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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUERepublic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. 127255 August 14, 1997

JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R. OSMEA, WIGBERTO E. TAADA, ANDRONALDO B. ZAMORA, petitioner,vs.JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO, THE EXECUTIVE SECRETARY, THE SECRETARY OFFINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE, respondents.

MENDOZA,J.:

This is a petition for certiorari and/or prohibition challenging the validity of Republic Act No. 8240, whichamends certain provisions of the National 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. They brought this suit against respondents Jose deVenecia, Speaker of the House of Representatives, Deputy Speaker Raul Daza, Majority Leader Rodolfo Albano,the Executive Secretary, the Secretary of Finance, and the Commissioner of Internal Revenue, chargingviolation of the rules of the House which petitioners claim are "constitutionally mandated" so that theirviolation is tantamount to a violation of the Constitution.

The law originated in the House of Representatives as H. No. 7198. This bill was approved on third reading onSeptember 12, 1996 and transmitted on September 16, 1996 to the Senate which approved it with certainamendments on third reading on November 17, 1996. A bicameral conference committee was formed toreconcile 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. At11:48 a.m., after a recess, Rep. Exequiel Javier, chairman of the Committee on Ways and Means, proceeded todeliver his sponsorship speech, after which he was interpellate. Rep. Rogelio Sarmiento was first to interpellate.He was interrupted when Rep. Arroyo moved to adjourn for lack of quorum. Rep. Antonio Cuenco objected tothe motion and asked for a head count. After a roll call, the Chair (Deputy Speaker Raul Daza) declared thepresence of a quorum. 1 Rep. Arroyo appealed the ruling of the Chair, but his motion was defeated when put toa vote. The interpellation of the sponsor thereafter proceeded.

Petitioner Rep. Joker Arroyo registered to interpellate. He was fourth in the order, following Rep. RogelioSarmiento, Rep. Edcel C. Lagman and Rep. Enrique Garcia. I n the course of his interpellation, Rep. Arroyoannounced that he was going to raise a question on the quorum, although until the end of his interpellation henever did. What happened thereafter is shown in the following transcript of the session on November 21, 1996of the House 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 approved and ratify the 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 theChair asked the distinguished sponsor.

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 theSenate and certified by the respective secretaries of both Houses of Congress as having been finally passed bythe House of Representatives and by the Senate on November 21, 1996. The enrolled bill was signed into lawby President Fidel V. Ramos on November 22, 1996.

Petitioners claim that there are actually four different version of the transcript of this portion of Rep. Arroyo'sinterpellation: (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, which petitioner Rep. Edcel C. Lagman

obtained from he operators of the sound system; (2) the transcript of the proceedings from 3:00 p.m. to 3:40p.m. of November 21, 1996, as certified by the Chief of the Transcription Division on November 21, 1996, alsoobtained by Rep. Lagman; (3) 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 on November 28, 1996, also obtained by Rep.Lagman; and (4) the published version abovequoted. According to petitioners, the four versions differ on threepoints, to wit: (1) in the audio-sound recording the word "approved," which appears on line 13 in the threeother versions, cannot be heard; (2) in the transcript certified on November 21, 1996 the world "no" on line 17appears only once, while in the other versions it is repeated three times; and (3) the published version does notcontain the sentence "(Y)ou better prepare for a quorum because I will raise 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 pointas petitioners have announced that, in order to expedite the resolution of this petition, they admit, withoutconceding, the correctness of the transcripts relied upon by the r espondents. Petitioners agree that forpurposes of this proceeding the word "approved" appears in the transcripts.

Only the proceedings of the House of Representatives on the conference committee report on H. No. 7198 arein question. Petitioners' principal argument is that R.A. No. 8240 is null and void because it was passed in

violation of the rules of the House; that these rules embody the "constitutional mandate" in Art. VI, 16(3) that"each House may determine the rules of its proceedings" and that, consequently, violation of the House rules isa violation of the Constitution itself. They contend that the certification of Speaker De Venecia that the law wasproperly passed is false and spurious.

More specifically, petitioners charge that (1) in violation of Rule VIII, 35 and Rule XVII, 103 of the rules of theHouse, 2 the Chair, in submitting the conference committee report to the House, did not call for the years ornays, but simply asked for its approval by motion in order to prevent petitioner Arroyo from questioning thepresence of a quorum; (2) in violation of 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 to approve or ratify; (3) in violation ofRule XVI, 97, 4 the Chair refused to recognize 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, 5the Chair suspended the session without first ruling on Rep. Arroyo's question which, it isalleged, is a point of order or a privileged motion. It is argued that Rep. Arroyo's query should have beenresolved upon the resumption of the session on November 28, 1996, because the parliamentary situation atthe time of the adjournment remained upon the resumption of the session.

Petitioners also charge that the session was hastily adjourned at 3:40 p.m. on November 21, 1996 and the bill

certified by Speaker Jose De Venecia to prevent petitioner Rep. Arroyo from formally challenging the existenceof a quorum and asking for a reconsideration.

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUEPetitioners urge the Court not to feel bound by the certification of the Speaker of the House that the law hadbeen properly passed, considering the Court's power under Art. VIII, 1 to pass on claims of grave abuse ofdiscretion by the other departments of the government, and they ask for a reexamination ofTolentino v.Secretary of Finance, 6 which affirmed the conclusiveness of an enrolled bill, in view of the changedmembership of the Court.

The Solicitor General filed a comment in behalf of all respondents. In addition, respondent De Venecia filed asupplemental comment. Respondents' defense is anchored on the principle of separation of powers and theenrolled bill doctrine. They argue that the Court is not the proper forum for the enforcement of the rules of theHouse and that there is no justification for reconsidering the enrolled bill doctrine. Although the Constitutionprovides in Art. VI, 16(3) for the adoption by each House of its rules of proceedings, enforcement of the rules

cannot be sought in the courts except insofar as they implement constitutional requirements such as thatrelating to three readings on separate days before a bill may be passed. At all events, respondents contendthat, in passing the bill which became R.A. No. 8240, the rules of the House, as well as parliamentaryprecedents for approval of conference committee reports on mere motion, were faithfully observed.

In his supplemental comment, respondent De Venecia denies that his certification of H. No. 7198 is false andspurious 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 the sessions of November 20 and 21, 1996,shows that "On Motion of Mr. Albano, there being no objection, the Body approved the Conference CommitteeReport on House Bill No. 7198." 7 This Journal was approved on December 2, 1996 over the lone objection ofpetitioner Rep. Lagman. 8

After considering the arguments of the parties, the Court finds no ground for holding that Congress committeda grave abuse of discretion in enacting R.A. No. 8240. This case is therefore dismissed.

First. It is clear fr om the foregoing facts that what is alleged to have been violated in the enactment of R.A. No.8240 are merely internal rules of procedure of the House rather than constitutional requirements for the

enactment of a law, i.e., Art. VI, 26-27. Petitioners do not claim that there was no quorum but only that, bysome maneuver allegedly in violation of the rules of the House, Rep. Arroyo was effectively prevented fromquestioning the presence of a quorum.

Petitioners contend that the House rules were adopted pursuant to the constitutional provision that "eachHouse may determine the rules of its proceedings" 9 and that for this reason they are judicially enforceable. Tobegin with, this contention stands the principle on its head. In the decided cases, 10 the constitutional provisionthat "each House may determine the rules of its proceedings" was invoked by parties, although notsuccessfully, precisely to support claims of autonomy of the legislative branch to conduct its business free frominterference by courts. Here petitioners cite the provision 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 inquireinto allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absenceof showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmeav. 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 body adopting them.' And it has been saidthat 'Parliamentary rules are merely procedural, and with their observance, the courts have no concern. Theymay be waived or disregarded by the legislative body.' Consequently, 'mere failure to conform to

parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number ofmembers have agreed to a particular measure.'"

In United States v. Ballin, Joseph & Co.,12 the rules was stated thus: "The Constitution empowers each house todetermine its rules of proceedings. It may not by its rules ignore constitutional restraints or violatefundamental rights, and there should be a reasonable relation between the mode or method of proceedingestablished by the rule and the result which is sought to be attained. But within these limitations all matters ofmethod are open to the determination of the House, and it is no impeachment of the rule to say that someother way would be better, more a ccurate, or even more just. It is no objection to the validity of a rule that adifferent one has been prescribed and 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 withinthe limitations suggested, absolute and beyond the challenge of any other body or tribunal."

In Crawford v. Gilchrist, 13 it was held: "The provision that each House shall determine the rules of itsproceedings does not restrict the power given to a mere formulation of standing rules, or to the proceedings ofthe body in ordinary legislative matters; but in the absence of constitutional restraints, and when exercised bya majority of a constitutional quorum, such authority extends to a determination of the propriety and effect ofany action as it is taken by the body as it proceeds in the exercise of any power, in the transaction of any

business, or in the performance of a ny duty conferred upon it by the Constitution."

In State ex rel. City Loan & Savings Co. v. Moore, 14 the Supreme Court of Ohio stated: "The provision forreconsideration is no part of the Constitution and is therefore entirely within the control of the GeneralAssembly. Having made the rule, it should be regarded, but a failure to regard it is not the subject-matter ofjudicial inquiry.It has been decided by the 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, 15the Supreme Court of Errors of Connecticut declared itself as follows: "TheConstitution declares that each house shall determine the rules of its own proceedings and shall have allpowers necessary for a branch of the Legislature of a free and independent state. Rules of proceedings are theservants of the House and subject to its authority. This authority may be abused, but when the House hasacted in a matter clearly within its power, it would be an unwarranted invasion of the independence of the

legislative department for the court to set aside such action as void because it may think that the House hasmisconstrued or departed from its own rules of procedure."

In McDonald v. State,16 the Wisconsin Supreme Court held: "When it appears that an act was so passed, noinquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their ownrules in their procedure upon the bill, intermediate its introduction and final passage. The presumption isconclusive that they have done so. We think no court has ever declared an act of the legislature void for non-compliance with the rules of procedure made by itself, or the respective branches thereof, and which it or theymay change or suspend at will. If there are any such adjudications, we decline to follow them."

Schweizer v. Territory17 is illustrative of the rule in these cases. The 1893 Statutes of Oklahoma provided forthree readings on separate days before 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 r ule.Plaintiff was convicted in the district court of violation of a law punishing gambling. He appealed contendingthat the gambling statute was not properly passed by the legislature because the suspension of the rule onthree readings had not been approved by the requisite two-thirds vote. Dismissing this contention, the StateSupreme Court of Oklahoma held:

We have no constitutional provision requiring that the legislature should read a bill in any particular manner. Itmay, then, read or deliberate upon 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 to is merely a statutory provision forthe direction of the legislature in its action upon proposed measures. It receives its entire force from legislativesanction, and it exists only at legislative pleasure. The failure of the legislature to properly weigh and consideran act, its passage through the legislature 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 legislaturehad made to govern its own proceedings, could be no reason for the court's refusing its enforcement after itwas actually passed by a majority of each branch of the legislature, and duly signed by the governor. Thecourts cannot declare an act of the legislature void on account of noncompliance with rules of procedure madeby itself to govern its deliberations.McDonald v. State, 80 Wis. 407, 50 N.W. 185; In re Ryan, 80 Wis. 414, 50N.W. 187; State v. Brown, 33 S.C. 151, 11 S.E. 641; Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18.

We conclude this survey with the useful summary of the r ulings by former Chief Justice Fernando, commentingon 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. Courtsordinary have no concern with their observance. They may be waived or disregarded by the legislative body.Consequently, mere failure to conform to them does not have the effect of nullifying the act taken if therequisite number of members have agreed to a particular measure. The above principle is subject, however, tothis qualification. Where the construction to be given to a rule affects person other than members of thelegislative body the question presented is necessarily judicial in character. Even its validity is open to questionin a case where private rights are involved. 18

In this case no rights of private individuals are involved but only those of a member who, instead of seekingredress in the House, chose to transfer 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 look over our shoulders, as long as noviolation of constitutional provisions is shown.

Petitioners must realize that each of the three departments of our government has its separate sphere whichthe others may not invade without upsetting 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 partto enter upon an inquiry into an alleged violation of the rules of the House. We must accordingly decline theinvitation to exercise our power.

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUESecond. Petitioners, quoting former Chief Justice Roberto Concepcion's sponsorship in the ConstitutionalCommission, contend that under Art. VIII, 1, "nothing involving abuse of discretion [by the other branches ofthe government] amounting to lack or excess of jurisdiction is beyond judicial review." 19 Implicit in thisstatement 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 r equirement of ajusticiable controversy before courts can adjudicate constitutional questions such as those which arise in thefield of foreign relations. For while Art. VIII, 1 has broadened the scope of judicial inquiry into areas normallyleft to the political departments to decide, such as those relating to national security, 20 it has not altogetherdone away with political questions such as those which arise in the field of foreign relations. As we havealready held, under Art. VIII, 1, this Court's function

is merely [to] check whether or not the governmental branch or agency has gone beyond the constitutionallimits of its jurisdiction, not that it erred or has a different view. In the absence of a showing . . . [of] graveabuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its correctivepower. . . . It has no power to look into what it thinks is apparent error. 21

If, then, the established rule is that courts cannot declare an act of the legislature void on account merely ofnoncompliance with rules of procedure made by itself, it follows that such a case does not present a situationin which a branch of the government has "gone beyond the constitutional limits of its jurisdiction" so as to callfor the exercise of our Art. VIII. 1 power.

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

What happened is that, after Rep. Arroyo's interpellation of the sponsor of the committee report, MajorityLeader Rodolfo Albano moved for the approval and r atification of the conference committee report. The Chaircalled out for objections to the motion. Then the Chair declared: "There being none, approved." At the sametime 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. Arroyo subsequently objected to the MajorityLeader's motion, the approval of the conference 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 theconference committee report should have been stated by the Chair and later the individual votes of themembers should have been taken. They say that the method used in this case is a legislator's nightmarebecause it suggests unanimity when the fact was that one or some legislators opposed the report.

No rule of the House of Representative has been cited which specifically requires that in case such a s thisinvolving approval of a conference committee report, the Chair must restate the motion and conduct a vivavoce or nominal voting. On the other hand, as the Solicitor General has pointed out, the manner in which theconference committee report on H. No. 7198 was approval was by no means a unique one. It has basis inlegislative practice. It was the way the conference committee report on the bills which became the LocalGovernment Code of 1991 and the conference committee report on the bills amending the Tariff and CustomsCode were approved.

In 1957, the practice was questioned as being contrary to the rules of the House. The point was answered byMajority 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 ofprocedure is concerned, this has been 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 and after the debate, then the votingcomes in.

xxx xxx xxx

Mr. Speaker, a point of order was raised by the gentleman from Leyte, and I wonder what his attitude is nor onhis point of order. I should just like to state that I believe that we have had a substantial compliance with theRules. The Rule invoked is not one that refers to statutory or constitutional requirement, and a substantialcompliance, 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 is approved o n second reading." If there was any doubtas to the vote, any motion to divide would have been proper. So, if that motion is not presented, we assumethat the House approves the measure. So I believe there is substantial compliance here, and if anybody wants

a division of the House he can always ask for it, and the Chair can announce how many are in favor and howmany are against. 22

Indeed, it is no impeachment of the method to say that some other way would be better, more accurate andeven more just. 23 The advantages or disadvantages, the wisdom or folly of a method do not present anymatter for judicial consideration. 24 In the words of the U.S. Circuit Court of Appeals, "this Court cannot providea second opinion on what is the best procedure. Notwithstanding the deference and esteem that is properlytendered to individual congressional actors, our deference and esteem for the institution as a whole and for theconstitutional command that the institution 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 ofthe Members be taken every time a House has to vote, except only in the following instances; upon the lastand third readings of a bill, 26 at the request 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 approval of the original bill the votes of themembers by yeas and nays had already been taken, it would have been sheer tedium to repeat the process.

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

ADJOURNMENT OF SESSION

On motion of Mr. Albano, there being no objection, the Chair declared the session adjourned until four o'clock inthe afternoon of Wednesday, November 27, 1996.

It was 3:40 p.m. Thursday, November 21, 1996. (emphasis added)

This Journal was approved on December 3, 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 theproper motions for the House to act upon, 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 ora 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 any further consideration of thequestion. 31

Given this fact, it is difficult to see how it can plausibly be contended that in signing the bill which became R.A.No. 8240, respondent Speaker of the House be acted with grave abuse of his discretion. Indeed, the phrase"grave abuse of discretion amounting to lack or excess of jurisdiction" has a settled meaning in thejurisprudence of procedure. It means such capricious and whimsical exercise of judgment by a tribunalexercising judicial or quasi judicial power as to amount to lack of power. As Chief Justice Concepcion himselfsaid in explaining this provision, the power granted to the courts by Art. VIII. 1 extends to cases where "abranch of the government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so

capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction." 32

Here, the matter complained of concerns a matter of internal procedure of the House with which the Courtshould not he concerned. To repeat, the claim 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 forlack of quorum had already been defeated, as the roll call established the existence of a quorum. The questionof quorum cannot be raised repeatedly especially when the quorum is obviously present for the purposeof 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 House e arlier 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, except Rep. Arroyo, appears to haveobjected to the manner by which the report was approved. Rep. John Henry Osmea did not participate in thebicameral conference committee proceedings. 35 Rep. Lagman and Rep. Zamora objected to the report 36 butnot to the manner it was approved; while it is said that, if voting had been conducted. Rep. Taada would havevoted in favor of the conference committee report.37

Fourth. Under the enrolled bill 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 both Houses of Congress that it was passed

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUEon November 21, 1996 are conclusive of its due enactment. Much energy and learning is devoted in theseparate opinion of Justice Puno, joined by Justice Davide, to disputing this doctrine. To be sure, there is noclaim either here or in the decision in the EVAT cases [Tolentino v. Secretary of Finance] that the enrolled billembodies a conclusive presumption. In one case 38 we "went behind" an enrolled bill and consulted the Journalto determine whether certain provisions of a statute had been approved by the Senate.

But, where as here there is no evidence to the contrary, this Court will respect the certification of the presidingofficers of both Houses that a bill has been duly passed. Under this rule, this Court has refused to determineclaims that the three-fourths vote needed to pass a proposed amendment to the Constitution had not beenobtained, because "a duly authenticated bill or resolution imports absolute verify and is binding on the courts."39 This Court quoted from Wigmore on Evidence the following excerpt which embodies good, if old-fashioned,

democratic theory:

The truth is that many have been carried away with the righteous desire to check at any cost the misdoings ofLegislatures. They have set such store by the Judiciary for this purpose that they have almost made them asecond and higher Legislature. But they aim in the wrong direction. Instead of trusting a faithful Judiciary tocheck an inefficient Legislature, they should turn to improve the Legislature. The sensible solution is not topatch and mend casual errors by asking the Judiciary to violate legal principle and to do impossibilities with theConstitution; but to represent ourselves with competent, careful, and honest legislators, the work of whosehands on the statute-roll may come to reflect credit upon the name of popular government. 40

This Court has refused to even look into allegations that the enrolled bill sent to the President containedprovisions which had been "surreptitiously" inserted in the conference committee:

[W]here allegations that the constitutional procedures for the passage of bills have not been observed have nomore basis than another allegation that the Conference Committee "surreptitiously" inserted provisions into abill which it had prepared, we should decline the invitation to go behind the enrolled copy of the bill. Todisregard the "enrolled bill" rule in such cases would be to disregard the respect due the other two

departments of our government.41

It has refused to look into charges that an amendment was made upon the last reading of a bill in violation ofArt. VI. 26(2) of the Constitution that "upon the last reading of a bill, no amendment shall be allowed." 42

In other cases, 43 this Court has denied claims that the tenor of a bill was otherwise than as certified by thepresiding officers of both Houses of Congress.

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

. . . As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custodyof the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, ofthe President of the Senate, and of the President of the United States, carries, on its face, a solemn assuranceby the legislative and executive departments of the government, charged, respectively, with the duty ofenacting 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 having passedCongress, all bills authenticated in the manner stated; leaving the court to determine, when the questionproperly arises, whether the Act, so authenticated, is in conformity with the Constitution. 45

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

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

Moreover, as already noted, the due enactment of the law in question is confirmed by the Journal of the Houseof November 21, 1996 which shows that the conference committee report on H. No. 7198, which became R.A.No. 8740, was approved on that day. The keeping of the Journal is required by the Constitution, Art. VI, 16(4)

provides:

Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting suchparts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at therequest of 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 berecorded therein. 46 With respect to other matters, in the absence of evidence to the contrary, the Journalshave also been accorded conclusive effect. Thus, in United States v. Pons, 47 this Court spoke of theimperatives 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 conform to them; they should be permanent, thatrights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, orat some remote period of time, by facts resting only in the memory of individuals." As already noted, the billwhich became R.A. No. 8240 is shown in the Journal. Hence its due enactment has been duly proven.

It would be an unwarranted invasion of the prerogative of a coequal department for this Court either to setaside a legislative action as void because the Court thinks the House has disregarded its own rules ofprocedure, or to allow those defeated in the political arena to seek a rematch in the judicial forum whenpetitioners can find their remedy in that department itself. The Court has not been invested with a rovingcommission to inquire into complaints, real or imagined, of legislative skullduggery. It would be acting inexcess of its power and would itself be guilty of grave abuse of its discretion were it to do so. The suggestionmade in a case 48 may instead appropriately be made here: petitioners can seek the enactment of a new law orthe repeal or amendment of R.A. No. 8240. In the absence of anything to the contrary, the Court must assumethat Congress or any House thereof acted in the good faith belief that its conduct was permitted by its rules,and deference rather than disrespect is due the judgment of that body. 49

WHEREFORE, the petition for certiorari and prohibition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Regalado, J., concurs in the result.

Bellosillo and Panganiban, JJ., took no part.

Torres, Jr., J., is on leave.

Separate Opinions

VITUG,J., concurring:

When the 1987 Constitution has embodied, in its circumscription of judicial power under Section 1, Article VIII,of the Constitution, the determination of whether or not there is grave abuse of discretion on the part of anybranch or instrumentality of government, the Supreme Court, upon which that great burden has been imposed,could not have been thought of as likewise being thereby tasked with the awesome responsibility of overseeingthe 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 to lack or excess ofjurisdiction.

I see nothing of that sort in the case at bar. Absent a clear case of grave abuse of discretion, like the patentdisregard of a Constitutional proscription, I would respect the judgment of Congress under whose province thespecific responsibility falls and the authority to act is vested. To do otherwise would be an unwarranted

intrusion into the internal affairs of a co-equal, independent and coordinate branch of government. At no time,it would seem to me, has it been intended by the framers of the fundamental law to cause a substantialdeviation, let alone departure, from the time-honored and accepted principle of separation, but balanced,

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUEpowers of the three branches of government. There is, of course, a basic variant between the old rule and thenew Charter on the understanding of the term "judicial power." Now, the Court is under mandate to assumejurisdiction over, and to undertake judicial inquiry into, what may even be deemed to be political questionsprovided, however, that grave abuse of discretion the sole test of justiciability on purely political issues isshown to have attended the contested act.

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

ROMERO,J., separate opinion:

In filing this separate opinion for the dismissal of the instant petition, I am not backtracking from the dissentwhich I expressed in Tolentino v. Secretary of Finance. 1 I am somewhat bothered that if I do not elaborate, thevote which I cast today might be wrongly construed as an implied abandonment of, and inconsistent with, myfirm stance in Tolentino.

The landmark case ofTolentino, just like the one under consideration, involved a similar challenge to theconstitutionality of a significant tax measure namely, Republic Act No. 7716, otherwise known as the ExpandedValue-Added Tax (EVAT) Law. There, a number of issues, both substantive and procedural, were posed bypetitioners, each of which was discussed by the majority opinion of Mr. Justice Vicente V. Mendoza who,incidentally, is also the ponente of instant decision. At any rate, it is worth noting that I did not entirelydisagree with each and every argument of the opinion, most especially those touching upon substantive issues.My main objection in Tolentino, it will be recalled, focused instead on what I perceived was a substantial breachand disregard by the Legislature of vital constitutional requirements ordaining the procedures to be followed inthe passage of a bill which, in my opinion, the majority seemed to have cavalierly put to rest by hiding underthe cloak of the enrolled bill theory 2 and the precept that the Court is not the proper forum for theenforcement of internal legislative rules allegedly violated. 3 To me, the position then taken by the majorityexhibited blind adherence to otherwise sound principles of law which did not, however, fit the facts as

presented before the Court. Hence, I objected, not so much because I found these principles unwise orobsolete, but rather because they were applied, or misapplied, to a case which I believe did not call for theirapplication.

When I differed from the majority opinion which applied the enrolled bill theory, I was very careful toemphasize that reliance thereon is not to be discontinued but that its application must be limited to minormatters relating more to form and factual issues which do not materially alter the essence and substance ofthe law itself. Thus:

As applied to the instant petition, the issue posed is whether or not the procedural irregularities that attendedthe passage of House Bill No. 11197 and Senate Bill No. 1630, outside of the reading and printing requirementswhich were exempted by the Presidential certification, may no longer be impugned, having been "saved" bythe conclusiveness on us of the enrolled bill. I see no cogent reason why we cannot continue to place relianceon the enrolled bill, but only with respect to matters pertaining to the procedure followed in the enactment ofbills in Congress and their subsequent engrossment, printing errors, omission of words and phrases and similarrelatively minor matters relating more to form and factual issues which do not materially alter the essence andsubstance of the law itself.

Certainly, courts cannot claim greater ability to judge procedural legitimacy, since constitutional rules onlegislative procedure are easily mastered. Procedural disputes are over facts whether or not the bill hadenough votes, or three readings, or whatever not over the meaning of the constitution. Legislators, aseyewitnesses, are in a better position than a court to rule on the facts. The argument is also made thatlegislatures would be offended if courts examined legislative procedure.

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

This issue I wish to address forthwith. 4

As regards the principle that the Court is not the proper forum for the enforcement of internal legislative rules,both the majority and I were actually of one mind such that I was quick to qualify the extent of the Court'sreview power 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)udicialpower includes the duty of the courts of justice . . . to determine whether or not there has been a grave abuse

of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of theGovernment." We are also guided by the principle 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 was applied. In this respect, I showed that theintroduction of several provisions in the Bicameral Conference Committee Report did not only violate thepertinent House and Senate Rules defining the limited power of the conference committee but that theConstitutional proscription against any amendment 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 theConstitution. This the majority, however, disregarded invoking the same principle which should have justifiedthe Court in questioning the actuations of the legislative branch.

At this juncture, I wish to reiterate my continuing adherence to the aforesaid reasons I cited in the Tolentinodissent. At the same time, I realize that 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 respondentsin the instant petition are purely internal rules designed for the orderly conduct of the House's business. Theyhave no direct or reasonable nexus to the requirements and proscriptions of the Constitution in the passage ofa bill which would otherwise warrant the Court's intervention. Likewise, the petitioners are not in any waycomplaining that substantial alterations have been introduced in Republic Act No. 8240. The thrust ofpetitioners' arguments in attacking the validity of the law is merely with respect to the fact that Rep. JokerArroyo was effectively prevented from invoking the question of quorum and not that the substance thereofoffends constitutional standards. This being the case, I do not now feel called upon to invoke my previousargument that the enrolled bill 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 thecircumstances 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 ofthe case at bar. Nevertheless, I have to express my views on the a lleged non-justiciability of the issue posed bythe petitioner as well as the applicability of the archaic enroll bill doctrine in light of what I perceive as newwrinkles in our law brought about by the 1987 Constitution and the winds of changing time.

I

With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree thatwe will trivialize the principle of separation of power if we assume jurisdiction over the case at bar. Even in theUnited States, the principle of separation of power is no longer an impregnable impediment against theinterposition of judicial power on cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case ofUS v. Ballin, 1 as a window to view the issues before the Court. It isin Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review

congressional rules. 2 It held:

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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 the Speaker, the names of members sufficient tomake a quorum in the hall of the House who do not vote shall be noted by the clerk a nd recorded in thejournal, and reported to the Speaker with the names of the members voting, and be counted and announced indetermining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this

rule, and not what methods the Speaker may of his own motion resort to for determining the presence of aquorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do theadvantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration.

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUEWith the courts the question is only one of power. The Constitution empowers each house to determine itsrules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, andthere should be a reasonable relation between the mode or method of proceedings established by the rule andthe result which is sought to be attained. But within these limitations all matters of method are open to thedetermination of the House, and it is no impeachment of the rule to 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 not one which once exercised isexhausted. It is a continuous power, always subject to be exercised by the House, and within the limitationssuggested, absolute and beyond the challenge of any other body or tribunal.

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e., whether

they are constitutional. Rule XV was 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 fundamental right; and (3) its method has areasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow itsjurisdiction to be defeated by the mere invocation of the principle of separation of powers.

Ballin was followed in 1932 by the case ofUS v. Smith. 3 In Smith, the meaning of sections 3 and 4 of RuleXXXVIII of the US Senate was in issue, viz:

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3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for areconsideration on the same day on which 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 havebeen sent to the President before the expiration of the time within which a motion to reconsider may be made,the motion to reconsider shall be accompanied by a motion to request the President to return such notificationto the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice tothe nomination, and shall be a final disposition of such motion.

4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the Presidentuntil the expiration of the time limited 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 the Federal Power Commission has been confirmedby the US Senate. The resolution of confirmation was sent to the US President who then signed theappointment of Mr. Smith. The Senate, however, reconsidered the confirmation of Mr. Smith and r equested thePresident to return its resolution of 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 relyingon Ballin. It exercised jurisdiction although "the question primarily at issue relates to the construction of theapplicable rules, not to their constitutionality." Significantly, the Court rejected the Senate interpretation of itsown rules even while it held that it must be accorded the most sympathetic consideration.

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Sixth. To place upon the standing rules of the Senate a construction different from that adopted by the Senateitself 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 is not the function of the Court tosay that another rule would be better. A rule designed to ensure due deliberation in the performance of thevital function of advising and consenting to nominations for public office, moreover, should receive from theCourt the most sympathetic consideration. But the reasons, above stated, against the Senate's constructionseem to us compelling. We are confirmed in the view we have taken by the fact, since the attemptedreconsideration of Smith's confirmation, the Senate itself seems uniformly to have treated the ordering ofimmediate notification to the President as tantamount to authorizing him to proceed to perfect theappointment.

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 ofChristoffel v. United States. 4Christoffel testified before the Committeeon Education and Labor of the House of Representatives. He denied he was a communist and was charged withperjury in the regular court. He adduced evidence during the trial that the committee had no quorum when theperjurious 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 reasonable doubt that

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. . . 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 afternoon session of March 1, 1947, andthereafter during the progress of the hearing some of them left temporarily or otherwise and no question wasraised as to the lack of a quorum, then the fact that the majority did not remain there would not affect, for thepurposes of this case, the existence of that Committee as a competent tribunal provided that before the oathwas administered and before the testimony of the defendant was given there were present as many as 13members 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 continuousquorum simply because it was present 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 quorum is raised.Again, the court assumedjurisdiction over the case . A majority of the Court, with Mr. Justice Murphy, as ponente, defined the issue as"what rules the House had established and whether they have been followed." It held:

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Congressional practice in the transaction of ordinary legislative business is of course none of our concern, andby the same token the considerations which may lead Congress a s a matter of legislative practice to treat asvalid the conduct of its committees do not control the issue before us. The question is neither what rulesCongress may establish for its own governance, nor whether presumptions of continuity may protect thevalidity of its legislative conduct. The question is rather what rules the House has established and whether theyhave been followed. It of course has the power to define what tribunal is competent to exact testimony and theconditions that establish its competency to do so. The heart of this case is that by the charge that was given itthe jury was allowed to assume that the conditions of competency were satisfied even though the basis in factwas not established and in face of a possible finding that the facts contradicted the assumption.

We are measuring a conviction of crime by the statute which defined it. As a consequence of this conviction,

petitioner was sentenced to imprisonment for a term of from two to six years. An essential part of a procedurewhich can be said fairly to inflict such a punishment is that all the elements of the crime charged shall beproved beyond a reasonable doubt. An element of the crime charged in the instant indictment is the presenceof a competent tribunal, and the trial court properly so instructed the jury. The House insists that to be such atribunal a committee must consist of a quorum, and we agree with the trial court's charge that to convict, thejury had to be satisfied beyond a reasonable doubt that there were "actually and physically present" a majorityof the committee.

Then to charge, however, that such requirement is satisfied by a finding that there was a majority present twoor three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is torule as a matter of law that a quorum need not be present when the offense is committed. This not only seemsto us contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right isthat he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunalthat 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 and practice that a quorum once established ispresumed to continue unless and until 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 deciding the case ofYellin v. United States. 5Yellinwas 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 the District Court of contempt of Congresson four counts. The conviction was affirmed by the Court of Appeals for the 7th Circuit. On certiorari, heassailed his conviction on the ground that the Committee illegally denied his request to be heard in executivesession. He alleged there was a violation of Committee Rule IV which provides that"if a majority of theCommittee or sub-committee, duly appointed as provided by the rules of the House of Representatives,believes that the interrogation of a witness in a public hearing might endanger national security or unjustlyinjure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in anexecutive session for the purpose of determining the necessity or admissibility of conducting such interrogationthereafter in a public hearing." in a 5-4 decision, the Court, speaking thru Mr. Chief Justice Warren, held:

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Yellin should be permitted the same opportunity for judicial review when he discovers at trial that his rights

have been violated. This is especially so when the Committee's practice leads witnesses to misplaced relianceupon its rules. When reading a copy of the Committee's rules, which must be distributed to every witnessunder Rule XVII, the witness' reasonable expectation is that the Committee actually does what it purports to

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUEdo, adhere to its own r ules. To foreclose a defense based upon those rules, simply because the witness wasdeceived by the Committee's appearance of regularity, is not fair. The Committee prepared the groundwork forprosecution in Yellin's case meticulously. It is not too exacting to require that the Committee be equallymeticulous in obeying its own rules.

It additionally bears stressing that in the United States, the judiciary has pruned the "political thicket." In thebenchmark case ofBaker v. Carr, 6 the 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 maintenanceof government order, will not be so applied as to promote only disorder" and that "the courts cannot reject as'no law suit,' a bona fide controversy as to whether some action denominated 'political' exceeds constitutionalauthority."

In the Philippine setting, there is a morecompelling reason for courts to categorically reject the politicalquestion defense when its interposition will cover up abuse of power. For section 1, Article VIII of ourConstitution was intentionallycobbled to empower courts ". . . to determine whether or not there has been agrave abuse of discretion amounting to lack or excess o f jurisdiction on the part of any branch orinstrumentality 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 foreign state constitution. The CONCOMgranted this enormous power to our courts in view of our experience under martial law where abusiveexercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine.Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened thechecking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. Incases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is nowbeyond dubiety that the government can no longer invoke the political question defense. Section 18 of ArticleVII completely eliminated this defense when it provided:

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The Supreme Court may review, in an a ppropriate proceeding filed by any citizen, the sufficiency of the factualbasis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof,and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of thecivil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts andagencies over civilians where civil courts are able to function, nor automatically suspend the privilege of thewrit.

The CONCOM did not only outlaw the use of the political question defense in national security cases. To a greatdegree, it diminished its use as a shield to protect other abuses of government by allowing courts to penetratethe shield with the new power to review acts of any branch or instrumentality of the government ". . . todetermine whether or not there has been a grave abuse of discretion amounting to lack or excess ofjurisdiction." In Tolentino v. Secretary of Finance, 7 I posited the following postulates:

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Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be establishedby law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which arelegally demandable and enforceable, and to determine whether or not there has been a grave abuse ofdiscretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of theGovernment.

Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commissionexplained the sense and the reach of judicial power as follows:

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. . . In other words, the judiciary is the final arbiter on the question of whether or not a branch of government orany of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute

an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to passjudgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade theduty to settle matters of this nature, by claiming that such matters constitute political question.

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can declineto exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strikedown any act of a branch or instrumentality of government or any of its officials done with grave abuse ofdiscretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated thechecking powers of this Court against the other branches of government despite their more democraticcharacter, the President and the legislators being elected by the people.

It is, however, theorized that this provision is nothing new. I beg to disagree for the view misses the significantchanges made in our constitutional canvass to cure the legal deficiencies we discovered during martial law.One of the areas radically changed by the framers of the 1987 Constitution is the imbalance of power betweenand among the three great branches of our government the Executive, the Legislative and the Judiciary. Toupgrade the powers of the Judiciary, the Constitutional Commission strengthened some more theindependence of courts. Thus, it further protected the security of tenure of the members of the Judiciary byproviding "No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of itsMembers." It also guaranteed fiscal autonomy to the Judiciary.

More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council which was taskedwith screening the list of prospective appointees to the judiciary. The power of confirming appointments to thejudiciary was also taken away from Congress. The President was likewise given a specific time to fill upvacancies in the judiciary ninety (90) days from the occurrence of the vacancy in case of the Supreme Courtand ninety (90) days from the submission of the list of recommendees by the Judicial and Bar Council in case ofvacancies in the lower courts. To further insulate appointments in the judiciary from the virus of politics, theSupreme Court was given the power to "appoint all officials and employees of the Judiciary in accordance withthe Civil Service Law." And to make the separation of the judiciary from the other branches of governmentmore watertight, it prohibited members of the judiciary to be ". . . designated to any agency performing quasijudicial or administrative functions." While the Constitution strengthened the sinews of the Supreme Court, it

reduced the powers of the two other branches of government, especially the Executive. Notable of the powersof the President clipped by the Constitution is his power to suspend the writ ofhabeas corpus and to proclaimmartial law. The exercise of this power is now subject to revocation by Congress. Likewise, the sufficiency ofthe factual basis for the exercise of said power may be reviewed by this Court in an appropriate proceedingfiled by any citizen.

The provision defining judicial power as including the "duty of the courts of justice . . . to determine whether ornot 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" constitutes the capstone of the efforts of the ConstitutionalCommission to upgrade the powers of this court vis-a-vis the other branches of government. This provisionwas dictated by our experience under martial law which taught us that a stronger and more independentjudiciary is needed to abort abuses in government. . . .

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In sum, I submit that in imposing to this Court the duty to annul acts of government committed with graveabuse of discretion, the new Constitution transformed this Court from passivity to activism. This

transformation, dictated by our distinct experience as a nation, is not merely evolutionary but revolutionary.Under the 1935 and 1973 Constitutions, this Court approached constitutional violations by initially determiningwhat it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approachconstitutional violations not by finding out what it should not do but what it must do. The Court must dischargethis solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as thecase 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 against government abuses if we refuse to exercisethis new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheath the judicialsword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of ourcourts. In Tolentino, 8 I endorsed the view of former Senator Salonga that this novel provision stretching thelatitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue relianceon inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history shouldprovide us the light and not the experience of foreigners.

II

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

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUEAn enrolled bill is one which has been duly introduced, finally enacted by both Houses, signed by the properofficers of each House and approved by the President. 9 It is a declaration by the two Houses, through theirpresiding officers, to the President that a bill, thus attested, has received in due the sanction of the legislativebranch of the government, and that it 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 written Constitution controlling the legislative branchof 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 and regarded with the same veneration asthe judgment of the courts which cannot be collaterally attacked. 10 In England, the conclusiveness of the billwas premised on the rationale that "an ad of parliament thus made is the exercise of the highest authority that

this kingdom acknowledges upon earth. And it cannot be altered, amended, dispensed with, suspended orrepealed, but in the same forms and by the same authority of parliament; for it is a maxim in law that itrequires the same strength to dissolve as to create an obligation. 11

Over the years, the enrolled bill theory has undergone important mutations. Some jurisdictions have adoptedthe modified entry or affirmative contradiction rule. Under this rule, the presumption in favor of the enrolled billis not conclusive. The rule concedes validity to the e nrolled bill unless there affirmativelyappears in thejournals of the legislature a statement that there has not been compliance with one or more of theconstitutional requirements. 12 Other jurisdictions have adopted the Extrinsic Evidence Rule which holds that anenrolled bill is only prima facie evidence that it has been regularly enacted. The prima facie presumption,however, can be destroyed by clear, satisfactory and convincing evidence that the constitutional requirementsin enacting a law have been violated. For this purpose, journals and other extrinsic evidence are allowed to bereceived. 13 Some limit the use of extrinsic evidence to issues of fraud or mistakes. 14

These variants developed after a re-examination of the rationale of the enrolled bill. The modern rationale forthe enrolled bill theory was spelled out in Field v. Clark, 15viz.:

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The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in opensession, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passedCongress. It is a declaration by the two Houses, through their presiding officers, 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 bepresented to him. And when a bill, thus attested, receives his a pproval, and is deposited in the public archives,its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As thePresident has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of theSecretary of State, and having the official 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 bythe legislative and executive departments of the government, charged, respectively, with the duty of enactingand executing the laws, that it was passed by Congress. The respect due to coequal and independentdepartments requires the judicial department to act upon the assurance, and to accept, as having passedCongress, all bills authenticated in the manner stated; leaving the courts to determine, when the questionproperly arises, whether the Act, so authenticated, is in conformity with the Constitution.

The principle of separation of powers is thus the principal prop of the enrolled bill doctrine. The doctrine is alsojustified as a rule of convenience. Supposedly, it avoids difficult questions of evidence. 16 It is also believed thatit will prevent the filing of too many cases which will cast a cloud of uncertainty on laws passed by thelegislature. As explained in Ex Pacte Wren 17 "if the validity of every act published as law is to be tested byexamining its history, as shown by the journals of the two houses of the legislature, there will be an a mount oflitigation, difficulty, and painful uncertainty appalling in its contemplation, and multiplying a hundredfold thealleged uncertainty of the law." The conclusiveness of the enrolled bill is also justified on the ground thatjournals and other extrinsic evidence are conducive to mistake, if not fraud.

These justifications for the enrolled bill theory have been rejected in various jurisdictions in the United States.In his Dissenting Opinion in Tolentino v. Secretary of Finance, and its companion cases, 18 Mr. Justice Regaladocited some of the leading American cases which discussed the reasons for the withering, if not demise of theenrolled bill theory, viz:

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Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that

doctrine has long been revisited and qualified, if not altogether rejected. On the competency of judicial inquiry,it has been held that "(u)nder the "enrolled bill rule" by which an enrolled bill is sole expository of its contentsand conclusive evidence of its existence and valid enactment, it is nevertheless competent for courts to inquire

as to what prerequisites are fixed by the Constitution of which journals of respective houses of Legislature arerequired 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 by the legislative offices and filed with thesecretary of state, is the bill as it passed, yet this presumption is not conclusive, and when it is shown from thelegislative journals that a bill though engrossed and enrolled, and signed by the legislative officers, containsprovisions that have not passed both houses, such provisions will be held spurious and not a part of the law. Aswas said by Mr. Justice Cockrell in the case ofWade vs.Atlantic Lumber Co ., 51 Fla. 628, text 633, 41 So. 72,

73:

This Court is firmly committed to the holding that when the journals speak they control, and against such proofthe enrolled bill is not conclusive.

More enlightening and apropos to the present controversy is the decision promulgated on May 13, 1980 by theSupreme Court of Kentucky in D & W Auto Supply, et al . vs. Department of Revenue, et al., pertinent excerptswherefrom are extensively reproduced hereunder.

. . . In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of this courtwhich created and nurtured the so-called "enrolled bill" doctrine.

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[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. . . .

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. . . Under the enrolled bill doctrine as it now exists in Kentucky, a court may not look behind such a bill,enrolled and certified by the appropriate officers, to determine if there are any defects.

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. . . In Lafferty, passage of the law in question violated this provision, yet the bill was properly enrolled andapproved by the governor. In declining to look behind the law to determine the propriety of its enactment, thecourt enunciated three reasons for adopting the enrolled bill rule. First, the court was reluctant to scrutinize theprocesses of the legislature, an equal branch of government. Second, reasons of convenience prevailed, whichdiscouraged requiring the legislature to preserve its records and anticipated considerable complex litigation ifthe court ruled otherwise. Third, the court acknowledged the poor record-keeping abilities of the GeneralAssembly and expressed a preference for accepting the final bill as enrolled, rather than opening up the

records of the legislature. . . .

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Nowhere has the rule been adopted without reason, or as a result of judicial whim. There are four historicalbases for the doctrine. (1) An enrolled bill was a "record" and, as such, was not subject to attack at commonlaw. (2) Since the legislature is one of the three branches of government, the courts, being coequal, mustindulge in every presumption that legislative acts are valid. (3) When the rule was originally formulated,record-keeping of the legislatures was so inadequate that a balancing of equities required that the final act, theenrolled bill, be given efficacy. (4) There were theories of convenience as expressed by the Kentucky court inLafferty.

The rule is not unanimous in the several states, however and it has not been without its critics. From anexamination 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 present case) produces resultswhich do not accord with facts or constitutional provisions. (3) The rule is conducive to fraud, forgery,corruption and other wrongdoings. (4) Modern automatic and electronic record-keeping devices now used by

legislatures remove one of the original reasons for the rule. (5) The rule disregards the primary obligation ofthe courts to seek the truth and to 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.

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DIANNE ROSALES MANRIQUE DIANNE ROSALES MANRIQUE[2] This court is not unmindful of the admonition of the doctrine of stare decisis. The maxim is "Stare decisis etnon quieta movere," which simply 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 require perpetuation of error or logic. As we statedin Daniel's Adm'r v. Hoofnel, 287 Ky 834, 155 S.W.2d 469, 471-72 (1941).

The force of the rule depends upon the nature of the question to be decided and the extent of the disturbanceof rights and practices which a change in the interpretation of the law or the course of judicial opinions maycreate. Cogent considerations are whether there is clear error and urgent reasons "for neither justice norwisdom requires a court to go from one doubtful rule to another," and whether or not the evils of the principlethat 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, orhas been discredited by actual experience, it should be discarded, and with it the rule it supports.

[3] It is clear to us that the major premise of the Lafferty decision, 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, duplicating machines, recording equipment, printing presses, computers,electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assemblyto keep accurate and readily accessible records.

It is also apparent that the "convenience" rule is not appropriate in today's modern and developing judicialphilosophy. The fact that the number and complexity of lawsuits may increase is not persuasive if one ismindful that the overriding purpose of our judicial system is to discover the truth and see that justice is done.The existence of difficulties and complexities should not deter this pursuit and we reject any doctrine orpresumption that so provides.

Lastly, we address the premise that the equality of the various branches of government requires that we shut

our eyes to constitutional failing and other errors of our copartners in government. We simply do not agree.Section 26 of the Kentucky Constitution provides that any law contrary to the constitution is "void." The properexercise of judicial authority requires us 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 ourobligation to "support . . . the Constitution of the commonwealth." We are sworn to see that violations of theconstitution by any person, corporation, state agency or branch or government are brought to light andcorrected. To countenance an artificial rule of law that silences our voices when confronted with violations ofour constitution is not acceptable to this court.

We believe that a more reasonable rule is the one which Professor Sutherland describes as the "extrinsicevidence." . . . . Under this approach there is a prima facie presumption that an enrolled bill is valid, but suchpresumption may be overcome by clear, satisfactory and convincing evidence establishing that constitutionalrequirements have not been met.

We therefore overrule Lafferty v. Huffman and all other cases following the so-called enrolled bill doctrine, tothe extent that there is no longer a conclusive presumption that an enrolled bill is valid. . . .

Clearly, the enrolled bill doctrine no longer enjoys its once unassailable respectability in United States.Sutherland reveals that starting in the 1940's,". . . the tendency seems to be toward the abandonment of the conclusive presumption rule and the adoptionof the third rule leaving only a prima facie presumption of validity which may be attacked by any authoritativesource of information." 19

It is high time we re-examine our preference for the enrolled bill doctrine. It was in the 1947 case ofMabanagv. Lopez Vito, 20 that this Court, with three (3) justices dissenting, first embraced the rule that a dulyauthenticated bill or resolution imports absolute verity and is binding on the courts. In 1963, we firmed up thisruling in Casco Philippine Chemical Co. v. Gimenez, 21 thus:

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Hence, "urea formaldehyde" is clearly a finished product which is patently distinct and different from "urea"and "formaldehyde," as separate articles used in the manufacture of the synthetic resin known as "ureaformaldehyde." Petitioner contends, however, that the bill approved in Congress contained the copulativeconjunction "and" between the term "urea" and "formaldehyde," and that the members of Congress intended

to exempt "urea" and "formaldehyde" separately as essential elements in the manufacture of the syntheticresin glue called "urea formaldehyde," not the latter as a finished product, citing in support of this view thestatements made on the floor of the Senate, during the consideration of the bill before said House, by members

thereof. But said individual statements do not necessarily reflect the view of the Senate. Much less do theyindicate the intent of the House of Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 OffGaz. 615; Mayor Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; ManilaJockey Club, Inc. vs. Games and Amusement Board, L-12727 [February 19, 1960]). Furthermore, it is wellsettled 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 thePresident (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. onElections, L-18684, Sept. 14, 1961). If there has been any mistake in the printing of the bill before it wascertified by the officers of Congress and approved by the Executive on which we cannot speculate withoutjeopardizing the principle of separation of powers and undermining one of the cornerstones of our democraticsystem the remedy is by amendment or curative legislation, not by judicial decree.

In the 1969 case ofMorales v. Subido, 22 we reiterated our fidelity to the enrolled bill doctrine, viz:

. . . . We cannot go behind the enrolled Act to discover what really happened. The respect due to the otherbranches of the Government demands 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 theunenviable and unwanted role of a sleuth trying to determine what actually did happen in the labyrinth of law-making, with consequent impairment of the integrity of the legislative process. The investigation which thepetitioner would like this Court to make can be better done in Congress. After all, House cleaning theimmediate and imperative need for which seems to be suggested by the petitioner can best be effected bythe occupants thereof. Expressed elsewise, this is a matter worthy of the attention not of an Oliver WendellHolmes but of a Sherlock Holmes.

Significantly, however, Morales diluted the conclusiveness rule of the enrolled bill doctrine. The ponenciastressed:

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 enrolled bill. To be sure there are certain matters which the Constitution expressly requiresmust be entered on the journal of each house. To what extent the validity of a legislative act may be affectedby a failure to have such matters entered 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 inthe event of any discrepancy.

In the 1974 case ofAstorga v. Villegas, 23 we further diluted the enrolled bill doctrine when we refused to applyit after the Senate President declared his signature on the bill as invalid. We ruled:

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Petitioner's argument that the attestation of the presiding offices of Congress is conclusive proof of a bill's dueenactment, required, it is said, by the respect due to a co-equal department of the government, is neutralizedin this case by the fact that the Senate President declared his signature on the bill to be invalid and issued asubsequent clarification that the invalidation for his signature meant that the bill he had signed had never beenapproved by the Senate. Obviously this declaration should be accorded even greater respect than theattestation it invalidated, which it did for a reason that