duly enacted i.e.,

in accordance with the Article VI, Sec. 26(2) of the Constitution. We are



bound by such official assurances from a coordinate department of thegovernment, to which we owe, at the very least, a becoming courtesy."

Finally in 1994 came the case of Tolentino v. Secretary of Finance,et al and its companion cases. 25 Involved in the case was theconstitutionality of R.A. No. 7716, otherwise known as the Expanded ValueAdded Tax Law. The majority 26 partly relied on the enrolled bill doctrine indismissing challenges to the constitutionality of R.A. No. 7716. It held:

"xxx xxx xxx"Fourth. Whatever doubts there may be as to the formal validity of

Republic Act No. 7716 must be resolved in its favor. Our cases manifest firmadherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but also of its due enactment. Not even claims that a proposedconstitutional amendment was invalid because the requisite votes for itsapproval had not been obtained or that certain provisions of a statute hadbeen 'smuggled' in the printing of the bill have moved or persuaded us tolook behind the proceedings of a coequal branch of the government. There isno reason now to depart from this rule.

No claim is here made that the 'enrolled bill' rule is absolute. In factin one case we 'went behind' an enrolled bill and consulted the Journal todetermine whether certain provisions of a statute had been approved by theSenate in view of the fact that the President of the Senate himself, who had

signed the enrolled bill, admitted a mistake and withdrew his signature, sothat in effect there was no longer an enrolled bill to consider.

But where allegations that the constitutional procedures for thepassage of bills have not been observed have no more basis than another allegation that the Conference Committee 'surreptitiously' inserted provisionsinto a bill which it had prepared, we should decline the invitation to go behindthe enrolled copy of the bill. To disregard the 'enrolled bill' rule in such caseswould be to disregard the respect due the other two departments of our government."

These cases show that we have not blindly accepted theconclusiveness of the enrolled bill. Even in Tolentino, Mr. Justice Mendozawas cautious enough to hold that "no claim is here made that the enrolled bill

is absolute." I respectfully submit that it is now time for the Court to make adefinitive pronouncement that we no longer give our unqualified support tothe enrolled bill doctrine. There are compelling reasons for this suggestedchange in stance. For one, the enrolled bill is appropriate only in Englandwhere it originated because in England there is no written Constitution andthe Parliament is supreme. For another, many of the courts in the UnitedStates have broken away from the rigidity and unrealism of the enrolled bill inlight of contemporary developments in lawmaking. 27 And more important,our uncritical adherence to the enrolled bill is inconsistent with our Constitution, laws and rules. In Mabanag, 28 we relied on section 313 of theOld Code of Civil Procedure as amended by Act No. 2210 as a principalreason in embracing the enrolled bill. This section, however has long been

repealed by our Rules of Court. A half glance at our Rules will show that its

section on conclusive presumption does not carry the conclusivepresumption we give to an enrolled bill. But this is not all. The conclusivenessof an enrolled bill which all too often results in the suppression of truth cannotbe justified under the 1987 Constitution. The Preamble of our Constitutiondemands that we live not only under a rule of law but also under a regime of truth. Our Constitution also adopted a national policy 29 requiring full publicdisclosure of all state transactions involving public interest. Any rule whichwill defeat this policy on transparency ought to be disfavored. And toimplement these policies, this Court was given the power to pry open and to

strike down any act of any branch or instrumentality of government if itamounts to grave abuse of discretion amounting to lack or excess of

jurisdiction. It is time to bury the enrolled bill for its fiction of conclusivenessshuts off truth in many litigations. We cannot dispense justice based onfiction for the search for justice is the search for truth. I submit that giving anenrolled bill a mere prima facie presumption of correctness will facilitate our task of dispensing justice based on truth.

IIIIn sum, I respectfully submit that the Court has jurisdiction over the

petition at bar and that issues posed by petitioner are justiciable.Nonetheless, I do not find any grave abuse of discretion committed by thepublic respondents to justify granting said petition. As the ponencia points

out, the petition merely involves the complaint that petitioner was preventedfrom raising the question of quorum. The petition does not concern violationof any rule mandated by the Constitution. Nor does it involve the right of anon-member of the House which requires constitutional protection. The ruleson how to question the existence of a quorum are procedural in character.They are malleable by nature for they were drafted to help the House enactlaws. As well stated, these rules are servants, not masters of the House.Their observance or non-observance is a matter of judgment call on the partof our legislators and it is not the business of the Court to reverse this

judgment when untainted by grave abuse of discretion amounting to lack or excess of jurisdiction.

Davide, Jr., J ., concurs.

VITUG, J ., concurring:When the 1987 Constitution has embodied, in its circumscription of

judicial power under Section 1, Article VIII, of the Constitution, thedetermination of whether or not there is grave abuse of discretion on the partof any branch or instrumentality of government, the Supreme Court, uponwhich that great burden has been imposed, could not have been thought of as likewise being thereby tasked with the awesome responsibility of overseeing the entire bureaucracy. The term grave abuse of discretion haslong been understood in our jurisprudence as, and confined to, a capriciousand whimsical or despotic exercise of judgment as amounting to lack or excess of jurisdiction.

I see nothing of that sort in the case at bar. Absent a clear case of

grave abuse of discretion, like the patent disregard of a Constitutional



proscription, I would respect the judgment of Congress under whoseprovince the specific responsibility falls and the authority to act is vested. Todo otherwise would be an unwarranted intrusion into the internal affairs of aco-equal, independent and coordinate branch of government. At no time, itwould seem to me, has it been intended by the framers of the fundamentallaw to cause a substantial deviation, let alone departure, from the time-honored and accepted principle of separation, but balanced, powers of thethree branches of government. There is, of course, a basic variant betweenthe old rule and the new Charter on the understanding of the term "judicial

power." Now, the Court is under mandate to assume jurisdiction over, and toundertake judicial inquiry into, what may even be deemed to be politicalquestions provided, however, that grave abuse of discretion — the sole testof justiciability on purely political issues — is shown to have attended thecontested act.

All taken, I most humbly reiterate my separate opinion in Tolentinovs. Secretary of Finance and companion cases (G.R. No. 115455, etc., 235SCRA 630) and vote to deny the instant petition

EN BANC[G.R. No. L-1123. March 5, 1947.]ALEJO MABANAG, ET AL., petitioners, vs. JOSE LOPEZ VITO,

ET AL., respondents.Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felix-berto Serrano,

J. Antonio Araneta, Antonio Barredo, and Jose W. Diokno for petitioners.Secretary of Justice Ozaeta, Solicitor General Tañada, and First

Assistant Solicitor General Reyes for respondents.SYLLABUS1. COURTS; JURISDICTION; CONCLUSIVENESS OF

ENACTMENT OR RESOLUTION DISTINGUISHED FROM. — Jurisdiction,which is a matter of substantive law, should not be confused withconclusiveness of an enactment or resolution, which is a matter of evidenceand practice.

2. CONSTITUTIONAL AND POLITICAL LAW; JUDICIARY;

POLITICAL QUESTIONS NOT WITHIN PROVINCE OF. — Politicalquestions are not within the province of the judiciary, except to the extent thatpower to deal with such questions has been conferred upon the courts byexpress constitutional or statutory provisions.

3. ID.; ID.; ID.; PROPOSAL OF CONSTITUTIONALAMENDMENT A POLITICAL QUESTION. — If ratification of a constitutionalamendment is a political question, a proposal which leads to ratification hasto be a political question. The two steps complement each other in a schemeintended to achieve a single objective. It is to be noted that the amendatoryprocess as provided in section 1 of Article XV of the Philippine Constitution"consists of (only) two distinct parts: proposal and ratification." There is nologic in attaching political character to one and with-holding that character

from the other. Proposal to amend the Constitution is a highly politics

function performed by the Congress in its sovereign legislative capacity andcommitted to its charge by the Constitution itself. The exercise of this power is even independent of any intervention by the Chief Executive. If on groundsof expediency scrupulous attention of the judiciary be needed to safeguardpublic interest, there is less reason for judicial inquiry into the validity of aproposal than into that of a ratification.

4. EVIDENCE; DULY AUTHENTICATED BILL ORRESOLUTION, CONCLUSIVENESS OF. — A duly authenticated bill or resolution imports absolute verity and is binding on the courts. The rule

conforms to the policy of the law making body as expressed in section 313 of the old Code of Civil Procedure, as amended by Act No. 2210.

D E C I S I O NTUASON, J p:This is a petition for prohibition to prevent the enforcement of a

congressional resolution designated "Resolution of both houses proposing anamendment to the Constitution of the Philippines to be appended as anordinance thereto." The members of the Commission on Elections, theTreasurer of the Philippines, the Auditor General, and the Director of theBureau of Printing are made defendants, and the petitioners are eightsenators, seventeen representatives, and the presidents of the DemocraticAlliance, the Popular Front and the Philippine Youth Party. The validity of the

above-mentioned resolution is attacked as contrary to the Constitution.The case was heard on the pleadings and stipulation of facts. In our

view of the case it is unnecessary to go into the facts at length. We willmention only the facts essential for the proper understanding of the issues.For this purpose it suffices to say that three of the plaintiff senators and eightof the plaintiff representatives had been proclaimed by a majority vote of theCommission on Elections as having been elected senators andrepresentatives in the elections held on April 23, 1946. The three senatorswere suspended by the Senate shortly after the opening of the first sessionof Congress following the elections, on account of alleged irregularities intheir election. The eight representatives since their election had not beenallowed to sit in the lower House, except to take part in the election of the

Speaker, for the same reason, although they had not been formallysuspended. A resolution for their suspension had been introduced in theHouse of Representatives, but that resolution had not been acted upondefinitely by the House when the present petition was filed.

As a consequence these three senators and eight representativesdid not take part in the passage of the questioned resolution, nor was their membership reckoned within the computation of the necessary three-fourthsvote which is required in proposing an amendment to the Constitution. If these members of Congress had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either branch of Congress.

At the threshold we are met with the question of the jurisdiction of

this Court. The respondents deny that this Court has jurisdiction, relying on



the conclusiveness on the courts of an enrolled bill or resolution. There issome merit in the petitioners' contention that this is confusing jurisdiction,which is a matter of substantive law, with conclusiveness of an enactment or resolution, which is a matter of evidence and practice. This objection,however, is purely academic. Whatever distinction there is in the juridicalsense between the two concepts, in practice and in their operation they boildown to the same thing. Basically the two notions are synonymous in thatboth are founded on the regard which the judiciary accords a co-equalcoordinate, and independent departments of the Government. If a political

question conclusively binds the judges out of respect to the politicaldepartments, a duly certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect.

It is a doctrine too well established to need citation of authorities, thatpolitical questions are not within the province of the judiciary, except to theextent that power to deal with such questions has been conferred upon thecourts by express constitutional or statutory provision. (16 C. J.S 431.) Thisdoctrine is predicated on the principle of the separation of powers, a principlealso too well known to require elucidation or citation of authorities. Thedifficulty lies in determining what matters fall within the meaning of politicalquestion. The term is not susceptible of exact definition, and precedents andauthorities are not always in full harmony as to the scope of the restrictions,

on this ground, on the courts to meddle with the actions of the politicaldepartments of the government.

But there is one case approaching this in its circumstances: Colemanvs. Miller, a relatively recent decision of the United States Supreme Courtreported and annotated in 122 A. L. R., 695. That case, by a majoritydecision delivered by Mr. Chief Justice Hughes, is authority for theconclusion that the efficacy of ratification by state legislature of a proposedamendment to the Federal Constitution is a political question and hence not

justiciable. The Court further held that the decision by Congress, in its controlof the Secretary of State, of the questions of whether an amendment hasbeen adopted within a reasonable time from the date of submission to thestate legislature, is not subject to review by the court.

If ratification of an amendment is a political question, a proposalwhich leads to ratification has to be a political question. The two stepscomplement each other in a scheme intended to achieve a single objective. Itis to be noted that the amendatory process as provided in section I of ArticleXV of the Philippine Constitution "consists of (only) two distinct parts:proposal and ratification." There is no logic in attaching political character toone and withholding that character from the other. Proposal to amend theConstitution is a highly political function performed by the Congress in itssovereign legislative capacity and committed to its charge by the Constitutionitself. The exercise of this power is even in dependent of any intervention bythe Chief Executive. If on grounds of expediency scrupulous attention of the

judiciary be needed to safeguard public interest, there is less reason for

judicial inquiry into the validity of a proposal then into that of a ratification. Asthe Mississippi Supreme Court has once said:

There is nothing in the nature of the submission which should causethe free exercise of it to be obstructed, or that could render it dangerous tothe stability of the government; because the measure derives all its vital forcefrom the action of the people at the ballot box , and there can never bedanger in submitting in an established form, to a free people, the propositionwhether they will change their fundamental law. The means provided for theexercise of their sovereign right of changing their constitution should receive

such a construction as not to trammel the exercise of the right. Difficultiesand embarrassments in its exercise are in derogation of the right of freegovernment, which is inherent in the people; and the best security againsttumult and revolution is the free and unobstructed privilege to the people of the State to change their constitution in the mode prescribed by theinstrument." (Green vs. Weller, 32 Miss., 650; note, 10 L. R. A., N. S., 150.)

Mr. Justice Black, in a concurring opinion joined in by JusticesRoberts, Flankfurter and Douglas, in Miller vs. Coleman, supra, finds nobasis for discriminating between proposal and ratification. From his forcefulopinion we quote the following paragraphs:

"The Constitution grant Congress exclusive power to controlsubmission of constitutional amendments. Final determination by Congress

that ratification by three-fourths of the States has taken place 'is conclusiveupon the courts.' In the exercise of that power, Congress, of course, isgoverned by the Constitution. However, whether submission, interveningprocedure or Congressional determination of ratification conforms to thecommands of the Constitution, call for decisions by a 'political department' of questions of a type which this Court has frequently designated 'political.' Anddecision of a 'political question' by the 'political department' to which theConstitution has committed it 'conclusively binds the judges, as well as allother officers, citizens and subjects of . . . government.' Proclamation under authority of Congress that an amendment has been ratified will carry with it asolemn assurance by the Congress that ratification has taken place as theConstitution commands. Upon this assurance a proclaimed amendment must

be accepted as a part of the Constitution, leaving to the judiciary itstraditional authority of interpretation. To the extent that the Court's opinion inthe present case even impliedly assumes a power to make judicialinterpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.

"The State court below assumed jurisdiction to determine whether the proper procedure is being followed between submission and finaladoption. However, it is apparent that judicial review of or pronouncementsupon a supposed limitation of a 'reasonable time' within which Congress mayaccept ratification; as to whether duly authorized State officials haveproceeded properly in ratifying or voting for ratification; or whether a Statemay reverse its action once taken upon a proposed amendment; and kindred

questions, are all consistent only with an ultimate control over the amending



process in the courts. And this must inevitably embarrass the course of amendment by subjecting to judicial interference matters that we believewere entrusted by the Constitution solely to the political branch of government.

"The Court here treats the amending process of the Constitution insome respects as subject to judicial construction, in others as subject to thefinal authority of the Congress. There is no disapproval of the conclusionarrived at in Drillon vs. Gloss, that the Constitution impliedly requires that aproperly submitted amendment must die unless ratified within a 'reasonable

time.' Nor does the Court now disapprove its prior assumption of power tomake such a pronouncement. And it is not made clear that only Congresshas constitutional power to determine if there is any such implication inArticle 5 of the Constitution. On the other hand, the Court's opinion declaresthat Congress has the exclusive power to decide the 'political questions' of whether a State whose legislation has once acted upon a proposedamendment may subsequently reverse its position, and whether, in thecircumstances of such a case as this, an amendment is dead because an'unreasonable' time has elapsed. No such division between the political and

judicial branches of the government is made by Article 5 which grants power over the amending of the Constitution to Congress alone. Undivided controlof that process has been given by the Article exclusively and completely to

Congress. The process itself is 'political' in its entirety, from submission untilan amendment becomes part of the Constitution, and is not subject to judicialguidance, control or interference at any point."

Mr. Justice Frankfurter, in another concurring opinion to which theother three justices subscribed, arrives at the same conclusion. Though histhesis was the petitioner's lack of standing in court — a point which nothaving been raised by the parties herein we will not decide — his reasoninginevitably extends to a consideration of the nature of the legislativeproceeding the legality of which the petitioners in that case assailed. From adifferent angle he sees the matter as political. saying:

"The right of the Kansas senators to be here is rested on recognitionby Leser vs. Garnett, 258 U. S., 130; 66 Law. ed., 505; 42 S. Ct., 217, of a

voter's right to protect his franchise. The historic source of this doctrine andthe reasons for it were explained in Nixon vs. Herndon, 273 U. S., 536, 540;71 Law. ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000damages against the Judges of Elections- for refusing to permit the plaintiff to vote at a primary election in Texas. In disposing of the objection that theplaintiff had no cause of action because the subject matter of the suit waspolitical, Mr. Justice Holmes thus spoke for the Court: 'Of course the petitionconcerns political action, but it alleges and seeks to recover for privatedamage. That private damage may be caused by such political action andmay be recovered for in a suit at law hardly has been doubted for over twohundred years, since Ashby White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1Eng. Rul. Cas., 521; 3 Ld. Raym., 320; 92 Eng. Reprint, 710, and has been

recognized by this Court.' 'Private damage' is the clue to the famous ruling in

Ashby vs. White, supra, and determines its scope as well as that of cases inthis Court of which it is the justification. The judgment of Lord Holt ispermeated with the conception that a voter's franchise is a personal right,assessable in money damage of which the exact amount 'is peculiarlyappropriate for the determination of a jury,' see Wiley vs. Sinkler, 179 U. S.,58, 6a; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for which there is no remedyoutside the law courts. 'Although this matter relates to the parliament,' saidLord Holt, 'yet it is an injury precedaneous to the parliament, as my Lord Halesaid in the case of Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Peprint,

475. The parliament cannot judge of this injury, nor give damage to theplaintiff for it: they cannot make him a recompense.' (2 Ld. Raym., 938, 958;92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521. )

"The reasoning of Ashby vs. White and the practice which hasfollowed it leave intra-parliamentary controversies to parliaments and outsidethe scrutiny of law courts. The procedures for voting in legislative assemblies— who are members, how and when they should vote, what is the requisitenumber of votes for different phases of legislative activity, what votes werecast and how they were counted — surely are matters that not merelyconcern political action but are of the very essence of political action, if 'political' has any connotation at all. Marshall Field & Co. vs. Clark, 143 U. S.,649, 670, et seq.; 36 Law. ed., 294, 302; 12 S. Ct., 495; Leser V8. Garnett,

268 U. S., 130, 137; 66 Law. ed., 505, 511; 42 S. Ct., 217. In no sense arethey matters of private damage.' They pertain to legislators not as individualsbut as political representatives executing the legislative process. To open thelaw courts to such controversies is to have courts sit in judgment on themanifold disputes engendered by procedures for voting in legislativeassemblies. If the doctrine of Ashby vs. White indicating the private rights of a voting citizen has not been doubted for over two hundred years, it isequally significant that for over two hundred years Ashby vs. White has notbeen sought to be put to purposes like the present. In seeking redness herethese Kansas senators have wholly misconceived the functions of this Court.The writ of certiorari to the Kansas Supreme Court should therefore hedismissed."

We share the foregoing views. In our judgment they accord withsound principles of political jurisprudence and represent liberal and advancedthought on the working of constitutional and popular government asconceived in the fundamental law. Taken as persuasive authorities, they offer enlightening understanding of the spirit of the United States institutions after which ours are patterned.

But these concurring opinions have more than persuasive value. Aswill be presently shown, they are the opinions which should operate toadjudicate the questions raised by the pleadings. To make the point clear, itis necessary, at the risk of unduly lengthening this decision, to make astatement and an analysis of the Coleman vs. Miller case. Fortunately, theannotation on that case in the American Law Reports, supra, comes to our

aid and lightens our labor in this phase of the controversy.



Coleman vs. Miller was an original proceeding in mandamus broughtin the Supreme Court of Kansas by twenty-one members of the Senate,including twenty senators who had voted against a resolution ratifying theChild Labor Amendment, and by three members of the House of representatives, to compel the Secretary of the Senate to erase anindorsement on the resolution to the effect that it had been adopted by theSenate and to indorse thereon the words "as not passed They sought torestrain the offices of the Senate and House of Representatives from signingthe resolution, and the Secretary of State of Kansas from authenticating it

and delivering it to the Governor.The background of the petition appears to have been that the Child

Labor Amendment was proposed by Congress ill June, 1924; that in January,1925, the legislature of Kansas adopted a resolution rejecting it and a copy of the ,resolution was sent to the Secretary of State of the United States; that inJanuary, 1927, a new resolution was introduced in the Senate of Kansasratifying the proposed amendment; that there were forty senators, twenty of whom voted for and twenty against the resolution; and that as a result of thetie, the Lieutenant Governor cast his vote in favor of the resolution.

The power of the Lieutenant Governor to vote was challenged, andthe petition set forth the prior rejection of the proposed amendment andalleged that in the period from June 1924 to March 1927, the proposed

amendment had been r ejected by both houses of the legislatures of twenty-six states and had been ratified only in five states, and that by reason of thatrejection and the failure of ratification within a reasonable time, the proposedamendment had lost its vitality.

The Supreme Court of Kansas entertained jurisdiction of all theissues but dismissed the petition on the merits. When the case reached theSupreme Court of the United States the questions were framed substantiallyin the following manner:

First, whether the court had jurisdiction; that is, whether thepetitioners had standing to seek to have the judgment of the state courtreversed; second, whether the Lieutenant Governor had the right to vote incase of a tie, as he did, it being the contention of the petitioners that "in the

light of the powers and duties of the Lieutenant Governor and his relation tothe Senate under the state Constitution, as construed by the Supreme Courtof the state, the Lieutenant Governor was not a part of the 'legislature' so thatunder Article 5 of the Federal Constitution, he could be permitted to have adeciding vote on the ratification of the proposed amendment, when theSenate was equally divided"; and third, the effect of the previous rejection of the amendment and of the lapse of time after its submission.

The first question was decided in the affirmative. The secondquestion, regarding the authority of the Lieutenant Governor to vote, thecourt avoided, stating:. Whether this contention presents a justiciablecontroversy, or a question which is political in its nature and hence not

justiciable, is a question upon which the Court is equally divided and

therefore the court expresses no opinion upon that point." On the third

question, the Court reached the conclusion before referred to, namely, (1)that the efficacy of ratification by state legislature of a proposed amendmentto the Federal Constitution is a political question, within the ultimate power of Congress in the exercise of its control and of the promulgation of theadoption of amendment, and (2) that the decision by Congress, in its controlof the action of the Secretary of State, of the questions whether anamendment to the Federal Constitution has been adopted within areasonable time, is not subject to review by the court.

The net result was that the judgment of the Supreme Court of

Kansas was affirmed but on the grounds stated in the United StatesSupreme Court's decision. The nine justices were aligned in three groups.Justices Roberts, Black, Frankfurter and Douglas opined that the petitionershad no personality to bring the petition and that all the questions raised arepolitical and nonjusticiable. Justices Butler and McReynolds opined that allthe questions were justiciable; that the Court had jurisdiction of all suchquestions, and that the petition should have been granted and the decision of the Supreme Court of Kansas reversed on the ground that the proposal toamend had died of old age. The Chief Justice, Mr. Justice Stone and JusticeReed regarded some of the issues as political and nonjusticiable, passed bythe question of the authority of the Lieutenant Governor to cast a decidingvote, on the ground that the Court was equally divided, and took jurisdiction

of the rest of the questions.The sole common ground between Ml. Justice Butler and Mr. Justice

McReynolds, on the one hand, and the Chief Justice, Mr. Justice Stone andMr. Justice Reed, on the other, was on the question of jurisdiction; on theresult to be reached, these two groups were divided. The agreementbetween Justices Roberts, Black, Frankfurter and Douglas, on the one hand,and the Chief Justice and Justices Stone and Reed, on the other, was on theresult and on that part of the decision which declares certain questionspolitical and nonjusticiable.

As the annotator in American Law Reports observes, the foregoingfour opinions "show interestingly divergent but confusing positions of theJustices on the issues discussed." It cites an article in 48 Yale Law Journal,

1466, amusing entitled "Sawing a Justice in Half," which, in the light of thedivergencies in the opinions rendered, aptly queries "whether the proper procedure for the Supreme Court could not have been to reverse the

judgment below and direct dismissal of the suit for want of jurisdiction.'' Itsays that these divergencies and line-ups of the justices "leave power todictate the result and the grounds upon which the decision should be restedwith the four justices who concurred in Mr. Justice Black's opinion." Referringto the failure of the Court to decide the question of the right of the LieutenantGovernor to vote, the article points out that from the opinions rendered the"equally divided" court would seem under any circumstances to be an equaldivision of an odd number of justices, and ask "What really did happen? Dida justice refuse to vote only this issue? And ;f he did, was it because he

could not make up his mind, or is it possible to saw a justice vertical in half



during the conference and have him walk away whole?" But speaking in amore serious vein, the commentator says that decision of the issue could notbe avoided on grounds of irrelevance, since if the court had jurisdiction of thecase, decision of the issue in favor of the petitioners would have requiredreversal of the judgment below regardless of the disposal of the other issues.

From this analysis the conclusion is that the concurring opinionsshould be considered as laying down the rule of the case.

The respondent's other chief reliance is on the contention that a dulyauthenticated bill or resolution imports absolute verity and is binding on the

courts. This is the rule prevailing in England. In the United States, "In point of numbers, the jurisdictions are divided almost equally and con the generalprinciple (of these, two or three have changed from their original position),two or three adopted a special variety of view (as in Illinois), three or four arenot clear, and one or two have not yet made their decisions." (IV Wigmore onEvidence, 3d Edition, 685, footnote.) It is important to bear in mind, in thisconnection, that the United States Supreme Court is on the side of thosewhich favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs.Wood, 38 Law. ed., 854; Field vs. Clark, 36 Law. ed., 294.)

If for no other reason than that it conforms to the expressed policy of our law making body, we choose to follow the rule. Section 313 of the oldCode of Civil Procedure, as amended by Act No. 2210, provides: "Official

documents may be proved as follows: . . . (2) the proceedings of thePhilippine Commission, or of any legislatives body that may be provided for in the Philippine Islands, or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or resolutions, or by copiescertified by the clerk of secretary, or printed by their order; Provided, That inthe case of Acts of the Philippine Commission or the Philippine Legislature,when there is an existence of a copy signed by the presiding officers andsecretaries of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due enactment thereof."

But there is more than statutory sanction for conclusiveness.This topic has been the subject of a great number of decisions and

commentaries written with evident vehemence. Arguments for and against

the rule have been extensive and exhaustive. It would be presumptuous onour part to pretend to add more, even if we could, to what has already beensaid. With such vast mass of cases to guide our ,judgment and discretion,our labor is reduced to an intelligent selection and borrowing of materials andarguments under the criterion of adaptability to a sound public policy.

The reasons adduced in support of enrollment as contrasted withthose which opposed it are, in our opinion, almost decisive. Some of thesereasons are summarized in 50 American Jurisprudence, section 150 asfollows:

"Sec. 150. Reasons for Conclusiveness. — It has beendeclared that the rule against going behind the enrolled bill is required by therespect due to a coequal and independent department of the govern, and it

would be an inquisition into the conduct of the members of the legislature, a

very delicate power, the frequent exercise of which must lead to endlessconfusion in the administration of the law. The rule is also one of convenience, because courts could not rely on the published session laws,but would be required to look beyond these to the journals of the legislatureand often to any printed bills and amendments which might be found after theadjournment of the legislature. Otherwise, after relying on the prima facieevidence of the enrolled bills, authenticated as exacted by the Constitution,for years, it might be ascertained from the journals that an act theretoforeenforced had never become a law. In this respect, it has been declared that

there is quite enough uncertainty as to what the law is without saying that noone may be certain that an act of the legislature has become such until theissue has been determined by some court whose decision might not beregarded as conclusive in an action between the parties."

From other decisions, selected and quoted in IV Wigmore onEvidence, 696, 697, we extract these passages:

"I think the rule thus adopted accords with public policy. Indeed, inmy estimation, few things would be more mischievous than the introductionof the opposite rule. . . . The rule contended for is that the Court should lookat the journals of the Legislature to ascertain whether the copy of the actattested and filed with the Secretary of State conforms in its contents with thestatements of such journals. This proposition means, if it has any legal value

whatever, that, in the event of a material discrepancy between the journaland the enrolled copy, the former is to be taken as the standard of veracityand the act is to be rejected. This is the test which is to be applied not only tothe statutes now before the Court, but to all statutes; not only to laws whichhave been recently passed, but to laws the most ancient. To my mind,nothing can be more certain than that the acceptance of this doctrine by theCourt would unsettle the entire statute law of the State. We have before ussome evidence of the little reliability of these legislative journal . . . Can anyone deny that if the laws of the State are to be tested by a comparison withthese journals, so imperfect, so unauthenticated, the stability of all written lawwill be shaken to its very foundations? . . . We are to remember the danger,under the prevalence of such a doctrine, to be apprehended from the

intentional corruption of evidences of this character. It is scarcely too much tosay that the legal existence of almost every legislative act would be at themercy of all persons having access to these journals. . . . ( [1866], Beasley,C. J., in Pangborn vs. Young, 32 N. J. L., 29, 34.)

"But it is argued that if the authenticated roll is conclusive upon theCourts, then less than a quorum of each House may by the aid of corruptpresiding officers impose laws upon the State in defiance of the inhibition of the Constitution. It must be admitted that the consequence stated would bepossible Public authority and politic power must of necessity be confided toofficers, who being human may violate the trusts reposed in them. Thisperhaps cannot be avoided absolutely. But it applies also to all humanagencies. It is not fit that the Judiciary should claim for itself a purity beyond

all others; nor has it been able at all times with truth to say that its high



places have not been disgraced. The framers of our government have notconstituted it with faculties to supervise coordinate departments and corrector prevent abuses of their authority. It cannot authenticate a statute; thatpower does not belong to it; nor can it keep a legislative journal." (1869,Frazer, J., in Evans T S. Browne, 30 Ind., 514, 524. )

Professor Wigmore in his work on Evidence considered a classic,and described by one who himself is a noted jurist, author, and scholar, as "apermanent contribution to American law" and having "put the maturednineteenth century law in form to be used in a new era of growth" —

unequivocally identifies himself with those who believe in the soundness of the rule. The distinguished professor, in answer to the argument of Constitutional necessity, i. e., the impossibility of securing in any other waythe enforcement of constitutional restrictions on legislation action, says:

"(1) In the first place, note that it is impossible of consistentapplication. If, as it is urged, the Judiciary are bound to enforce theconstitutional requirements of three readings, a two-thirds vote, and the like,and if therefore an act must be declared no law which in fact was not readthree times or voted upon by two-thirds, this duty is a duty to determineaccording to the actual facts of the readings and the votes. Now the journalsmay not represent the actual facts. That duty cannot allow us to stop with the

journals, if it can be shown beyond doubt that the facts were otherwise than

therein represented. The duty to uphold a law which in fact wasconstitutionally voted upon is quite as strong as the duty to repudiate an actunconstitutionally voted upon. The Court will be going as far wrong inrepudiating an act based on proper votes falsified in the journal as it will be inupholding an act based on improper votes falsified in the enrollment. Thissupposed duty, in short, is to see that the constitutional facts did exist; and itcannot stop short with the journals. Yet, singularly enough, it is unanimouslyconceded that an examination into facts as provable by the testimony of members present is not allowable. If to support this it be said that such aninquiry would be too uncertain and impracticable, then it is answered that thisconcedes the supposed constitutional duty not to be inexorable, after all; for if the duty to get at the facts is a real and inevitable one, it must be a duty to

get at them at any cost; and if it is merely a duty that is limited by policy andpractical convenience, then the argument changes into the second oneabove, namely, how far it is feasible to push the inquiry with regard to policyand practical convenience; and from this point of view there can be but oneanswer.

"(2) In the second place, the fact that the scruple of constitutionalduty is treated thus inconsistently and pushed only up to a certain pointsuggests that it perhaps is based on some fallacious assumption whosedefect is exposed only by carrying it to its logical consequences. Such indeedseems to be the case. It rests on the fallacious notion that everyconstitutional provision is 'per se' capable of being enforced through theJudiciary and must be safeguarded by the Judiciary because it can be in no

other way. Yet there is certainly a large field of constitutional provision which

does not come before the Judiciary for enforcement, and may remainunenforced without any possibility or judicial remedy. It is not necessary toinvoke in illustration such provisions as a clause requiring the Governor toappoint a certain officer, or the Legislature to pass a law for a certainpurpose; here the Constitute on may remain unexecuted by the failure of Governor or Legislature to act, and yet the Judiciary cannot safeguard andenforce the constitutional duty. A clearer illustration may be had by imaginingthe Constitution to require the Executive to appoint an officer or to call out themilitia whenever to the best of his belief a certain state of facts exists;

suppose he appoints or calls out when in truth he has no such belief; can theJudiciary attempt to enforce the Constitution by inquiring into his belief? Or suppose the Constitution to enjoin on the Legislators to pass a law upon acertain subject whenever in their belief certain conditions exist; can theJudiciary declare the law void by inquiring and ascertaining that theLegislature, or its majority, did not have such a belief? Or suppose theConstitution commands the Judiciary to decide a case only after consulting asoothsayer, and in a given case the Judiciary do not consult one; what is tobe done?

"These instances illustrate a general situation in which the judicialfunction of applying and enforcing the Constitution ceases to operate. Thatsituation exists where the Constitution enjoins duties which affect the motives

and judgment of a particular independent department of government, —Legislature, Executive, and Judiciary. Such duties are simply beyondenforcement by any other department if the one charged fails to performthem. The Constitution may provide that no legislator shall take a bribe, butan act would not be treated as void because the majority had been bribed.So far as the Constitution attempts to lay injunctions in matters leading up toand motivating the action of E3 department, injunctions must be left to theconscience of that department to obey or disobey. Now the act of theLegislature as a whole is for this purpose of the same nature as the vote of asingle legislator. The Constitution may expressly enjoin each legislator not tovote until he has carefully thought over the matter of legislation; so, too, itmay expressly enjoin the whole Legislature not to act finally until it has three

times heard the proposition read aloud. It is for the Legislature alone, in thelatter case as well as in the former, to take notice of this in junction; and it isno more the function of the Judiciary in the one case than in the other to tryto keep the Legislature to its duty:

xxx xxx xxx"The truth is that many have been carried away with the righteous

desire to check at any cost the misdoings of Legislatures. They have setsuch store by the Judiciary for this purpose that they have almost made thema second and higher Legislature. But they aim in the wrong direction. Insteadof trusting a faithful Judiciary to check an inefficient Legislature, they shouldturn to improve the Legislature. The sensible solution is not to patch andmend casual errors by assailing the Judiciary to violate legal principle and to

do impossibilities with the Constitution; but to represent ourselves with



competent, careful, and honest legislators, the work of whose hands on thestatute-roll may come to reflect credit upon the name of popular government." (4 Wigmore on Evidence, 699-702.)

The petitioners contend that the enrolled bill rule has not foundacceptance in this jurisdiction, citing the case of United States vs. Pons (34Phil., 729). It is argued that this Court examined the journal in that case tofind out whether or not the contention of the appellant was right. We think thepetitioners are in error.

It will be seen upon examination of section 313 of the Code of Civil

Procedure, as amended by Act No. 2210, that, roughly, it provides twomethods of proving legislative proceedings: (1) by the journals, or bypublished statutes or resolutions, or by copies certified by the clerk or secretary or printed by their order; and (2) in case of acts of the legislature,by a copy signed by the presiding Officers and secretaries thereof, whichshall be conclusive proof of the provisions of such Acts and of the dueenactment thereof.

The Court looked into the journals in United States vs. Ponsbecause, in all probability, those were the documents offered in evidence. Itdoes not appear that a duly authenticated copy of the Act was in existence or was placed before the Court; and it has not been shown that if that had beendone, this Court would not have held the copy conclusive proof of the due

enactment of the law. It is to be remembered that the Court expressly statedthat it "passed over the question" of whether the enrolled bill was conclusiveas to its contents and the mode of its passage.

Even if both the journals and an authenticated copy of the Act hadbeen presented, the disposal of the issue by the Court on the basis of the

journals does not imply rejection of the enrollment theory, for, as alreadystated, the due enactment of a law may be proved in either of the two waysspecified in section 313 of Act No. 190 as amended. This Court found in the

journals no signs of irregularity in the passage of the law and did not bother itself with considering the effects of an authenticated copy if one had beenintroduced. It did not do what the opponents of the rule of conclusivenessadvocate, namely, look into the journals behind the enrolled copy in order to

determine the correctness of the latter, and rule such copy out if the two, the journals and the copy, be found in conflict with each other. No discrepancyappears to have been noted between the two documents and the court didnot say or so much as give to understand that if discrepancy existed it wouldgive greater weight to the journals, disregarding the explicit provision thatduly certified copies "shall be conclusive proof of the provisions of such Actsand of the due enactment thereof."

In view of the foregoing considerations, we deem it unnecessary todecide the question of whether the senators and representatives who wereignored in the computation of the necessary three-fourths vote weremembers of Congress within the meaning of section 1 of Article XV of thePhilippine Constitution.

The petition is dismissed without costs.

Moran, C.J., Pablo and Hontiveros, JJ., concur.Separate OpinionsPADILLA, J., concurring:Although I maintain that we have jurisdiction as petitioners contend, I

can't vote for them, because the enrolled copy of the resolution and thelegislative journals are conclusive upon us.

A.. The overwhelming majority of the state courts are of theopinion that the question whether an amendment to the existing constitutionhas been duly proposed in the in the required by such constitution properly

belongs to the judiciary. That is the position taken by Alabama, ArkansasCalifornia, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas,Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,Missouri, Montana, Nebraska, Nevada, New Jersey, Ohio, Oregon, RhodeIsland, Washington and Wisconsin. (See 12 C. J., 880 and 16 C. J. S., 437.)(See also 11 Arn. Jur., 639.) Only North Dakota and Oklahoma haveadopted a different view. (16 C. .J. S.. 437, notes 41 and 43.)

'The authorities are thus practically uniform in holding that whether aconstitutional amendment has been properly adopted according to therequirements of an existing constitution is a judicial question.' (McConaughyvs. Secretary of State, 106 Minn., 392, 409; 119 N. W., 408.)" (12 C. J., 880.)

" ' An examination of the decisions shows that the courts have

almost uniformly exercised the authority to determine the validity of theproposal, submission, or ratification of constitutional amendments. It hasbeen judicially determined whether a proposed amendment received theconstitutional majority of votes. (Knight vs. Shelton, 134 Fed., 423; Rice vs.Palmer, 78 Ark., 432; 96 S. W., 396; Green vs. State Canvassers, .5 Ida.,130; 47 P., 2.59; 95 Am. S. R., 169; In re Denny, 156 Ind., 104; 59 N: E.,359; 51 L. R. A., 722; Dayton vs. St. Paul, 22 Minn., 400; Tecumseh Nat.Bank vs. Saunders, 51 Nebr., 801; 71 N. W., 779; Bott vs. Wurts, 63 N. J. L.,289; 43 A., 744, 811 45 L. R. A., 251; State vs. Foraker, 46 Oh. St., 677; 23N. E., 491; 6 L. R. A., 422.)"' (12 C. J., 880.)

As our constitutional system ("limitation" of powers) is moreanalogous to state systems than to the Federal theory of "grant" of powers, it

is proper to assume that the members of our Constitutional convention,composed mostly of lawyers, and even the members of the AmericanCongress that approved the Tydings-McDuffie enabling legislation,contemplated the adoption of such constitutional practice in this portion of theworld. Hence, my conclusion that in Philippine polity, courts may and shouldtake cognizance of the subject of this controversy.

B. The petitioners' grievance is that, contrary to the provisionsof the Constitution (Article XV), the proposed amendment was not approved"by a vote of three-fourths of all the members of the Senate and of the Houseof Representatives." They complain that certain Senators and somemembers of the House of Representatives were not allowed to participateand were not considered in determining the required three-fourths vote.



The respondents, besides denying our power to revise the counting,assert that the persons mentioned, for all practical purposes did not belong tothe Congress of the Philippines on the day the amendment was debated andapproved.

Central target of attack is Republic Act No. 73 "to submit to theFilipino people, for approval or disapproval, the amendment to theConstitution of the Philippines to be appended as an Ordinance thereto,proposed by the Congress of the Philippines in a Resolution of both Houses,etc."

Petitioners would have a declaration of invalidity of that piece of legislation. Its first section provides that "the amendment to the Constitutionof the Philippines to be appended as an Ordinance thereto, proposed by theCongress of the Philippines in a Resolution of both Houses, adopted onSeptember eighteen, nineteen hundred and forty-six, shall be submitted tothe people, for approval or disapproval, at a general election which shall beheld on March eleven, nineteen hundred and forty-seven, in accordance withthe provisions of this Act."

By this provision, the Legislative Department with the concurrence of the Executive, declares in the most solemn manner that the resolutionproposing the amendment was July carried. Therefore, it would be pertinentto inquire whether those petitioners who are members of the Congress that

approved Republic Act No. 73 are not precluded from questioning its validityor veracity, unless they assert and prove that in Congress they opposed itsenactment. In default of a contrary showing, is it not reasonable to supposethat as members of Congress they endorse — or at least are bound by — thedeclarations of Republic Act No. 73? And if a private party is estopped fromchallenging the constitutional efficacy of a law whose enactment he hasprocured (see 16 C. J. S., 198 and 11 Am. .Jur., 767) should not a member of Congress be estopped from impugning a statute he helped (presumably)to pass? Parenthetically it should be added that the remaining petitioners, asmere citizens, would probably have no suable claim. (Cf. 16 C. J. S., 169.)

C. But perhaps these points should be left to future study anddecision, because the instant litigation may be solved by the application of

other well-established principles founded mainly on the traditional respectwhich one department of the Government entertains for the actions of theothers. On account of the separation of powers, which I firmly believe, Iagree to the applicability and binding effect of section 313 of Act No. 190, asamended by Act No. 2210, which, in my opinion, has not been abrogated bythe Rules of Court. I likewise believe the soundness of the doctrineexpounded by the authoritative Wigmore on a question admittedly within thedomain of the law on evidence: conclusiveness of the enrolled bill or resolution upon the judicial authorities.

D. Withal, should that principle of conclusiveness be denied,the respondents could plausibly fall back on the time honored rule that thecourts may not go behind the legislative journals to contradict their veracity.

( United States vs. Pons, 34 Phil., 729.)

According to the minutes of the joint session Exhibit 3 in the Senatesixteen (16) senators approved the resolution against five (6), with noabsences: whereas in the House sixty-eight (68) congressmen voted "yes",eighteen (18) voted "no", one abstained from voting and one was absent.Therefore, 16 being three-fourths of the total membership of twenty-one of the Senate (16 plus a), and 68 being more than three-fourths of the totalmembership of eighty-eight (88) of the House of Representatives (68 plus ]8plus 1 plus 1), it is crystal clear that the measure was upheld by the number of votes prescribed by the Constitution.

True, there are in the said exhibit statements by two Senators andone congressman to the effect that the votes did not constitute the majorityrequired by the Constitution. However, in the face of the incontestablearithmetical computation above shown, those protests must be attributed totheir erroneous counting of votes; none of them having then assaulted that"there were absent Senators or Congressmen who had not been taken intoaccount." For although are might have judicial notice of the number of proclaimed members of Congress, still we are no better qualified than theLegislature to determine the number of its actual membership at any givenmoment, what with demises or demissions, remotions or suspensions.

Bengzon, J., concurs.HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the groundssupporting the same in so far as they are not inconsistent with the applicablereasons supporting my concurring opinion in Vera vs. Avelino (77 Phil., 192).but I dissent from that part of the majority opinion (page 3, ante) wherein it isstated that if the suspended members of the Senate and House of Representatives had been counted "the affirmative votes in favor of theproposed amendment would have been short of the necessary three-fourthsvote in either branch of Congress."

The basic theories underlying my aforesaid concurring opinion inVera vs. Avelino, supra, are, first, that the questions therein raised werepolitical in nature within the exclusive province of the legislature, and,second, that the judicially does not possess jurisdiction over such questions.

It is to me evident that the questions involved in the present proceeding areno less political than those involved in that former Senate case. It is deemedunnecessary to dwell at more length upon the grounds of my said concurringopinion.

The ground for my dissent from the above-quoted statement of themajority opinion in the instant proceeding is that the suspension of the saidmembers of the Senate and the House of Representatives being a politicalquestion, the judiciary, being without jurisdiction to interfere with thedetermination thereof by the proper political department of the government,has perforce to abide by said de termination if it were to go any further in theconsideration of the case. In other words, any further discussion of the casein this Court will have to start from the premise that said members have been

suspended by the respective Houses of Congress and that we, being



powerless to interfere with the matter of said suspension, must consider ourselves bound by the determination of said political branches of thegovernment. As said by the Supreme Court of the United States in Philippsvs. Payne in cases involving the action of the political departments of thegovernment, the judiciary is bound by such action."

If, then, we are to proceed, as I think we should, upon the premisethat said members have been thus suspended, there will be to my mind,absolutely no justification, ground nor reason for counting them in the

determination of whether or not the required three-fourths vote was attained.Their case was entirely different from that of members who, not having beensuspended nor otherwise disqualified, had the right to vote upon theresolution. In the case of the latter, they had, like all other members similarlysituated, three alternatives, namely, to vote in favor of the resolution, to voteagainst it, or to abstain from voting. If they voted in favor, of course, their votes had to be counted among those supporting the resolution. If they votedagainst, of course, their votes had to be counted with those opposing. And if they abstained from voting, there would be sound justification for countingthem as not in favor of the resolution, because by their very abstention theyimpliedly but necessarily would signify that they did not favor the resolution,for it is obvious that if they did, they would have voted in favor of it. On the

other hand, those suspended members who, by reason of the suspension,whose validity or legality w e are devoid of jurisdiction to inquire into, cannotbe similarly treated. In their case there would be no way of determining whichmay their votes would have gone or whether or not they would haveabstained from voting. In this connection, in considering the hypothesis of their voting in case they had not been suspended, I must go upon theassumption that while those suspended members may belong to the politicalparty which, as a party, was opposed to the resolution, still they would havevoted Independent and following their individual convictions. In thisconnection, it might not be amiss to mention that there were quite a number of minority members of the legislature who voted for the resolution. Hence,we are not in a position to say that said suspended-members, if they had not

been suspended, would have voted against the resolution, nor in favor of iteither, nor that they would have abstained from voting. Why then should theybe counted with the members who voted against the resolution or those who,having the right to vote, abstained from doing so? Why should we count themas though we knew that they would have voted against the resolution, or even that they would have abstained from voting? Soundly construed, Isubmit that the Constitution does not, and could not, include suspendedmembers in the determination of the required three-fourths vote.

I take it, that the drafters in providing in Article XV, section 1, of theConstitution that "The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting (emphasis supplied) separately . . .", advisedly used

the vital and all-important word "voting" therein. I take it, that they meant to

refer to the members voting undoubtedly expecting that all members notsuspended or otherwise disqualified, would cast their votes one way or theother. But I am here even making a concession in favor of the opponentswhen I say that those who, with the right to vote, abstain from voting, may becounted among those not in favor of the measure. But what I cannot bringmyself to conceive is that the quoted provision should have intended to countsuspended or disqualified members as opposed to the measure, or not beingin favor of it, without it being possible to know which way they would havevoted or that they would have abstained from voting — that they would never

have voted in favor of the measures. If I should ask why we should not countsuch suspended or disqualified members among those in favor of themeasure, I am sure those who opine differently would answer, because wedo not know that they would have voted in favor of it. By the same token, if they should ask me why we should not count them among those against themeasure, I would answer that we do not know that they would have votedagainst it or that they would have abstained from voting. All this inevitablyleads to the conclusion — the only one possible — that such suspended or disqualified members should not and cannot be counted due to that veryimpossibility of knowing which way they would have voted or whether theywould have abstained from voting. I stand for a sound and rationalconstruction of the constitutional precept.

Paras, J., concurs.PERFECTO, J., dissenting:To surrender or not to surrender, that is the question.The last bastion of democracy is in danger.Those who are manning it are summoned to give up without the least

resistance, and the banner of the Constitution is silently and meekly hauledown from its pole to be offered as a booty to the haughty standard bearers of a new brand of Fascism. In the words of Cicero, "recedere de statu suaedignitatis."

Cardinal moral bearings have been lost in the psychological chaossuffered by those, throwing overboard all ideals as burdensome anddangerous ballast, in desperate efforts to attain at all costs individual sulvival,

even in ignominy, could not stand the impact of initial defeats at the hands of invading fearsome military hordes.

The present is liable to confusion. Our minds are subject todeterminate and indeterminate ideological pressures. Very often man walksin the darkness of a blind alley obeying the pullings and pushings of hiddenand unhidden forces, or the arcane predeterminations of the genes of humanchromosomes. A rudderless ship floating in the middle of an ocean withoutany visible shoreline, is bound to be wrecked at the advent of the firsttyphoon. From early youth we begin to hear and learn about the true ideals.Since then we set them as the guiding stars in our actions and decisions, butin the long travel of life, many times the clouds dim or completely darkenthose stars and then we have only to rely on our faith in their existence and

on habit, becoming unerring if long enough followed, of adjusting our conduct



to their guidance in calm and cloudless nights. We are sitting in judgment topass upon the conflicts, disputes and disagreements of our fellowmen. Let usnot forget that the day shall come that we will be judged on how we are

judging. Posterity shall always have the final say. When the time solvent hasdissolved the human snag, then shall be rendered the final verdict as towhether we have faced our task fearlessly or whether our hearts have shrunkupon the magnitude of our duties and have chosen the most comfortablepath of retreat. Then it will be conclusively known whether we have keptburning the fire of justice as the vestals did keep burning the tripod fire in the

temples of old. Some of us will just return into anonymity, covered by the coldmist of historical oblivion; others will have their names as bywords repeatedlypronounced with popular hate or general contempt; and still others will beremembered with universal gratefulness, love and veneration, the guerdonaccorded to all those who remained faithful to the fundamental tenets of

justice. Winnowing time will sift the chaff from the grain.This is one of the cases upon which future generations will decide if

this tribunal has the sturdy courage to keep its responsibility in proper highlevel. It will need the passing of decades and perhaps centuries before aconclusive verdict is rendered, whether we should merit the scorn of our fellow citizens and our decision shall be cursed as the Dred Scot decision of Chief Justice Taney, the one that plunged the United States into civil war, or

whether in the heart of each future Filipino citizen there will be a shrine inwhich our memory will be remembered with gratefulness, because we haveshown the far-reaching judicial statesmanship of Chief Justice Marshall, thelegal genius who fixed and held the rock bottom foundations which made of the American Constitution the veritable supreme law of the land andestablished the role of the tribunals as the ultimate keepers of theConstitution. But for sure it will be rendered, and it will be impartial andunbiased, exacting and pitiless, with unappealable finality, and for the onecondemned Dante wrote this lapidary line: "lasciati ogni speranza."

Unless the vision of our mental eyes should be shut up by theopaque cornea of stubborn refusal to see reality or should be impaired by thepolaroid visors of prejudice, there is no question that at the time when the

resolution in question, proposing an amendment to the Constitution, wasadopted, the members of the Senate were 24 and the members of the Houseof Representatives were 96, and that the 16 members of the Senate whovoted in favor of the resolution, by undisputable mathematical computation,do not constitute three-fourths of the 24 members thereof, and the 68members of the House of Representatives who voted for the resolution, byequally simple arithmetical operation, do not constitute three-fourths of the 96members of the said chamber. The official certifications made be thepresiding officers of the two houses of Congress to the effect that three-fourths of all the members of the Senate and three-fourths of all the membersof the House of Representatives voted for the resolution, being untrue,cannot change the facts. Nothing in existence can. The certification, being a

clear falsification of public document punished by article 171 of the Revised

Penal Code with prision mayor and a fine not to exceed P5,000, cannot givereality to a fiction based in a narration of facts that is in conflict with theabsolute metaphysical reality of the events.

FACTS OF THE CASEPetitioners are citizens of the Philippines, taxpayers and electors,

and besides some of them are members of the Senate, others are membersof the House of Representatives, and still others are presidents of politicalparties, duly registered, with considerable following in all parts of thePhilippines.

The first three respondents are chairman and members, respectively,of the Commission on Elections and the remaining three are respectively theTreasurer of the Philippines, the Auditor General and the Director of theBureau of Printing.

Petitioners alleged that the Senate is actually composed of 24Senators, 8 elected in 1941 and 16 in April 23, 1946, and that the House of Representatives is composed of 98 members, elected on April 23, 1946,minus 2 who resigned to assume other positions in the Government.

On September 18, 1946, there was presented for adoption by theCongress of the Philippines a resolution proposing an amendment to theConstitution of the Philippines to be appended as an ordinance thereto,which reads as follows:

"Resolved by the Senate and House of Representatives of thePhilippines in joint session assembled, by a vote of not less than three-fourths of all the Members of each House voting separately, To propose, asthey do hereby propose, the following amendmentto the Constitution of thePhilippines to be appended as an Ordinance thereto:

"'ORDINANCE APPENDED TO THE CONSTITUTION"Notwithstanding the provisions of section one, Article Thirteen, and

section eight, Article Fourteen, of the foregoing Constitution, during theeffectivity of the Executive Agreement entered into by the President of thePhilippines with the President of the United States on the fourth of July,nineteen hundred and forty-six, pursuant to the provisions of CommonwealthAct Numbered seven hundred and thirty-three, but in no case to extend

beyond the third of July, nineteen hundred and seventy-four, the disposition,exploitation, development, and utilization, of all agricultural. timber. andmineral lands of the public domain, waters, minerals, coal, petroleum, andother mineral oils, all forces and sources of potential energy, and other natural resources of the Philippines, and the operation of public utilities, shall,if open to any person, be open to citizens of the United States and to allforms of business enterprise owned or controlled, directly or indirectly, bycitizens of the United States in the same manner as to, and under the sameconditions imposed upon, citizens of the Philippines or corporations or associations owned or controlled by citizens of the Philippines.'

"This amendment shall be valid as a part of the Constitution thenapproved by a majority of the votes cast in an election at which it is submitted

to the people for the ratification pursuant to Article XV of the Constitution."



Sixteen Senators voted in favor of the resolution and a against it, and68 Representatives voted in favor and 18 against.

Thereafter, Congress passed Republic Act No. 73 calling a plebisciteto be held on March 11, 1947, for the purpose of submitting to the people theproposed amendment embodied in the resolution, and appropriatingP1,000,000 for said purpose.

Petitioners assail the validity of Republic Act No. 73 asunconstitutional because Congress may not, by said act, submit to thepeople for approval or disapproval the proposed amendment to the

Constitution embodied in resolution Exhibit B inasmuch as, to comply withthe express provisions of Article XV of the Constitution, requiring theaffirmative votes of three-fourths of all the members of the Senate and of theHouse of Representatives voting separately, three-fourths of the 24 membersof the Senate is constituted by at least 18 Senators, 2 more than those whoactually voted for the resolution in question, and three-fourths of the 98members of the House of Representatives should at least be 72Representatives, or 4 more than those who actually voted for the resolution.

Respondents deny that the Senate is composed of 24 Senators, byexcluding from them petitioners Jose O. Vera, Ramon Diokno and Jose E.Romero and allege that the House of Representatives is not composed of 98members but of only 90. They admit that at the joint session of Congress to

consider the resolution Exhibit B, in favor of the resolution 16 votes were castin the Senate and in the House of Representatives 68 and 5 in the Senateand in the House of Representatives had voted against. They admit theapproval of Republic Act No. 73 and that necessary steps to hold theplebiscite therein provided are being taken, but deny that said act isunconstitutional, and by of defense, allege that the resolution Exhibit wasadopted by three-fourths of all the qualified members of the Senate and of the House of Representatives voting separately and, consequently, RepublicAct No. 73, ordering its submission to the people for approval or disapproval,fixing a date for a general election, and appropriating public funds for saidpurpose, is valid and constitutional.

At the hearing of this case both parties submitted the following

stipulation:"The parties through their undersigned counsel hereby stipulate the

following facts:"1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E.

Romero were, by the majority vote of the Commission on Elections,proclaimed elected senators in the election of April 23, 1946;

"2. That when the Senate convened on May 25, 1946, the saidsenators-elect took part in the election of the President of that body; but thatbefore the senators-elect were sworn in by the President of the Senate, aresolution was presented, and subsequently approved, to defer theadministration of oath and the seating of Messrs. Jose O. Vera, RamonDiokno, and Jose E. Romero pending the hearing and decision of the protest

lodged against their election;

"3. That on the 25th of May, 1946, the said senators individuallytook their alleged oath of office before notaries public, and not on the floor,and filed said oaths with the Secretary of the Senate during the noon recessof the said date;

"4. That Messrs. Vera and Romero filed with the Auditor of theSenate other oaths of office accomplished by them outside of the floor beforea notary public and the Secretary of the Senate, on September 5 and August31, 1946, respectively; and that their corresponding salaries from April 23,1946, were paid on August 31, 1946;

"5. That Mr. Diokno, having left for the United States, his sonJose W. Diokno filed a copy of Mr. Diokno's alleged oath of office dated May26, 1946, with the Auditor of the Senate on October 15, 1946, and on saiddate his salary was paid corresponding to the period from April 23 to October 15, 1946;

"6. That all three have subsequently received their salariesevery fifteen days;

"7. That since the approval of the resolution deferring their seating and oaths up to the present time, the said Messrs. Vera, Diokno, andRomero have not been allowed to sit and take part in the deliberations of theSenate and to vote therein, nor do their names appear in the roll of theSenate;

"8. That before May 25, 1946, the corresponding provincialboards of canvassers certified as having been elected in the election held onApril 23, 1946, ninety-eight representatives, among them Messrs AlejoSantos and Jesus B. Lava for Bulacan, Jose Cando and Constancio P.Padilla for Nueva Ecija, Amado M. Yuson and Luis Taruc for Pampanga,Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for Negros Occidental;

"9. That the aforesaid eight members-elect of the House of Representatives took part in the election of the Speaker of the House of Representatives held on May 25, 1946;

"10. That before the members-elect of the House of Representatives were sworn in by the Speaker, Mr. Topacio Nueno,representative for Manila, submitted a resolution to defer the taking of oath

and seating of Luis Taruc and Amado Yuson for Pampanga, Constancio P.Padilla and Jose Cando for Nueva Ecija, Alejandro Simpauco for Tarlac,Alejo Santos and Jesus Lava for Bulacan, and Vicente F. Gustilo for NegrosOccidental 'pending the hearing and decision on the protests lodged againsttheir election,' copy of the resolution being attached to and made part of thisstipulation as Exhibit 1 thereof;

"11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and approved by the House, referred for study to acommittee of seven, which up to the present has not reported, as shown bythe Congressional Record for the House of Representatives;

"12. That the eight representatives-elect included in theresolution were not sworn in on the floor and have not been so sworn ;nor

allowed to sit up to the present time, nor have they participated in any of the



proceedings of the House of Representatives except during the debate of theEscareal motion referred to in paragraph 11 hereof, nor cast any vote thereinsince May 2.5, 1946, and their names do not appear in the roll of themembers of the House except as shown by the Congressional Record of theHouse of Representatives, nor in the roll inserted in the official program for the inauguration of the Republic of the Philippines hereto attached as Exhibit2 hereof;

"13. That the eight representatives-elect above mentioned tooktheir alleged oaths of office on the date set opposite their namos, as follows:

"Jose Cando May 25, 1946"Vicente Gustilo May 25, 1946"Constancio Padilla May 22, 1946"Alejo Santos May 23, 1946"Luis M. Taruc May 25, 1946''Amado M. Yuson May 25, 1946"Jesus B. Lava May 25, 1946"Alejandro Simpauco May 25, 1946

all of which oaths were taken before notaries public, with theexception of the first four who took their oaths before Mr. Narciso Pimentel,

Secretary of the House;"14. That said oaths were filed with the Auditor through the office

of the Secretary of the House of Representatives;"15. That the persons mentioned in paragraph 13 were paid

salaries for the term beginning April 23, 1946, up to the present, with theexception of Messrs. Luis Taruc and Jesus Lava, to whom payment wassuspended since August 16;

"16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the Speaker of the House of Representatives and were allowedto sit on September 30, 1946, the last day of the Special Sessions;

"17. That in addition to the eight persons above mentioned, twomembers of the House, Representatives Jose C. Zulueta and Narciso

Ramos, had resigned before the resolution proposing an amendment to theConstitution was discussed and passed on September 18, 1946;

"18. That the voting on the resolution proposing an amendmentto the Constitution was made by the Secretary calling the roll of each houseand the votes cast were as shown in the attached certificate of the Secretaryof the House of Representatives hereto attached, marked Exhibit 3 andmade a part hereof; and

"19. That the Congressional Records for the Senate and Houseof Representatives and the alleged oaths of office are made a part of thisStipulation by reference thereto, respondents reserving the right to questiontheir materiality and admissibility. "Manila. Philippines, November 25, 1946.

"For the petitioners: "For the respondents:

"JOSE E. ROMERO "ROMAN OZAETA"ANTONIO BARREDO "Secretary of Justice

"JOSE B. L. REYES"First Asst. Solicitor General"

PETITIONERS' PERSONALITYWhether petitioners have or have not the personality to file the

petition in this case is the first question we have to consider.No party raised the question, but it having arisen in the course of the

Court's deliberation, we should not evade deciding it and giving what in lawand justice should be the answer.

To our mind there is no doubt that petitioners have the personality toinstitute the present recourse of prohibition. If petitioners should lack thatpersonality, such legal defect would not certainly have failed to be noticed byrespondents themselves.

Respondents' failure to raise the question indicates their convictionthat petitioners have the necessary legal personality to file the petition, andwe do not see any reason why such personality should be put in doubt.

Petitioners are divided into three groups: the first is composed of

senators; the second, of representatives; and the third, of presidents of four political parties.

All of the individuals composing the first two groups, with theexception of Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero,are members of either of the two houses of Congress and took part in theconsideration of Resolution Exhibit B and of Republic Act No. 73, while theabove three excepted senators were the ones who were excluded in theconsideration of said resolution and act and were not counted for purposes of determining the three-fourths constitutional rule in the adoption of theresolution.

In paragraph eight of the petition it is alleged that respondents havetaken all the necessary steps for the holding of the general election on March

11, 1947, and that the carrying out of said acts "constitute an attempt toenforce the resolution and act aforementioned in open violation of theConstitution," is without or in excess of respondents' jurisdiction and powers,"violative of the rights of the petitioners who are members of the Congress,and will cause the illegal expenditure and disbursement of public funds andend in an irreparable injury to the taxpayers and the citizens of thePhilippines, among whom are the petitioners and those represented by themin their capacities mentioned above."

There should not be any question that the petitioners who are either senators or members of the House of Representatives have direct interest inthe legal issues involved in this case as members of the Congress whichadopted the resolution, in open violation of the Constitution, and passed the

act intended to make effective such unconstitutional resolution. Being



members of Congress, they are even duty bound to see that the latter actwithin the bounds of the Constitution which, as representatives of the people,they should uphold, unless they are to commit a flagrant betrayal of publictrust. They are representatives of the sovereign people and it is their sacredduty to see to it that the fundamental law embodying the will of the sovereignpeople is not trampled upon.

The four political parties represented by the third group of petitioners,represent large groups of our population, perhaps nearly one-half of the-latter, and the numerous persons they represent are directly interested and

will personally be affected by the question whether the Constitution should belightly taken and can easily be violated without any relief and whether it canbe amended by a process open]y repugnant to the letter of the Constitutionitself.

As a matter of fact, the vital questions raised in this case affectdirectly each and every one of the citizens and inhabitants of this country.Whether our Constitution is, as it is supposed to be, a paramount law or justa mere scrap of paper, only good to be thrown into a waste basket, is amatter of far-reaching importance to the security, property, personal freedom,life, honor, and interests of the citizens. That vital question will necessarilyaffect the way of life of the whole people and of its most unimportant unit.Each and every one of the individuals inhabiting this land of ours shall have

to make plans for the future depending on how the question is finallydecided. No one can remain indifferent; otherwise, it will at his peril.

Our conclusion is that petitioners have full legal personality toinstitute the present action; and much more, those who are members of Congress have the legal duty to institute it, lest they should betray the trustreposed in them bY the electorate.

24 SENATORSThe first question raised by respondents' answer refers to the actual

number of the members of the Senate. According to petitioners there are 24of them while according to respondents there are only 21, excludingSenators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because,according to them, "they are not duly qualified and sworn in members of the

Senate."This allegation appears to be belied by the first seven paragraphs of

the stipulation of facts submitted by both parties.No amount of sophism, of mental gymnastics or logodaedaly may

change the meanings and effects of the words placed by respondentsthemselves in said ;seven paragraphs. No amount of argument may deludeanyone into believing that Senators Vera, Diokno, and Romero are notsenators notwithstanding their having been proclaimed as elected senators,their having taken part in the election of the President of the Senate, their having taken their oaths of office, and their receiving salaries as senators.

Such a paradoxical proposition could have been driven intoacceptance in the undeveloped brains of the pithecanthropus or

gigantopithecus of five hundred millennia ago, but it would be unpardonablyinsulting to the human mind of the twentieth century.

Our conclusion is that Senator Vera, Diokno, and Romero should becounted as members of the Senate, with out taking into considerationwhatever legal effects the Pendatun resolution may have produced, aquestion upon which we have already elaborated in our opinion in Vera vs.Avelino (77 Phil., 192). Suspended or not suspended, they are senator sanyway, and there is no way of ignoring a fact so clear and simple as thepresence of the sun at day time. Therefore, counting said three Senators,

there are 24 Senators in all in the present Senate.96 REPRESENTATIVESThe next question raised by respondents is their denial of petitioners'

allegations to the effect that the present House of Representatives iscomposed of 98 members and their own allegation to the effect that atpresent "only 90 members have qualified, have been fully sworn in, and havetaken their seats as such."

Again respondents' allegations are belied by paragraphs eight toseventeen of the stipulation of facts.

The disagreement between the parties is as to whether or notRepresentatives Cando, Gustilo, Padilla, Santos, Taruc, Yuson, Lava andSimpauco, mentioned in paragraph 13 of the stipulation of facts, are

members of the House of Representatives.The facts stipulated by the parties proved conclusively that said eight

persons are actual members of the House of Representatives. We may evenadd that the conclusiveness about said eight representatives is even greater than in the case of Senators Vera, Diokno, and Romero, because noresolution of suspension has ever been adopted by the House of Representatives against said eight members, who are being deprived of theexercise of some of their official functions and privileges by the unipersonal,groundless, dictatorial act of the Speaker.

That illegal deprivation, whose counterpart can only be found incountries where the insolence of totalitarian rulers have replaced allconstitutional guarantees and all concepts of decent government, raises

again a constitutional question: whether it is permissible for the Speaker of the House of Representatives to exercise the arbitrary power of deprivingrepresentatives duly elected by the people of their constitutional functions,privileges, and prerogatives. To allow the existence of such an arbitrarypower and to permit its exercise unchecked is to make of democracy amockery.

The exercise of such an arbitrary power constitutes a wantononslaught against the sovereignty itself of the people, an onslaught whichmay cause the people sooner or later to take justice in their own hands. Nosystem of representative government may subsist if those elected by thepeople may so easily be silenced or obliterated from the exercise of their constitutional functions.



From the stipulation of facts, there should not be any question that atthe last national election, 98 representatives were elected and at the time theresolution Exhibit B was adopted on ,September 18, 1946, 96 of them wereactual members of the House, as two (Representatives Zulueta and Ramos)had resigned.

Applying the three-fourth rule, if there were 2 senators at the time theresolution was adopted; three-fourths of them should at least be 18 and notthe 16 who only voted in favor of the resolution, and if there were 96representatives, three-fourths of them should certainly be more than the 68

who voted for the resolution. The necessary consequence is that, since notthree-fourths of the senators and representatives voting separately havevoted in favor of the resolution as required by Article XV of the Constitution,there can be no question that the resolution has not been validly adopted.

We cannot but regret that our brethren, those who have signed or are in agreement with the majority opinion, have skipped the questions as tothe actual membership of the senate and House of Representatives,notwithstanding the fact that they are :among the first important onessquarely raised by the pleadings of both parties. If they had taken them intoconsideration, it would seem clear that their sense of fairness will bring themto the same conclusion we now arrived at, at least, with respect to the actualmembership of the House of Representatives.

Upon our conclusions as to the membership of the Senate andHouse of Representatives, it appears evident that the remedy sought for inthe petition should be granted.

JURISDICTION OF THE SUPREME COURTWithout judging respondents' own estimate as to the strength of their

own position concerning the questions of the actual membership of theSenate and House of Representatives, it seems that during the oral and inthe written arguments they have retreated to the theory of conclusiveness of the certification of authenticity made by the presiding officers and secretariesof both Houses of Congress as their last redoubt.

The resolution in question begins as follows: "Resolved by theSenate and House of Representatives of the Philippines in joint session

assembled, by a vote of not less than three-fourths of all the members of each House voting separately . . .."

Just because the adoption of the resolution, with the abovestatement, appears to be certified over the signatures of the President of theSenate and the House of Representatives and the Secretaries of bothHouses, respondents want us to accept blindly as a fact what is not. Theywant us to accept unconditionally as a dogma, as absolute as a creed of faith, what, as we have shown, appears to be a brazen official falsehood.

Our reason revolts against such an unethical proposition.An intimation or suggestion that we, in the sacred temple of justice,

throwing overboard all scruples, in the administration of justice, could acceptas true what we know is not and then perform our official functions upon that

voluntary self-delusion, is too shocking and absurd to be entertained even for

a moment. Anyone who keeps the minimum sense of justice will not fail tofeel against at the perversion or miscarriage of justice which necessarily willresult from the suggestion.

But the theory is advanced as a basis to attack the jurisdiction of thisCourt to inquire behind the false certification made by the presiding officersand the secretaries of the two Houses of Congress.

Respondents rely on the theory of, in the words of the majorityopinion, "the conclusiveness on the courts of an enrolled bill or resolution.

To avoid repeating the arguments advanced by the parties, we have

made part of this opinion, as Appendices A, B, and C, 1 the memorandapresented by both petitioners and respondents, where their attorneys appear to have amply and ably discussed the question. The perusal of thememoranda will show petitioners' contentions to be standing on stronger ground and, therefore, we generally agree with their arguments.

In what follows we will try to analyze the positions taken in themajority opinion.

POLITICAL QUESTIONSThe majority enunciates the proposition that "political questions are

not within the province of the judiciary," except "by express constitutional or statutory provision" to the contrary. Their argues that "a duly certified law or resolution also binds the judges under the 'enrolled bill rule' out of respect to

the political departments."The doctrine is predicated "on the principle of the separation of

powers."This question of separation of powers is the subject of discussion in

the case of Vera vs. Avelino, supra. We deem unnecessary to repeat whatwe have already said in our opinion in said case, where we have elaboratedon the question.

Although the majority maintains that what they call the doctrine thatpolitical questions are not within the province of the judiciary is "too-well-established to need citation of authorities," they recognize the difficulty "indetermining what matters fall under the meaning of political questions."

This alleged doctrine should not be accepted at its face value. We do

not accept it even as a good doctrine. It is a general proposition madewithout a full comprehension of its scope and consequences. No judicialdiscernment lies behind it.

The confession that the "difficulty lies in determining what matters fallwithin the meaning of political question" shows conclusively that the so-calleddoctrine has recklessly been advanced.

This allegedly "well-established" doctrine is no doctrine at all in viewof the confessed difficulty in determining what matters fall within thedesignation of political question. The majority itself admits that the term "isnot susceptible of exact definition, and precedents and authorities are notalways in full harmony as to the scope of the restrictions, on this ground, onthe courts to middle with the acts of the political department of the

government."



Doctrine is that "which is taught; what is held, put forth as true, andsupported by a teacher, a school, or a sect; a principle or position, or thebody of principles, in any branch of knowledge; tenet; dogma; principle of faith." It is a synonym of principle, position, opinion, article, maxim, rule, andaxiom. In its general sense, doctrine applies to any speculative truth or working principle, especially as taught to others or recommended to their acceptance. Therefore, to be true, it should be expressed on simple and self-evident- terms. A doctrine in which one of the elemental or nuclear terms isthe subject of an endless debate is a misnomer and paradox.

A doctrine is advanced and accepted as an established truth, as astarting point for developing new propositions, as a guiding principle in thesolution of many problems. It is a groundwork for the building of anintellectual system. It is the basis of a more or less complex legal structure. If not the cornerstone, it should at least be one of the main columns of anarchitectonic construction. If that groundwork, cornerstone or column issupported by a thing whose existence still remains in dispute, it is liable tofall.

We irrevocably refuse to accept and sanction such a pseudo doctrinewhich is based on the unsettled meaning of political question.

The general proposition that "political questions are not within theprovince of the judiciary" is just one of the many numerous general

pronouncements made as an excuse for apathetic, indifferent, lazy or uncourageous tribunals to refuse to decide hard or ticklish legal issuessubmitted to them.

It belongs to the category of that much-vaunted principle of separation of powers, the handful of sand with which judicial ostriches blindthemselves, as if self-inflicted blindness may solve a problem or may act as aconjuration to drive away a danger or an evil.

We agree with the majority that the proposal to amend theConstitution and the process to make it effective, as provided in Article XV of the Constitution, are matters of political nature, but we cannot agree withtheir conclusion that a litigation as to whether said article has been compliedwith or violated is beyond the jurisdiction of the tribunals, because to arrive at

this conclusion we must accept as a major premise the pseudo-doctrinewhich we have precisely exposed as erroneous and false.

Is there anything more political in nature than the Constitution? Shallall questions relating to it, therefore, be taken away from the courts? Then,what about the constitutional provision conferring the Supreme Court with thepower to decide "all cases involving the constitutionality of a treaty or a law?"

COLEMAN versus MILLERThe decision of the United States Supreme Court in Coleman vs.

Miller (122 A. L. R., 625) is invoked as the mainstay of the majority position.No less than eight pages of the majority opinion are occupied by the

exposition and analysis of the decision of the Supreme Court.The case is invoked as authority for the conclusion that "the efficacy

of ratification by the State legislature of a proposed amendment to the federal

Constitution" and that "the decision by Congress, in its control of theSecretary of State of the questions of whether an amendment has beenadopted within a reasonable time from the date of submission to the Statelegislature," are political questions and not justiciable.

At the outset it must be noted that the two above mentionedquestions have no similarity or analogy with the constitutional questionsherein discussed. The question as to the efficacy of the ratification by theSenate of Kansas of the Child Labor amendment proposed by the UnitedStates Congress in June, 1924, and upon the decision of said Congress, "in

its control of the Secretary of State," whether the amendment has beenadopted "within a reasonable time from the date of submission to the Statelegislature," either one of them does not raise a controversy of violation of specific provisions of the Constitution as the ones raised in the present case.

No specific constitutional provision has been mentioned to havebeen violated because in January, 1925, the Legislature of Kansas rejectedthe amendment, a copy of the rejection having been sent to the Secretary of State of the United States, and in January, 1927, a new resolution ratifyingthe amendment was adopted by the Senate of Kansas on a 21-20 division,the Lieutenant Governor casting the deciding vote. Neither was there suchmention of constitutional violation as to the effect of the previous rejectionand of the lapse of time after submission of the amendment to the State

legislature.No constitutional provision has been pointed out to have been

violated because the Lieutenant Governor had cast his vote or because bythe lapse of time from June, 1924 to March, 1927, the proposed amendmenthad allegedly lost its vitality.

It is only natural that, in the absence of a constitutional provisionupon the efficacy of ratification by a State legislature of a proposedamendment, it was within the ultimate power of the United States Congressto decide the question, in its decision rendered in the exercise of itsconstitutional power, to control the action of the Secretary of State, and thepromulgation of the adoption of amendment could not be controlled by thecourts.

Evidently, the invoked authority has no bearing at all with the mattersin controversy in the present case.

We note, as observed in the majority opinion, that the four opinionsin Coleman vs. Miller, according to the American Law-Reports, show"interestingly divergent but confusing positions of the justices," and are thesubject of an amusing article in 48 Yale Law Journal, 1455, entitled "Sawinga Justice in Half," asking how it happened that the nine-member UnitedStates Supreme Court could not reach a decision on the question of the rightof the Lieutenant Governor of Kansas to cast his vote, because the oddnumber of justices was "equally divided."

How such a "confusing" and "amusing" four-opinion decision inColeman vs. Miller could be an authority is beyond our comprehension.

GREEN versus WELLER



One of the authorities upon which the majority relies is the decisionof the Mississippi Supreme Court in Green vs. Weller (32 Miss., 650), quotingone paragraph thereof.

Here again we have a case of inapplicable authority, unless taken inits reversed effect.

The Mississippi Supreme Court maintains that there is nothing in thenature of the submission to the people of a proposal to amend theConstitution which should cause the free exercise of it to be obstructed or that could render it dangerous to the stability of the government, but in

making this pronouncement, it assumes that the submission is made "in aestablished form," adding that the means provided for the exercise by thepeople of their sovereign right of changing the fundamental law shouldreceive such a construction as not to trample upon the exercise of their right,and that the best security against tumult and revolution is the free andunobstructed privilege to the people of the state to change their Constitution"in the mode prescribed by the instrument."

So the authority, if clearly interpreted, will lead us to the conclusionthat the majority position is wrong because the Mississippi Supreme Court, inmaking the pronouncement, upon the assumption that the submission to thepeople is made "in a established form" and "in the mode prescribed" by theConstitution, namely, in accordance with the provisions of the instrument, the

pronouncements would be the opposite if, as in the present case, thesubmission of the proposal of amendment to the people is made through aprocess flagrantly violative of the Constitution, aggravated by wantonfalsification of public records and tyrannical trampling of the constitutionalprerogatives of duly elected representatives of the People.

MR. JUSTICE BLACKThe concurring opinion of Mr. Justice Black, joined in by Mr. Justice

Roberts, Mr. Justice Frankfurter and Mr. Justice Douglas, in the "confusing"and "amusing" decision in Coleman vs. Miller, is also invoked by the majority,but this other authority seems equally reluctant to offer its helping hand to ahelpless, desperate position.

The major premise of the concurring opinion is as follows: "The

Constitution granted Congress exclusive power to control submission of constitutional amendments."Everybody ought to know that no such an unlimited, unchecked,

omnipotent power is granted by our fundamental law to the Congress of thePhilippines. Our Congress may propose amendments or call a convention tomake the proposal, but that is all. Nowhere in the Constitution can be foundany word, any grammatical sign, not even the faintest hint that in submittingthe proposed amendments to the people, Congress shall have "exclusivepower to control the submission." That submission must be provided by law,and no law may be enacted and come into effect by the excDATEve power of Congress. It needs the concurring action of the President of the Philippines.And if the law happens to violate the fundamental law, courts of justice may

step in to nullify its effectiveness. After the law is enacted, its execution

devolves upon the Executive Department. As a matter of fact, it is theExecutive Department which actually submits to the people the proposedamendment. Congress fixes the date of submission, but the President of thePhilippines may refuse to submit it in the day fixed by law if war, rebellion, or insurrection prevents a plebiscite from proceeding.

After showing that Mr. Justice Black started his argument from amajor premise not obtainable in the Philippines, his conclusions cannot helpthe majority in any way.

MR. JUSTICE FRANKFURTER

The concurring opinion of Mr. Justice Frankfurter in the "confusing"and "amusing" case of Coleman vs. Miller is the next authority invoked by themajority, but the opinion does not offer much help. The Justice maintains thatthe proceedings for voting in legislative assemblies "are matters that concernnot merely political actions but are also of the very essence of politicalaction," and then advances the following argument: "To open the law-courtsto such controversies is to have courts sit in judgment on the manifolddisputes engendered by procedures for voting in legislative assemblies."

The argument has no weight at all. The argument merely displays anattitude, one of simple distaste for the idea, but fails to give any sensiblereason for the attitude. In a totalitarian regime, where decisions are renderednot in answer to the promptings of a sense of justice, but as expressions of

moods, caprices and whims of arbitrary rulers, Mr. .Justice Frankfurter'sattitude could be taken as the law, but then it would be necessary to elevatehim first to the category of a fuehrer.

In our jurisdiction personal attitudes are not the law. Her e, justicemust be founded on reason, but never on passing unreasoned moods,

judicial or otherwise.We regret that we cannot agree with the majority's sharing Mr.

Justice Frankfurter's views, which in their judgment are in accord "with soundprinciples of political jurisprudence and represent liberal and advancedthought on the workings of constitutional and popular government." Our regret is not for ourselves alone but for those who happen to accept asauthority the unreasoned and unexplained mental attitude of a judicial officer

of a foreign country, praising it even with the much-abused label as "liberal,"notwithstanding the fact that it represents the whimsical rule of personalattitudes and not the rule of well-matured reason.

THE ENROLLED BILL THEORYThis theory is amply discussed in the memoranda of the parties

attached hereto as Appendices A, B, and C. Although we consider itunnecessary to enlarge the discussion, we deem it convenient to make alittle analysis of what is stated in the majority opinion. Respondents contend,with the full approval of the majority, that a duly authenticated bill or resolution imports absolute verity and is binding on the courts.

The present case is a conclusive evidence of the absurdity of thetheory. How can we accept the absolute verity of the presiding officers'

certification that the resolution in question has been adopted by three-fourths



of all the members of the Senate and of the House of Representatives, whenas a matter of undisputable fact the certification is false? How can we accepta theory which elevates a falsehood to the category of truth?

The majority alleges that the rule is the one prevailing in England.Because the English have committed the nonsense of accepting the theory,is that reason for Filipinos to follow suit? Why, in the administration of justice,should our tribunals not think independently? Our temple of justice is notpresided by simians trained in the art of imitation but by human beings, andhuman beings must act according to reason, never just to imitate what is

wrong, although such mistakes may happen to be consecrated as a judicialprecedent. It would be inconceivable for our courts to commit such a blunder.

Repeating what Wigmore has said (4 Wigmore on Evidence, 685,footnote), the majority states that in the United States the jurisdictions aredivided almost equally pro and con on the theory, although in petitioners'memorandum Appendix A there appears more up-to-date evidence to theeffect that there is a great majority for the rejection. But to our mind, merenumbers as to pro and con seem to us immaterial in the decision as towhether the theory is or is not correct. Numbers do not make reason nor

justice.The majority contends that the theory conforms to the express policy

of our law-making body, invoking to said effect the now obsolete section 3~3

of the old Code of Civil Procedure, as amended by Act No. 2210.Even if we should follow the anachronistic practice of deciding issues

upon the authority of laws which have been repealed or abolished, still theevidence pointed out by the majority does not support their contention.Section 313 alluded to enumerates the evidence that may prove theprocedures of the defunct Philippine Commission or of any legislative bodythat may be provided for in the Philippines, with the proviso that theexistence of a copy of acts of said commission or the Philippine Legislature,signed by the presiding officers and secretaries of said bodies, is aconclusive proof "of the provisions of such acts and of the due enactmentthereof."

This proviso has been repealed by its non-inclusion in the Rules of

Court. Sections 5 and 41 of Rule 123 show conclusively that this-SupremeCourt, in making the rules effective since July 1, 1940, rejected the provisoas unreasonable and unjust. Section 5 provides that we may take judicialnotice of the official acts of Congress and section 41 provides what evidencecan be used to prove said official acts, but nowhere in the rules can aprovision be found that would make conclusive a certification by the presidingofficers and secretaries of both Houses of Congress even if we know byconclusive evidence that the certification is false.

The allegation that the theory in question conforms to the expresspolicy of our lawmaking body, upon the very evidence used in supportthereof, after a little analysis, has to banish as a midsummer night's dream.

50 AMERICAN JURISPRUDENCE, SECTION 150

In support of the theory of conclusiveness of the enrollment, theauthority of 50 American Jurisprudence, 150 is invoked as reasons for thetheory.

We will analyze the reasons adduced:1. Respect due to a coequal and independent department of

the government. This must be the strongest one, when it is first mentioned. Itis so flimsy to require much discussion. Shall we sacrifice truth and justice for the sake of a social courtesy, the mutual respect that must be shownbetween different departments of the government? Has our sense of

evaluation of spiritual values become so perverted that we can make such ablunder in our choice? Since when have the social or official amenitiesbecome of paramount value to the extent of overshadowing the principles of truth and justice?

2. Because without the theory, courts would have to make "aninquisition into the conduct of the members of the legislature, a very delicatepower." This second reason is premised not on a democratic attitude, butrather on a Fascistic one. It is premised on the false belief that the membersof the majority are a kind of emperors of Japan, to be worshipped but never to be discussed. The ideology depicted by the second reason should berelegated to where it belongs: the archeological museum.

3. "The rule is also one of convenience." This reason again

shows a perverted evaluation of human values. Is justice to be sacrificed for the sake of convenience?

4. "Otherwise after relying on the prima facie evidence of theenrolled bills authenticated as executed by the Constitution, for years, itmight be ascertained from the journals that an act heretofore enforced hadnever become a law." This last reason personifies unreasonableness to thenth degree. So we leave it as it is, as a perpetual evidence of the extent towhich legal stupidity may reach.

WIGMORE ON EVIDENCENo let us examine the arguments of the next authority invoked by the

majority, Wigmore on Evidence. We will also analyze the arguments reliedupon.

1. That to go beyond the enrolled bill "would unsettle the entirestatute law of the State." This argument, as it appears quoted in the majoritydecision, is premised on the unreliability of legislative journals, and it seemsto depict a mind poisoned by prejudice, as shown by the following: "We areto remember the danger, under the prevalence of such a doctrine, to beapprehended from the intentional corruption of evidences of this character. Itis scarcely too much to say that the legal existence of almost everylegislative action would be at the mercy of all persons having access to these

journals. . . ."The argument should be taken into consideration in connection with

American experience, which seems not to be too flattering to our former metropolis.



Our own personal experience of more than a decade in legislativeprocesses convinces us that Wigmore's assumption does not obtain in thePhilippines. It is true that in the pre-constitution legislative enactments wehave seen few instances in which there had been disagreement betweenwhat has actually Been passed, as shown by the journal, and theauthenticated enrolled bill. But the instances were so few to justifyentertaining here the same fears entertained by Wigmore in America.Although those in stances were few, we fought to correct the evil in theConstitutional Convention, where we were able to introduce the following

revolutionary provision in the Constitution: "No bill shall be passed by either House unless it shall be printed and copies thereof in their final formfurnished each member at least three calendar days prior to its passage,except when the President shall have certified to the necessity of itsimmediate enactment. Upon the last reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be takenimmediately thereafter, and the yeas and says entered in the journal."(Section 21 [2], Article VI of the Constitution.)

This provision is an effective guarantee against the situation depictedby Wigmore's fears.

2. To the argument that if the authenticated roll is conclusiveupon the courts, then less than a quorum of each House may by the aid of

presiding officers impose laws upon the State in defiance of the inhibition of the Constitution, Wigmore answers: "This perhaps cannot be avoidedabsolutely. But it applies also to all human agencies. It is not fit that the

judiciary should claim for itself a purity beyond all others; nor has it been ableat all times with truth to say that its high places have not been disgraced."

The answer is unconvincing. Because there can be and there havebeen blundering, disgraceful, or corrupt judicial officers is no reason whyarbitrary presiding officers and members of the legislature should be allowedto have their way unchecked. Precisely the system of checks and balancesestablished by the Constitution presupposes the possibility of error andcorruption in any department of government and the system is established toput a check on them.

When the question of an unconstitutional, arbitrary or corrupt actionby the legislature is placed at the bar of justice, the judiciary must not shrinkfrom its duty. If there is corruption in the judiciary, our laws provide the proper remedy. Even we, the members of the highest tribunal, cannot with impunitycommit "culpable violation of the Constitution, treason, bribery, or other highcrimes" without being liable to be removed from office on impeachment, andwe hope, if there is such a case, that the House of Representatives and theSenate will do their duty in accordance with Article IX of the Constitution, andnot follow the uncourageous example which is given under the intellectualtutelage of Wigmore.

THE CONSTITUTIONAL NUMERICAL RULES

The three-fourth rule has been provided in Article XV of theConstitution as a guarantee against the adoption of amendments to thefundamental law by mere majorities.

The Constitution must be accorded more stability than ordinary lawsand if any change is to be introduced in it, it must be in answer to a pressingpublic need so powerful as to sway the will of three-fourths of all themembers of the Senate and of the House of Representatives. Said three-fourth rule has been adopted by the Constitutional Convention, as all theother numerical rules, with the purpose of avoiding any doubt that it must be

complied with mathematical precision, with the same certainty of all numbersand fractions expressed or expressible in arithmetical figures.

Where the Constitution says three-fourths of all the members of theSenate and of the House of Representatives voting separately, it means anexact number, not susceptible of any more or less. All the members meansthat no single member should be excluded in the counting. It means notexcluding three Senators and eight Representatives as respondents want usto do in order not to cause any inconvenience to the presiding officers andsecretaries of both Houses of Congress who had the boldness of certifyingthat the three-fourth rule had been complied with in the adoption of theresolution in question, when such a certification is as false as any falsehoodcan be.

The three-fourth rule must not be left to the caprice of arbitrarymajorities, otherwise it would be the death knell of constitutionalism in our country. If a constitutional provision can be so trifled with, as has happenedin the adoption of the resolution in question, it would mean breaking faith withthe vitality of a government of laws, to enthrone in its stead a whimsicalgovernment of men.

The Constitution contains several numerical provisions. It requiresthat the Senate shall be composed of 24 Senators (section 2, Article VI); thatCongress shall by law make an apportionment within three years after thereturn of every enumeration, and not otherwise (section 5, Article VI); thateach House may expel a member with the concurrence of two-thirds of allthe members (section 10 [3], Article VI); that electoral tribunals shall each be

composed of nine members, three Justices of the Supreme Court and sixlegislative members (section 11, Article VI); that to overrun the veto of thePresident, the concurrence of two-thirds of all the members of each House isnecessary (section 20 [1], Article VI), and in certain cases the concurrence of three-fourths of all the members of each House i6 necessary (section 20 [2] ,Article VI); that Congress shall, with the concurrence of two-thirds of all themembers of each House, have the sole power to declare war (section 25,Article VI); that no treaty or law may be declared unconstitutional without theconcurrence of two-thirds of all the members of the Supreme Court (section10, Article VIII); that the House of Representatives shall have the sole power of impeachment by a vote of two-thirds of all its members (section 2, ArticleIX); and that the Senate shall have the sole power to try all impeachments,



but no person shall be convicted without the concurrence of three-fourths of all the members of the Senate section 3, Article IX).

So it can be seen that the numerical rules inserted in the Constitutionaffect matters not of momentary but of momentous importance. Each andevery one of them should be given effect with religious scruple, not onlybecause our loyalty to the sovereign people so requires, but also because byinserting them the Constitutional Convention had abided by the wiseteachings of experience.

By denying the petition and allowing those responsible for the

unconstitutional adoption of the resolution in question to have their way is toset up a precedent that eventually may lead to the supremacy of an empireof lawlessness. It will be tantamount to opening Pandora's box of evils anddisasters.

The power to declare war can only be exercised by Congress withthe concurrence of two-thirds of all the members of each House. From nowon, by the simple expediency of certification by the presiding officers andsecretaries of both Houses that two-thirds had voted where a bare majorityhad voted in fact, said majority may plunge our people into a maelstrom of war.

The Constitution provides that the power of impeachment needs thevote of two-thirds of all the members of the House of Representatives. From

now on, a mere plurality of one will be enough to put impeachable highofficials, including the President, on the carpet.

To convict an impeached officer the fundamental law requires theconcurrence of three-fourths of all the members of the Senate. From now on,that three-fourth rule may be dispensed with of circumvented by not countingthree actual Senators, as has been done in the resolution in question, andthereby oust the President of the Philippines if he happens not to be in thegood graces of a senatorial majority.

Without entering into the merits of the proposed constitutionalamendment, to submit which to the people high handed means have beenresorted to, there can be no question that it is of vital importance to thepeople and it will affect future generations to unimaginable extent. The

Constitutional Convention had thought it wise that before such a momentousproposal could be submitted to the people the three-fourth rule should beadhered to by Congress.

QUOTATION FROM THE JALANDONI CASEMonths ago we stated: "It is high time to sound the clarion call that

will summon all the forces of liberalism to wage a crusade for humanfreedom. They should put on the armor of righteousness and rally behind thebanner for the vindication of the principles and guarantees embodied in theConstitution and the high purposes of the Chapter of the United Nations."This, we said in our dissenting opinion in People vs. Jalandoni, L-777.Concerning the judgment that the future may pass upon the actuations of theSupreme Court, in that same opinion we ventured that the historian may,

under the heading of "Epoch of Great Reaction," write as follows:

"At no epoch of its history has the Supreme Court shown to be mostreactionary and retrogressive. When the victims of a constitutional violation,perpetrated by a group of the highest officials of the government, came to itfor redress, it adopted a hands-off policy, showing lack of the necessaryvitality to grapple with the situation and finding refuge in a comfortableretreat, completely disappointing those who have pinned their faith and hopein it as the first pillar of the Constitution and the inexpugnable bulwark of human fundamental rights. The issue of human freedom was disposed of bythem most discouragingly by nullifying the right of an accused to be free on

bail on appeal, in flagrant violation of a constitutional guarantee and of one of the fundamental purposes and principles of the Charter of the UnitedNations."

Upon touching the decision of this Court in the instant case, thesame historian may record that the highest tribunal of the new Republic of the Philippines has struck the hardest blow to the Philippine constitutionalsystem, by refusing to do its duty in giving redress in a clear case of violationof the fundamental law, to the great disappointment, despair and apallmentof millions of souls all over the world who are pinning their hopes onconstitutionalism for the survival of humanity.

The ideal of one world oftenly enunciated by progressive leaders inthe deliberations of the several organs of the United Nations is predicated in

the adoption of a single standard of laws, compulsory within all jurisdictionsof our planet. The ethology of all mankind must be shaped under the patternof that single legal standard. But the whole system is liable to crash if it is notfounded on the rockbed of the elemental principle that the majesty of the lawmust always be held supreme.

To keep inviolate this primary principle it is necessary that some of the existing social organs, moral attitudes and habits of thinking shouldundergo reforms and overhauling, and many fixed traditional ideas should bediscarded to be replaced with more progressive ones and inconsonance withtruth and reason. Among these ideas are the wrong ones which are used aspremises for the majority opinion in this case.

The role of innovators and reformers is hard and often thankless, but

innovation and reform should continuously be undertaken if death bystagnation is to be avoided. New truths must be discovered and new ideascreated. New formulas must be devised and invented, and those outworndiscarded. Good and useful traditions must be preserved, but thosehampering the progressive evolution of culture should be stored in themuseum of memory. The past and the present are just stepping stones for the fulfillment of the promises of the future.

Since the last decade of the nineteenth century, physical science hasprogressed by leaps and bounds. Polonium and radium were discovered byMadam Curie, Roentgen discovered the X-ray, and Rutherford the alpha,beta and gamma particles. Atom ceased to be the smallest unit of matter tobecome an under-microscopic planetarian system of neutrons, protons, and

electrons.



Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain water, without any soil, but only withanions and cations. Sawdust has ceased to be a waste matter, and from it isproduced wood sugar, weighing one-half of the sawdust processed. Inter-stellar space vacuum, almost absolute, is being achieved to serve ends thatcontribute to human welfare. Bacteria and other microbes are harnessed toserve useful human purposes. The aspergillus niger is made to manufacturethe acetic acid to produce vinegar for the asking. The penicillum notanumand the bacillus brevis are made to produce penicillin and tyrothricin, two

wonder drugs that are saving many lives from formerly lethal infections. DDTdecimates harmful insects, thus checking effectively malaria, an illness thatused to claim more than one million victims a year in the world. The creationof synthetics has enriched the material treasures offered to man by nature.Means of transportation are developed to achieve supersonic speeds. Manyscientific dreams are fast becoming marvelous realities. Thus, sciencemarches on. There is no reason why the administration of justice should notprogress onward, synchronized with the rhythm of general humanadvancement towards a better future.

The fact that the majorities of the two chambers of Congress havewithout any qualm violated Article XV of the Constitution and the majority of this Court, instead of granting the proper relief provided by law, preferred to

adopt the comfortable attitude of indifferent by-standers, creates a situationthat seems to be ogling for more violations of the fundamental law. The finalresults no one is in a position to foresee.

Our vote is for the granting of the petition.

"RESOLUTION OF BOTH HOUSES PROPOSING AN AMEND-MENT TO THE CONSTITUTION OF THE PHILIPPINES TO BE APPENDEDAS AN ORDINANCE THERETO.

"Resolved by the Senate and House of Representatives of thePhilppine.s in joint session assembled,. by a vote of not less than three-forthsof all the members of each House voting separately, To propose, as they dohereby propose, the following amendrnent to the Constitution of the

Philippines to be appended as an Ordinance thereto;"ORDINANCE APPENDED TO THE CONSTITUTIONNotwithstanding the provisions of section one, Article Thirteen,and

section eight, Article Fourteen, of the foregoing Constitution, during theeffectivity of the Executive Agreement entered into bythe President of thePhilippines with the President of the United States on the fourth of July,nineteen hundred and forty-six, pursuant to the provisions of CommonwealthAct Numbered Seven hundred and thirty-three, but in no case to extendbeyond the third of July, nineteen hundred and seventy-four, the disposition,exploitation,development, and utilization of all agricultural, timber, andmineral lands of the public domain, waters, minerals, coal, petroleum, andother mineral oils,all forces and sources of potential energy, and other

natural resources of the Philippines, and the operation of public utilities, shall,

if open to any person, be open to citizens of the United States and to allforms of business enterprise ownedor controlled, directly or indirectly, bycitizens of the United Statesin the same manner as to, and under the sameconditions imposedupon, citizens of the Philippines or corporations or associations owned or controlled by citizens of the Philippines.

"This amendment shall be valid as a part of the Constitution whenapproved by a majority of the votes cast in an election at which it is submittedto the people for their ratification pursuant to Artic]e XVof the Constitution.

"Adopted,

(Sgd. ) "JOSE AVELINO"President of the Senate

(Sgd.) "EUGENIO PEREZ"Speaker of the House of Representatives

"We hereby certify that the foregoing Resolution was adopted byboth Houses in joint session assembled in the Hall of the House of Representatives on September 18, 1946.

(Sgd. ) "ANTONIO ZACARIAS

"Secretary of the Senate

(Sgd.) "NARCISO PIMENTEL"Secretary of the House of

Representatives

ARTICLE XIII. — CONSERVATION AND UTILIZATION OFNATURAL RESOURCES

SECTION 1. All agricultural, timber, and mineral lands of thepublic domain, waters, minerals, coal, petroleum, and other mineral oils, allforces of potential energy, and other natural resources of the Philippinesbelong to the State, and their disposition, exploitation, development, or

utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned bysuch citizens, subject to any existing right, grant, lease, or concession at thetime of the inauguration of the Government estbalished under thisConstitution. Natural resources, with the exception of public agricultural land,shall not be alienated, and no license, concession, or lease for theexploitation, development, or utilization of any of the natural resources shallbe granted for a period exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for irrigation, water supply,fisheries, or industrial uses other than the development of later power, inwhich cases beneficial use may be the measure and the limit of the grant.

ARTICLE XIV. — GENERAL PROVISIONS

xxx xxx xxx



SEC. 8.No franchise, certificate, or any other form of authorizationfor the operation of a public utility shall be granted exceptto citizens of thePhilippines or to corporations or other entities organized under the laws of the Philippines, sixty per centum of the capital of which is owned by citizensof the Philippines, nor shall such franchise, certificate, or authorization beexclusive in characteror for a longer period than fifty years. No franchise or right shall be granted to any individual, firm, or corporation, except under thecondition that it shall be subject to amendment, alteration, or repeal by theCongress when the public interest so requires.

"This provision of the Constitution has been criticized as establishingthe outworn Regalian doctrine which, it is suggested, may serve to retard theeconomic development of the Philippines. The best encomic on this provisionis probably the very criticism launched against it. It is inconceivable that theFilipinos would liberalize the acquisition, disposition and exploitation of our natural resources to the extent of permitting their alienation or of deprivingthe people of this country of their heritage. The life of any nation dependsupon its patrimony and economic resources. Real freedom,if it is to belasting, must go hand in hand with economic security, if not economicprosperity. We are at most usufructuaries of our domains and naturalresources and have no power to alienate them even if we should want to dous. They belong to the generations yet unborn and it would be the height of

folly to even think of opening the door for their untrammelled disposition,exploitation, development or utilization to the detriment of the Filipino people.With our natural resources in the hands of foreigners what would be there leftexcept the idealism of living in a country supposedly free, but where freedomis, after all, an empty dream? We would be living in a sumptuous palace thatis not ours. We would be beggars in our own homes, strangers in our ownland.

"Friendship and amity towards all nations are compatible with theprotection of the legitimate interests of the Filipino people. There is noantagonism or hostility towards foreigners but sanenationalism and self-protection which every country of the world ispractising today in the interestof self-preservation

The very essence of the American conception of the separation of powers is its insistence upon the inherent distinction between law-makingand law-interpreting, and its assignment of the latter to the judiciary, a notionwhich, when brought to bear upon the Constitution, yields judicial review.Thereasoning of Webster and Kent is substantially the same. Webster says: 'TheConstitution being the supreme law, it follows of course, that every act of theLegislature contrary to the law must be void. But who shall decide thisquestion? Shall the legislature itself decide it ? If so, then the Constitutionceases to be luga and becomes only a moral restraint for the legislature. If they, and they only, are to judge whether their acts be conformable to theConstitution, then the Constitution is advisory and accessory only, not legally

binding; because, if the construction of it rest wolly with them, their discretion,

in particular cases, may be in favor of very erroneous constructions. Hencethe courts of law, necessarily, when the case arises, must decide upon thevalidity of particular acts. . . .

As far as the judiciary is concerned, which it holds neither the swordnor the purse' it is by constitutional placement the organ called upon toallocate constitutional boundaries, and to the Supreme Court is entrustedexpressly or by necessary implication the obligation of determining inappropriate cases the constitutionality or validity of any treaty, law,

ordinance, or executive order or regulation Section 2 [1], Art. VIII,Constitution of the Philippines.) In this sense and to this extent, the judiciaryrestrains the other departments of the government and this result is one, of the necessary corollaries of the 'system of checks and balances' of thegovernment established."

"The difficulty lies" — dice la ponencia — "in determining what

matters fall within the meaning of political question. The term is notsusceptible ofexact definition, and precedents and authorities are not alwaysin full harmony as to the scope of the restrictions,on this ground, on thecourts to meddle with the actions of the political departments of thegovernment."

"Our outhority to issue the writ of certiorari is challenged upon heground that the petitioners have no standing to seek to gave the judgment of the state court reviewed and hence its urged that the writ of certiorari shouldbe dismissed We are unable to accept that view." Esto viene a ser como unareplica a las siguientes palabras de los disidentes: It is the view of Mr.Justice Roberts, Mr. Justice Black, Mr. Justice Douglas and myself (Mr.Justice Frankfurter) that the petitioners have no standing in this Court."

To the extent that the Court's opinion in the present case evenimpliedly assumes a power to make judicial interpretation of the, conclusiveconstitutional authority of Congress over submission and ratification of

amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether theproper procedure is being followed between submission and final adoptionHowever, it is apparent that judicial review of or pronouncements upon asupposed limitation of a reasonable time within which Congress may acceptratification; as to whether duly authorize State officials have proceededproperly in ratifying or voting ''' for ratification; or whether a State may reverseits action once taken upon a proposed amendment; and kindred questions,are all consistent only with an ultimate control over the amending process inthe courts. And this must inevitably embarrass the course of ammendmentby subjecting to judicial interference matters that we believe were intrusted

by the Constitution solely to the political branch of government.



"The Court here treats the amending process of the Constitution insome respects as subject to judicial construction, in others as subject to thefinal authority of the Congress. There is no disapproval of the conclusionarrived at in Dillon vs. Glass, that the constitution impliedly requires that aproperly submitted amendment must die unless ratified within a reasonabletime'. Nor does the Court now disapprove its prior assumption of power tomake such a pronouncement. And it is not made clear that only Congresshas constitutional power to determine if there is any such implication in article5 of the Constitution. On the other hand, the Court's opinion declares that

Congress has the exclusive power to decide the political questions of whether State whose legislature has once acted upon a proposedamendment may subsequently reverse its position, and whether in thecircumstances of such a case as this, an amendment is dead because an'unreasonable' time has elapsed. No such division between the political and

judicial branches of the government is made by article 5 which grants power over the amending of the Constitution to Congress alone. Undivided controlof that process has been given by the article exclusively and completely toCongress. The process itself is 'political in its entirety, from submission untilan amendment becomes part of the Constitution and is not subject to judicialguidance, control or interference at any point.

"Since Congress has sole and complete control over the amending

process, subject to no judicial review, the views of any court upon thisprocess cannot be binding upon Congress, and in so far as Dillon vs. Glassattempts judicially to impose a limitation upon the right of Congress todetermine final adoption of an amendment, it should be disapproved. . . .

we think the parties to this litigational e to be commended, both for taking the proceedings that have brought these unusual questions before thecourt for determination and for the great ability with which their counsel havepresented them to this court."

"Constitutional Law — Power of Courts to Determine Validity of Action by Legislature in Proposing Constitutional Amendment.

"A determination of whether an amendment to the constitution hasbeen validly proposed and agreed to by the Legislature is to be had in a judicial forum where the constitution provides no other means for suchdetermination.

"Injunction — Subject of Relief — Act of Secretary of State inCertifying Proposed Amendments.

"The act of the secretary of state in publishing and certifying to thecounty commissioners proposed amendments to the constitutions in itsnature ministerial, involving the exercise of no discretion, and if the act isillegal it may be enjoined in appropriate proceedings by proper parties, therebeing no other adequate remedy afforded by law.

"Injunction Governor as Complainant, Secretary of State as

Defendant.

"The governor of the state, suing as such, and also as a citizen,taxpayer, and elector, is a proper complainant in proceedings brought toenjoin the secretary of state from publishing at public expense and certifyingproposed amendments to the constitution upon the ground that suchproposed amendments are invalid because they have not been duly 'agreedto by three-fifths of all the members elected to each house' of the legislature.

"Amendment to Constitution — Effect of Ignoring Mandatory Pro-visions of Constitution.

"If essential mandatory provisions of the organic law are ignored in

amending the constitution, it violates the right of all the people of the state togovernment regulated by law.

"Duty of Court to Enforce Constitution."It is the duty of the courts in authorized proceedings to give effect to

the existing constitution."Mandatory Provision of Constitution as to Manner of Amemding

Constitution."The provision of the organic law requiring proposed amendments

the constitution to be agreed to by three-fifths of all the mems elected to eachhouse' of the legislature is mandatory, and its early contemplates that suchamendments shall be agreed to by the deliberate, final, affirmative vote of therequisite number of the numbers of each house at a regular session.

"Construction of Constitution to Give Intended Effect — MandatoryCharacter of Provisions."Every word of a state constitution should be given its intended

meaning and effect, and essential provisions of a constitution are to beregarded as being mandatory."

"(4, 5) Section l of article 17 of our Constitution provides themethod by which the Constitution may be amended. It requires that aproposed amendment shall be entered upon the respective Journals of thecouse of Representatives and of the Senate with the yeas and nays showinga three-fifths vote in favor of such amendment by each House. The proposedamendment here under consideration no where appears upon the Journalsof the Senate, and therefore it is unnecessary for us to consider any other

questions presented orany authorities cited."The amendment of the organic law of the state or nation is notathing to be lightly undertaken nor to be accomplished in a haphaz ardmanner. It is a serious thing. When an amendment is adopted, it becomes apart of the fundamental law of the land, and it may mean the weal or woe of the future generations of the state wherein it becomes a part of thefundamental law. We cannot say that the strict requirements pertaining toamendments may be waived in favor of a good amendment and invoked asagainst a bad amendment. If the Constitution may be amended in onerespect without the amendment being spread upon the Journals of one of therespective Houses of the Legislature, then it may be amended inany other respect in the same manner. It is not for the courts to determine what is a

wise proposed amendment or what is an unwise one. With the wisdom of the



policy the courts have nothing to do. But it is the duty of the courts, whencalled upon so to do, to deterine whether or not the procedure attempted tobe adopted is that which is required by the terms of the organic law.

"Finding that the organic law has not been complied with, as abovepointed out, the decree appealed from should be, and the same is hereby,affirmed on authority of the opinion and judgment in the case of Crawford vs.Gilchrist, 64 Fla., 41; 59 So., 953; Ann. Cas., 1914B, 916."

"The authorities are thus practically uniform in holding that whether a

constitutional amendment has been properly adopted according to therequirements of an existing constitution is a judicial question. There can belittle doubt that the consensus of judicial opinion is to the effect that it is theabsolute duty of the judiciary to deternnine whether the constitution has beenamended in the manner required by the constitution, unless a special tribunalhas been created to determine the question; and even then many of thecourts hold that the tribunal cannot be permitted to illegally amend theorganic law. There is some authority for the view that when the constitutionitself creates a special tribunal, and confides to it the exclusive power tocanvass votes and declare the results, and makes the amendment a part of the constitution as a result of such declaration by proclamation or otherwise,the action of such tribunal is final and conclusive. It may be conceded that

this is true when it clearly appears that such was the intention of the peoplewhen they adopted the constitution. The right to provide a special tribunal isnot open to question; but it is very certain that the people of Minnesota havenot done so, and this fact alone eliminates such case.

"Counsel for plaintiff in error contended that the proclamation of thegovernor declaring that the amendment was adopted was conclusive, andthat the courts could not inquire into the question. To this contention wecannot assent. The constitution is the supreme state law. It provides how itmay be amended. It makes no provision for exclusive determination by thegovernor as to whether anamendment has been made in the constitutionalmethod, and for the issuance by him of a binding proclamation to that effect.Such a proclamation may be both useful and proper, in order to inform the

people whether or not a change has been made in the fundamental law; butthe constitution did not make it conclusive on that subject. When theconstitution was submitted for ratification as awhole, a provision was madefor a proclamation of the result by the governor. Const. art. 13, section 2, par.2 (Civ. Code 1910, section 6613). But in reference to amendment there is nosuch provision. Const. article 13, section 1 par. 1 (Civ. Code 1910, section6610). In the absence of some other exclusive method of determinationprovided by the constitution, the weight of authority to the effect that whether an amendment has been properly adopted according to the requirements of the existing constitution is a judicial question.":

"(1) In the beginning we are confronted with the contention on:the part of appellees that this court has no jurisdiction to determine the

questions in issue here. In the case of Ellingham vs. Dye, 78 Ind., 336, 391;

99 N. E., 1, 21 (Ann. Cas. 1916C, 200), this court, after reviewing manydecisions as to the power of the courts to determine similar questions, sumsup the whole matter as follows:

" 'Whether legislative action is void for want of power in that body or because the constitutional forms or conditions have not been followed or have been violated (emphasis supplied) may becomejudicial question, andupon the courts the inevisible duty to determine it falls. And so the power resides in the courts, and they, have with practical uniformity, exercised theauthority to determine the validity of the pqroposal, submission, or ratification

of change in the organic law. Such is the qule in this state' — citing morethan 40 decisions of this and other states.

"(2) Appellees further contend that appellant has not made out acase entitling him to equitable relief. The trial court found that the officers of the state, who were instructed with the execution of the law, were about toexpend more than $500,000 under the law, in carrying out its provisions;indeed, it was suggested, in the course of the oral argument, that thenecessary expenditures would amount to more than $2,000,000. This court,in the case of Ellingham vs. Dye, supra, involving the submission to thepeople of the Constitution prepared by the Legislature, answered this samequestion contrary to the contention of appellees. See pages 413 and 414 of that opinion

"SEC. 382. b. Adoption of Constitution and Amendments. —Whether or not a new constitution has been adopted is a question to bedecided by the political departments of the government. Butwhether anamendment to the existing constitution has been duly proposed, adopted,and ratified in the manner required by the constitution, so as to become partthereof, is a question for the courts to determine, except where the matter has been committed by the constitution to a special tribunal with power tomake a conclusive determination, as where the governor is vested with thesole right and duty of ascertaining and declaring the result, in which casethecourts have no jurisdiction to revise his decision. But it must be made clearlyto appear that the constitution has been violated before the court iswarranted in interfering. In any event, whether an entire constitution is

involved, or merely an amendment, the federal courts will not attempt to passon the legality of such constitution or amendment where its validity has beenrecognized by the political departments of the state government, andacquiescedin by the state judiciary." (12 C. J., pp. 880, 881.)

VI"But the Supreme Court of the United States, in the case of South

Ottawa vs. Perkins, 94 U. S., 260; 24 Law., ed., 164, on appear from theUnited States court for the Northern district of Illinois (Mr. Justice Bradleydelivering the opinion), said: 'When once it became the settled constructionof the Constitution of Illinois that no act can be deemed a valid law, unless bythe journals of the Legislature it appears to have been regularly passed byboth houses it became the duty of the courts to take judicial notice of the

journal entries in that regard. The courts of Illinois may declinto take that



trouble, unless parties bring the matter to their attention, but on generalprinciples the question as to the existence of a law is a judicial one and mustbe so regarded by the courts of the United States."

Judge Cooley in his work on Constitutional Limitations (7th Ed 193),says: 'Each house keeps a journal of its proceedings which is a public record,and of which the courts are at liberty to take judicial notice. If it would appear from these journals that any act did not receive the requisite majority, or thatin respect to it the Legislature did not follow any requirement of theConstitution or that in any other respect the act was not constitutionally

adopted, the courts may act upon this evidence, and adjudge the statutevoid. But whenever it is acting in apparent performance of legal functions,every reasonable presumption is to be made in favor of the action of alegislative body. It will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded aconstitutional requirement in the passage of legislative acts, unless when theConstitution has expressly required the journals to show the action taken, as,for instance, where it requires the yeas and nays to be entered.

Sutherland, en su tambien celebrada obra sobre StatutoryConstruction, seccion 46 y siguientes, tambien sedeclara a favor del "journalentry rule" con el siguiente pronunciamiento:

"The presumption is that an act properly authenticated was regularly

passed, unless there is evidence of which the courts take judicial noticeshowing the contrary. The journals are records, and, in all respects touchingproceedings under the mandatory provisions of the Constitution, will beeffected to impeach and avoid the acts recorded as laws and dulyauthenticated, if the journals affirmatively show that these provisions havebeen disregarded. . . The journals by being required by the Constitution or laws, are record . . .

"When required, as is extensively the case in this country, by aparamount law, for the obvious purpose of showing how the mandatoryprovisions of that law have been followed in the methods and forms of legislation, they are thus made records in dignity, and are of greatimportance. The legislative acts regularly authenticated are also records. The

acts passed, duly authenticated, and such journals are parallel records; butthe latter are superior, when explicit and conflicting with the other, for theacts authenticated speak decisively only when the journals are silent, and noteven then as to particulars required to be entered therein

We have quoted Judge Cooley's language because of the greatrespect that his opinions always command, and also because of the fact thatit is upon the authority of his opinion that many of the decision in support of the American rule have been based."

"By whom oath of office may be administered. — The oath of officemay be administered by any officer generally qualified to administer oath; butthe oath of office of the members and officers of either house of the

legislature may also be administered by persons designated for suchpurpose by the respective houses.

"For the vote required in the passage of any particular lawder isreferred to the Constitution of his State. A simple majority of a quorum issufficient, unless the Constitution establishes some other rule; and where, bythe Constitution, a two-thirds-fourths vote is made essential to the passage of any particular class of bills two-thirds or three-fourths of a quorum will bestood, unless the terms employed clearly indicate that this;ion of all the

members, or of all those elected, is intended. (A constitutional requirementthat the assent of two-thirds of the members elected to each house of thelegislature shall be requisite to every bill appropriating the public money or property for local or private purposes, is mandatory, and cannot be evadedby calling a bill a 'joint resolution'.)

Fotenote: "Such a requirement is too clear and too valuable to bethus frittered away." Allen vs. Board of State Auditors, 122 Mich., 324; 47L.R.A., 117.)

FIRST DIVISION[G.R. No. L-29788. August 30, 1972.]

RAFAEL S. SALAS, in his capacity as Executive Secretary;CONRADO F. ESTRELLA, in his capacity as Governor of the LandAuthority; and LORENZO GELLA, in his capacity as Register of Deedsof Manila, petitioners-appellants, vs. HON. HILARION U. JARENCIO, asPresiding Judge of Branch XXIII, Court of First Instance of Manila;ANTONIO J. VILLEGAS, in his capacity as Mayor of the City of Manila;and the CITY OF MANILA, respondents-appellees.

Solicitor General Felix V. Makasiar, Assistant Solicitor GeneralAntonio A. Torres, Solicitor Raul I. Goco and Magno B. Pablo & Cipriano A.Tan, Legal Staff, Land Authority for petitioners-appellants.

Gregorio A. Ejercito and Felix C. Chavez for respondents-appellees.SYLLABUS

1. POLITICAL LAW; MUNICIPAL CORPORATIONS; POWEROF THE CITY OF MANILA AS A MUNICIPAL CORPORATION;ACQUISITION OF PROPERTY IN PRIVATE CAPACITY. — The City of Manila could validly acquire property in its corporate or private capacity,following the accepted doctrine on the dual character — public and private —of a municipal corporation. And when it acquires property in its privatecapacity, it acts like an ordinary person capable of entering into contracts or making transactions for the transmission of title or other real rights. When itcomes to acquisition of land, it must have done so under any of the modesestablished by law for the acquisition of ownership and other real rights.

2. ID.; ID.; ID.; ID.; IF THERE IS NO SHOWING THAT LANDWAS ACQUIRED WITH PRIVATE FUNDS, PRESUMPTION IS THAT

STATE IS SOURCE. — In the absence of a title deed to any land claimed by



the City of Manila as its own, showing that it was acquired with its private or corporate funds, the presumption is that such land came from the State uponthe creation of the municipality.

3. ID.; ID.; CLASSIFICATION OF PROPERTY IN ITSPOSSESSION. — Originally the municipality owned no patrimonial propertyexcept those that were granted by the State not for its public but for privateuse. Other properties it owns are acquired in the course of the exercise of itscorporate powers as a juridical entity to which category a municipalcorporation pertains.

4. ID.; ID.; ID.; CONCEPT OF LEGUA COMUNALEXPLAINED. — Comunal lands or "legua comunal" came into existencewhen a town or pueblo was established in this country under the laws of Spain. The municipalities of the Philippines were not entitled, as a matter of right, to any part of the public domain for use as communal lands. TheSpanish law provided that the usufruct of a portion of the public domainadjoining municipal territory might be granted by the Government for communal purposes, upon proper petition, but, until granted, no right thereinpassed to the municipalities, and. in any event, the ultimate title remained inthe Sovereign.

5. ID.; ID.; ID.; GENERAL RULE ON THE NATURE OF THEPOSSESSION OF LAND BY THE MUNICIPAL CORPORATION. — It may

be laid down as a general rule that regardless of the source or classificationof land in the possession of a municipality, excepting those acquired with itsown funds in its private or corporate capacity, such property is held in trustfor the State for the benefit of its inhabitants, whether it be for governmentalor proprietary purposes. It holds such lands subject to the paramount power of the legislature to dispose of the same, for after all it owes its creation to itas an agent for the performance of a part of its public work, the municipalitybeing but a subdivision or instrumentality thereof for purposes of localadministration. Accordingly, the legal situation is the same as if the Stateitself holds the property and puts it to a different use.

6. ID.; ID.; ID.; LEGISLATIVE CONTROL OVER PROPERTYOF MUNICIPAL CORPORATION; POWER OF LEGISLATURE OVER

LANDS HELD BY MUNICIPALITY IN TRUST FOR THE STATE. —Legislative control over a municipal corporation is not absolute even when itcomes to its property devoted to public use, for such control must not beexercised to the extent of depriving persons of their property or rights withoutdue process of law, or in a manner impairing the obligations of contracts.Nevertheless, when it comes to property of the municipality which it did notacquire in its private or corporate capacity with its own funds, the legislaturecan transfer its administration and disposition to an agency of the NationalGovernment to be disposed of according to its discretion. Here it did so inobedience to the constitutional mandate of promoting social justice to insurethe well-being and economic security of the people.

7. ID.; ID.; ID.; LEGISLATIVE HAS WIDE DISCRETIONARY

POWERS IN CLASSIFYING STATE PROPERTY. — The act of classifying

State property calls for the exercise of wide discretionary legislative power and it should not be interfered with by the courts.

8. ID.; ID.; ID.; PROPERTY IN CASE AT BAR IS HELD INTRUST FOR THE STATE. — The property subject of the litigation in thecase at bar was shown not to have been acquired by the City of Manila withits own funds in its private or proprietary capacity. That it has in its name aregistered title is not questioned, but this title should be deemed to be held intrust for the State as the land covered thereby was part of the territory of theCity of Manila granted by the sovereign upon its creation. That the National

Government, through the Director of Lands, represented by the Solicitor General, in the cadastral proceedings did not contest the claim of the City of Manila that the land is its property, does not detract from its character asState property and in no way divests the legislature of its power to deal with itas such, the State not being bound by the mistakes and/or negligence of itsofficers.

9. ID.; ID.; ID.; ALLEGED PATRIMONIAL CHARACTER OFLAND IN INSTANT CASE DISPROVED BY CITY'S OFFICIAL ACT. — Thealleged patrimonial character of the land under the ownership of the City of Manila is totally belied by the City's own official act, which is fatal to its claimsince the Congress did not do as bidden. If it were its patrimonial propertywhy should the City of Manila be requesting the President to make

representation to the legislature to declare it as such so it can be disposed of in favor of the actual occupants? There could be no more blatant recognitionof the fact that said land belongs to the State and was simply granted inusufruct to the City of Manila for municipal purposes.

10. STATUTES; PRESUMPTION IS ALWAYS IN FAVOR OFCONSTITUTIONALITY OF A STATUTE. — It is now well established that thepresumption is always in favor of the constitutionality of a law. To declare alaw unconstitutional, the repugnancy of that law to the Constitution must beclear and unequivocal for even if a law is aimed at the attainment of somepublic good, no infringement of constitutional rights is allowed. To strikedown a law there must be a clear showing that what the fundamental lawcondemns or prohibits, the statute allows it to be done.

11. ID., REPUBLIC ACT 4118 DOES NOT OPERATE AS ANEXERCISE OF THE POWER OF EMINENT DOMAIN WITHOUT JUSTCOMPENSATION. — Republic Act 4118 which "seeks to convert one parcelof land in the district of Malate, Manila, which is reserved as communalproperty into disposable or alienable property of the State and to provide itssubdivision and sale to bona fide occupants or tenants," was never intendedto expropriate the property involved but merely to confirm its character ascommunal land of the State and to make it available for disposition by theNational Government: And this was done at the instance or upon the requestof the City of Manila itself. The subdivision of the land and conveyance of theresulting subdivision lots to the occupants by Congressional authorizationdoes not operate as an exercise of the power of eminent domain without just

compensation in violation of Section 1, subsection (2), Article 111 of the



Constitution, but simply as a manifestation of its right and power to deal withstate property.

12. ID.; ID.; NO VIOLATION OF DUE PROCESS CLAUSE INTHE ENACTMENT OF THE STATUTE. — It should be emphasized that thelaw assailed was enacted upon formal written petition of the Municipal Boardof Manila in the form of a legally approved resolution. The certificate of titleover the property in the name of the City of Manila was accordingly cancelledand another issued to the Land Tenure Administration after the voluntarysurrender of the City's duplicate certificate of title by the City Treasurer with

the knowledge and consent of the City Mayor. To implement the provisions of Republic Act No. 4118, the then Deputy Governor of the Land Authority senta letter, dated February 18, 1965, to the City Mayor furnishing him with acopy of the "proposed subdivision plan of the said lot as prepared for theRepublic of the Philippines for subdivision and resale by the Land Authorityto bona fide applicants". On March 2, 1965, the Mayor of Manila through hisExecutive and Technical Adviser, acknowledged receipt of the subdivisionplan and informed the Land Authority that his Office "will interpose noobjection to the implementation of said law provided that its provisions arestrictly complied with". The foregoing sequence of events clearly indicates apattern of regularity and observance of due process in the reversion of theproperty to the National Government. All such acts were done in recognition

by the City of Manila of the right and power of the Congress to dispose of theland involved.D E C I S I O NESGUERRA, J p:This is a petition for review of the decision of the Court of First

Instance of Manila, Branch XXIII, in Civil Case No. 67946, dated September 23, 1968, the dispositive portion of which is as follows:

"WHEREFORE, the Court renders judgment declaring Republic ActNo. 4118 unconstitutional and invalid in that it deprived the City of Manila of its property without due process and payment of just compensation.Respondent Executive Secretary and Governor of the Land Authority arehereby restrained and enjoined from implementing the provisions of said law.

Respondent Register of Deeds of the City of Manila is ordered to cancelTransfer Certificate of Title No. 80876 which he had issued in the name of the Land Tenure Administration and reinstate Transfer Certificate of Title No.22547 in the name of the City of Manila which he cancelled, if that is feasible,or issue a new certificate of title for the same parcel of land in the name of the City of Manila." 1

The facts necessary for a clear understanding of this case are asfollows:

On February 24, 1919, the 4th Branch of the Court of First Instanceof Manila, acting as a land registration court, rendered judgment in Case No.18, G.L.R.O. Record No. 111, declaring the City of Manila the owner in feesimple of a parcel of land known as Lot No. 1, Block 557 of the Cadastral

Survey of the City of Manila, containing an area of 9,689.8 square meters,

more or less. Pursuant to said judgment the Register of Deeds of Manila onAugust 21, 1920, issued in favor of the City of Manila, Original Certificate of Title No. 4329 covering the aforementioned parcel of land. On various datesin 1924, the City of Manila sold portions of the aforementioned parcel of landin favor of Pura Villanueva. As a consequence of the transactions OriginalCertificate of Title No. 4329 was cancelled and transfer certificates of titlewere issued in favor of Pura Villanueva for the portions purchased by her.When the last sale to Pura Villanueva was effected on August 22, 1924,Transfer Certificate of Title No. 21974 in the name of the City of Manila was

cancelled and in lieu thereof Transfer Certificate of Title (T.C.T.) No. 22547covering the residue thereof known as Lot 1-B-2-B of Block 557, with an areaof 7,490.10 square meters, was issued in the name of the City of Manila.

On September 21, 1960, the Municipal Board of Manila, presided bythen Vice-Mayor Antonio J. Villegas, adopted a resolution requesting HisExcellency, the President of the Philippines to consider the feasibility of declaring the City property bounded by Florida, San Andres, and NebraskaStreets, under Transfer Certificate of Title Nos. 25545 and 22547, containinga total area of 7,450 square meters as a patrimonial property of the City of Manila for the purpose of reselling these lots to the actual occupants thereof.2

The said resolution of the Municipal Board of the City of Manila was

officially transmitted to the President of the Philippines by then Vice-Mayor Antonio J. Villegas on September 21, 1960, with the information that thesame resolution was, on the same date, transmitted to the Senate andHouse of Representatives of the Congress of the Philippines. 3

During the First Session of the Fifth Congress of the Philippines,House Bill No. 191 was filed in the House of Representatives by thenCongressman Bartolome Cabangbang seeking to declare the property inquestion as patrimonial property of the City of Manila, and for other purposes. The explanatory note of the Bill gave the grounds for itsenactment, to wit:

"In the particular case of the property subject of this bill, the City of Manila does not seem to have use thereof as a public communal property.

As a matter of fact, a resolution was adopted by the Municipal Board of Manila at its regular session held on September 21, 1960, to request thefeasibility of declaring the city property bounded by Florida, San Andres andNebraska Streets as a patrimonial property of the City of Manila for thepurpose of reselling these lots to the actual occupants thereof. Therefore, itwill be to the best interest of society that the said property be used in oneway or another. Since this property has been occupied for a long time by thepresent occupants thereof and since said occupants have expressed their willingness to buy the said property, it is but proper that the same be sold tothem." 4

Subsequently, a revised version of the Bill was introduced in theHouse of Representatives by Congressmen Manuel Cases, Antonio Raquiza



and Nicanor Yñiguez as House Bill No. 1453, with the following explanatorynote:

"The accompanying bill seeks to convert one (1) parcel of land in thedistrict of Malate, which is reserved as communal property into a disposableor alienable property of the State and to provide its subdivision and sale tobona fide occupants or tenants.

"This parcel of land in question was originally an aggregate part of apiece of land with an area of 9,689.8 square meters, more or less. . . . OnSeptember 21, 1960, the Municipal Board of Manila in its regular session

unanimously adopted a resolution requesting the President of the Philippinesand Congress of the Philippines the feasibility of declaring this property intodisposable or alienable property of the State. There is therefore a precedentthat this parcel of land could be subdivided and sold to bona fide occupants.This parcel of land will not serve any useful public project because it isbounded on all sides by private properties which were formerly parts of thislot in question.

"Approval of this bill will implement the policy of the Administration of land for the landless and the Fifth Declaration of Principles of theConstitution, which states that the promotion of Social Justice to insure thewell-being and economic security of all people should be the concern of theState. We are ready and willing to enact legislation promoting the social and

economic well-being of the people whenever an opportunity for enactingsuch kind of legislation arises.In view of the foregoing consideration and to insure fairness and

justice to the present bona fide occupants thereof, approval of this Bill isstrongly urged." 5

The Bill having been passed by the House of Representatives, thesame was thereafter sent to the Senate where it was thoroughly discussed,as evidenced by the Congressional Records for May 20, 1964, pertinentportion of which is as follows:

"SENATOR FERNANDEZ: Mr. President, it will be recalled that whenthe late Mayor Lacson was still alive, we approved a similar bill. Butafterwards, the late Mayor Lacson came here and protested against the

approval, and the approval was reconsidered. May I know whether the defectin the bill which we approved, has already been eliminated in this presentbill?

"SENATOR TOLENTINO: I understand Mr. President, that hasalready been eliminated, and that is why the City of Manila has no moreobjection to this bill.

"SENATOR FERNANDEZ: Mr. President, in view of thatmanifestation and considering that Mayor Villegas and Congressman Albertof the Fourth District of Manila are in favor of the bill. I would not want topretend to know more what is good for the City of Manila.

"SENATOR TOLENTINO: Mr. President, there being no objection, Imove that we approve this bill on second reading.

"PRESIDENT PRO-TEMPORE: The bill is approved on secondreading after several Senators said aye and nobody said nay."

The bill was passed by the Senate, approved by the President onJune 20, 1964, and became Republic Act No. 4118. It reads as follows:

Lot 1-B-2-B op Block 557 of the cadastral survey of the City of Manila, situated in the District of Malate. City of Manila, which is reserved ascommunal property, is hereby converted into disposal or alienable land of theState, to be placed under the disposal of the Land Tenure Administration.The Land Tenure Administration shall subdivide the property into small lots,

none of which shall exceed one hundred and twenty square meters in areaand sell the same on installment basis to the tenants or bona fide occupantsthereof and to individuals, in the order mentioned: Provided, That no downpayment shall be required of tenants or bona fide occupants who cannotafford to pay such down payment: Provided, further, That no person canpurchase more than one lot: Provided, furthermore, That if the tenant or bonafide occupant of any given lot is not able to purchase the same, he shall begiven a lease from month to month until such time that he is able to purchasethe lot: Provided, still further, That in the event of lease the rentals which maybe charged shall not exceed eight per cent per annum of the assessed valueof the property leased: And provided, finally, That in fixing the price of eachlot, which shall not exceed twenty pesos per square meter, the cost of

subdivision and survey shall not be included."Sec. 2.Upon approval of this Act no ejectment proceedings againstany tenant or bona fide occupant of the above lots shall be instituted and anyejectment proceedings pending in court against any such tenant or bona fideoccupant shall be dismissed upon motion of the defendant: Provided, Thatany demolition order directed against any tenant or bona fide occupant shallbe lifted.

"Sec. 3.Upon approval of this Act, if the tenant or bona fide occupantis in arrears in the payment of any rentals, the amount legally due shall beliquidated and shall be payable in twenty-four equal monthly installmentsfrom the date of liquidation.

"Sec. 4.No property acquired by virtue of this Act shall be

transferred, sold, mortgaged, or otherwise disposed of within a period of fiveyears from the date full ownership thereof has been vested in the purchaser without the consent of the Land Tenure Administration.

"Sec. 5.In the event of the death of the purchaser prior to thecomplete payment of the price of the lot purchased by him, his widow andchildren shall succeed in all his rights and obligations with respect to his lot.

"Sec. 6.The Chairman of the Land Tenure Administration shallimplement and issue such rules and regulations as may be necessary tocarry out the provisions of this Act.

"Sec. 7.The sum of one hundred fifty thousand pesos is appropriatedout of any funds in the National Treasury not otherwise appropriated, to carryout the purposes of this Act.



"Sec. 8.All laws or parts of laws inconsistent with this Act arerepealed or modified accordingly.

"Sec. 9.This Act shall take effect upon its approval."Approved, June 20, 1964."To implement the provisions of Republic Act No. 4118, and pursuant

to the request of the occupants of the property involved, then DeputyGovernor Jose V. Yap of the Land Authority (which succeeded the LandTenure Administration) addressed a letter, dated February 18, 1965, toMayor Antonio Villegas, furnishing him with a copy of the proposed

subdivision plan of said lot as prepared for the Republic of the Philippines for resale of the subdivision lots by the Land Authority to bona fide applicants. 6On March 2, 1965, the City Mayor of Manila, through his Executive

and Technical Adviser, acknowledged receipt of the proposed subdivisionplan of the property in question and informed the Land Authority that hisoffice would interpose no objection to the implementation of said law,provided that its provisions be strictly complied with. 7

With the above-mentioned written conformity of the City of Manila for the implementation of Republic Act No. 4118, the Laud Authority, thru thenDeputy Governor Jose V. Yap, requested the City Treasurer of Manila, thruthe City Mayor, for the surrender and delivery to the former of the owner'sduplicate of Transfer Certificate of Title No. 22547 in order to obtain title

thereto in the name of the Land Authority. The request was duly granted withthe knowledge and consent of the Office of the City Mayor. 8

With the presentation of Transfer Certificate of Title No. 22547,which had been yielded as above stated by the City authorities to the LandAuthority, Transfer Certificate of Title (T.C.T. No. 22547) was cancelled bythe Register of Deeds of Manila and in lieu thereof Transfer Certificate of Title No. 80876 was issued in the name of the Land Tenure Administration(now Land Authority) pursuant to the provisions of Republic Act No. 4118. 9

But due to reasons which do not appear in the record, the City of Manila made a complete turn-about, for on December 20, 1966, Antonio J.Villegas, in his capacity as the City Mayor of Manila and the City of Manila as

a duly organized public corporation, brought an action for injunction and/or prohibition with preliminary injunction to restrain, prohibit and enjoin theherein appellants, particularly the Governor of the Land Authority and theRegister of Deeds of Manila, from further implementing Republic Act No.4118, and praying for the declaration of Republic Act No. 4118 asunconstitutional.

With the foregoing antecedent facts, which are all contained in thepartial stipulation of facts submitted to the trial court and approved byrespondent Judge, the parties waived the presentation of further evidenceand submitted the case for decision. On September 23, 1968, judgment wasrendered by the trial court declaring Republic Act No. 4118 unconstitutionaland invalid on the ground that it deprived the City of Manila of its property

without due process of law and payment of just compensation. The

respondents were ordered to undo all that had been done to carry out theprovisions of said Act and were restrained from further implementing thesame.

Two issues are presented for determination, on the resolution of which the decision in this case hinges, to wit:

I. Is the property involved private or patrimonial property of theCity of Manila?

II. Is Republic Act No. 4118 val id and not repugnant to theConstitution?

IAs regards the first issue, appellants maintain that the land involvedis a communal land or "legua comunal" which is a portion of the publicdomain owned by the State; that it came into existence as such when theCity of Manila, or any pueblo or town in the Philippines for that matter, wasfounded under the laws of Spain, the former sovereign; that upon theestablishment of a pueblo, the administrative authority was required to allotand set aside portions of the public domain for a public plaza, a church site, asite for public buildings, lands to serve as common pastures and for streetsand roads; that in assigning these lands some lots were earmarked for strictly public purposes, and ownership of these lots (for public purposes)immediately passed to the new municipality; that in the case of common

lands or "legua comunal", there was no such immediate acquisition of ownership by the pueblo, and the land though administered thereby, did notautomatically become its property in the absence of an express grant fromthe Central Government, and that the reason for this arrangement is that thisclass of land was not absolutely needed for the discharge of themunicipality's governmental functions.

It is argued that the parcel of land involved herein has not been usedby the City of Manila for any public purpose and had not been officiallyearmarked as a site for the erection of some public buildings; that thiscircumstance confirms the fact that it was originally "communal" land allotedto the City of Manila by the Central Government not because it was neededin connection with its organization as a municipality but simply for the

common use of its inhabitants; that the present City of Manila as successor of the Ayuntamiento de Manila under the former Spanish sovereign merelyenjoys the usufruct over said land, and its exercise of acts of ownership byselling parts thereof did not necessarily convert the land into a patrimonialproperty of the City of Manila nor divest the State of its paramount title.

Appellants further argue that a municipal corporation, like a city is agovernmental agent of the State with authority to govern a limited portion of its territory or to administer purely local affairs in a given political subdivision,and the extent of its authority is strictly delimited by the grant of power conferred by the State; that Congress has the exclusive power to create,change or destroy municipal corporations; that even if We admit thatlegislative control over municipal corporations is not absolute and even if it is

true that the City of Manila has a registered title over the property in question,



the mere transfer of such land by an act of the legislature from one class of public land to another, without compensation, does not invade the vestedrights of the City.

Appellants finally argue that Republic Act No. 4118 has treated theland involved as one reserved for communal use, and this classification isconclusive upon the courts; that if the City of Manila feels that this is wrongand its interests have been thereby prejudiced, the matter should be broughtto the attention of Congress for correction; and that since Congress, in theexercise of its wide discretionary powers has seen fit to classify the land in

question as communal, the Courts certainly owe it to coordinate branch of the Government to respect such determination and should not interfere withthe enforcement of the law.

Upon the other hand, appellees argue by simply quoting portions of the appealed decision of the trial court, which read thus:

"The respondents (petitioners-appellants herein) contend, amongother defenses, that the property in question is communal property. Thiscontention is, however, disproved by Original Certificate of Title No. 4329issued on August 21, 1920 in favor of the City of Manila after the land inquestion was registered in the City's favor. The Torrens Title expressly statesthat the City of Manila was the owner in 'fee simple' of the said land. Under Sec. 38 of the Land Registration Act, as amended, the decree of confirmation

and registration in favor of the City of Manila . . . shall be conclusive uponand against all persons including the Insular Government and all thebranches there . . . is nothing in the said certificate of title indicating that theland was 'communal' land as contended by the respondents. The erroneousassumption by the Municipal Board of Manila that the land in question wascommunal land did not make it so. The Municipal Board had no authority todo that.

"The respondents, however, contend that Congress had the power and authority to declare that the land in question was 'communal' land andthe courts have no power or authority to make a contrary finding. Thiscontention is not entirely correct or accurate. Congress has the power toclassify 'land of the public domain', transfer them from one classification to

another and declare them disposable or not. Such power does not, however,extend to properties which are owned by cities, provinces and municipalitiesin their 'patrimonial' capacity.

"Art. 324 of the Civil Code provides that properties of provinces,cities and municipalities are divided into properties for public use andpatrimonial property Art. 424 of the same code provides that properties for public use consist of provincial roads, city streets, municipal streets, thesquares, fountains, public waters, promenades and public works for publicservice paid for by said province, cities or municipalities. All other propertypossessed by any of them is patrimonial. Tested by this criterion the Courtfinds and holds that the land in question is patrimonial property of the City of Manila.

"Respondents contend that Congress has declared the land inquestion to be 'communal' and, therefore, such designation is conclusiveupon the courts. The Courts holds otherwise. When a statute is assailed asunconstitutional the Courts have the power and authority to inquire into thequestion and pass upon it. This has long ago been settled in Marbury vs.Madison, 2 L. ed. 60, when the United States Supreme Court speaking thruChief Justice Marshall held:

'. . . If an act of the legislature, repugnant to the constitution, is void,does it, notwithstanding its validity, bind the courts, and oblige them to give

effect? It is emphatically the province and duty of the judicial department tosay what the law is . . . So if a law be in opposition to the constitution; if boththe law and the constitution apply to a particular case, so that the court musteither decide that case conformable to the constitution, disregarding the law,the court must determine which of these conflicting rules governs the case.This is of the very essence of unconstitutional judicial duty.'"

Appellees finally concluded that when the courts declare a lawunconstitutional it does not mean that the judicial power is superior to thelegislative power. It simply means that the power of the people is superior toboth and that when the will of the legislature, declared in statutes, stands inopposition to that of the people, declared in the Constitution, the judgesought to be governed by the Constitution rather than by the statutes.

There is one outstanding factor that should be borne in mind inresolving the character of the land involved, and it is that the City of Manila,although declared by the Cadastral Court as owner in fee simple, has notshown by any shred of evidence in what manner it acquired said land as itsprivate or patrimonial property. It is true that the City of Manila as well as itspredecessor, the Ayuntamiento de Manila, could validly acquire property inits corporate or private capacity, following the accepted doctrine on the dualcharacter — public and private — of a municipal corporation. And when itacquires property in its private capacity, it acts like an ordinary personcapable of entering into contracts or making transactions for the transmissionof title or other real rights. When it comes to acquisition of land, it must havedone so under any of the modes established by law for the acquisition of

ownership and other real rights. In the absence of a title deed to any landclaimed by the City of Manila as its own, showing that it was acquired with itsprivate or corporate funds, the presumption is that such land came from theState upon the creation of the municipality (Unson vs. Lacson, et al., 100Phil. 695). Originally the municipality owned no patrimonial property exceptthose that were granted by the State not for its public but for private use.Other properties it owns are acquired in the course of the exercise of itscorporate powers as a juridical entity to which category a municipalcorporation pertains.

Communal lands or "legua comunal" came into existence when atown or pueblo was established in this country under the laws of Spain (LawVII, Title III, Book VI, Recopilacion de las Leyes de Indios). Themunicipalities of the Philippines were not entitled, as a matter of right, to any

t f th bli d i f l l d Th S i h l " Th i t ll d b th f th l th t th l i l t



part of the public domain for use as communal lands. The Spanish lawprovided that the usufruct of a portion of the public domain adjoiningmunicipal territory might be granted by the Government for communalpurposes, upon proper petition, but, until granted, no rights therein passed tothe municipalities, and, in any event, the ultimate title remained in thesovereign (City of Manila vs. Insular Government, 10 Phil. 327).

"For the establishment, then, of new pueblos the administrativeauthority of the province, in representation of the Governor General,designated the territory for their location and extension and the metes and

bounds of the same; and before alloting the lands among the new settlers, aspecial demarcation was made of the places which were to serve as thepublic square of the pueblo, for the erection of the church, and as cites for the public buildings, among others, the municipal building or the case real, aswell as of the lands which were to constitute the common pastures, andpropios of the municipality and the streets and roads which were to intersectthe new town were laid out, . . ." (Municipality of Catbalogan vs. Director of Lands, 17 Phil. 216, 220) (Emphasis supplied)

It may, therefore, be laid down as a general rule that regardless of the source or classification of land in the possession of a municipality,excepting those acquired with its own funds in its private or corporatecapacity, such property is held in trust for the State for the benefit of its

inhabitants, whether it be for governmental or proprietary purposes. It holdssuch lands subject to the paramount power of the legislature to dispose of the same, for after all it owes its creation to it as an agent for theperformance of a part of its public work, the municipality being but asubdivision or instrumentality thereof for purposes of local administration.Accordingly, the legal situation is the same as if the State itself holds theproperty and puts it to a different use (2 Mc Quilin, Municipal Corporations,3rd Ed., p. 197, citing Monagham vs. Armatage, 218 Minn. 27, 15 N.W. 2nd241).

True it is that the legislative control over a municipal corporation isnot absolute even when it comes to its property devoted to public use, for such control must not be exercised to the extent of depriving persons of their

property or lights without due process of law, or in a manner impairing theobligations of contracts. Nevertheless, when it comes to property of themunicipality which it did not acquire in its private or corporate capacity withits own funds, the legislature can transfer its administration and disposition toan agency of the National Government to be disposed of according to itsdiscretion. Here it did so in obedience to the constitutional mandate of promoting social justice to insure the well-being and economic security of thepeople.

It has been held that a statute authorizing the transfer of a Municipalairport to an Airport Commission created by the legislature, even withoutcompensation to the city, was not violative of the due process clause of theAmerican Federal Constitution. The Supreme Court of Minnessota inMonagham vs. Armatage, supra, said:

". . . The case is controlled by the further rule that the legislature,having plenary control of the local municipality, of its creation and of all itsaffairs, has the right to authorize or direct the expenditures of money in itstreasury, though raised, for a particular purpose, for any legitimate municipalpurpose, or to order and direct a distribution thereof upon a division of theterritory into separate municipalities . . . The local municipality has no suchvested right in or to its public funds, like that which the Constitution protectsin the individual as precludes legislative interferences. People vs. Power, 25Ill. 187; State Board (of Education) vs. City, 56 Miss. 518. As remarked by

the supreme court of Maryland in Mayor vs. Sehner, 37 Md. 180: 'It is of theessence of such a corporation, that the government has the sole right astrustee of the public interest, at its own good will and pleasure, to inspect,regulate, control, and direct the corporation, its funds, and franchises.'

"We therefore hold that c.500, in authorizing the transfer of the useand possession of the municipal airport to the commission withoutcompensation to the city or to the park board, does not violate the FourteenthAmendment to the Constitution of the United States."

The Congress has dealt with the land involved as one reserved for communal use (terreno comunal). The act of classifying State property callsfor the exercise of wide discretionary legislative power and it should not beinterfered with by the courts.

This brings Us to the second question as regards the validity of Republic Act No. 4118, viewed in the light of Article III, Sections 1,subsection (1) and (2) of the Constitution which ordain that no person shallbe deprived of his property without due process of law and that no privateproperty shall be taken for public use without just compensation.

IIThe trial court declared Republic Act No. 4118 unconstitutional for

allegedly depriving the City of Manila of its property without due process of law and without payment of just compensation. It is now well established thatthe presumption is always in favor of the constitutionality of a law (U. S. vs.Ten Yu, 24 Phil, 1; Go Ching, et al. vs. Dinglasan, et al., 45 O.G. No. 2, pp.703, 705). To declare a law unconstitutional, the repugnancy of that law to

the Constitution must be clear and unequivocal, for even if a law is aimed atthe attainment of some public good, no infringement of constitutional rights isallowed. To strike down a law there must be a clear showing that what thefundamental law condemns or prohibits, the statute allows it to be done(Morfe vs. Mutuc, et al., G.R. No. L-20387, Jan. 31, 1968; 22 SCRA 424).That situation does not obtain in this case as the law assailed does not in anymanner trench upon the constitution as will hereafter be shown.

Republic Act No. 4118 was intended to implement the social justicepolicy of the Constitution and the Government program of "Land for theLandless". The explanatory note of House Bill No. 1453 which becameRepublic Act No. 4118, reads in part as follows:

"Approval of this bill will implement the policy of the administration of 'land for the landless' and the Fifth Declaration of Principles of the

C tit ti hi h t t th t 'th ti f i l j ti t i th t h h ld th Cit f M il b ti th P id t t k



Constitution which states that 'the promotion of social justice to insure thewell-being and economic security of all people should be the concern of theState.' We are ready and willing to enact legislation promoting the social andeconomic well-being of the people whenever an opportunity for enactingsuch kind of legislation arises.'"

The respondent Court held that Republic Act No. 4118, "byconverting the land in question — which is the patrimonial property of theCity of Manila into disposable alienable land of the State and placing it under the disposal of the Land Tenure Administration — violates the provisions of

Article III (Secs. 1 and 2) of the Constitution which ordain that "privateproperty shall not be taken for public use without just compensation, and thatno person shall be deprived of life, liberty or property without due process of law". In support thereof reliance is placed on the ruling in Province of Zamboanga del Norte vs. City of Zamboanga, G.R. No. 2440, March 28,1968; 22 SCRA 1334, which holds that Congress cannot deprive amunicipality of its private or patrimonial property without due process of lawand without payment of just compensation since it has no absolute controlthereof. There is no quarrel over this rule if it is undisputed that the propertysought to be taken is in reality a private or patrimonial property of themunicipality or city. But it would be simply begging the question to classifythe land in question as such. The property, as has been previously shown,

was not acquired by the City of Manila with its own funds in its private or proprietary capacity. That it has in its name a registered time is notquestioned, but this title should be deemed to be held in trust for the State asthe land covered thereby was part of the territory of the City of Manilagranted by the sovereign upon its creation. That the National Government,through the Director of Lands, represented by the Solicitor General, in thecadastral proceedings did not contest the claim of the City of Manila that theland is its property does not detract from its character as State property andin no way divests the legislature of its power to deal with it as such, the statenot being bound by the mistakes and/or negligence of its officers.

One decisive fact that should be noted is that the City of Manilaexpressly recognized the paramount title of the State over said land when by

its resolution of September 20, 1960, the Municipal Board, presided by thenVice-Mayor Antonio Villegas, requested "His Excellency the President of thePhilippines to consider the feasibility of declaring the city property boundedby Florida, San Andres and Nebraska Streets, under Transfer Certificate of Title Nos. 25545 and 25547, containing an area of 7,450 square meters, aspatrimonial property of the City of Manila for the purpose of reselling theselots to the actual occupants thereof ." (See Annex E, Partial Stipulation of Facts, Civil Case No. 67945, CFI, Manila, p. 121, Record of the Case)[Emphasis Supplied]

The alleged patrimonial character of the land under the ownership of the City of Manila is totally belied by the City's own official act, which is fatalto its claim since the Congress did not do as bidden. If it were its patrimonial

property why should the City of Manila be requesting the President to makerepresentation to the legislature to declare it as such so it can be disposed of in favor of the actual occupants? There could be no more blatant recognitionof the fact that said land belongs to the State and was simply granted inusufruct to the City of Manila for municipal purposes. But since the City didnot actually use said land for any recognized public purpose and allowed it toremain idle and unoccupied for a long time until it was overrun by squatters,no presumption of State grant of ownership in favor of the City of Manila maybe acquiesced in to justify the claim that it is its own private or patrimonial

property (Municipality of Tigbauan vs. Director of Lands, 35 Phil. 798; City of Manila vs. Insular Government, 10 Phil. 327; Municipality of Luzuriaga vs.Director of Lands, 24 Phil. 193). The conclusion of the respondent court thatRepublic Act No. 4118 converted a patrimonial property of the City of Manilainto a parcel of disposable land of the State and took it away from the Citywithout compensation is, therefore, unfounded. In the last analysis the land inquestion pertains to the State and the City of Manila merely acted as trusteefor the benefit of the people therein for whom the State can legislate in theexercise of its legitimate powers.

Republic Act No. 4118 was never intended to expropriate theproperty involved but merely to confirm its character as communal land of theState and to make it available for disposition by the National Government:

And this was done at the instance or upon the request of the City of Manilaitself. The subdivision of the land and conveyance of the resulting subdivisionlots to the occupants by Congressional authorization does not operate as anexercise of the power of eminent domain without just compensation inviolation of Section 1, subsection (2), Article III of the Constitution, but simplyas a manifestation of its right and power to deal with state property.

It should be emphasized that the law assailed was enacted uponformal written petition of the Municipal Board of Manila in the form of a legallyapproved resolution. The certificate of title over the property in the name of the City of Manila was accordingly cancelled and another issued to the LandTenure Administration after the voluntary surrender of the City's duplicatecertificate of title by the City Treasurer with the knowledge and consent of the

City Mayor. To implement the provisions of Republic Act No. 4118, the thenDeputy Governor of the Land Authority sent a letter, dated February 18,1965, to the City Mayor furnishing him with a copy of the "proposedsubdivision plan of the said lot as prepared for the Republic of the Philippinesfor subdivision and resale by the Land Authority to bona fide applicants." OnMarch 2, 1965, the Mayor of Manila, through his Executive and TechnicalAdviser, acknowledged receipt of the subdivision plan and informed the LandAuthority that his Office "will interpose no objection to the implementation of said law provided that its provisions are strictly complied with." The foregoingsequence of events, clearly indicate a pattern of regularity and observance of due process in the reversion of the property to the National Government. Allsuch acts were done in recognition by the City of Manila of the right andpower of the Congress to dispose of the land involved.

C tl th Cit f M il t d i d f thi it t It i t d d t i th t i t it b i llifi d it



Consequently, the City of Manila was not deprived of anything itowns, either under the due process clause or under the eminent domainprovisions of the Constitution. If it failed to get from the Congress theconcession it sought of having the land involved given to it as its patrimonialproperty, the Courts possess no power to grant that relief. Republic Act No.4118 does not, therefore, suffer from any constitutional infirmity.

WHEREFORE, the appealed decision is hereby reversed andpetitioners shall proceed with the free and untrammeled implementation of Republic Act No. 4118 without any obstacle from the respondents. Without

costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando,Teehankee and Antonio, JJ., concur.

Barredo and Makasiar, JJ., did not take part.

EN BANC[G.R. No. L-23127. April 29, 1971.]FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee, vs.

PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OFPANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendant-appellant.

Dionisio E. Moya for plaintiff-appellee.

Ramon B. de los Reyes for defendant-appellant.SYLLABUS1. POLITICAL LAW; JUDICIAL REVIEW; EFFECTS OF THE

DECLARATION OF UNCONSTITUTIONALITY; ORTHODOX VIEW;MODIFIED IN CASE AT BAR. — The decision now on appeal reflects theorthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be thesource of any legal rights or duties. Nor can it justify any official act takenunder it. Its repugnancy to the fundamental law once judicially declaredresults in its being to all intents and purposes a mere scrap of paper. As thenew Civil Code puts it: "When the courts declare a law to be inconsistent withthe Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid onlywhen they are not contrary to the laws or the Constitution." It isunderstandable why it should be so, the Constitution being supreme andparamount. Any legislative or executive act contrary to its terms cannotsurvive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This isso as until after the judiciary, in an appropriate case, declares its invalidity, itis entitled to obedience and respect. Parties may have acted under it andmay have changed their positions. What could be more fitting than that in asubsequent litigation regard be had to what has been done while suchlegislative or executive act was in operation and presumed to be valid in all

respects. It is now accepted as a doctrine that prior to its being nullified, itsexistence as a fact must be reckoned with. This is merely to reflectawareness that precisely because the judicially is the governmental organwhich has the final say on whether or not a legislative or executive measureis valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be todeprive the law of its quality of fairness and justice then, if there be norecognition of what had transpired prior to such adjudication. In the languageof an American Supreme Court decision: "The actual existence of a statute,

prior to such a determination [of unconstitutionality], is an operative fact andmay have consequences which cannot justly be ignored. The past cannotalways be erased by a new judicial declaration. The effect of the subsequentruling as to invalidity may have to be considered in various aspects, — withrespect to particular relations, individual and corporate, and particular conduct private and official." (Chicot County Drainage Dist. v. Baxter StatesBank, 308 US 371, 374 (1940) This language has been quoted with approvalin a resolution in Araneta v. Hill (93 Phil. 1002 (1953) and the decision inManila Motor Co., Inc. v. Flores, (99 Phil. 738 (1956). An even more recentinstance is the opinion of Justice Zaldivar speaking for the Court inFernandez v. Cuerva and Co., 21 SCRA 1095.

2. ID., ID.; ID.; PRESCRIPTION PERIOD, TOLLED DURING

THE EFFECTIVITY OF EXECUTIVE ORDER NO. 32. — Precisely thoughbecause of the judicial recognition that moratorium was a valid governmentalresponse to the plight of the debtors who were war sufferers, this Court hasmade clear its view in a sense of cases impressive in their number andunanimity that during the eight-year period that Executive Order No. 32 andRepublic Act No. 312 were in force, prescription did not run. So it has beenheld from Day v. Court of First Instance, 94 Phil. 816 decided in 1954, toRepublic v. Hernaez, L-24137, January 30, 1970 handed down only lastyear. What is deplorable is that as of the time of the lower court decision onJanuary 27, 1960, a least eight decisions had left no doubt as to theprescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. Speaking of the opposite view entertained by the lower court, the

present Chief Justice, in Liboro v. Finance and Mining Investments Corp. hascategorized it as having been "explicitly and consistently rejected by thisCourt." The error of the lower court in sustain plaintiff's suit is thus manifest.From July 19, 1944, when her loan matured, to July 13, 1959, whenextrajudicial foreclosure proceedings were started by appellant Bank, thetime consumed is six days short of fifteen years. The prescriptive period wastolled, however. from March 10, 1945, the effectivity of Executive Order No.32, to May 18, 1953, when the decision of Rutter v. Esteban waspromulgated, covering eight years, two months and eight days. Obviouslythen, when report was had extrajudicially to the foreclosure of the mortgageobligation, there was time to spare before prescription could be availed of asa defense.

D E C I S I O N

FERNANDO J p: applicable constitutional doctrine as to the effect to be given to a statute



FERNANDO, J p:A correct appreciation of the controlling doctrine as to the effect, if

any, to be attached to a statute subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisca Serrano deAgbayani, now appellee, was able to obtain a favorable judgment in her suitagainst defendant, now appellant Philippine National Bank, permanentlyenjoining the other defendant, the Provincial Sheriff of Pangasinan, fromproceeding with an extrajudicial foreclosure sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer

enforceable, the prescriptive period having lapsed. There was thus a failureto sustain the defense raised by appellant that if the moratorium under anExecutive Order and later an Act subsequently found unconstitutional were tobe counted in the computation, then the right to foreclose the mortgage wasstill subsisting. In arriving at such a conclusion, the lower court manifested atenacious adherence to the inflexible view that an unconstitutional act is not alaw, creating no rights and imposing no duties, and thus as inoperative as if ithad never been. It was oblivious to the force of the principle adopted by thisCourt that while a statute's repugnancy to the fundamental law deprives it of its character as a juridical norm, its having been operative prior to its beingnullified is a fact that is not devoid of legal consequences. As will hereafter be explained, such a failing of the lower court resulted in an erroneous

decision. We find for appellant Philippine National Bank, and we reverse.There is no dispute as to the facts. Plaintiff obtained the loan in theamount of P450.00 from defendant Bank dated July 19, 1939, maturing onJuly 19, 1944, secured by real estate mortgage duly registered coveringproperty described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13 of the same year, defendant instituted extra-

judicial foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the loan remaining unpaid.Plaintiff countered with his suit against both defendants on August 10, 1959,her main allegation being that the mortgage sought to be foreclosed had longprescribed, fifteen years having elapsed from the date of maturity, July 19,

1944. She sought and was able to obtain a writ of preliminary injunctionagainst defendant Provincial Sheriff, which was made permanent in thedecision now on appeal. Defendant Bank in its answer prayed for thedismissal of the suit as even on plaintiff's own theory the defense of prescription would not be available if the period from March 10, 1945, whenExecutive Order No. 32 1 was issued, to July 26, 1948, when thesubsequent legislative act 2 extending the period of moratorium wasdeclared invalid, were to be deducted from the computation of the timeduring which the bank took no legal steps for the recovery of the loan. Asnoted, the lower court did not find such contention persuasive and decidedthe suit in favor of plaintiff.

Hence this appeal, which, as made clear at the outset, possessesmerit, there being a failure on the part of the lower court to adhere to the

applicable constitutional doctrine as to the effect to be given to a statutesubsequently declared invalid.

1. The decision now on appeal reflects the orthodox view thatan unconstitutional act, for that matter an executive order or a municipalordinance likewise suffering from that infirmity, cannot be the source of anylegal rights or duties. Nor can it justify any official act taken under it. Itsrepugnancy to the fundamental law once judicially declared results in itsbeing to all intents and purposes a mere scrap of paper. As the new CivilCode puts it: "When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall govern.Administrative or executive acts, orders and regulations shall be valid onlywhen they are not contrary to the laws of the Constitution. 3 It isunderstandable why it should be so, the Constitution being supreme andparamount. Any legislative or executive act contrary to its terms cannotsurvive.

Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This isso as until after the judiciary, in an appropriate case, declares its invalidity, itis entitled to obedience and respect. Parties may have acted under it and

may have changed their positions. What could be more fitting than that in asubsequent litigation regard be had to what has been done while suchlegislative or executive act was in operation and presumed to be valid in allrespects. It is now accepted as a doctrine that prior to its being nullified, itsexistence as a fact must be reckoned with. This is merely to reflectawareness that precisely because the judiciary is the governmental organwhich has the final say on whether or not a legislative or executive measureis valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be todeprive the law of its quality of fairness and justice then, if there be norecognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual

existence of a statute, prior to such a determination [of unconstitutionality], isan operative fact and may have consequences which cannot justly beignored. The past cannot always he erased by a new judicial declaration.—The effect of the subsequent ruling as to invalidity may have to beconsidered in various aspects, - with respect to particular relations, individualand corporate, and particular conduct, private and official." 4 This languagehas been quoted with approval in a resolution in Araneta v. Hill 5 and thedecision in Manila Motor Co., Inc. v. Flores. 6 An even more recent instanceis the opinion of Justice Zaldivar speaking for the Court in Fernandez v.Cuerva and Co. 7

2. Such an approach all the more commends itself whenever police power legislation intended to promote public welfare but adverselyaffecting property rights is involved. While subject to be assailed on due

process equal protection and non impairment grounds all that is required to inhibited because of the enactment of Republic Act No 342 and would



process, equal protection and non-impairment grounds, all that is required toavoid the corrosion of invalidity is that the rational basis or reasonablenesstest is satisfied. The legislature on the whole is not likely to allow anenactment suffering, to paraphrase Cardozo, from the infirmity of outrunningthe bounds of reason and resulting in sheer oppression. It may be of coursethat if challenged, an adverse judgment could be the result, as its runningcounter to the Constitution could still be shown. In the meanwhile though, inthe normal course of things, it has been acted upon by the public andaccepted as valid. To ignore such a fact would indeed be the fruitful parent of

injustice. Moreover, as its constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual situation, never staticbut subject to change, a measure valid when enacted may subsequently, dueto altered circumstances, be stricken down.

That is precisely what happened in connection with Republic Act No.342, the moratorium legislation, which continued Executive Order No. 32,issued by the then President Osmeña, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it was explicitly held in Rutter v. Esteban 8 where suchenactment was considered in 1953 "unreasonable and oppressive, andshould not be prolonged a minute longer, and, therefore, the same should bedeclared null and void and without effect." 9 At the time of the issuance of

the above Executive Order in 1945 and of the passage of such Act in 1948,there was a factual justification for the moratorium. The Philippines wasconfronted with an emergency of impressive magnitude at the time of her liberation from the Japanese military forces in 1945. Business was at astandstill. Her economy lay prostrate. Measures, radical measures, werethen devised to tide her over until some semblance of normalcy could berestored and an improvement in her economy noted. No wonder then that thesuspension of enforcement of payment of the obligations then existing wasdeclared first by executive order and then by legislation. The Supreme Courtwas right therefore in rejecting the contention that on its face, the MoratoriumLaw was unconstitutional, amounting as it did to the impairment of theobligation of contracts. Considering the circumstances confronting the

legitimate government upon its return to the Philippines, some such remedialdevice was needed and badly so. An unyielding insistence then on the rightsto property on the part of the creditors was not likely to meet with judicialsympathy. Time passed however, and conditions did change.

When the legislation was before this Court in 1953, the questionbefore it was its satisfying the rational basis test, not as of the time of itsenactment but as of such date. Clearly, if then it were found unreasonable,the right to non-impairment of contractual obligations must prevail over theassertion of community power to remedy an existing evil. The Supreme Courtwas convinced that such indeed was the case. As stated in the opinion of Justice Bautista Angelo: "But we should not lose sight of the fact that theseobligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still

inhibited because of the enactment of Republic Act No. 342 and wouldcontinue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which inplain language means that the creditors would have to observe a vigil of atleast twelve (12) years before they could affect a liquidation of their investment dating as far back as 1941. This period seems to usunreasonable, if not oppressive. While the purpose of Congress is plausible,and should be commended, the relief accorded works injustice to creditorswho are practically left at the mercy of the debtors. Their hope to effect

collection becomes extremely remote, more so if the credits are unsecured.And the injustice is more patent when, under the law, the debtor is not evenrequired to pay interest during the operation of the relief, unlike similar statutes in the United States." 10 The conclusion to which the foregoingconsiderations inevitably led was that as of the time of adjudication, it wasapparent that Republic Act No. 342 could not survive the test of validity.Executive Order No. 32 should likewise be nullified. That before the decisionthey were not constitutionally infirm was admitted expressly. There is all themore reason then to yield assent to the now prevailing principle that theexistence of a statute or executive order prior to its being adjudged void is anoperative fact to which legal consequences are attached.

3. Precisely though because of the judicial recognition that

moratorium was a valid governmental response to the plight of the debtorswho were war sufferers, this Court has made clear its view in a series of cases impressive in their number and unanimity that during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in force,prescription did not run. So it has been held from Day v. Court of FirstInstance, 11 decided in 1954, to Republic v. Hernaez, 12 handed downonly last year. What is deplorable is that as of the time of the lower courtdecision on January 27, 1960, at least eight decisions had left no doubt as tothe prescriptive period being tolled in the meanwhile prior to suchadjudication of invalidity. 13 Speaking of the opposite view entertained bythe lower court, the present Chief Justice, in Liboro v. Finance and MiningInvestments Corp. 14 has categorized it as having been "explicitly and

consistently rejected by this Court." 15The error of the lower court in sustaining plaintiff's suit is thusmanifest. From July 19, 1944, when her loan matured, to July 13, 1959,when extra-judicial foreclosure proceedings were started by appellant Bank,the time consumed is six days short of fifteen years. The prescriptive periodwas tolled, however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban waspromulgated, covering eight years, two months and eight days. Obviouslythen, when resort was had extra-judicially to the foreclosure of the mortgageobligation, there was time to spare before prescription could be availed of asa defense.

WHEREFORE, the decision of January 27, 1960 is reversed and thesuit of plaintiff filed August 10, 1959 dismissed. No costs.

Concepcion C J Reyes J B L Dizon Makalintal Zaldivar Castro not; that publication means complete publication; and that the publication



Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,Teehankee, Barredo, Villamor, and Makasiar, JJ., concur.

EN BANC[G.R. No. L-63915. December 29, 1986.]LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and

MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY ANDNATIONALISM, INC. (MABINI), petitioners, vs. HON. JUAN C. TUVERA.in his capacity as Executive Assistant to the President, HON. JOAQUIN

VENUS, in his capacity as Deputy Executive Assistant to the President,MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.SYLLABUSFERNAN, J., concurring:1. CIVIL LAW; EFFECT AND APPLICATION OF LAWS;

ARTICLE 2, CIVIL CODE; PUBLICATION OF LAWS MADE TO ENSURECONSTITUTIONAL RIGHT TO DUE PROCESS AND TO INFORMATION.— The categorical statement by this Court on the need for publication beforeany law be made effective seeks to prevent abuses on the part if thelawmakers and, at the time, ensure to the people their constitutional right todue process and to information on matter of public concern. cda

R E S O L U T I O N

CRUZ, J p:Due process was invoked by the petitioners in demanding thedisclosure or a number of presidential decrees which they claimed had notbeen published as required by law. The government argued that whilepublication was necessary as a rule, it was not so when it was "otherwiseprovided," as when the decrees themselves declared that they were tobecome effective immediately upon their approval. In the decision of thiscase on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as follows:

"WHEREFORE, the Court hereby orders respondents to publish tothe Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding

force and effect."The petitioners are now before us again, this time to move for reconsideration/clarification of that decision. 1 Specifically, they ask thefollowing questions:

1. What is meant by "law of public nature" or "generalapplicability"?

2. Must a distinction be made between laws of generalapplicability and laws which are not?

3. What is meant by "publ ication"?4. Where is the publication to be made?5. When is the publication to be made?Resolving their own doubts, the petitioners suggest that there should

be no distinction between laws of general applicability and those which are

not; that publication means complete publication; and that the publicationmust be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimedfirst that the motion was a request for an advisory opinion and shouldtherefore be dismissed, and, on the merits, that the clause "unless it isotherwise provided" in Article 2 of the Civil Code meant that the publicationrequired therein was not always imperative; that publication, whennecessary, did not have to be made in the Official Gazette; and that in anycase the subject decision was concurred in only by three justices and

consequently not binding. This elicited a Reply 4 refuting these arguments.Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3,Section 18, of the Rules of Court. Responding, he submitted that issuancesintended only for the interval administration of a government agency or for particular persons did not have to be published; that publication whennecessary must be in full and in the Official Gazette; and that, however, thedecision under reconsideration was not binding because it was not supportedby eight members of this Court. 5

The subject of contention is Article 2 of the Civil Code providing asfollows:

"ART. 2. Laws shall take effect after fifteen days following the

completion of their publication in the Official Gazette, unless it is otherwiseprovided. This Code shall take effect one year after such publication."After a careful study of this provision and of the arguments of the

parties, both on the original petition and on the instant motion, we have cometo the conclusion, and so hold, that the clause "unless it is otherwiseprovided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does notmean that the legislature may make the law effective immediately uponapproval, or on any other date, without its previous publication. cdphil

Publication is indispensable in every case, but the legislature may inits discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his

separate concurrence in the original decision, 6 is the Civil Code which didnot become effective after fifteen days from its publication in the OfficialGazette but "one year after such publication." The general rule did not applybecause it was "otherwise provided."

It is not correct to say that under the disputed clause publication maybe dispensed with altogether. The reason is that such omission would offenddue process insofar as it would deny the public knowledge of the laws thatare supposed to govern it. Surely, if the legislature could validly provide thata law shall become effective immediately upon its approval notwithstandingthe lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudicedas a result; and they would be so not because of a failure to comply with itbut simply because they did not know of its existence. Significantly, this is not

true only of penal laws as is commonly supposed One can think of many requirements The circulars issued by the Monetary Board must be published



true only of penal laws as is commonly supposed. One can think of manynon-penal measures, like a law on prescription, which must also becommunicated to the persons they may affect before they can begin tooperate. LexLib

We note at this point the conclusive presumption that every personknows the law, which of course presupposes that the law has been publishedif the presumption is to have any legal justification at all. It is no lessimportant to remember that Section 6 of the Bill of Rights recognizes "theright of the people to information on matters of public concern," and this

certainly applies to, among others, and indeed especially, the legislativeenactments of the government.The term "laws" should refer to all laws and not only to those of

general application, for strictly speaking all laws relate to the people ingeneral albeit there are some that do not apply to them directly. An exampleis a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot besaid that such a law does not affect the public although it unquestionablydoes not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in thepolitical forums or, if he is a proper party, even in the courts of justice. In fact,a law without any bearing on the public would be invalid as an intrusion of

privacy or as class legislation or as an ultra vires act of the legislature. To bevalid, the law must invariably affect the public interest even if it might bedirectly applicable only to one individual, or some of the people only, and notto the public as a whole.

We hold therefore that all statutes, including those of localapplication and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a differenteffectivity date is fixed by the legislature. LibLex

Covered by this rule are presidential decrees and executive orderspromulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directlyconferred by the Constitution. Administrative rules and regulations must alsobe published if their purpose is to enforce or implement existing law pursuantalso to a valid delegation.

Interpretative regulations and those merely internal in nature, that is,regulating only the personnel of the administrative agency and not the public,need not be published. Neither is publication required of the so-called lettersof instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. cdasia

Accordingly, even the charter of a city must be publishednotwithstanding that it applies to only a portion of the national territory anddirectly affects only the inhabitants of that place. All presidential decreesmust be published, including even, say, those naming a public place after afavored individual or exempting him from certain prohibitions or

requirements. The circulars issued by the Monetary Board must be publishedif they are meant not merely to interpret but to "fill in the details" of theCentral Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by,say, the Minister of Social Welfare on the case studies to be made inpetitions for adoption or the rules laid down by the head of a governmentagency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by thisrule but by the Local Government Code.

We agree that the publication must be in full or it is no publication atall since its purpose is to inform the public of the contents of the laws. Ascorrectly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "withSecretary Tuvera"), the supposed date of effectivity, and in a meresupplement of the Official Gazette cannot satisfy the publication requirement.This is not even substantial compliance. This was the manner, incidentally, inwhich the General Appropriations Act for FY 1975, a presidential decreeundeniably of general applicability and interest, was "published" by theMarcos administration. 7 The evident purpose was to withhold rather thandisclose information on this vital law.

Coming now to the original decision, it is true that only four justices

were categorically for publication in the Official Gazette 8 and that six othersfelt that publication could be made elsewhere as long as the people weresufficiently informed. 9 One reserved his vote 10 and another merelyacknowledged the need for due publication without indicating where it shouldbe made, 11 It is therefore necessary for the present membership of thisCourt to arrive at a clear consensus on this matter and to lay down a bindingdecision supported by the necessary vote.

There is much to be said of the view that the publication need not bemade in the Official Gazette, considering its erratic releases and limitedreadership. Undoubtedly, newspapers of general circulation could better perform the function of communicating the laws to the people as suchperiodicals are more easily available, have a wider readership, and come outregularly. The trouble, though, is that this kind of publication is not the onerequired or authorized by existing law. As far as we know, no amendmenthas been made of Article 2 of the Civil Code. The Solicitor General has notpointed to such a law, and we have no information that it exists. If it does, itobviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of alaw or to repeal or modify it if we find it impractical. That is not our function.That function belongs to the legislature. Our task is merely to interpret andapply the law as conceived and approved by the political departments of thegovernment in accordance with the prescribed procedure. Consequently, wehave no choice but to pronounce that under Article 2 of the Civil Code, thepublication of laws must be made in the Official Gazette, and not elsewhere,

as a requirement for their effectivity after fifteen days from such publication or spectacle of two presidential decrees bearing the same number although



as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature. LLphil

We also hold that the publication must be made forthwith, or at leastas soon as possible, to give effect to the law pursuant to the said Article 2.There is that possibility, of course, although not suggested by the parties thata law could be rendered unenforceable by a mere refusal of the executive,for whatever reason, to cause its publication as required. This is a matter,however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant

motion is a request for an advisory opinion is untenable, to say the least, anddeserves no further comment.The days of the secret laws and the unpublished decrees are over.

This is once again an open society, with all the acts of the governmentsubject to public scrutiny and available always to public cognizance. This hasto be so if our country is to remain democratic, with sovereignty residing inthe people and all government authority emanating from them.

Although they have delegated the power of legislation, they retainthe authority to review the work of their delegates and to ratify or reject itaccording to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead

of skulking in the shadows with their dark, deep secrets. Mysteriouspronouncements and rumored rules cannot be recognized as binding unlesstheir existence and contents are confirmed by a valid publication intended tomake full disclosure and give proper notice to the people. The furtive law islike a scabbarded saber that cannot feint, parry or cut unless the naked bladeis drawn.

WHEREFORE, it is hereby declared that all laws as above definedshall immediately upon their approval, or as soon thereafter as possible, bepublished in full in the Official Gazette, to become effective only after fifteendays from their publication, or on another date specified by the legislature, inaccordance with Article 2 of the Civil Code. dctai

SO ORDERED.Teehankee, C .J ., Feria, Yap, Narvasa, Melencio-Herrera, Alampay,

Gutierrez, Jr ., and Paras, JJ ., concur.Separate OpinionsFERNAN, J ., concurring:While concurring in the Court's opinion penned by my distinguished

colleague, Mr. Justice Isagani A. Cruz, I would like to add a fewobservations. Even as a Member of the defunct Batasang Pambansa, I tooka strong stand against the insidious manner by which the previousdispensation had promulgated and made effective thousands of decrees,executive orders, letters of instructions, etc. Never has the law-making power which traditionally belongs to the legislature been used and abused to satisfythe whims and caprices of a one-man legislative mill as it happened in thepast regime. Thus, in those days, it was not surprising to witness the sad

spectacle of two presidential decrees bearing the same number, althoughcovering two different subject matters. In point is the case of two presidentialdecrees bearing number 1686 issued on March 19, 1980, one grantingPhilippine citizenship to Michael M. Keon, the then President's nephew andthe other imposing a tax on every motor vehicle equipped with air-conditioner. This was further exacerbated by the issuance of PD No. 1686-Aalso on March 19, 1980 granting Philippine citizenship to basketball playersJeffrey Moore and Dennis George Still. cdll

The categorical statement by this Court on the need for publication

before any law may be made effective seeks to prevent abuses on the part of the lawmakers and, at the same time, ensures to the people their constitutional right to due process and to information on matters of publicconcern.

FELICIANO, J ., concurring:I agree entirely with the opinion of the court so eloquently written by

Mr. Justice Isagani A. Cruz. At the same time, I wish to add a few statementsto reflect my understanding of what the Court is saying. cdlex

A statute which by its terms provides for its coming into effectimmediately upon approval thereof, is properly interpreted as coming intoeffect immediately upon publication thereof in the Official Gazette asprovided in Article 2 of the Civil Code. Such statute, in other words, should

not be regarded as purporting literally to come into effect immediately uponits approval or enactment and without need of publication. For so to interpretsuch statute would be to collide with the constitutional obstacle posed by thedue process clause. The enforcement of prescriptions which are bothunknown to and unknowable by those subjected to the statute, has beenthroughout history a common tool of tyrannical governments. Suchapplication and enforcement constitutes at bottom a negation of thefundamental principle of legality in the relations between a government andits people.

At the same time, it is clear that the requirement of publication of astatute in the Official Gazette, as distinguished from any other medium suchas a newspaper of general circulation, is embodied in a statutory norm and isnot a constitutional command. The statutory norm is set out in Article 2 of theCivil Code and is supported and reinforced by Section 1 of CommonwealthAct No. 638 and Section 35 of the Revised Administrative Code. Aspecification of the Official Gazette as the prescribed medium of publicationmay therefore be changed. Article 2 of the Civil Code could, without creatinga constitutional problem, be amended by a subsequent statute providing, for instance, for publication either in the Official Gazette or in a newspaper of general circulation in the country. Until such an amendatory statute is in factenacted, Article 2 of the Civil Code must be obeyed and publication effectedin the Official Gazette and not in any other medium. LLjur

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